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View Full Version : Can I use 'XXX Brewing Company' even if I'm not incorporated?



a_shorething
01-07-2016, 07:57 AM
When we set up our company with the state we set it up as an LLC and specifically put DBA 'XXX Brewing Company' but when it asked for the name it said that we couldn't use 'XXX Brewing Company' as the actual registered name because it's not a corporation.

Does anyone know if we can use 'XXX Brewing Company' on our signs and marketing materials even though we're not a corporation?


PS- we're in NJ in the USA which is the hub litigation for the entire planet so if it's illegal anywhere, it's probably not legal here.

Thanks in advance for any help.


EDIT: 2:05pm. Sorry about this. I'll leave it for future searches but I called the NJ BAC (Business Action Center) and they said no problem referring to it as a 'company'.

I hope no one minds this little thread. Didn't know who to call initially so I thought I'd check on here, but then I found them.

BeerBred
01-07-2016, 06:36 PM
Isn't an LLC a company? Pretty sure it is. Confused, is "XXX" your brewery's name or is that written here in place of the real name... Molson beer has a brand called XXX (known as triple X), expect trademark issues if you use it.

a_shorething
01-08-2016, 04:21 AM
Thanks. You're right, and the person I spoke to at the BAC pretty much said the same thing.

My confusion stemmed from the fact that on the original online form I filled out to register the name, it wouldn't allow me to use 'XXX Brewing Company LLC' and (I think) the reason it states was that it wasn't incorporated. But maybe I'm wrong, I don't know.

I just didn't want to go too far down that road and then find that after mysignage and swag was all printed, I couldn't use that name.

And XXX is just used in place of my company name. It's no my actual company name.

Thanks for the response.

RBC
04-12-2016, 01:44 PM
--------------------
Hello Everyone,

I have noticed your comments and I think I may be able to alleviate some of the confusion, particularly concerning the distinction between a trademark and a trade name.

A trademark is a designation, such as a word, slogan, or symbol used to identify and distinguish goods or services. When referring to services, such marks are often called “service marks.” Alternatively, a trade name is a name or title used by a particular organization engaged in commerce. Therefore, a trademark differs from a trade name in that a trade name is the name of a business, whereas a trademark identifies the source of a good or service.

Trademarks and trade names are entitled to the same common law protections, however, trade names are generally not federally registerable unless the trade name also has significance as a trademark.

You only need to expect trademark issues if your mark is so similar as to likely cause confusion, mistake, or deception about the source of the goods. This test is applicable to both registered and unregistered marks.

I hope this answers your question!
-------------------

Wendy Zimbone, JD
Talem IP Law LLP
http://www.talemip.com

Maybe I missed something, but the person was not asking about trademarks. But specifically about structure issues with the tax man.

mashpaddled
04-21-2016, 03:17 PM
I would double check with the involved licensing agencies whether what you were told is correct. In many jurisdictions one cannot use the term "incorporated" or its abbreviation "inc." unless the business structure is licensed as a corporation and/or has incorporated for tax purposes (as an S or C corporation). An LLC is a limited liability company and typically an LLC is fine to call itself a company without having incorporated and actually would not be allowed to use a trade name including "incorporated" without actually incorporating. However, this is the general rule and NJ may have different rules.

Baldrick
10-05-2016, 06:15 AM
Agreed.

Putting LLC behind a name of a company that does not exist invites legal trouble.

However, if your company is "Fred's Brewing LLC" and you operate it as "XXX Brewing" I don't think there would be issues with that.
I'm not sure what your jurisdictional laws are but I've seen lots of examples of companies operating under a particular name that is not their limited liability corporation's name.