The name of your business is one of its most important assets. Once you've done the hard work of choosing your name and making sure that it's available for your use, you'll want to protect it in every way you can. This means following local and state laws that govern when you must register a fictitious (or assumed) business name. It also means filing for trademark protection at the state and federal level, if appropriate. To learn more about trademark protection, see Nolo's FAQ about Qualifying for Trademark Protection.
If your business is organized as a corporation, LLC, or limited partnership, in most states you automatically register your business name when you file your articles of incorporation, articles of organization, or statement of limited partnership with your state filing office. This ensures that no other corporation, LLC, or limited partnership in your state will be able to use the same name.
However, even though your official business name is automatically registered, if you plan to sell products or services under a different name, you must file an assumed name certificate or fictitious name statement. This is also required if you want to use your LLC name without the suffix "Limited Liability Company" or "LLC." For instance, a limited liability company formally organized as "XYZ Games, LLC" that plans to do business as "Games & More" or "XYZ Games" will have to file an assumed name certificate or fictitious name statement.
In most states, an LLC files an assumed name certificate or fictitious name statement with the Secretary of State or Department of Corporations. However, in some states, such as Massachusetts, an LLC needs to file a "doing business as" (d/b/a) certificate with its city clerk.
To see where your LLC must file an assumed name certificate or fictitious name statement in your state, see Register Your Fictitious or Doing Business As" ("DBA") Name on the U.S. Small Business Administration's website.
Any business that doesn't use its legal name (the official name of the person or entity that owns the business) as part of its business name must comply with fictitious or assumed business name requirements. This means registering the name with a government agency -- sometimes the state, but usually your county clerk's office.
Jason Desmond names his sole proprietorship "Perini Mountain Appellations." He must register the name "Perini Mountain Appellations" as a fictitious business name because it doesn't contain his last name, "Desmond."
Three partners named Gibbons, Armstrong, and Anderson are trying to decide whether to call their partnership "South Bay Accounting" or "Gibbons & Armstrong." Either way, they will have to file a fictitious name statement because the name won't contain the last names of all three owners.
The owners of Northern Colusa County Auto Mechanics' Ltd. Liability Co. decide to operate a repair shop under the name "Grease Monkeys." The name "Grease Monkeys" is a fictitious business name, and the LLC must register it.
States like to keep track of fictitious business names for a couple of reasons. One is to prevent customer confusion between two local businesses that use the same name. Another reason is to give customers a quick way to determine the owner of a company without having to hire a private investigator. This allows customers to easily contact the owners with a complaint or to take legal action against them.
There are plenty of reasons not to shrug off this requirement, the most practical being that many banks won't open an account under your business name unless you have proof that you have properly registered the name. Perhaps even more important, you won't be able to enforce any contract that you sign under the name. Finally, if you don't register your fictitious name, you aren't giving other businesses notice that it's already in use. If a competing business can't find out that you're already using the name, it might take it for its own -- and possibly take away some of your business as well.
In a few states you register your fictitious business name with the Secretary of State or other state agency, but in most states, including California, you'll register it at the county level. The result is that each county in your state may have different forms and fees for registering a name. The best thing to do is call your county clerk's office to find out its procedures, requirements, and fees.
Though procedures vary, it's usually fairly easy to register a fictitious business name. Many states require you to begin by searching the county or state fictitious name database to be sure that you aren't trying to register a name that's already in use. Once you're sure the name is available, you must obtain a name registration form (over the phone, in person or from the office's website) and submit it with the correct filing fee, typically $10 to $50. Finally, depending on your state's law, you may have to publish your fictitious name in a newspaper and then submit an affidavit (sometimes called a proof of publication) to the county clerk or state agency to show that you have fulfilled the publication requirement. Your local newspaper should be able to help you with this filing if it's required in your state.
If your business is anything but a small, local service business, registering your name as a trademark is a good idea. It's not required by law, but trademark registration can provide powerful protection if another business later tries to use your business name, or one that's confusingly similar.
Registering your name as a trademark in your state can help prevent another business in the same state from using a name that's likely to be confused with your business name. But if you plan to market your service or product in more than one state -- or across territorial or international borders -- it's wise to file an application for federal trademark protection as well. Registering your business name with the U.S. Patent and Trademark Office puts the rest of the country on notice that the name is already taken, and it makes it easier to defend your name against would-be infringers. To learn more about whether your name qualifies as for trademark protection and how to register it as a trademark, read Filing a Federal Trademark Application FAQ.
For step-by-step help in choosing and registering your business name, see The Small Business Start-Up Kit: A Step-by-Step Legal Guide, by Peri H. Pakroo (Nolo).