When does a variation of my name become a fictitious business name?

By , Attorney UC Law San Francisco


How different can a business name be from my own name without it being considered a DBA (or fictitious business name)? My name is Francine Smith. I want to use F Smith Group (or F Smith Consulting) as a business name. It will be a sole proprietorship.


As you have divined, a business name that doesn't contain the legal name of its owner -- known as a fictitious business name, or DBA ("doing business as") -- must ordinarily be registered with the county clerk's office. But states' laws differ as to what a person's "legal name" consists of.

Californians should know that in their state -- unlike most other states -- you don't have to file a fictitious business name statement if your business name will include your last name, even though it doesn't include your first name. Under this rule, "F Smith Consulting" would not be considered "fictitious."

Using "F Smith Group" might pose a different problem, however. If your business name inaccurately suggests that others will co-own the company with you, you do need to file a fictitious business name statement. Someone could argue that "F Smith Group" sounds like you've got a whole passel of co-owners by your side. The same goes for variations like "F Smith and Company," "F Smith and Sons," or "F Smith Associates." To be safest, I'd go with "F Smith Consulting" if you want to avoid the DBA filing.

Why this bothersome rule? The government likes to keep track of fictitious business names to give customers a quick way to determine the owner of a company, so they can contact her with a complaint or take legal action against her. But it's not just about complaining customers. If you used a fictitious name for your business but didn't register it, you yourself could get the raw end of some deals: You wouldn't be able to enforce any contract you signed under your business name. This requirement is in your own best interest, so don't be tempted to shrug it off.

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