Any person or entity carrying on a trade or business for profit in California who decides to use a name which does not include the owner’s last name, portray the nature of the business, or is not the entity’s legal name, must file a Fictitious Business Name (FBN) statement. This process is also known as registering a “Doing Business As” (DBA) or “Trade Name.” The business registers with the Registrar-Recorder/County Clerk’s office in the county where the business will be primarily located. If there is no place of business in California, registration is made with the Clerk of Sacramento County.
The filing of a fictitious business name certificate is designed to make available to the public the identities of persons doing business under the fictitious name.
Registration is necessary when:
- A sole proprietorship will be doing business under a name that does not contain the owner’s last name.
- A partnership or other association of persons not registered with the California Secretary of State (SOS) will use a name that does not include the surname of each general partner or a name that suggests the existence of additional owners such as “Company,” “& Company,” “& Son,” “& Sons,” “& Associates,” “Brothers,” and the like, but not words that merely describe the business conducted.
- A partnership, corporation, or Limited Liability Company (LLC) will be doing business under a name not stated in the articles of incorporation or articles of organization filed with the California SOS.
- The name does not describe the nature of the business.
If Michael Rocco owns a sole proprietorship, and his business name is Michael Rocco Painting, he won’t need a fictitious business name because people will know who the owner of the company is and the type of business. If he wanted to go by either Michael and Sons Painting or House Painting Fast, he would need to file a fictitious business name because the business name suggests additional owners and doesn’t include his last name. Likewise, the name Michael Rocco Painting would not be acceptable for a DBA registered to sell real estate. If Michael Rocco instead owned either an LLC or a corporation, and wanted to open up additional businesses under the LLC or corporation, he would need a fictitious business name statement for any business name other than the entity’s legal name.
The filing of a FBN, articles of incorporation, or certificate of qualification establishes a rebuttable presumption that the first registrant has the exclusive right to use as a trade name, so long as the name is actually being used.
It is important to select a business name that is not already in use, does not closely resemble an existing business name, or misleads the public. Many cities and counties offer a fictitious business name search on their individual websites. The California Governor’s Office of Business and Economic Development conveniently provides links to most county and city websites through its CalGold website, calgold.ca.gov. Although a business does not file a fictitious name statement with the Secretary of State, the Secretary of State is a good resource for determining if a business name is already in use.
The fee to file a fictitious business name statement varies depending on the city or county where it is filed. The business owner should direct inquiries to the Registrar-Recorder/County Clerk’s office in the county where the business will be primarily located.
The filing is valid for five years or until the facts in the statement change, whichever occurs first.
The business owner usually files a fictitious business name statement within 40 days of starting the business, or before the statement on file expires. Along with the original, the county or city may require several copies of the statement for filing. The clerk or recorder will certify and return all copies to the registrant, keeping the original.
Within 30 days after filing a fictitious business name statement, the registrant must publish the statement in a local newspaper of general circulation near the principal place of business. The notice must appear once a week for four successive weeks. Within 30 days of the last published date, the registrant must file an affidavit of publication with the county or city office. We recommend that you check with the Registrar-Recorder/County Clerk’s Office to determine if there is a specific list of approved publications in which to meet this requirement. A business owner should also check with the respective publication when they place the advertisement of the required notice to determine if the publisher will file an affidavit with Registrar-Recorder/County Clerk’s Office upon completion.
The process of setting up a fictitious business name may seem daunting… but, it doesn’t have to be.