By Lawrence E. Westerlund
If your last name is not your company’s name, you need to file a “Doing Business As” or a Fictitious Business Name Statement!
That is right, you read that correctly. If your last name is not in your business name, you are required by law in California to file a Fictitious Business Name (“FBN”) Statement, also known as a “Doing Business As” (“DBA”) statement.
The California legislature a long time ago determined that it is good public policy for customers and the general public to be able to determine who owns a company, so they passed a law that requires all persons doing business under a name different than their own name to file a fictitious business name statement.
Who is required to file a FBN Statement?
The law says that anyone doing business for a profit in California as a corporation, Limited Liability Company or limited partnership under any name that is not exactly the name on record with the California Secretary of State’s Office must file a FBN Statement. By the way, a FBN Statement and a DBA are the same thing.
Let’s break down the requirements more; a FBN Statement is necessary when:
- A sole proprietorship will be doing business under a name that does not include the owner’s last name.
- So “Mike Wazowski’s Plumbing” does not require a FBN because his last name is in the business name and the public knows who owns the business.
- “Mike’s Plumbing” needs a FBN because it does not have his last name in the business name. The public cannot determine who owns the company from the name alone.
- A partnership or other association will use a name that does not include the last name of each general partner. So if you have a partnership of investors and you call the partnership “Shaw Avenue Investors,” you will need to file a FBN Statement;
- If the name of the business suggests other owners, like “Wazowski and Sons.” The “Sons” suggests additional owners and doesn’t include their last names, so a FBN Statement is required.
- A limited partnership, corporation, or Limited Liability Company (“LLC”) is doing business under a name not stated in the Articles of Incorporation or Articles of Organization filed with the California Secretary of State. So if your Articles of Incorporation filed with the Secretary of State say “Mike’s Business,” you have to do business as “Mike’s Business” unless you register a FBN Statement.
Basically, you need to file a FBN Statement anytime you are doing business under a name that is not your entity’s legal name that is on file with the California Secretary of State.
Why do I need to file a FBN Statement?
Failure to file a FBN Statement may create some real problems for those who do not file. California has a statutory incentive to comply because the statute provides that a person transacting business under a fictitious business name contrary to the provisions of the statute may not maintain any action upon or on account of any contract made, or transaction had, in the fictitious business name in any court of this state until the fictitious business name statement has been executed, filed, and published as required.
Also, the business owner or officer or other agent entering into a contract on behalf of an entity using an unregistered fictitious business name may find himself personally liable if he fails to disclose the name of the entity on whose behalf he is acting.
Both of the above issues are very serious when weighed against the little time needed to file a FBN Statement.
How do I file a FBN Statement?
First you have to check to see that the name is not being used by someone else. You can search for entity names on the California Secretary of State website . In some counties, you can do online searches for fictitious business names.
You submit an Application for Fictitious Business Name to the county clerk or county office tasked with this function. Applications are usually processed within three to five business days after receipt, not including delivery timeframes.
Pay the application fee and ensure the statement is correct and complete before filing. Once your statement has been filed, changes cannot be made and refunds are not usually issued. Most counties need an original or “wet” signature on the application.
New FBN Statement filings must be published by the applicant in a newspaper of general circulation in the county in which the principal place of business is located. The notice must appear once a week for four successive weeks. You must then file an affidavit of publication with the county or city office.
FBN statements are to be filed no later than forty (40) days from the start of conducting business.
FBN statements are valid for five (5) years. You must re-file every five years and pay current fees, even if there are no changes. You are not required to republish a renewal if the information does not change. FBN statements have a 40-day grace period following the date of expiration for filing a renewal.
There are a couple of important things to note. Simply filing a FBN Statement will not change any of the tax consequences for your business. Also, filing a FBN Statement in California does not grant you exclusive rights to use that name. The only way to legally protect your exclusive use of a name is to register a trademark under that name.
Finally, this blog is not a substitute for legal advice. We would be happy to assist you to set up your business entity, consider tax issues, and help you file your FBN Statement.