Does Using a DBA Prevent Somebody From Starting a Company With the Same Name

[rocketscientist]

My question involves business law in the state of: Texas

I have a DBA for my Sole Proprietorship in Tarrant County, Texas. I filed this DBA back in December of 2009. Recently I discovered that there is also a company that incorporated using the same name as my DBA. This company was incorporated in 2011, well after I started operating under the same name. Unfortunately, a DBA does not give me any rights to the use of the name and the individuals who incorporated under the same name were able to do so with the Texas Secretary of State. I searched the SOS website and I don't believe anyone has a Trademark or Servicemark under the name.

I like business name and it is associated with my internet domain name. So, I don't want to change it and want to continue to operate under the same name. I am a very small, sideline business and do not wish to go to court, nor do I have the resources to do so. Can anyone give me any advice as to what I might do to protect my business name and continue to operate under this name?

[flyingron]

Guess what? Texas has some of the strictest corporate naming laws in the country. However, the fact that there exists someone doing business under a fictitious name doesn't keep them from registering that as their corporate name.

Trademarks are not directly related to corporation names. If you are using the fictitious name as a trademark, you have rights to it even if a different company is established with that name. Many companies can not actually use their legal corporate names as trademark.

One is not obliged to register with either the feds or the state to have trademark rights. It provides additional protections, but the rights arise from use in commerce.

As for the domain, the question is whether you have registered the domain in bad faith. If you have proof you operated a business under that name, that would be compelling. Whether your common law trademark use or fictitious name will work with the arbitrating body if it comes to that is uncertain. Unfortunately the domain name resolution procedure is not controlled by any sane rule of law.

You'll have to describe your use of the name to get a better answer, of course the best answer would be to consult a local business law office.

[rocketscientist]

I have had the domain since I filed the DBA back in 2009. The name of my sole proprietorship is "Texas Engineering Services" and I have had a website and the DBA since 2009. My domain name is texeng.com (I believe the corporation with the same name has www.texasengg.com). I have used the entity for various things so I have definitely engaged in commerce under this name. The company that was incorporated under the same name is "Texas Engineering Services LLC" and the papers were filed on this company in 2011. I am a professional engineer and registered the name of my company with the Texas Board of Engineers as is legally required. I have checked with the board and "Texas Engineering Services LLC" is also registered, albeit at a later date than mine.

I'm wondering if I should contact the owners of the corporation using the same name as my DBA, indicate that there is a conflict, and try to resolve it or at least reach some kind of understanding about it. I don't know if they would be amenable to that or not but I'm sure it would be better than going to court. It certainly isn't worth litigating over in my view, but I clearly established the name first.

For future reference, is there a way in the state of Texas to start a sole proprietorship and prevent someone from coming along and incorporating under the same name? My original intentions were to incorporate at a later date when the volume of business supported taking that step. Now, unfortunately, I am effectively blocked from incorporating under this name. It doesn't seem fair and it simply doesn't make sense that someone would be able to incorporate under the same name as someone else's sole proprietorship. But, I've done some reading and, from what I can tell, that seems to be the case under Texas law.

Any advice as to what I should do to protect myself and my fledgling business would be greatly appreciated.

[flyingron]

If there is no overlap in the services you perform you often can make arrangements to cross-refer customers between each other.
If there is conflict, you may need to have an attorney look more carefully at the the situation.