In business law, a fictitious name, also called a “doing business as” (DBA) name, trade name, or assumed name, is a business name that differs from the personal name of the business owner or the legally registered name of the partnership or corporation. This term is used for the name of a company that it uses for its operations that is not the legal name of the entity.
A fictitious name can be helpful to an Ohio business owner who operates multiple businesses. Each of the owner’s businesses can have its own unique DBA name that reflects its specific services or products, even when all are legally linked to the same entity or owner.
For example, suppose a company named XYZ Holdings, Inc. owns a chain of restaurants, a software development company, and a bookstore. Instead of operating all of these businesses under the XYZ Holdings name, the company can name each company under it a name more appropriate for its services or products, such as Tasty Wings Restaurants, Innovations Software, and Great Reads Bookstore. This can help each business establish its own brand identity and be more appealing to customers.
An additional use of DBA names is in franchising agreements. For example, a local franchisee of a national fast-food chain may be the company noted in the above example, XYZ Holdings, Inc., but may do business under the brand name of the national chain.
If an owner is considering using an assumed or fictitious name for their business in Ohio, it is essential to schedule an Ohio lawyer consultation to ensure they handle the process properly and follow all business licensing regulations.
Difference Between a Fictitious Name and a Trade Name in Ohio
In Ohio, the difference between a fictitious name and a trade name is that a trade name has to be distinguishable from other trade names. A fictitious name, on the other hand, does not have to be unique and does not give the user any exclusive rights.
For more information on using fictitious or trade names in Ohio and to avoid any unlawful business practices, it is important to consult with an Ohio lawyer.
Example of How a Fictitious Name Works
When filing a fictitious or assumed name, there are certain steps the owner must follow. It may be helpful to review an example of how a fictitious name works.
Suppose that Jane Smith owns a sole proprietorship. She wants to run her business under the name Smith’s Sewing Warehouse instead of her own name. This is a fictitious name because it is not Jane Smith’s name or a legally registered corporate name.
Most states require the owner to file and register the fictitious name. This is typically handled by a state or county agency and requires the owner to pay a fee.
Even though the exact steps may vary by location, in general, the following steps are involved:
Step 1: Choose a Fictitious Business Name
The fictitious name should be easy to remember, unique, and reflect the nature of the business.
Step 2: Conducting a Name Search
It is important to search potential names to ensure they are not already in use in the area. It is also important to search the U.S. Patent and Trademark Office’s (USPTO) database to ensure that the name is not trademarked.
Step 3: Name Registration
If the chosen name is not already in use, it should be registered with the appropriate county or state agency. This is often the Ohio Secretary of State’s Office. Registration typically involves completing a form regarding the name and business.
Step 4: Paying Required Fees
Registering a fictitious business name typically requires a fee, often ranging from $10 to $100.
Step 5: Publication of the Fictitious Name
Although some states require a notice to be published in the local newspaper, Ohio does not have this requirement.
Step 6: File Proof of Publication
Because businesses are not required to publish their fictitious name, they are not required to file a proof of publication.
Step 7: Use the Name Consistently
Once the fictitious name is registered, it is important to use it consistently in all business dealings to maintain clarity and avoid any potential legal issues. Using the name consistently typically means including it on business signs, stationery, advertising, and any online presence.
Step 8: Renewing the Fictitious Name
The registration of a fictitious name does not last forever. In Ohio, the fictitious business name must be renewed every five years.
How To Register a Fictitious Name in Ohio
In order to register a fictitious name in the State of Ohio, an individual has to file Form 534A, or Name Registration, with the Ohio Secretary of State. There is a $39 fee for this for which can be paid and submitted online or by mail.
Legal Issues To Consider When Using a Fictitious Name in Ohio
There are many different legal issues for an owner to consider when they are using a fictitious business name in Ohio, which will be discussed below.
Infringing on Existing Trademarks
Infringement arises if a business uses a name that is similar to or identical to a name that is already protected by a trademark. For example, under trademark laws, if someone wanted to open a coffee shop called Starbucks Brews, they would likely face a legal challenge from the chain Starbucks because they have a registered trademark on their business name.
Reflection on the Nature of Your Business
The fictitious name that is used should represent the business well, in addition to the products and services offered. For example, if someone is opening a dog grooming business, choosing a name such as Fluffy’s Auto Repair would be misleading and suggest the owner is in the car repair industry.
Using a misleading name can lead to consumer confusion, loss of trust, and even legal complications related to deceptive business practices.
Consistent Use of the Fictitious Business Name
Once the fictitious name is registered, as noted above, it should be consistently used across all business operations. For example, if the business name is Wally’s Car Wash, that name should be used on any invoices, contracts, websites, business cards, and advertising materials.
If a business name is not used consistently, it can undermine branding efforts as well as confuse customers.
Lack of Legal Separation or Personal Liability Protection
Registering a fictitious business name does not create a separate legal entity. It is just an alias, or other name, for an existing business entity.
This means that, if Wally Smith is the sole proprietor of Wally’s Car Wash, Wally will be personally liable for all of the obligations and debts of the business. This means his personal assets, like homes and vehicles, can be at risk.
If, however, Wally chose to form a limited liability company (LLC) for his business, the LLC would be a separate legal entity, which would provide him with some personal liability protection.
Do I Need a Lawyer for Help With Fictitious Name Issues in Ohio?
Because there can be important legal implications when selecting and registering a fictitious business name in Ohio, it is essential to consult with an Ohio business lawyer. Your lawyer will be able to help you complete the process, including a name search, ensuring trademark infringement is not occurring, and provide you with advice on potential names.
You can use LegalMatch today for free to find an Ohio business attorney in your area who is ready to help. Simply complete the online submission form and include your fictitious name, question, or concern, and you will be matched with prescreened and licensed Ohio lawyers near you.
