Will filing a certificate of formation keep others from using my company name?
No. Generally, every business must protect its own intellectual property and good will. Filing a certificate of formation only prevents the secretary of state from filing a subsequent certificate of formation for an entity with a name that the secretary of state determines is the same as, or deceptively similar to your company name.
Texas law does not provide for registration of a business’s trade name, whether that business is incorporated or unincorporated.
Individuals and unincorporated entities that do business using an assumed name (often referred to as a “dba”) must file an assumed name certificate with the county clerk in each county in which business premises are maintained.
If a corporation, LLC, or LP does business under a name other than the legal name in its certificate of formation, it must file assumed name certificates with the secretary of state and with the clerk of the appropriate county. (See Assumed Name FAQ #9)
The secretary of state recommends that you consult a private attorney about trademarks, service marks, and other intellectual property matters.
Can a corporate general partner of an LP have the same name as the limited partnership, except for the organizational identifier, i.e., “Co.,” “Corp.,” or “Inc.”?
No. Filing entities cannot have names that are the same or deceptively similar, even if they are related companies or can obtain a letter of consent. Organizational identifiers, such as “Corporation,” “Inc.,” “Ltd.,” “L.L.C.,” etc., do not distinguish names that are otherwise the same or deceptively similar. A general partner’s name cannot be the same as or deceptively similar to the name of an LP.
Entities can have similar names if the proposed entity’s certificate of formation is accompanied by a letter of consent from the existing entity; for example, Texas Entrepreneurs GP, Inc. could consent to an LP being formed with the similar name of Texas Entrepreneurs, LP.
How to Obtain a Letter of No Objection from the Banking Commissioner in Order to Use Certain Words in a Proposed Business Title
Under the provisions of sections 31.005 and 181.004(a) of the Texas Finance Code, the name of a domestic or foreign entity is prohibited from containing certain words in its title. The Banking Commissioner has the authority to issue a letter of no objection for use of these words or terms. Receipt of the letter from the Commissioner will enable the requestor to submit certain filings to the secretary of state.
The following names, or phonetically similar derivatives of such names, taken from the list of prohibited names, have been determined to require a letter of no objection from the Banking Commissioner.
- Bank and Trust
- TrustPersons seeking the issuance of a letter of no objection should submit a letter containing the following information to the Banking Department’s Corporate Activities Division at the address appearing below:
- A detailed letter describing in plain language:
- the exact name they are seeking to use and the primary business activities of the entity in Texas; and
- why use of the term “bank,” “banc,” “trust,” etc., is important to use in the name and yet is not deceptive to the public; and
- the license status on the entity either: (1) indicating the status of any license(s) that the corporation must obtain in order to do business in this state, or (2) representing that no license or authorization is necessary to conduct that business in this state.
- A commitment addressed to the Commissioner from management of the entity, or an agent authorized to bind the entity, that the entity will not advertise or hold out to the public in any manner that it is a state or national bank, trust company or
- A full explanation of any affiliation with a bank, bank holding company, trust company, or other financial institution;
- Evidence of any qualification to do business in other states; and,
- $100 filing fee.
- If the entity owns or operates a web site, that contains the words “bank,” “banc,” “trust” etc., management of the entity, or an agent authorized to bind the entity, must submit a commitment that the entity will prominently display the following disclaimer on its homepage “(name of entity) is not a chartered bank or trust company, or depository institution. It is not authorized to accept deposits or trust accounts and is not licensed or regulated by any state or federal banking authority.”
- A detailed letter describing in plain language:
The Banking Commissioner will review the proposed name and use of terms, along with other material submitted as a whole in order to make a decision. Submission of the $100 filing fee is required for consideration, but does not constitute guarantee of approval of the proposed name. Generally, the Commissioner will grant a request if, in context, the term is not misleading and is used (1) to indicate a permissible and authorized affiliation with a bank or trust company; (2) by an actual trust or entity controlled by the trust for the purpose of conducting its own business (other than the business of providing banking or fiduciary services to the public); (3) by a vendor of services or products to financial institutions in a manner and context that fairly describes its business; or (4) as a term of art in a manner and context that clearly invokes an established secondary meaning. If your request falls outside these parameters, the chance of approval is slim.
Requests should be addressed to:
Corporate Activities Division
Texas Department of Banking
2601 North Lamar Blvd.
Austin, TX 78705-4294
How to obtain approval from the Texas Higher Education Coordinating Board (THECB) for use of the terms “college,” “university,” “school of medicine,” “medical school,” “health science center,” “school of law,” “law school,” or “law center” in an entity name.
The Texas Education Code prohibits the use of the terms “college,” “university,” “school of medicine,” “medical school,” “health science center,” “school of law,” “law school,” and “law center.” If a proposed name includes these terms, or terms of similar meaning, whether in English or another language, the entity must obtain the prior approval of the Texas Higher Education Coordinating Board (“THECB”). Tex. Ed. Code, § 61.313.
For authorization to use any of these terms in an entity name, a request letter should be submitted to the THECB stating the following:
- Name of the entity as proposed to be filed with the secretary of state.
- A brief statement of the business of the entity. One or two sentences should be sufficient; do not cut and paste boilerplate language from the certificate of formation.
- The following disclaimer, providing it is true: “The entity is not now nor will be a private institution of higher education or an educational or training establishment.”
If you wish to have your response faxed to you by THECB, in the body of the letter request a fax and provide your fax number. The request letter must contain the address and telephone number of the entity or person requesting the authorization (business letterhead is acceptable). The letter may be sent by the entity requesting the authorization or an agent representing the entity (attorney or other entity authorized to represent the entity to facilitate the approval)
Please mail or fax this information to:
Academic Affairs and Research Division
Texas Higher Education Coordinating Board
P.O. Box 12788
Austin, TX 78711
A copy of the approval letter from THECB should be submitted with your certificate of formation or other filing instrument to the secretary of state.