Glossary: Corporate Name Availability

Corporate Name Availability

Corporate Name Availability - Determining Corporate Name Availability can save you time and money when you form a new corporation, change the name of your existing corporation, or seek to qualify as a foreign (out of state or country) corporation. State laws generally allow you to reserve your proposed corporate name before filing your incorporation documents.

For example, in California you may mail a Name Availability Inquiry Letter to the Secretary of State's Office in Sacramento to request a preliminary check of the availability of a corporate name. By itself, this name checking process neither reserves the name, nor confers any rights to the name.

You may reserve a corporate name by mail or in person at any Secretary of State office location. California Corporations Code Section 201(c) allows the Secretary of State to reserve an available corporate name for you for 60 days. You can renew the corporate name reservation, but not for consecutive periods.

Remember that reserving the name is not the same as being incorporated under that name. Other issues may preclude you from ultimately incorporating under that name. Another corporation might own a registered trademark in the name (the right to use the name followed by a capital R in a circle) or a common law right to use it.

Pursuant to the laws of the various states, neither incorporation nor foreign corporation filings constitute authorization to use a corporate name in violation of the rights of any other person or entity. The right to a corporate name and/or a trade name may be acquired pursuant to the Federal Trademark Act (Title 15 of the United States Code Section 1051), state laws such as the California Trademark Act (Business and Professions Code Section 14200) or the Fictitious Business Name Act (Business and Professions Code Section 17900) and common law rights.

Your intellectual property attorney can do a trademark/service mark search for you (both registered and common law; both federal and state) and, most importantly, provide a written opinion as to your legal right to apply to register it with the Patent and Trademark Office (the 'PTO'). So, until the Secretary of State's Office notifies you in writing that your company has been formally incorporated, hold off on ordering letterhead stationery, printed marketing materials, signs, engraved corporate minute books, corporate seals, etc.

You may find the following guidelines, provided by the State of California, to be useful regardless of your intended state of incorporation.

General name availability information - The following is general information about name availability and name style requirements relating to corporations. In order to facilitate the filing of corporate documents, please ensure the name is consistent with the statutes related to the type of corporation being formed (i.e., close corporations, professional corporations, banks, etc.).

Proposed corporate names are checked only against currently reserved corporate names and active corporations of record in the California Secretary of State's Office. Since there is no legal requirement that corporate names be checked against other business entity names, corporate names are not checked against general partnership, limited partnership, limited liability company or limited liability partnership names, nor are names checked against trademarks, service marks or local fictitious business names filed at the county level.
The Secretary of State's Office cannot file a document which contains a name that is "likely to mislead the public or which is the same as, or resembles so closely as to tend to deceive," the name of a domestic or foreign (out of state or country) corporation that has registered with this office or a name which is under reservation for another corporation. [California Corporations Code Section 201(b)and Section 2106(b).] Please note, names are considered deceptive if the only difference is a corporate ending.
A corporation may adopt a name that is similar to, but not the same as, the name of an existing domestic or foreign (out-of-state or country) corporation if the existing corporation consents in writing to the use of the name and the Secretary of State's Office finds that under the circumstances the public is not likely to be misled. The consent letter should be submitted on the letterhead of the consenting corporation, signed by an authorized officer of that corporation. If a proposed name is reserved utilizing consent, a currently dated consent must accompany each renewal request.
The corporate name may not falsely imply governmental affiliation.
All names must use the English alphabet or Arabic numerals (0, 1, 2, 3, 4, 5, 6, 7, 8, 9) or a combination thereof. Roman numerals are treated as letters and not translated into their numeric equivalent. Symbols are not allowed in an entity name; except, an ampersand "&" may be used in an entity name as a conjunction in place of the word "AND".
There is no distinction between upper and lower case letters, typeface or font.
The words "bank", "trust", "trustee" or related words may not be a part of the corporate name of a domestic corporation unless a Certificate of Approval from the Commissioner of Financial Institutions (Commissioner) is attached to the Articles of Incorporation. If the proposed corporation is subject to the Banking Law, the articles must include the endorsement of approval from the Commissioner. (California Corporations Code Section 201 and Financial Code Section 400)
If the business of the corporation is to be an insurer, a Certificate of the California Insurance Commissioner approving the corporate name must be attached to the Articles of Incorporation (California corporation) or to the Statement and Designation by Foreign Corporation form (out-of-state or country corporation) at the time of filing. (California Corporations Code Sections 201.5 and 2106.5)
The word "cooperative", or any abbreviation or derivation thereof, or a word similar thereto, may not be a part of a corporate name unless the corporation is incorporated within the definition of California Corporations Code Section 12311(b). If the applicant is a foreign (out-of-state or country) corporation, documentation must be included indicating the corporation is organized as a cooperative corporation under the laws of the foreign jurisdiction.
The name of a close corporation subject to the provisions of California Corporations Code Section 158, must contain the word "corporation", "incorporated" or "limited" or an abbreviation of one of such words. (California Corporations Code Section 202)
The name of a corporation authorized to incorporate as a professional corporation, pursuant to the Business and Professions Code, must comply with the namestyle requirements of the regulatory agency which has jurisdiction over the particular profession. Please refer to the appropriate sections of the Business and Professions Code and the regulatory agency for the specific type of profession authorized.
Fictitious business names filed with the county clerk and/or recorder cannot include word(s) indicating corporate, limited liability company or limited partnership status unless organized as such pursuant to the laws of the State of California. (Business and Professions Code Section 17910.5)

Disclaimer: The foregoing is intended to provide general information and may not be suitable in specific instances. The glossary information is not intended to be exhaustive, but rather to illustrate typical considerations. The material is provided with the understanding that it is not legal, accounting, tax or any other professional advice.

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