Can Another Business Use Your Company Name in Texas?
Filing Articles of Incorporation, a Certificate of Formation, an Assumed Name Certificate, and/or a "dba" does not give you any rights to use a name in commerce. Filing a formation document with the Secretary of State to create a corporation or other entity with a given legal name only prevents the Secretary of State from filing a formation document that states a legal name that the Secretary determines is not distinguishable in its records.
Simply filing a formation document with a legal name does not authorize you to use the legal name in violation of someone else's rights to the name. It does not prevent someone else from using that name in Texas commerce. It does not prevent the Secretary of State or county clerk from filing the same name as an assumed name. It does not prevent the Secretary of State from registering a mark that is the same as or similar to that legal name.
Similarly, filing an Assumed Name Certificate or “dba” with the Secretary of State or a county clerk merely records information about the underlying business. Simply filing an Assumed Name Certificate or “dba” does not authorize you to use the name in violation of someone else’s rights to the name. It does not prevent anyone else from using the name in Texas commerce. It does not prevent the Secretary of State from filing a new entity with that name as its legal name. It does not prevent the Secretary of State or county clerk from filing the same name as an assumed name. It does not prevent the Secretary of State from registering a mark that is the same as or similar to that name.
When Cn You Use TM or SM or ®?
Any time you claim rights in a mark, you can use TM (trademark) or SM (service mark) to alert the public to your claim. You do not have to register a mark before you start using TM or SM in Texas.
The ® is the symbol used for federal registration. You can only use ® if your mark is actually registered at the federal level with the United States Patent and Trademark Office (USPTO). Registering a mark with the Texas Secretary of State does not entitle you to use ®. There is no symbol that indicates state registration of your mark.
How Can You Tell if Someone Else Already Has Rights to a Mark?
Registering your mark with the Secretary of State does not necessarily mean that someone else does not already have a superior right to use that name in commerce. When examining an application to register a mark, the Secretary of State only considers its database of registered Texas marks and those registered with the USPTO. The person seeking to register a mark is responsible for a more substantial search to avoid infringing on the marks of others. Private companies can do a comprehensive search for a fee.