Raleigh, NC asked in Business Formation, Trademark and Intellectual Property for North Carolina

Q: Can I register my new business name as an LLC if it's different from an incorporated company's name by only one letter?

I'm rebranding my graphic design business in Raleigh, NC and I've found the perfect name. However, the name is similar to another company's name; the only difference is my new name has an additional letter in it to distinguish it from this other company. My company would be registered as an LLC; this other company is incorporated (Hypothetical example — My name: Axiom, LLC vs Other company name: Axium, Inc.). While I don't know which state the name was registered in, I recently found this other company filed a trademark 17 years ago and it was cancelled under 710 - Cancelled - Section 8 about 7 years. My services are in the Design/Creative arena while this other company creates enterprise information portal software for corporations to host websites that disseminate and manage corporate information via Internet-based file transfer, database management and program management. Can I still register my new company name & trademark it although it's similar to the other company's name?

1 Lawyer Answer

Will Blackton

Answered
  • Raleigh, NC
  • Licensed in North Carolina

A: Your question can be answered a few ways:

Will the North Carolina Secretary of State accept your LLC's articles of organization if the name differs by only one letter from another entity also registered in North Carolina? Yes, the NC Secretary of State will permit registration so long as the /exact/ legal name is not already taken by another entity registered to do business in NC, which includes consideration of capitalization, spacing, and punctuation.

Will the trademark office accept a trademark application where one letter is different than a pre-existing trademark? Possibly, that depends on whether you're applying for the same class of goods and several other factors.

Will you be exposed to a trademark infringement, dilution, or some similar lawsuit based on the similarity of names if your entity only differs by one letter? Possibly, the closer your industry to the existing rights-holder's industry, the more likely that rights-holder may have to send a demand letter or file a lawsuit to protect their brand. Trademarks can be thought of as a use-it-or-lose-it asset, if a trademark holder knowingly allows others to use their mark in the same industry, any eventual demand or lawsuit about trademark infringement will be significantly weakened. So, Apple computer is probably not going to sue Appel housecleaning service, but will probably have to sue Appel hardware manufacturing.

You should talk with an attorney in your state with trademark and other business transactional experience before deciding on your new brand.

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