A look at the various state requirements that a corporation may encounter while filing and maintaining assumed name certificates across the U.S.
When a company decides to use an assumed name, there are specific requirements for properly registering that name – and these can vary widely by state.
In many states, assumed names must be renewed on a regular basis to maintain the name after it is first registered. Like initial assumed name filings, jurisdictions can have their own unique expectations for how, when and where an assumed name is renewed.
What is an Assumed Business Name and Why Register One?
Companies use elective assumed business names (also known as DBA names) for a variety of reasons, such as to reflect different brands or divisions, or to reflect a name in popular use for the company or a specific location. Regardless of the reason, it’s in a company’s best interest to register and maintain any assumed names it uses to do business. In most states, companies doing business under another name have a legal obligation to formally register the name. Additionally, assumed names are protected in many states, so maintaining the registration can protect your brand by preventing other entities from registering with your name in that state. Even in states where the filing authority does not require assumed names be distinguishable from other entity names, registration serves as formal notification of the entity’s use of the name and can be useful if a dispute arises over rights to the name.
Note: It’s important not to confuse assumed names with trade names or trademarks, which provide a broader level of protection. Trade name filings are sometimes just another term for assumed name filings, and sometimes are a trademark on a name. For this particular discussion, we will focus on elective assumed name, or DBA filings.
There may be additional penalties for not registering assumed names as well. In Pennsylvania, for example, an entity that has not registered its assumed name (or fictitious name, another term for ‘assumed name’) may not use Pennsylvania courts to enforce a contract entered into under that name until the name is registered, and the court can impose a $500 fine for this kind of ‘untimely’ registration.
Requirements Vary from State to State
If a company is using assumed names around the country, maintaining these assumed name registrations is no easy task! Each state tends to have different rules regarding how frequently the name must be renewed, what needs to be done for renewal, where you need to file and whether you’ll be reminded of upcoming renewal due dates.
Let’s review some of the more common requirement variations that corporations can expect to encounter while maintaining assumed name filings across the U.S.
When Are Assumed Name Renewals Due?
In addition to the states with no assumed name statutes (Kansas, New Mexico and South Carolina), there are 17 states where an assumed name is considered continuous and does not need to be renewed:
*An assumed name filing in Washington (called a trade name, but it is not a trademark filing) renews as long as the corporation maintains its good standing. However, if the company loses its good standing, it may need to refile the trade name.
Other states have various renewal periods that range from every year to every 10 years. When the renewal filings can be submitted ranges from 30 days before the registration expires to any time during the year the registration expires.
Assumed Name Renewal Filing Options
Assumed name registrations are generally renewed by filing a renewal form. Many states now offer the option to submit online, but there are five states that only accept paper filings:
In addition to filing a renewal form (or initial filing) for an assumed name, certain states have publication requirements. In California and Minnesota, renewals must be published if information is amended.
Where to File Assumed Name Renewals
Generally, an assumed name filing is renewed in the same place(s) that it was initially filed, either at the state level corporate registry or with the town or county clerk. There are no longer any states which require a dual filing, but there are some states where an entity may have chosen to file both centrally and locally, and both filings may then need to be maintained. For example, in Nevada, a company should file a Certificate of Business: Fictitious Firm Name with the county clerk in each county where business is being conducted. They can also optionally file a Mark Registration Form to register the name with the Secretary of State. Both filings must be renewed every five years to remain in effect.
Will the Company Be Notified When It’s Time to Renew?
Not always! Hawaii, Kentucky, Mississippi, South Dakota, Texas and Wisconsin currently have no processes for sending out renewal notifications. Other states do send out reminders to the addresses they have on file. Massachusetts, for example, considers these filings to be revenue producers for small towns so they are good about sending notification in hope of better compliance.
Even if a state will send out notices, it is fairly common that the contact address has changed (as these filings are most commonly renewed every 5 years) and the notifications are not received.
For states with local level assumed name filings, the answer varies depending on the county. Lincoln County in Nevada, with a population of only 5,000 people, does not send out notifications while the more heavily populated Clark County does.
As a rule of thumb, it’s the responsibility of the entity to manage the renewals, whether or not they receive a notice.
Centralizing Management of Assumed Name Renewals
With so many variations, it’s easy to see how managing renewals can be difficult when a company is using a number of assumed names across several states. Centralizing the process is highly recommended.
Outsourcing assumed name renewal management to a service company can also be a good approach as it eliminates problems that can arise when employees who handle these filings leave the company.
This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice.