Question #1: There are procedures stated in the statutes of your state as to how to force a division of the assets of the company if there is nothing stated in the governing documents of your corporation. The procedure will require an attorney to assist. Find a business lawyer in your state with trademark ("intellectual property") experience. You will need to provide that attorney with registration documents from the State and/or Federal trademark office(s) if the mark was formally registered. If it was not formally registered, there may be question as to what person or entity actually owns the "common law" trademark. You would need to provide the attorney with a history of the creation and use of the trademark, if any.
If you change the mark and the Federal Trademark Office allows it as not conflicting with any prior registration, then you have a new registered trademark.
The facts of Question #2 lead to some of the same issues. Common law trademark rights (those rights that exist before received formal registration with the government) begin at the time of creation. If the name of the company is claimed as an asset of the company, then you will have to speak with an attorney to see if you can legally obtain personal ownership.
There may be other legal ways that an attorney can address the issues for you depending on whether or not you and your partner shared in the initial investment in the company, including the creation of the name and logo, paying the fees to incorporate, other equity invested, and sweat equity. If your partner was in name only, the attorney may be able to argue for your full rights in the marks.
I have a different take on this, regardless of what form this company was. And by the way, an LLC has "members." A corporation has "shareholders. There are no 'partners." Only entities formed as partnerships have partners.
1. Yes. Your company never used the logo as a trademark by using it in association with goods or services, so it never acquired any TM rights and wasn't an asset. You can adapt it.
2. Company names, either corporate or LLC names, are registered with Secretary of State, and they're not necessarily trademarks. TMs, at the federal level, are registered with the US Patent and Trademark Office, although a TM can acquire "common law" TM rights through use before they're registered. Company names don't need to be trademarked. That's what TMs are for. Consumers often don't know, and they definitely don't care, what a brand's company name is.
If you want to be in business, you need to know the basics about what these corporate designations and assets are. That means doing things professionally, with a lawyer.
Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.
Nothing can replace you setting down with an attorney face to face and working out a plan of action and getting your answers with a two way exchange.
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.
Unfortunately, this is a common problem. I have seen this twice in the past year in my office. You need representation by a firm that combines intellectual property law expertise and corporate law expertise.
Let's start with corporate law. I don't know what you mean when you say the corporation is "dead". You and your "partner" had a business, and the corporate law of every state provides procedures for winding up and closing down a business. This includes procedures for dividing up the assets of the corporation. If the trademark is truly an asset of the corporation, then you cannot just walk away with it on your own---you need to either negotiate a buy-out, or ask a court to intervene to properly divide up the assets of the corporation. If you simply start using the trademark on your own without going through this process, you could be accused of wrongly wasting and dissipating corporate assets.
On the other hand. I would need to sit down with you to analyze whether, in fact, this trademark was truly a corporate asset. If it was never used in commerce, and if the company filed an "intent to use" registration, there may be a good argument that the trademark is either invalid or has been abandoned. If so, it has no value to the corporation, and you might be free to begin using the trademark and file your own registration for it. But without knowing many more details and facts, I could not begin to advise you to follow this approach----this is a dangerous approach because if your former partner believes the trademark has value, he could contest your right to use the trademark and accuse you of wrongdoing.
As my colleagues note, you need to separate in your mind corporate names and trademarks. A corporate name only becomes a trademark if it is associated in the minds of consumer's with the company's products or services. Otherwise, the main function of the name is to identify the company for purposes of state corporate law and tax law. What matters in the market is your trademark, not your company name. If you want to use the company name as your trademark, then you need to conduct a "trademark clearance" (which is different from a company name clearance), and you face the same problems discussed above with regard to winding up your corporation.
Bottom line---you are winding up a business and starting a new one. You have no real choice other than to retain IP and corporate business counsel to work through these issues with you. You cannot handle this on your own, and the discussions on this web-site--however valuable, are not a viable substitute for retaining legal counsel.
I agree with the others. As a practical matter, you should try to work an amicable solution with your business partner first, however. If you don't, and you are successful in creating profitable IP in the future, there is a 99.9% chance that you will be sued under a breach of fiduciary duty, corporate opportunity, or similar type of theory based on your business relationship. Therefore you should sit down with an attorney and work a compromise with your business partner (who should have his own attorney as well), whatever that may be. I would not try a unilateral approach until you have attempted to work things out in a way that is agreeable to both parties here. Otherwise, there will be that contingent risk hanging around indefinitely.