Trademark Common Law

It is difficult to answer this question in a vacuum, in that I can't tell the similarity of the names and of the items sold or services rendered,but I will give you some general info. You are correct that it is not necessary to register a trademark to have ownership of a trademark. You just need to use it in commerce first. That being said the same words can be trademark for different companies if the use or the geographical area is distinct.
The strength of the trademark will depend on the type of word you are talking about. Fanciful marks are coined terms specifically created to function as a mark. think of Polaroid, Exxon and Xerox. These words were unknown to consumers before being created as marks. They are the strongest marks and are very protectable, meaning you probably can't use the word even if you are using it for a different product like "Polaroid T-Shirts" of "Exxon Fertilizer."Suggestive marks suggest qualities which are desirable for a product, but do not actually describe them. Think of "7-Eleven" for a convenience store, "Seventeen" for a teen magazine, or "Best Buy" for cheap electronics. Though not as strong as fanciful or arbitrary marks, suggestive marks are distinctive and highly protectable. Descriptive, surnames, and geographical marks which are merely descriptive of goods or services, are much weaker than fanciful, arbitrary or suggestive marks. To be protectable, these marks must have secondary meaning. That means that out in the marketplace when people hear that mark, they don't just think of the generic word, they think of the product. A declaratory judgment is almost always part of a trademark lawsuit. It is a court judgment that declares a company's right to use a particular mark; so it would be very valuable to you and your company to consider filing for one. You should definitely appeal the Sec'y of State's decision as your name is important to you after 7 years of business. Only a qualified practitioner can advise you as to the chances of success once they reveiw all the mateial. So get a lawyer quickly! Good Luck

For all the reasons that Oscar mentions, you need to hire a trademark attorney registered to practice in Massachusetts. Your dispute will be resolved based on Massachusetts' common and statutory trade name law.

I only add this thought --- at the moment, it sounds like your dispute only relates to which company can "register" the trade name with the Massachusetts Secretary of State. Note that in every state there are a number of different types of trade name "registrations": (1) registration of a name as the name of a business entity such as a corporation, LLC, or partnership, (2) registration of a name as a fictitious business name, and (3) registration of a name as a trademark.

Different rules apply depending upon which "registration" you're talking about and the legal benefits conferred by each "registration" are different (note that those benefits can be substantial). It sounds like you have lost the battle to reserve your trade name as the name of your business entity. Your own attorney should decide if that decision by the Secretary of State precludes you from now seeking to register your trade name as a trademark -- and, if it is lawful, whether that would even make tactical sense (why risk another rejection?)

One rule that typically applies to all such registrations is the one that you mention -- assuming the trade name is protectable at all, the common law trade name rights in a trade name are owned by the first to use the name in commerce. What follows from that rule is that any "registration" of the trade name by another is subject to the preexisting rights of the one who first used the name. In short, "registration" does not confer ANY trade name rights if someone already owns those rights. As Oscar notes, there is always a question of whether the two trade names are the same or not -- and if they're not then both parties may own their respective trade names.

The reason that you need an attorney soon is that the other company may now register the disputed trade name as the name of its business entity and as a trademark -- and with registration comes the legal presumption that it owns the exclusive rights to use that name throughout the state. While it would not likely win if you can prove that you used the trade name in commerce first, it could nonetheless sue YOU for infringement and you would have the burden to overcome the presumption that the other company owns the trade name rights.

Get a lawyer. He or she may be able to talk some sense into the other side.