I was running a business with my ex, business name was his family name +inc...I sold my share of the business to my ex , to settle the divorce and signed no non compete at all.
Now I want to open my own business, I need to know if I can use the same family name for my business and change the second name:Example
Our business was Smith LLC
I want my new business to say Smith Antiques
Am I allowed to do that lawfully?
There may be at least trademark infringement concerns if you use a confusingly similar name.
Generally, you should do a US full trademark search which would include at least, USPTO registered trademarks, USPTO pending trademark applications, US state registrations, common law trademarks, and internet domain names to see if there are confusingly similar conflicting trademarks.
You should discuss with an intellectual property attorney in a private consultation.
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See https://www.sos.ca.gov/business-programs/. You can usually use your own name for a business name. It can be a good idea to avoid confusion.
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Regardless of the non-compete, there is Trademark law to worry about. You sold your share of the business to your ex, meaning he obtained the rights to that business including the goodwill and any intellectual property that the company holds, which does include any trademark the company used as the indicator of goods and services it provides. If the name has become a trademark (likely) then you have no right to use a confusingly similar name in a related market. If totally different markets (one sells antiques and the other is an auto repair shop) than there is no likelihood of confusion. Google "trademark infringement" and "likelihood of confusion" for some background info.
Peace be with you, and may love guide you.
Not if that causes market confusion with the original business, which it would at least presumably based on your comments here.
This is really a trademark matter and you should probably consider a properly distinctive trademark.
Before you invest in any trademark make sure you get some legal guidance upfront. It is of course best practice to clear it before you start using any trademark and starting with a strong one is your best strategy. Know as well that merely registering your business name with a state or county agency or acquiring a domain does not convey any right to use that name in commerce as a source identifier or trademark. For example, I can presumably register my new tech start up "Boogle" with the CA secretary of state because there is no other business already doing business there under that name, but this does not mean that I would not be infringing on the Google trademark, which I would be. The onus is on you to ensure the name you choose is not a problem.
Your trademark will be one of if not the most important and valuable business assets you will have and you will ultimately spend more money in support if it than you will anywhere else (advertising, marketing, PR, branding, packaging, etc.). So you owe it to your business and yourself to make sure you handle this properly upfront and the first order of business always starts with a proper and comprehensive clearance.
Whenever you endeavor into investing in a trademark it is very important that you conduct the proper clearance due diligence on all the text names upfront and before you start spending any money in support of it or submit an application to the USPTO. In the US, this means searching under both federal (USPTO) as well as common law because trademark rights stem from use in this country NOT registration. This means that acquiring a federal registration does not necessarily mean that you are not infringing on another's intellectual property.
If you need more clarification, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free consultation, get some insights then pick the best fit to work with and know you are free to work with counsel located anywhere as you have many options available not just those that provide services in your home state.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Legal, LLC on the basis of this posting.
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