CORPORATE TRANSACTIONS & COMPLIANCE BLOG

Doing Business Under Another Name: Assumed Names, Fictitious Names, Trade Names, etc.

By: Teri Mayor, COGENCY GLOBAL INC. on Thu, Feb 15, 2018

DoingBusinessUnderAnotherName_98074482_MWhen a woman is considering marriage, a key question that comes up is whether she will decide to take her husband’s name and make the necessary changes to her social security card, driver’s license, etc. For me, the decision was an easy one. My maiden name, “Bacon”, had been the source of lots of jokes as I grew up, and so I didn’t have a lot of regrets knowing that I would leave all those “original” and “witty” remarks behind. Business entities also can have good reasons for doing business under another name.

Reasons Why Companies Often Do Business Under Another Name

Registered companies like corporations, limited liability companies or limited partnerships often do business under another name for one of two common reasons.

 

  1. They are registering to do business in another state as a foreign entity and their true name does not meet the requirements of the state they are registering in. Most commonly, their true name is not available, and so they pick a different name to use in the state that is available. Sometimes the name is available but doesn’t meet the requirements for other reason—perhaps it lacks a required corporate indicator or contains a word that is allowed in their home state but is restricted in the state they’re registering in.
  2. They voluntarily wish to use another name for business reasons, such as to reflect affiliated brand names. So a company that owns several restaurants, for example, may file assumed name certificates to do business under the name of each restaurant.
Doing Business Under Fictitious Name_118028537_S

Many states require a filing if the company is doing business under another name, and a number of states provide some protection for the name since they don’t allow other entities to use the registered assumed name in their state.

Terminology Can Be Confusing

Different states use different terms to refer to names used by entities that are not their true corporate names: fictitious name, assumed name, alternate name and trade name are common. Unfortunately, the same terminology can often be used whether the name is a result of reason one, where the company must use a different name to do business in a state or reason two, where they are voluntarily using a name in addition to their true name. As the procedures to be followed usually vary, this conflation of terms can often lead to confusion. 

For clarity’s sake, in this post, we are going to call names used because the true name is unavailable or does not meet the state’s criteria forced fictitious names. We will refer to those filed for reason two as voluntary assumed names.

Forced Fictitious Names

Forced fictitious names are usually listed right on the qualification documents. Some state forms provide a specific blank for these names, others ask you to add the forced fictitious name right after the true name with a statement such as “under the assumed name….” or “which will do business under the name…..”  In addition, the following states require the submission of a board resolution approving the use of the forced fictitious name:

STATES REQUIRING SUBMISSION OF BOARD RESOLUTION FOR FORCED FICTITIOUS NAME

State

Entity Type

 

State

Entity Type

 

State

Entity Type

Alabama

Business Corporation, LLC, LP

Massachusetts

Business Corporation

Pennsylvania

Business Corporation

Arkansas

Business Corporation, LLC

Minnesota

Business Corporation

South Carolina

Business Corporation

Arizona

Limited Liability Company

Missouri

Business Corporation

South Dakota

Business Corporation, LLC, LP

Connecticut

Business Corporation

Oklahoma

Business Corporation

Vermont

Business Corporation, LLC

District of Columbia

Business Corporation

Montana

Business Corporation

Washington

Business Corporation

Delaware

Business Corporation

North Carolina

Business Corporation, LLC

Wisconsin

Business Corporation

Georgia

Business Corporation

New Hampshire

Business Corporation

West Virginia

Business Corporation, LLC

Iowa

Business Corporation, L.P.

New Jersey

Business Corporation

Wyoming

Business Corporation

Indiana

Business Corporation

New Mexico

Business Corporation

 

 

Kentucky

Business Corporation

Nevada

Business Corporation

 

 

A few other states, including Massachusetts and Hawaii, also require the entity follow the steps needed to use a voluntary assumed name.

Voluntary Assumed Names

How voluntary assumed names are handled varies greatly from state to state. Here are some of the variations you will see:

  • Assumed Name Must Be Renewed or Refiled: In about 32 states, an assumed name will expire and must be either renewed or re-filed as a new assumed name. The most common renewal period is five years, but renewal dates vary from state to state. Some states will send notification when a name is about to expire but not all do. Tracking and renewing in a timely way is an important step to ensure compliance.  
  • Assumed Name is considered a “trademark” type filing: Alabama does not have a separate voluntary assumed name statute but files “trade names” under the trademark law. When applying for a voluntary assumed name in Alabama, the entity must present samples of the “mark” (assumed name) in use as on letterhead, signage, etc.
  • Assumed Name is considered a “license” filing: Alaska, on the other hand, registers a voluntary assumed name on the same form needed to apply for a state level business license.
  • Assumed Name filed at a local level: Several states require the voluntary assumed name be filed locally, at the county or municipal level. See the chart below for details.

WHERE TO FILE ASSUMED NAMES AT LOCAL LEVEL

State

Where to File

California

Every county where you are doing business under the assumed name.

Connecticut

Every city or town where you are doing business under the assumed name.

Delaware

Every county where you are doing business under the assumed name.

Georgia

File in the county where the business is principally located.

Massachusetts

Every city or town where you are doing business under the assumed name.

Nevada

Every county where you are doing business under the assumed name.  There is also a voluntary filing which can be made with the Secretary of State to protect the name.

North Carolina

File at the local Register of Deeds. You can indicate all counties where the assumed name is being used on single form. On December 1, 2017 NC started using a central statewide database of all assumed name filings made on or after this date. Entities which filed prior to 12/1/2017 should re-file under the new law by 12/1/2022. 

Texas

File at the Secretary of State and in the county of the principal office or registered agent if the entity's principal office is not in Texas.

Virginia

Every county where you are doing business under the assumed name.

  • Is the Name Protected? Some states require that the assumed name be available for use, thus protecting existing assumed names from being used by other entities in the state. Other states do not. Ohio offers two choices: Fictitious Name and Trade Name. If a company files a “trade name,” the name must be available for use and the user is asserting the right to exclusive use. If a “fictitious name” is filed, then the voluntary assumed name the company wants to use does not have to be available but the company also has no right to exclusive use.
  • Publication: Both California and Minnesota require that notice of the assumed name be published when the initial filing is made or when it’s amended. Georgia, Florida, Nebraska and Pennsylvania require publication for initial assumed name filings.

As you can see, there is quite a bit involved for a company that does business under another name. It is generally a bit simpler when the company is using a forced fictitious name, rather than a voluntary assumed name. Companies who are using voluntary assumed names in a number of states have a great many rules, requirements, and renewal dates to track and manage. Since managing all of this correctly can impact a company’s ability to use the name and, in some states, have the name protected, it’s important to be knowledgeable and aware of all the nuances. 

 

This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice.