Understanding Fictitious Name “Registrations”

Understanding Fictitious Name “Registrations”

Who Are We?A “Registration of Fictitious Name” isn’t really a registration. It’s just a disclosure of a “fictitious” name.  The purpose of this “Registration” is to alert the public to people doing business under an assumed name.

Let’s start with the basics … What is a “fictitious” name?  Anyone can do business under his/her own “given” name without anyone’s permission (unless your name is Ozzie Smith and you aren’t the real Ozzie Smith … but that’s another subject). So, you can do business as Bob Smith’s Dry Cleaners and you don’t need anyone’s permission. But if Bob Smith wants to do business as “Superior Dry Cleaners” then he’s doing business under a name that isn’t his own. The name Superior Dry Cleaners is a “fiction” i.e. a fictitious name.

What about corporations and limited liability company’s ? Do entities have “given” names … yes indeed they do. Here’s the key: a corporation or a limited liability company’s “given” name always includes the corporate or LLC identity tag that’s required by law.  For a corporation the required “tags” are:  Incorporated (Inc.)., Corporation (Corp.), Company (Co.) or Limited (Ltd.). For a limited liability company they are: “LLC” or “LC.”

So, if your entity name is Superior Dry Cleaners, LLC you may NOT do business as “Superior Dry Cleaners, ” i.e. without the tag LLC, unless you file a fictitious name registration for that name. Doing business without the “tag” is illegal in Missouri, because it’s not your given name. Typically, this comes into play with your website and your business cards. By the way, you should also register “Superior Dry Cleaners.com” just to be safe.

Let’s back up … why does the law require these entity “tags” anyway? Answer: so that you, the customer, will know that you are doing business with an entity and not a person. Unlike we humans, entities have limited liability, i.e. you may be doing business with an entity that does not have the capacity to compensate you if it damages you, e.g. it doesn’t deliver the product you ordered.

Penalty for Failure to File:

A fictitious name must be registered within 5 days from its first use. Failure to register a fictitious name is a crime.

Common Mistakes:

These “registrations” are deceptively simple. Here are a couple of common mistakes, with serious consequences.

Filing personally instead of your entity

People often file a Fictitious Name Registration for their entity (i.e. LLC or corporation) and list themselves personally, as the owner. But the owner is the entity not you personally. Be certain that you list your entity as the 100% owner of the “person” using, the fictitious name being registered. Listing yourself personally means that a plaintiff’s attorney can rely on the public filing and sue you personally … not your entity. BE CAREFUL.

Assuming that a fictitious name filing protects the name

Remember, filing a fictitious name registration does not “register” anything. It’s merely a disclosure of the name you are using. Many people think that this is tantamount to a trade name or trademark registration, and thus provides some protection for your name. Wrong!  This filing is neither a registration nor a protection for your name. It’s just a data base of names at the Secretary of State’s office, and has nothing to do with the law protecting your name … which is the law of trademarks.

Brand names ARE Fictitious Names

Remember that a brand or brand name is a fictitious name, so you need to register it.

In summary … BE CAREFUL. Mistakes can be costly.