Formation under a given name does not give a newly organized entity the right to use the name in violation of another person’s rights. In fact, the certificate issued by the Secretary of State to a domestic filing entity under the BOC specifically provides a statement that the issuance of the certificate of filing for the formation of an entity or the reservation of an entity name does not authorize the use of the entity name in this State in violation of the rights of another under the federal Trademark Act of 1946 (15 U.S.C. Section 1501 et. seq.), the Texas trademark law (Chapter 16, Texas Business & Commerce Code), or the common law. This restatement of the common law and of prior law is codified in section 5.001 of the BOC.
When the Secretary of State is requested to give advice about the availability of an entity name, the Secretary of State is reviewing only the names of active domestic and foreign filing entities, as well as name reservations and name registrations on file with the Secretary of State. The Secretary of State does not consider state or federal trademark registrations, assumed names filed with the county or the Secretary of State under chapter 71 of the Texas Business & Commerce Code, names of limited liability partnerships registered with the Secretary of State, or other sources that might indicate common law usage or reveal possible trade name or trademark infringement.
Advice about the availability of an entity name provided by the Secretary of State over the telephone or by e-mail response is preliminary advice. The decision on the acceptability of a particular name is never made until a document using the name is submitted for filing. Never make financial expenditures or execute documents utilizing a proposed entity name based on a preliminary name clearance.