Submitted by UCS on July 10, 2018

Tips to avoid corporate name conflicts with the Secretary of State

IHOP or IHOB? What’s in a name? Plenty if you ask us. ☺

Your corporate name allows you to tell the public who you are. Your name is placed on the formation document (essentially the firm’s birth certificate) which is displayed on everything that the company comes in contact with such as letterhead, stock certificates, financial agreements, checks and even polo shirts if you are into that kind of thing. A name can be a source of pride and accomplishment. But before you start imagining all the possibilities, just make sure that the name you want is actually the name you can get.

Before a formation application is approved by the Secretary of State, one of the very first items reviewed on the document is the name. The name must be distinct from other company names and should not be misleading, illegal or considered offensive to the public. States such as New York will restrict or simply not allow certain words to be included in the name of a company unless permission is expressly granted from a specific agency. For example, the word “Exchange” in the title would require permission from the office of the NY attorney general. See the attached link for a complete list of words that are permissible and not permissible in New York.

All U.S. states require that a company name include the appropriate suffixes such as corporation, incorporated, Inc., LLC or LLP so that the public knows the entity type of the company. Every state has their own set of rules for approving and disqualifying a corporate name.

How can I minimize the risk of my name being rejected by the Secretary of State?

Have UCS conduct a name search with the Secretary of State prior to submitting your document. A name check scopes out potential conflicts and can help you make an informed decision. Simply going to the secretary of state website may not be enough to ensure the name you want is available. You should have a professional search performed.

Consider reserving or registering the name. Each state allows a name to be held by the applicant for a specified amount of time. See the attached chart for reservation periods.

Does reserving the name guarantee that my name is going to be available when I file the appropriate paperwork?

The answer to this question will depend upon the state. Staying in New York, even with a reservation, the state will not guarantee the availability of a name prior to submitting an application for existence. Check your state of choice for confirmation of rules concerning name availability and reservation. Usually if the name is reserved you have a higher rate of success of the name being yours so it may make sense to consider grabbing hold of it before someone else does.

What’s difference between a reservation and a name registration?

A name registration allows an unqualified entity to file paperwork that gives them exclusive use of a name and prevents any other entity from using the same name for a period of one year with the option to renew after the anniversary date. This is only for foreign entities that are in good standing in their home state and the company must be actively engaged in business in at least one state. Not all states offer the name registration option.

I’m incorporated in Delaware but I just found out that my name is already taken in New York. What can I do?

All is not lost! You have a few of options:

Option 1

Change the name in Delaware to something that you have confirmed is available in the foreign state.

Option 2

Depending on the state, keep the name and confirm that the foreign state allows the company to operate under a fictitious or assumed name. This allows the company to keep its legal name but use an alias to distinguish it from the existing entity.

Option 3

The state may allow for consent to use of name which is a written statement from the existing entity granting permission to the incoming company to use a name that is similar, not exactly, like theirs. This happens quite often when there is a parent corporation with subsidiaries. This option is allowed in only a few states, such as Delaware. Contact UCS for more information.

Besides checking name availability with the secretary of state, are there any other steps that I should consider before plowing ahead with my plans for world domination???

Consider conducting a comprehensive trademark search which helps determine whether another business is already using a trademark that’s identical or similar to what you created. This is important for both word marks, also referred to as corporate names, as well as a logo. Check out our Intellectual Property page for more information regarding various search options.

UCS wants your company to start off on solid ground. No one wants to invest in stationary, business cards and branding only to discover that you are using another company’s name. Contact Us to discuss how we can clear your company’s name and avoid the pitfalls of conflict.

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Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from United Corporate Services, Inc. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.