Best in Law: What’s in a “Fictitious” Business Name?
Partner Brian Reider Explains in the Southern California Newspaper Group Column
By Brian Reider
“DBA.” “d/b/a.” “Fictitious name.”
You see or hear these terms all the time in business. You wonder: Who owns “Ye Olde Pie Shoppe”? And, after digging a bit, you start seeing the name “Megacorp Inc., d/b/a Ye Olde Pie Shoppe.” What do these terms mean, and do they matter?
At the heart of the matter, it is a simple concept: A person or an entity can choose to use a name for their business that is different from their own or that of an entity. There are multiple reasons for this including that “Ye Olde Pie Shoppe” sounds more attractive than “Megacorp Pie Shoppe” or “Instant Delivery Trucking” sounds more reliable than “Mabee Delivery Trucking.” Whatever the reason, the owner or operator of a business may want to use a name other than their own.
Once the owner decides to use a different name, they naturally want to protect that name from unfair competition. Megacorp doesn’t want another bakery down the street to open and call itself “Ye Older Pie Shoppe.” Pat Mabee doesn’t want another trucking company to start calling itself “Really Instant Trucking.”
At that point, the owner turns to a procedure called the registration of a fictitious business name. Basically, this allows any person or entity, for a small fee, to file a form with their county clerk stating they’re “doing business as” (that is where “DBA”, “dba” or “d/b/a” all come from) another name.
This form is filed, then indexed by the clerk so anyone can search and learn who is using that name. Once the name is registered, it has to be renewed every five years. If a business operates under a fictitious name but fails to register it, the business cannot sue to enforce any contract made under the fictitious name (although it usually can register the name to cure that defect before a case goes to trial).
Before this is done, a search should be conducted to make sure the proposed name is not already in use.
Each county maintains its own records, and most can be searched online to at least find out if the name (or a similar name) is registered. It is also worthwhile to search the online records of the California Secretary of State to ensure that no corporation, limited liability company or limited partnership is using the name.
Running the name through a search engine also should be done to see if anyone appears to be using a name, or other ways it may be used. Once you are confident no one else is using the name or a similar name, the fictitious name should be registered as soon as possible.
So what does registration mean (and what doesn’t it mean)?
If a dispute comes up as to who has the right to use a particular name, the fact that one person or entity has registered the name creates a legal “presumption” the registrant has the exclusive right to use the fictitious business name (or any confusingly similar trade name) as a trade name, in the county where the statement is filed.
In other words, if there is a lawsuit over the use of the name, the one who did not register that name has to produce other evidence that, despite the registration, they have a superior right to use the name. The registration, then, does not create ownership of the name, or conclusively establish that one business used the name first, and in any event, the presumption only applies in the county where the registration was made.
Despite the relatively thin nature of the protection, registration of a fictitious name is a key part (along with registering names and logos as trademarks and other steps) in protecting a name. If you have done this, then discover someone else has started using the name, a simple letter from your attorney to the competitor letting them know you have registered the particular name is often enough to induce the competitor to stop using it or to change it so it is not deceptive.
In the end, registering your fictitious business name right away might be some of the least expensive business “insurance” you buy.
This article first appeared in The Press-Enterprise and other Southern California Newspaper Group publications online on Nov. 25, 2018. Republished with permission.