Can we incorporate our business in another state (with the same name) before we completely dissolve our current business
- We are currently incorporated as an S-Corp in RI
- We have never received any revenue
- We do have an EIN & bank account
- We are incorporating as a C-Corp in Delaware
Thanks in advance,
1 Answer from Attorneys
I'm not sure if I understand the question here. The short answer is of course you are free to set up a new entity in DE or anywhere else. DE will only check their state business database regards to name conflicts. If you intend on keeping the same profile (name and EIN) then you will have to either convert to a DE domiciled entity and this can only be done where the states have reciprocity or you will have to walk through a merger leaving the DE entity as the surviving company. This may get a little complicated however.
If you are promoting a brand and the name is serving as a trademark, then the following might be helpful.
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 RI 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.).
Whenever you endeavor into investing in a trademark it is very important that you conduct the proper clearance due diligence. 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.
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 phone consultation, get some insights then pick the best fit to work with.
If you would like to discuss further over a free phone consult, feel free to contact me anytime that is convenient.
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