What Is A Fictitious Name Registration and Do I Need One?
I am often asked whether a fictitious name registration is needed for a client’s business. The first point is to understand what a fictitious name registration is. If you are doing business under a trade name that is not also your entity (corporation or limited liability company) name, then that is a fictitious name (d/b/a) under the law. Most states do require that if you are operating your business under a name that is not your legal entity name, then you must file that fictitious name registration or trade name with the state. The rationale behind that requirement is that the state wants any party who claims to be injured by your business to be able to know who the actual owner of the business is.
Fictitious Name Registrations – Franchisees
If you are a franchisee of a system that you are most likely operating your business under the franchisor’s trade name, but owning the business under a different corporate or limited liability company name. Although most franchisor’s do not specifically require that a franchisee file a fictitious name registration with the state in which the business is located, it is highly recommended to do so. I would also strongly recommend that a franchisee register the trade name as the fictitious name of the entity under which the business is operated.
Fictitious Name Registrations – Franchisors
If you are a franchisor, I would strongly recommend that you require your franchisees to register your brand or trade name as the fictitious name that they are doing business as part of their corporate or limited liability company. If you allow your franchisees to use the brand or trade name as part of the franchisee’s corporate or limited liability company name you are diluting your trademark rights. This poses issues under the federal Lanham Act, the law that governs trademark rights, as well as causing confusion on the ownership of the trademark. I strongly recommend against permitting your franchisees to use your trademark in their entity name. However, I do recommend that the brand be used as a fictitious name and filed as such with the franchisee’s state.
How Do You Register A Fictitious Name?
In most states it is a pretty simple matter to register a fictitious name. It is typically just a matter of filing paperwork with the state and paying a registration fee. It is a service that my firm is happy to provide for any