Legal Question in Business Law in California

You can legally incorporate under that name, but you are just asking for trouble down the line if the other company has been doing business for any amount of time before you. Name of incorporation is a minimal side issue in the world of Trademark Law. You may perfectly legally incorporate under a name another business is using, but find you cannot actually do business with the public because it violates the other business's previously established trademark rights. You must also realize that trademark rights arise from use, not filing anything. Whether a trademark is incorporated or registered only strengthens the mark and plays into issues of notice and damages for infringement. If a company is using a trade name or mark, before anyone else, they own it and anyone else using it later asks for trouble.

You may want to find out if the name itself has been trademarked with the US patent and trademark office.