Any name used for business (also sometimes called a trade name) that doesn’t contain the legal name of the owner/sole proprietor is called a fictitious business name (FBN). Fictitious business names are sometimes called assumed names, or “DBAs,” for “doing business as”—as in, “Spikey Andrews, doing business as Coffee Corner,” or “Alibi Corporation, doing business as Ferryville Bait and Tackle.”
Most states require a business that uses a fictitious business name to register that name, usually with the county clerk in the county where its primary business site is located. Depending on your state, this requirement goes by different names: fictitious name certification, DBA filing, trade name registration, or something similar.
FBN registrations are typically done at the county level, although, in some states, you register your FBN with the secretary of state or other state agency. The registration process is covered in more detail below.
Do not neglect or put off registering your fictitious business name. Without proof of registration, many banks will not open an account under your business name.
Generally speaking, a sole proprietor who includes his or her last name in the business name — such as O’Toole’s Classic Cars — does not need to file an FBN statement. But it is not enough to include only initials and a nickname or part of a name. For example, a business called J.R.’s Classic Cars would likely have to file a fictitious name statement indicating that it really is John O’Toole’s business.
In addition, in many states, if your business name falsely implies that more than one owner is involved, you must file a fictitious business name statement. If Jason Todd were a sole proprietor, for example, and named his business Jason Todd and Sons or Jason Todd & Associates, he would probably have to file an FBN statement, even though he included his last name in his business name. Check with your county clerk for your state’s rules.
In some states, FBN registration is accomplished through the Secretary of State or other state agency; however, in most states, you’ll register your FBN at the county level.
Your first step should be to contact your county clerk’s office either online or by phone to find out its requirements and fees. An increasing number of counties are providing information online and some have online applications. However most counties still require a paper form to be filled out and mailed in. Find out from your county clerk what its process is.
In many areas, you’ll be instructed to search the county or state database of registered fictitious business names before submitting your statement to make sure no one else has already registered the name you want to use. Typically, you can search a county’s database (often an easy-to-search computerized system) for free if you go to the office in person. Sometimes you can pay a fee for a staff person to do the search for you. If you want the clerk’s office to do the search, you must usually submit the request and fee by mail.
Remember, searching your county database won’t tell you if a name is trademarked. Someone in a different county, state, or even country might own trademark rights to that name. If so, and you go ahead and use that name for your business, you may well run into legal trouble, depending on your geographical scope and the products or services you sell. To avoid being accused of unfair competition or trademark infringement, it is wise to check neighboring counties’ FBN databases, look into state registries of corporate and LLC names, or even do a full international trademark search. Failing to do an appropriate search puts you at risk not only of lawsuits, but also of having to change your name down the line when you already have stationery, business signs, and invoices printed.
If the name you’ve chosen is available (both at the county level and with regard to trademark issues), simply fill out the FBN statement and submit it to your county clerk (or other agency, depending on your state) along with the appropriate fees. Depending on the county, fees range from $10 to $50 for registering one business name and one business owner.
Once you’ve filed your name and paid the necessary fees, you may have one more task to complete before you start doing business under that name. Many states require you to have your FBN statement published in an approved newspaper in the county where you filed it. The county clerk or state agency will provide a list of acceptable publications for posting your FBN statement, though usually any newspaper of general circulation in the county will suffice. Publishing your statement is dead simple: Just take a copy of your completed statement to your publication of choice, which will have a standard format to present the required information.
The published notice must run for a certain frequency and duration, usually once a week for a month or so. After the FBN has been published for the required period, you’ll usually need to submit an affidavit (sometimes called Proof of Publication) with the county clerk or state agency to show that publication has been completed. Check with your county clerk for the details and requirements of publishing the FBN notice.
Your FBN registration will be good for a certain period of time, usually for five years or so, before it must be renewed.
If certain facts in your statement change, such as the number of owners or your business address, you may have to renew your FBN statement. Check with your county clerk or state agency to find out which types of changes trigger a renewal requirement.