An important aspect of establishing a business is finding the right name under which a given company is to conduct its business. While some business owners choose to use their own legal name, such as “Jane Smith’s Hair Salon,” others might prefer to use a catchphrase or a term associated with the nature of the business or its product, for example “Jane’s Cuts,” or “Fashion Cuts.” In the latter case, the business is said to operate under a fictitious business name, which is sometimes also expressed by adding the words “doing business as,” or “d/b/a” to a legal name. Thus, a fictitious business name is any name other than a person’s given name, under which the person transacts business within the state.
It is important to note that a fictitious business name is not the same as a trademark. Entities like trademarks, service marks, corporations, and limited partnerships are legal names. In contrast, the registration of a fictitious business name does not create any exclusive ownership rights, nor does it reserve the name against future use. The requirement that a fictitious business name be registered with the state serves the sole purpose of providing the public with notice of the legal identity of the person or entity behind the fictitious name. In fact, the state will register a fictitious business name regardless of whether another company already does business under the same name. Therefore it is each registrant’s own responsibility to perform a fictitious name search prior to registration.
So why even go through the trouble of registering a fictitious business name? For starters, a person who conducts business in Florida using an unregistered fictitious name commits a second degree misdemeanor and is subject to penalties. In addition, the business, its members, and interested parties will not be able to sue or maintain any action or proceeding within the state until the name is properly registered. While the business will still be allowed to defend any action or suit, it may be ordered to pay court costs as well as the opposing party’s attorney’s fees.
On the other hand, registration of a fictitious business name with the state is not expensive and can be effected within 24 – 48 hours. The registration costs $50.00 and is valid for five years. Every registration expires on December 31st of the fifth year and must be renewed between July 1st and December 31st of the fifth year by filing a fictitious name renewal, which costs $50.00. If no renewal is filed the fictitious name expires and cannot be renewed thereafter. Instead, a new registration application would have to be filed. If a change in ownership occurs before the fifth year has begun, new owners must file a cancellation and re-registration within 30 days of the change.
Therefore, anyone who desires to conduct business under a fictitious name should make sure to register such name with the state. This also requires that the name be advertised at least once in a newspaper published in the county where the business is located.
If you need to file a trademark registration or need assistance in the areas of registering a fictitious business name, give us a call today. Consulting with an experienced attorney in the complex area of business law is important for your business. We are located in beautiful Coral Gables and can be reached by calling (786) 837-6787 or by emailing us to schedule a consultation with you.