What’s in a Name? Deciding on a Business Name

No matter what type of business you are preparing to start, one of the first decisions you need to make is what you’re going to name your business. Choosing a name is often something that business owners don’t realize needs more research than just finding a name that is memorable and will appeal to both them and their clients.

Why go to all this effort? You’re opening your business with plans of success, knowing you will be investing yourself, your time, and your effort into growing your business. Generally, you won’t be notified of any disputes related to your name until your business has grown and become successful, after you have spent time and energy getting your name known. Don’t lose this valuable piece of your business when it really means something to you because you didn’t research whether you could use it at the beginning. Trademark litigation is costly; a search determining whether you name will be rightfully yours is not.

1. Type and Scope of Your Business

The type and scope of your business will normally define how much work needs to be put into research surrounding your proposed business name. For example, if your new business is going to be the local diner branding your name, with no plans to expand outside your neighborhood, that should justify sticking to just your city and county. If you’re planning on selling party supply goods through a mail-order or internet catalogue, that may call for a full scale search of local and national usage since you’re be selling nationally.

At a minimum, your search should include every county in which you plan to do business. At the other end, your search may end up involving a complex multi-jurisdictional search of other business names in various jurisdictions of trademarked or protected intellectual property interests.

2. Fictitious Business Names Registries

If your business is going to be a local one, check the fictitious business name registry with the county clerk for each county your business is likely to do business in. This includes counties you may expand to if your business will be a success.

3. Business Name Search with the Secretary of State

The California Secretary of State maintains a listing of certain business names. You can check their website with their search function to see if there is already a corporation, limited liability company, limited partnership or limited liability partnership with a name that is confusingly similar to what you are hoping to use. Picking a name that is confusingly similar to another registered name may lead to a protracted tradename dispute down the line.

4. Federal and State Registrations

Filing a fictitious business name required by California Business & Professions Code Section 17910 establishes a rebuttable presumption that the registrant has the exclusive right to use that name as a trade name in the county where the statement was filed.

What happens when there are two of you using a similar name? If you have a fictitious business name registration (a “dba”) and there is a corporation or limited liability company in the same county with a name similar to yours, whichever one filed first and is actually engaged in a trade or business using the name is entitled to the presumption of priority against the other.

5. Specific Entity Name Requirements

Q: If I’m not a corporation, can I put an “Inc.” or “Incorporation” or “Corp.” or “Corporation” after my name? A: No. You’re not allowed to use a name that may be confusing to the general public.

Q: What about “LLC” or “Limited Liability Company” for my sole proprietorship? A: No. Only a limited liability company can use “LLC” or “Limited Liability Company” or “LLC.”

You’re not allowed to pick a name for your business that will end up confusing people who look at your business name.

6. Reserve Your Business Name if There Will be a Delay in Filing Your Formation Documents

Reserving your name with the Secretary of State is a simple and inexpensive matter. Ideally, when you decide on a name after conducting the research I’ve described above, you should go through the effort of reserving with the Secretary of State. If you anticipate doing business in states other than California, reserve your name there as well.  The Secretary of State will issue a certificate of reservation which should provide sufficient time to finish your business formation.

7. Will a Fictitious Business Name Statement Be Required?

A fictitious business name statement must be filed with the county clerk if you are regularly doing business under a fictitious business name (or a “dba”). You can file a fictitious business name statement in the county that your business has its principal place of business, within 40 days of the date you first began conducting business under that name. You may also wish to file a fictitious business name statement in other counties where you will transact business now and in the future.

Once you filed the fictitious business name statement with the county clerk, you must publish the name with a newspaper in the same county within 30 days of filing the statement, once a week for 4 consecutive weeks, with five days between each date of publication. Most metropolitan areas have papers that do this for a nominal sum. Afterwards, you must file an affidavit of publication with the county clerk within 30 days after completing your publication run. A fictitious business name statement will expire five years after the date you first filed it in the county recorder’s office, at which point you’ll need to refile.

We’d love to hear from you. How was your experience in filing your business name? Any other tips you can share?

The Mlnarik Law Group, Inc. at (408) 919-0088 or john@mlnariklaw.com

-The Mlnarik Law Group, Inc., Business & Real Estate Litigation Attorneys

 

S. Bay Neighborhood Law Firm Making Contacts at the S3 Tri-Chamber Mixer

Continuing its outreach to the Bay Area business community, the Mlnarik Law Group, LLC will be one of only eight Santa Clara exhibitors at this year’s S-3 Tri-Chamber Mixer & Mini Expo.  Held from 5:30 to 7:30pm, January 19, 2012, at the Doubletree by Hilton San Jose, the Mixer/Mini Expo is the joint effort of the San Jose Silicon Valley, Santa Clara and Sunnyvale Chambers of Commerce.

Hundreds of Chamber members will be on hand to make new business connections and strengthen old ties, and the Mlnarik Law Group will be prominently featured in their midst.  At last year’s event our fellow exhibitors included everything from a graphic design firm to a “troubleshooting” business consultant to a candy company run by local entrepreneurs.  The Mlnarik Law Group was on hand offering its legal expertise in all matters of corporate governance, including business formation, development, and maintenance.  How to decide between being an LLC, S-Corp, LLP, GP, or Sole Proprietorship?  What should you (or shouldn’t you) include in the employee handbook?  When is it necessary to use NDAs or “non-competes”?  What will be your web agreements and privacy policies?  Our attorneys cover all that and much more, and the Chambers of three Bay Area cities are getting to know us better with each new year.

However, the Mlnarik Law Group, LLC is much more than a business boutique.  As “A neighborhood law firm committed to your success”TM our work reaches into the areas of real estate, estate planning, family law, employment law, bankruptcy and fair treatment of debtors, not to mention general litigation on a case-by-case basis.  But why read about it here?  Come on down to the Tri-Chamber Mixer and Mini Expo and we’ll tell you all about it!

Jim Erickson, Associate

2012 New Year Resolutions: Dive in and be Part of the Solution

Celebrating the end of one year and the beginning of the next is a blast!  I enjoy celebrating everything that has been accomplished and look forward to what lies ahead.  This year the top ten New Year resolutions look to be the same as last year’s, and I can’t help but ponder a hypothesis.

As we compete to get ahead, people compromise what is most important to them in order to survive; and as the economy declines the sacrifices made become deeper as competition grows.  As the unemployment rate increases those who remain employed find themselves, paradoxically, sacrificing time with their families in order to support them; and sacrificing their own physical and psychological health in order to support themselves.

With 2012 an election year, we look to our leaders for guidance and ask what they will do to turn things around and put Americans back to work.  But without looking to our leaders for guidance, I focus on the people I see every day and change what I can and let go of what I can’t.

I cannot change a company’s business decision to send jobs overseas but I can choose to buy things made in the U.S.A.   I can’t fix the economy but I can help to pick up the pieces by helping one family at a time.

A decision made by any one of us may be relatively small, but collectively the small decisions we all make will add up and make a difference.   Together we can move forward and help the economy recover.

This year I resolve to make purchasing decisions based on what I need instead of what an advertiser wants me to buy.  I resolve to fight for the people in my family, my community and my country so that we may collaborate to solve problems that hit home.

This year especially, I remember my training as a PADI Rescue Diver and the number one rule of a rescue attempt: “Be part of the solution, not the problem – Think Then Act!

- John Mlnarik, Founder/Principal Bankruptcy Attorney