Determining Whether a Name is Distinguishable

General Rule

In general, any name which contains a different word from existing names on file with the Secretary of State is distinguishable and the name is acceptable for filing as an assumed name or as the name of a corporation or limited liability partnership or limited liability company. Exceptions to this general rule are stated in the following section.

Exceptions

Names which are identical except for the following are not distinguishable and will not be accepted for filing:

  • Corporate endings regardless of where they appear in the name. These include Incorporated, Corporation, Company, Limited, Limited Liability Company, Limited Liability Limited Partnership, Professional Limited Liability Company, Limited Liability Partnership, Professional Limited Liability Partnership, Professional Association, Limited Partnership and their abbreviations, and Chartered.
  • The inclusion or omission of articles of speech, conjunctions, contractions, prepositions or punctuation. An article of speech is any one of the words “a,” “an,” or “the.” A conjunction is a word or symbol that joins clauses, phrases or words together. Examples include “and,” “or,” “as,” “because,” “but,” “+,” “–,” “&.” A contraction is the shortened form of a word such as assn. for association and dept. for department. A preposition is a word which expresses the relationship between a noun and another word. Examples are “at,” “by,” “in,” “up,”“of,” “to.”
  • The abbreviation versus the spelling out of a word or different tenses of the same word. An abbreviation is the shortened form of a word or a recognized shortening of a word to an unrelated combination of letters, e.g., “Mister” to “Mr.,” “pound” to “lb.,” “Brothers” to “Bros.”
  • The spacing of words, the combination of commonly used two-word terms or the splitting of words usually found in compound form.
  • An obvious misspelling or alternative spelling or homonym.
  • The use of the word or n umerals (including Roman) for the same number, e.g., “two,” “2,” or “II.”

Options for Dealing with Names Which Are Not Distinguishable

A business that wishes to use a name that is not distinguishable from a name that is already on file with the Secretary of State has several options. These include changing the name, obtaining and filing consent to use the name, filing a court order, and filing a statement of dormant business.A fee is charged for each filing.

Changing the Applied-For Name

The name may be changed by adding or deleting words to distinguish the name.

Filing Consent to Use the Name

Written consent may be obtained from the holder of the conflicting name and filed with the Secretary of State. A form for this purpose is available from the Secretary of State’s office. Applicants for a trademark may not obtain consents, but they may submit affidavits from themselves and from holders of conflicting names describing the nature of the businesses and the geographic and market area served as evidence that the marks will not be confusingly similar. There is no fee for filing these affidavits, although a fee is charged for filing a consent.

Filing a Court Order

An applicant for a name who obtains a court order establishing a prior right to use of that name may file the name. The court order must be attached to the filing. Filing a Statement of Dormant Business. To use this method, the applicant must file a signed affidavit stating that: the existing corporation or business has been in existence for three years or more and is on file with the Secretary of State; the existing corporation has not filed anything with the Secretary of State in the past three years; the applicant mailed a written notice by certified mail return receipt requested, to the registered office of the existing corporation or business, and the notice has been returned as undeliverable; the applicant has made a diligent inquiry and has been unable to find a telephone listing for the existing corporation or business in the county of its registered office; and the applicant has no knowledge that the existing corporation or business is still operating.

This post is part of a series of posts on how to choose a business entity type.