Naming a corporation can be a challenging task for startup businesses. The name of the corporation should be selected very carefully. It is very important that you portray the image you want for your new corporation. From a legal perspective, the following should be taken into account when naming a corporation:
- The name you select must not be “deceptively similar” to any existing corporation or must be “distinguishable on the record” of your state. For example, if a corporation named Flower Corp. already exists in California, you likely would not be allowed to name your business Flour, Inc. It is possible that the name you select will not be available; therefore, we ask for a second and third choice on the incorporation order form;
- The name you choose must show your business is incorporated. Accordingly, the corporate name must be followed by an indicator such as Corporation, Incorporated, or an abbreviation;
- If you are going to organize in California and qualify to do business in another state the name should be available in both states; and
- The name you choose for your corporation should not be one that is already a registered trademark or service mark. While you may be able to incorporate under one name you will not automatically, without filing for trademark protection, be protected in using your corporate name as a trade name.
No. The filing of Articles of Incorporation does not, of itself, authorize the use of a corporate name in violation of the rights of others. Incorporating only provides you the exclusive right to use your corporate name (or any name “confusingly similar” to it) in the state of formation. Others may have acquired rights to the use of the name by reason of some other law, including: Federal Trademark Act (United States Code, Title 15, Section 1051); California Trademark Act (Business and Professions Code, Section 14200); Fictitious Business Name Act (Business and Professions Code, Section 17900); and common law rights, including rights to a trade name. Registering your corporation’s name as a trademark or service mark, either federally or with your state, alerts other businesses that you claim priority rights to use your corporate name within the state(s) in which you do business. Registering a mark may provide additional protection that other businesses will not be able to use your name.
Yes, you may change the name of your corporation at any time provided the name you choose is available at the time. As an alternative, you may register a fictitious business name or D.B.A. (Doing Business As) and keep your corporate name.
A DBA is short for “Doing Business As” and is also known as a fictitious business name. A DBA is not usually required for a new corporation as the official business name is automatically registered upon filing of the Articles of Incorporation. However, if the corporation is operating in California under any name other than the corporate name stated in the articles, the entity must file a fictitious business name statement with the clerk of the county where the entity has its principal place of business in the state.
For example, if David Martin Enterprises, Inc., a corporation, conducts business under the trade name “Martin’s Fine Apparel,” the corporation must file a DBA indicating that this trade name is a fictitious business name registered to the corporation.
Please note that a DBA is neither an entity nor an investment vehicle. It does not offer limited liability protection to its owner or owners.
If you have an established business name and would like to continue using it after you incorporate, an option is to choose a different, available corporate name and then file a new fictitious business name statement/DBA, registering your existing business name to your newly formed corporation.
For example, your existing sole proprietorship business, Beta Technology, is registered to you, Bill Bennett, as an individual.You discover that there is already an existing corporation named “Beta Technology, Inc.” with a different type of business in another part of the state. You select a different corporate name, for example, “Bennett Enterprises, Inc.” or”Bennett Technology Enterprises, Inc.” and then file a DBA indicating that “Bennett Enterprises, Inc.” is doing business as”Beta Technology.” In this example, “Bennett Enterprises, Inc.” is the corporation’s legal name and “Beta Technology” is its
fictitious or trade name.
Please note that trademark considerations must be considered prior to implementing such a technique. For example, Beta Technology could already be a federally registered trademark.