Businesses are frequently required to adopt – or want to adopt – a different name than the one used for formation. This assumed name, otherwise known as “doing business as”, is a popular option often accompanied by legal requirements that vary by state. In this presentation, CT’s expert attorney reviews the key aspect of assumed names so attendees are well informed about the process and how to navigate it successfully. Learn about: What an assumed name is (and what it isn’t) Reasons assumed names are used How (and why) assumed names are regulated by states How courts have handled parties using assumed names Penalties for non-compliance

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CTWolters Kluwer
Assumed
Business Names
1
What Every Business Should Know
PRESENTED BY
Alex Halow, Esq.
Regional Attorney

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Why a Webinar on Assumed Business Names?
• Widely used by businesses ranging from sole proprietorships to large
multinational corporations.
• Compliance with state law is required.
• Obtaining and maintaining registration is complex.
• Lots of confusion over what an ABN is -- and isn’t.

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What We Will Cover
• What is an assumed business name (ABN)
• Why ABNs are used
• How (and why) do the states regulate ABNs
• Registration and renewal of ABNs
• Penalties for non-compliance
• Name protection (or lack thereof)
• Other issues worth considering

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What Is an Assumed Business Name?
• Any name for a business other than a “true” (aka “real” or “legal”)
name
• Regulated by statute (in nearly every state)
• Terminology varies – Assumed Name, Fictitious Name, DBA, Trade
Name

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What Is a True Name?
• Sole proprietorship (individual business owner)?
 The name of the individual.
• General partnership?
 Name of each partner.
• Statutory business entities?
 Name formed under in home state.
• Foreign business entities qualified and doing business under a
fictitious name due to name unavailability?
 The fictitious name.

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Voluntary ABN vs. Forced Fictitious Name
Assumed Business Name Forced Fictitious Name
Use is voluntary. Use is involuntary/required.
May be filed in domestic or foreign state. Only foreign entities may use.
One entity may have multiple ABNs. Can only qualify under one fictitious name.
May or may not have to be unique/available for use. Must be unique/available for use.
May or may not be protected against use by others. Is protected against use by others.

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What Can Make This More Confusing?
Sometimes States (or others) use terms for different concepts
interchangeably.

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Don’t Confuse ABN with Trademark
Assumed Business Name Trademark
Identifies an individual or business entity.
Word, phrase, symbol, design, etc. identifying and
distinguishing the source of a good or service.
One entity may have multiple ABNs. One entity can register multiple trademarks.
May or may not have to be unique/available for use. Must be unique/available for use.
May or may not be protected against use by others. Is protected against use by others.

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What Can Make This More Confusing?
An assumed name may be used as a trademark if it identifies the
source of a product and service.

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Why Do Businesses Use Assumed Names?
• Sole Proprietors & General Partnerships
 Privacy
 Business Bank Account
 Do Business Under Internet Domain Name
 Want a Unique and/or More Descriptive Name
• Be aware of possible Client confusion about ABNs
 May choose ABN to save money and avoid formalities vs. Corps & LLCs
 May not realize the limitations of ABNs
 Make sure to explain costs/benefits so they can make an informed decision

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Why Do Business Entities Use ABNs?
• Many companies, large and small choose a generic legal name
• Want to do business under a name that reflects its product or
services
• Take advantage of trends without having to change legal name
 “Dot.com” trend in the 90s
 “Blockchain” is a current trend

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Why Do Business Entities Use ABNs?
• Make name shorter or easier to remember
• Reflect expansion of services or products
• Corporation with multiple divisions, different products
• Test out name in the marketplace

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Why Do Business Entities Use ABNs?
• Franchise owners want to use franchise name for marketing
• Reflect regional differences
 John’s Subs, John’s Hoagies, John’s Grinders, or John’s Wedges?
• Want a name that is search engine friendly
• Want a name that can be trademarked

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Why Do States Regulate ABNs?
• Legislative intent is consumer protection
 The public should know who they are dealing with
 Customers, creditors, business partners, govt agencies, etc. may need the real
party’s name and address
• Protecting the assumed name from use by others is a secondary
consideration, if a consideration at all
• Important to remember if client wants exclusive rights to assumed
name other steps are necessary

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The Plumbing - State ABN Statutes
• Almost all states have assumed name statutes
• Generally, require registration of business name other than true name
• Otherwise, statutes can vary greatly:
 “Assumed Name,” “Fictitious Name,” or “Trade Name”?
 Where & What to File?
 Fees?
 Restrictions (any required or prohibited words)?
 Penalties for noncompliance?
 Name protection ?

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What Do You Need to Know?
• Is use of ABN regulated by state?
• What has to be filed to register?
• Is renewal required?
• Are amendments required?
• What are the consequences of non-compliance?
• Is the name protected against use by others?

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Where to File ABN Registration
• State Level, County Level, or Both.
• State level filing only
 Usually same office where formation and qualification is filed
 Contents of filing – some standard info, otherwise lots of variety
 Usually, a separate filing must be made for each name
 Generally can be filed online or by mail (online is the trend)
 Some states require the assumed name to be distinguishable, some do not

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Where to File ABN Registration
• County Level filing only
 Which county? – states differ
 Location of principal place of business
 Wherever business is done using ABN
 Location of registered office
 Particular county if no office in state (such as where state capitol is located)
 More complex than state level filing (especially if multiple county-level filings
are required)

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Where to File
• State and county
 A few state require filings in both
• Where may depend on the type of filer
 Some states individuals file on county level while business entities with state

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Other Issues to Be Aware of
• Notice of ABN use may need to be published
• Business entities may need to be on file with the state & in good
standing
• Use of entity indicator in assumed name

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Amendments and Changes to Registration
• What if the information on the registration changes?
• States take different approaches
 Any change in information requires an amendment
 Only changes in material information require an amendment
 Material change requires filing of new registration
• Deadlines for updating after a change may apply
• Change of True Name can trigger need to amend ABN Registrations
 GPs – changes in general partners
 Mergers or conversions where survivor receives non-survivor’s ABNs

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Renewal and Expiration
• In most states registration is for a limited term
 Between 1 – 10 years, with 5 years being most common
• In others registration is perpetual
 Name is registered until canceled (but cancellation is not always voluntary)
• Renewal generally requires an application
• States vary on when renewal application can be filed
 Ranges from 30 days to any time during the last year before expiration

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Renewal and Expiration
• Some (but not all) states notify ABN registrants when it’s time to
renew
• Publication may be required if required for original filing
• Usually filed in same office as original filing (unless law has changed)
• Keeping track of multiple ABNs in multiple states can be challenging
 Outsourcing is an option
• Cancellation should be filed if ABN will no longer be used

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Protection of Assumed Names
• Reminder – name protection is not the main purpose of ABN laws
• Some states do not check ABNs for distinguishability
 Generally means that the same ABN can be used by multiple parties
• Some states check ABNs only against other ABNs
• Some states check ABNs against both other ABNs and names of
domestic and foreign business entities on file
• States do not check assumed name against TM registries

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Penalties for Non-Compliance
• State ABN laws generally have penalties for noncompliance
• Civil penalties
• Criminal penalties
• Inability to file suit in courts of the state on contract entered into or
transaction engaged in using ABN until registered

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Three Different Approaches
• New York
• Florida
• California

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New York
• Is there a statute regulating the use of assumed names?
 Yes - Sec. 130 of the General Business Law
 Covers both individuals and business entities that want to use ABNs
• What is filed
 Certificate of Assumed Name – Corps, LLCs, LPs
 Cert. of Business Name/Designation by Partners – individuals, GPs, others
• Where is it filed
 Dept of State - Corps, LLCs, LPs
 County Clerk (in each county where they conduct business) - all others

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New York
• Contents of Certificate of Assumed Name
 Exact name of entity as found on filing receipt issued by DOS
 State of formation
 Assumed name (can contain indicator; can’t include words true name can’t include)
 Principal place of business in NY, or if none, out of state PPB
 County or counties in which business will be conducted
 Address of each location where business will be carried on
• Corps, LLCs, LPs pay a state fee
• Corps pay an additional fee for each county in which they will do business.
 Total fee is capped at $1900

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New York
• Certified copy of filing must be displayed at premises where ABN used
• Certificate must be amended whenever there is a change
• Expiration Date – none
• Certificate of Discontinuance required if ABN no longer used/needed

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New York
• Penalties for non-compliance
 Knowingly conducting business under an ABN without filing is a misdemeanor
 Cannot maintain state court action on contract, account, or transaction made
under the ABN until certificate is filed
• Name Protection
 DOS does not check on availability of assumed name
 County clerks may check name against others filed in the county and reject if
name has already been registered

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Florida
• Does state regulate use of assumed names – Yes
 Calls assumed name “fictitious” name
 Fictitious Names Act (Sec. 865.09 et seq.)
 Applies to individuals, partnerships, corporations, LLCs and other
unincorporated entities
• What is filed
 Application For Registration of Fictitious Name
• Where is it filed
 Department of State

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Florida
• Contents of Application
̶ Exact name to be registered (may include entity indicator, but not required)
̶ Business’ mailing address
̶ Florida county where principal place of business is located
̶ List each owner
 If owner is a business entity it must be registered with the state and active
 Include FEIN
• Publication of Intent to register is required
̶ At least once, in newspaper in county were principal place of business located
̶ Application contains certification of compliance with publication requirement

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Florida
• Amendments and changes
 Change to the fictitious name or owner requires new registration
• Expiration and Renewal
 Valid for 5 years
 Expires on Dec. 31 of 5th year
 File Application for Renewal of Fictitious Name
• Registration can be cancelled if name is no longer in use

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Florida
• Filing certificate does not give name protection
• Penalties for non-compliance
 Failure to file is a misdemeanor
 Can’t maintain any action in a FL court until in compliance

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California
• Does California regulate assumed names – Yes (calls it fictitious name)
 Cal Business & Professions Code, Sec. 17900 et seq.
 Applies to individuals, partnerships, corporations, LLCs and other associations
 Corporations, LLCs, LP, LLP must have filed as a domestic or foreign entity with
the SOS

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California
• What is filed
̶ Fictitious Business Name Statement
 Fictitious business name (can include appropriate entity indicator)
 CA principal place of business if any, if not ppb out of state
 Name of registrant
 Whether registrant is individual, partnership, corp, LLC, etc.
 Date business commenced under the name
• Where to file
̶ Clerk of county in which registrant has its ppb
̶ If no ppb, then file in Sacramento County
̶ Can also file in additional counties (but is optional)

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California
• At time of filing registrant must provide clerk with proof of identity
• Clerks can determine what is sufficient proof
• Clerks can issue their own forms and establish own procedures
• Publication requirement
̶ W/I 30 days of filing, in a newspaper in county where filed or adjoining county
̶ An affidavit of publication must be filed with the county clerk

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California
• Amendment/Change
 Any change (except for individual’s residence) requires a new filing and publication
 General partner withdrawing from a GP may file a Statement of Withdrawal
 Otherwise change in partner requires new filing
• Abandonment
 If fictitious name is no longer being used registrant must file statement of
abandonment and affidavit of publication of abandonment
• Expiration – earlier of
 5 years from date of filing
 40 days after change in facts set forth
 Filing of statement of abandonment and affidavit of publication

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California
• Name protection
 Filing a Fictitious Business Name statement does not guarantee exclusive use
 No state wide index of FBNs
• Penalties for non-compliance
 Can’t maintain any action on account of contract or transaction made in the
fictitious name in any CA court until in full compliance

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Some Court Decisions
• Use of assumed names (and often the consequences of either
compliance or noncompliance with ABN statute) can become an issue
in litigation
• Basic lesson of the cases? Always read the statute.

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Court Decisions – Failure to Comply
JP Morgan Chase, NA v. Simpson-Manigault
2013 Conn Super LEXIS 5150 (12/31/2013)
• Defs claimed a $4 million mortgage transaction was void based on the
lender’s failure to file a certificate of trade name
• Defs claim the failure resulted in Pl not having standing to foreclose on the
mortgage
• Court held Conn trade (assumed) name statute contains 3 remedies – $500
fine, 1 year in jail, and money damages under Unfair Trade Practices law
• Statute does not authorize court to void an otherwise enforceable contract

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Court Decisions – Failure to Comply
LaMusga v. Summit Square Rehab, LLC
2017 Ohio 6907 (7/21/17)
• Lawsuit arising out of a shooting
• Pl sues LLC that provided security services and its owner
• LLC did business under various assumed names without registering them
• Pl sought to have owner held personally liable, arguing failure to register
assumed names rendered the LLC a sole proprietorship
• Court held that Ohio statute prevents a person from suing until
registration, but does not turn an LLC into a sole proprietorship

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Court Decisions – Failure to Comply
Gallagher v. Best Western Cottontree Inn
No. 43695 (Idaho S Ct) (1/19/17)
• Pl injured in fall on wet floor in hotel
• Hotel operated under assumed name, certificate filed by LLC owner
• LLC sells hotel. New owner (Def) fails to file new assumed name certificate
• Pl serves former owner, who rejects SOP and tells Pl to sue correct Def
• Pl amends complaint to include correct Def, but by the time correct Def is served, statute of
limitations runs and suit is dismissed
• On appeal, Pl seeks to have Def estopped from asserting SOL due to its failure to file ABN cert
• App Ct doesn’t agree to estoppel/tolling of SOL, because it finds that Pl has remedy under ABN
statute that allows her to sue for losses suffered due to Defs failure to comply
• Case remanded to trial court for further proceedings related to that

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Court Decision – Confusion about Standing
Woods v. Marcano
2018 Ohio App. LEXIS 4643 (10/25/18)
• Landlord (Woods) held real property under his DBA, “hat a Lovely Home”
• What a Lovely Home was properly registered as a DBA
• Woods sues Marcano and two other Defs for eviction and damages
• Evictions settled, but trial ct dismissed damages claims reasoning that:
 The property was titled to What a Lovely Home, not Woods;
 What a Lovely Home was a fictitious entity and couldn’t hold title to RP in OH;
 Therefore Woods lacked standing either as himself or as What a Lovely Home
• Ohio Ct of Appeals reversed and remanded, citing precedent distinguishing between grants of RP
to nonexistent/fictitious persons and those to a person in existence who is described by an
assumed, fictitious, trade or inaccurate name

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Court Decision – Validity of Contract
Renaissance Elec. & Techs., Inc. v. CCS Contractor Equip. & Supply, Inc.
2018 IL App (1st) 170609-U (10/29/2018)
• Both parties enter into contract (and later amendment) using their ABNs
• Dispute arises, resulting in arbitration. Arbitrator finds in favor of PL (Renaissance)
• Defendant refuses to pay, so PL goes to Chancery Court, which affirms arbitration award
• A round of appeals ensues. On appeal, Def. (CCS) asserts (inter alia) that contract was not valid
because true names were not used
• App. Ct rules for PL, noting that parties can enter into contracts under assumed names
• Appellate Court also noted that in IL, even parties that have failed to register their assumed name
can sue or be sued in that name

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Court Decision – Validity of Contract
Drexler Corp. Construction v. Gold
2018 NY Slip OP 51905(U) (12/20/2018
• Drexler Corp. Construction sought $5k for work done on the Golds’ driveway
• The Golds argued at trial that the K was between them and “Drexler Land Development
Corp.”, not plaintiff
• Plaintiff said “Drexler Land Development Corp.” had been dissolved prior to the contract
and they had simply used an old form
• Trial court suggested Drexler amend the complaint to include alternate name as a DBA
(which Drexler did) , and ultimately found for Drexler
• On appeal, the NY Supreme Ct. reversed because Drexler had never registered “Drexler
Land Development Corp.” as an ABN, so could not maintain a contract action in that name

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Wrap Up
• Use of assumed names is widespread and for many good reasons
• Use is subject to state statute
• Registration is required
• Renewal, amendment, cancellation may be required
• Statutes vary greatly from state to state
• Non-compliance has consequences

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CTWolters Kluwer
Thank You
for Attending
48
Assumed Business Names
What Every Business Should Know