North Carolina Assertive Business Names Law Updates: Are You Ready?
First of all, what is an alleged trade name?
An assumed business name, often referred to as a “fictitious name”, “DBA” or “doing business as”, is a name that a business uses other than its legal name. DBAs differ by entity type. For a Limited Liability Company (“LLC”) or corporation, a DBA is any name other than the official name that the LLC or corporation has registered with the North Carolina Secretary of State. A DBA can be a variation of the registered name of the company or be entirely different from the registered name of the company. For example, a food truck owner can register an LLC, “Sonny’s on Wheels, LLC,” with the Secretary of State. However, the food truck owner may decide to use a DBA, such as “Sonny’s Snow Cones”, as the name of the food truck.
For a sole proprietorship, a DBA is any name other than the owner’s real name. For example, if Larry Smith runs a woodworking business as a sole proprietor, he could register a DBA name such as “LS Fine Woodworking” with the North Carolina Secretary of State and use that name in his marketing materials and his website, rather than his personal name. Last name. For a general partnership, a DBA is any name other than the names of the partners. To extend the example above, if Larry Smith and David Wentworth own and operate a woodworking business as a general partnership, they could register a DBA such as “Smith & Wentworth’s Fine Woodworking”.
Changes to North Carolina’s Assumed Trade Names Law
In 2017, North Carolina passed the Assumed Trade Names Act and created a new statewide public searchable database of assumed trade names. All DBAs filed as of December 1, 2017 are automatically part of the database. However, DBAs filed before December 1, 2017 are not part of the database and will expire on December 1, 2022.
If you filed your purported business name certificate after December 1, 2017, or if you originally filed it before December 1, 2017, but have since re-filed a certificate, you don’t need to do anything.
If I filed my assumed business name before December 1, 2017, what should I do?
Unless you have filed a new case or filed for the first time since December 1, 2017, your DBA will expire on December 1, 2022. You must file a new Deemed Business Name Certificate no later than this expiry date. in order to continue doing business using your DBA.
The purported trade name certificate must include all of the following: (1) purported trade name; (2) the actual name of the company or person doing business under the purported business name; (3) the nature of the business; (4) the civic address of the principal place of business; and (5) each county where the company or person uses or will use the purported trade name to engage in business.
You will file the Presumed Business Name Certificate with the Registry of Deeds in the county where your business operates. When filing your certificate, you now have the option to select all of the North Carolina counties in which you do business, rather than having to file a certificate individually in each county. Under one certificate for the same company, you will also be able to register up to five aliases, which can benefit a single company that offers different products or services. For example, in addition to “LS Fine Woodworking”, Larry Smith could also register the assumed business name, “LS Design Consulting” if he wanted to distinguish the different services he offers in his sole proprietorship by using different trade names. .
Failure to file a purported business name certificate results in potential liability to anyone harmed by the business owner’s failure to file. They may be eligible to seek damages for reasonable expenses, including attorneys’ fees, that they incur to verify the information required to be stated in the alleged business certificate for reasonable purposes.
Other Considerations for Trade Names
Keep in mind that the law governing assumed trade names is separate from the law governing whether your business can use a name as a trademark. So even if your certificate filing for an assumed trade name is accepted by the North Carolina Secretary of State, it does not necessarily mean that the name you selected is available for use without risk of trademark infringement. To protect your business name, you may also consider searching trademark registrations from the North Carolina Secretary of State and the United States Patent and Trademark Office to ensure that the assumed trade name you select does not create a likelihood of confusion with a pre-existing mark. .
Once you have done your due diligence to determine if the supposed trade name is available, you may decide to protect the name as a trademark. The trademark registration process is different from filing the alias certificate with the North Carolina Secretary of State. Ward and Smith’s attorneys experienced in trademark law can assist you with trademark screening and registration.
*Please note that trade names provided in this article are hypothetical and for guidance only. Ward and Smith, PA provides no legal advice on the availability of these names.
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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or factual situation. No action should be taken on the basis of the information contained in this article without obtaining the advice of an attorney.
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