What is a Fictitious Name (Also known as a “Trade Name”)
What is a Fictitious Name and how do you obtain one? More importantly, what isn’t a Fictitious Name?
Business owners in the State of Florida – whether sole proprietors, LLCs, or Corporations – have the ability to adopt a Fictitious Name (also commonly referred to as a ‘trade name’) for their business. But, what is a Fictitious Name and how do you obtain one? More importantly, what isn’t a Fictitious Name? This post will provide a brief overview of this topic and address these frequently asked questions.
Requirements to Obtain a Fictitious Name
Under Section 865.09, Florida Statutes (cited as the “Fictitious Name Act”), any business (which includes sole proprietors) which desires to use a name “other than the person’s legal name” must first register with the Florida Division of Corporation of the Department of State. To register, you must provide the State with all of the following:
- the name to be registered;
- the mailing address of the business;
- the name and address of each registrant;
- if the business is an entity required to file formation documents with the State (i.e., a corporation or LLC), then you must also provide the document number and Federal Employer Identification Number (FEIN) for the business;
- certification that the intent to register has been advertised in a newspaper at least once in the county wherein the business will be located; and
- pay a small filing fee (currently it is set at $50.00)
It is important to note that a Fictitious Name can be owned by more than one person or entity. This is important to note, because you may have two distinct entities who wish to operate under the same ‘brand’. Therefore, they can use the same Fictitious Name and not risk losing their legal separation and distinction
In addition, it is noteworthy that a Fictitious Name can be transferred. This frequently occurs in the context of a Business Asset Purchase and Sale; a Fictitious Name registration is an asset of a business that has value by virtue of its use in the marketplace. Therefore, when a buyer purchases the assets of a business, they will frequently purchase the fictitious name rights as well, which will require a transfer application to be filed with the State.
What Can I Do with a Fictitious Name?
Once properly registered, a Fictitious Name will allow a business to operate using its Fictitious Name for all intents and purposes. This means that, if a sole proprietor wishes to operate as “Acme 123 Technologies”, they can do so without using their personal name. Additionally, LLCs and corporations may be registered with a certain name that they wish to retain, but also be able to use a different name in certain contexts. For instance: suppose that a Florida LLC named “Sample 123 Roofers and General Contractors, LLC” is licensed and qualified with a Certified General Contractor (CGC) license, AND Certified Roofing Contractor (CCC) license. When acting as a General Contractor, the business may not wish their subcontractors or customers to see them as just a roofer; therefore, the business may wish to register a Fictitious Name of “Sample 123 Contractors” to give them a broader and more general theme.
In short, a Fictitious Name is like wearing a mask; it is the same person or entity underneath, but when they wear the “mask” of a Fictitious Name, they can look different to the outside world without changing what’s on the inside.
What does a Fictitious Name Not Do?
It is critical to point out that a Fictitious Name does NOT secure trademark rights. Consumers and seasoned business owners alike are frequently confused by this. A Fictitious Name registration merely allows you to go by a different name than that which you normally use. A trademark, on the other hand, enjoys certain protections from infringement based on either Federal, State, or common law (depending on where or whether it is registered). Thus, it is paramount to determine your goals when contemplating a Fictitious Name Registration. If the goal is to secure protection from others using the same name, then a trademark registration is ideal.