Legal Question in Business Law in Massachusetts

Re: name of company is taken in other states or countries

It would be theoretically possible to block any other person from forming a corporation with the name that you have chosen, by qualifying as a "foreign corporation" in all 49 states other than the one where you incorporate. However, this is not the way to protect the name against anyone using it.

What fits your needs is a federal trademark registration, which, when supported by actual use of the trademark in interstate commerce, would give you the right to prevent anyone else from using that trademark throughout the USA. Prior to filing an application, it is strongly recommended that the would-be-applicant have a trademark clearance search done in order to ensure that no other person has used the same trademark anywhere in the country.

Best wishes,

LDWG

Re: name of company is taken in other states or countries

Sorry, I replied to your original message, and your amended query asks a different question.

The touchstone of federal trademark law is use in interstate commerce, and first use takes priority over subsequent users. Thus, if another person has already used the name that you have in mind, and the use is made with respect to goods or services that are similar to those that you intend to sell under the same name, you would be running afoul of the senior user's common-law trademark rights and certainly could not dislodge that user. On the other hand, if your use is in a substantially-unrelated category (e.g., Delta Airlines and Delta plumbing fixtures), the names could coexist in the market.

This first-use ingredient of federal trademark law is the reason for performing a trademark clearance search before undertaking the expense of a federal trademark application.

Best wishes,

LDWG

Re: name of company is taken in other states or countries

Before any corporation chooses a company name it should do a tradename national search to determine in what states the proposed name already exists. If your company uses a name that has been protected you are only buying litigation with that company. You should also avoid a name that closely resembles an existing name because you could be sued for creating confusion in the minds of consumers or business clients. YOu should consult with a trademark attorney to be sure you have done an adequate name check and to select a name that does not prompt lawsuits which are very expensive propositions.