Legal Question in Business Law in Georgia

Re: Business Name / Non-Compliant Business

You have multiple issues and some misinformation. The "non-compliant" designation simply means they have not paid the annual registration for 2009, which they can cure at anytime during the year (and really anytime before the Secretary of State takes action). Only when a company is voluntarily, judicially or administratively dissolved can you register the same name in that state.

Your other issue is an intellectual property one that is much too complicated for this type of forum. However, I can tell you that registering a trademark (there is no such word as "trademarked") is not required for protection of a name as long as the name is being use in commerce and is not an infringement itself in the same industry and geographic location. So, there is a good chance that your company will not be able to use the name in Georgia, at least. You should speak with an intellectual property attorney to determine your rights to the name.

If you would like to discuss any issues further, please feel free to contact my office. My contact information is below. Thank you.

The foregoing is general information only, not specific legal advice. No attorney/client relation has been created or should be implied.

Re: Business Name / Non-Compliant Business

I will try to clarify the intellectual property portion of this question.

There is a very common misconception that one may register any business name as a trademark. This is not necessarily true. Trademarks are not necessarily business names, and business names are not necessarily trademarks. Trademarks, also called 'brand names' and 'logos', serve as unique identifiers of the source and quality of goods and services to the relevant consuming public. Business names, aka commercial names, identify business entities. If goods and/or services are offered for sale to the relevant consuming public under the same name as the business name, then the business name also happens to be a trademark name. For example, XYZ, Inc. is company that manufactures and sells products under the brand names (trademarks) BUZZ, ZIP, and WINK. XYZ, Inc. may register and own the trademarks "BUZZ", "ZIP", and "WINK" for the particular goods they are used in conjunction with. However, XYZ, Inc. cannot register the name "XYZ, Inc." as a trademark if it does not use that name as a brand name of any goods and services.

From a trademark perspective, you want to be concerned with the brand names of educational materials and services which are already in use and/or registered as trademarks - regardless of the trademark owner's business entity name. Trademarks need not be registered as prior use gives the owner common law rights to the mark. Trademarks which are only used in one state may be registered in that particular state. Trademarks which are used in 'interstate commerce' (multiple states), may be registered with the United States Patent Trademark Office (USPTO). Registration with the USPTO gives the trademark owner exclusive rights to use their trademark in the entire country, regardless of whether they actually sell in the entire country. In all cases, using 'confusingly similar' trademarks for 'confusingly similar' goods and/or services is infringement of the trademark owner's trademark rights.

For an investigation into use of a particular trademark name, you should retain an experienced trademark attorney. You can obtain a search of common law, state, and federal trademarks from several reputable services, but only an experienced attorney will know how to interpret the results properly.

I hope this information was useful. Good luck to you.

Sarah