There are times when it may be necessary for you to register a business name with some branch of the state or federal government, typically when the known business name is considered to be "fictitious." A fictitious business name is any name used by the business other than the one on file with the articles of incorporation (which would be the "legal name" of the business).
There are several measures that you can take to protect the name of your business. First, you will want to make sure that your company name has been registered. Second, if you plan on running your business under an assumed name, or a fictitious business name, you will need to follow the state laws that cover this area. In addition, you will want to file for trademark protection of your business name.
LLCs, Corporations, and Limited Partnerships
In most situations, if your business has been registered as a corporation, limited partnership, or a limited liability company (LLC), that registration will automatically register a business' name. By filing the articles of incorporation, statement of limited partnership, or articles of organization with the appropriate state office, you have ensured that the legal business name of your company cannot be taken by another company within your state.
Filing a Fictitious Business Name Statement
However, there are certain situations where -- even though you have registered a business name -- you may need additional protection. For instance, you must follow the requirements for filing a fictitious business name statement if you plan to use a name other than the one legal business name. For a sole proprietorship, the legal name of a business is the full name of the person who owns the company. For a partnership, the legal name of a company is what the partnership agreement states (or the last names of the partners). If your business has been incorporated as a LLC, then the legal name of the business is the one that is registered with the state.
This fictitious name statement, or "assumed name certificate," should be filed with the appropriate office of the state government. In most states, a limited liability company will file the statement with the Secretary of State or the Department of Corporations. However, some states require LLCs to file a DBA (doing business as) certificate with city clerks.
Reasons for Registering Your Fictitious Business Names
The main incentive for registering a fictitious business name is that the owner of the business gains legal recognition of the assumed name. Consequently, the owner of the business can do things like opening a bank account under the assumed name and enforce contracts that were signed under the fictitious name. Lastly, by registering the fictitious name, a business owner can make sure that the name will not be taken by any other company.
Steps for Registering Your Fictitious Business Name
How you go about registering your fictitious business name will depend on which state your business is located and registered in. In some states, businesses register fictitious names with the Secretary of State, while in others these assumed names are registered at the county level. Â
Business Names as Trademarks
Any businesses that you start, even the small ones, have the potential of taking off and making it into the national marketplace. Because of the nature of today's market, it is often a good idea to also seek trademark protection for your business name. If you meet the requirements of establishing a trademark, this can be a powerful tool for protecting your business name that will last indefinitely.
A national trademark can be acquired by filing with the United States Patent and Trademark Office (USPTO). This is the most powerful trademark that is available within the United States and puts the entire country on notice of your business' registered trademark and can also be a powerful tool for you to use to protect your business' name.
However, a United States trademark can be difficult to obtain, and sometimes a state or regional trademark may be more suited to your business. Once your state trademark is established, every business within that state's jurisdiction is on notice of your business' name.
With a successful trademark application, your business name or fictitious business name gains many protections. For instance, if a competitor uses your trademark or a similar mark in a different market, you may be able to stop the competing business from using the mark on a theory that their use dilutes the value of your trademark. Overall, a trademark makes it much easier for you to protect your business name.
Additional articles and resources can be found in FindLaw's Choosing a Business Name section.
Questions About Business Name Registration? An Attorney Can Help
While it's always a good idea to at least consult with an attorney before starting a business, you may find that certain processes are best handled by a professional. While the registration process does not always require a lawyer's expertise, every situation is different. Contact a local small business lawyer today to find out more.
