|
Question: I have been told by our county clerk that filing an assumed name does not protect the owner’s name. In other words, I can have a business named the same as someone else in our county; the difference will be the location. I have been in banking for 35 years and was taught that a filing in your county gave you the right to that business name and someone could not use it. Maybe it is protected by filing with the state? Can you clarify?
Answer: Each county clerk and the secretary of state will accept a filing of an assumed name certificate as notice of intent to use of the assumed name without determining whether the registrant has the right to use of the name. Consequently, there may be the same assumed name on file by more than one organization. Each county clerk and the secretary of state must keep an alphabetical index of all assumed names that have been filed in their office pursuant to the provisions of Chapter 36 of the Business & Commerce Code (See Section 36.15). It is up to the business owner to search these records to see if they have a right to use this name. Section 36.17 provides that the filing of an assumed name certificate does not give the registrant the right to use of the name when contrary to the common law or statutory law of unfair competition, unfair trade practices, or common law copyright.
Here is a primer on who needs to file an assumed name certificate and where they must file it:
Any person who regularly conducts business or renders professional services other than as a corporation, limited partnership, registered limited liability partnership, or limited liability company in this state under an assumed name shall file an assumed name certificate in the office of the county clerk in each county in which such person has or will maintain business or professional premises or, if no business or professional premises are or will be maintained in any county, in each county where such person conducts business or renders a professional service. (Section 36.10) Any business that is not in the "other than" list must follow this requirement, except that, pursuant Section 36.03, it does not apply to insurance companies.
Any corporation, limited partnership, registered limited liability partnership, or limited liability company which regularly conducts business or renders professional services in this state under an assumed name, or which may be required by law to use an assumed name in this state to conduct such business or render such services, shall file an assumed name certificate in the office of the Secretary of State and, (1) if such corporation, limited partnership, registered limited liability partnership, or limited liability company is required to maintain a registered office in this state, in the office of the county clerk of the county in which such registered office is located and of the county in which its principal office is located if within this state and not the same county where the registered office is located; or (2) if such corporation, limited partnership, registered limited liability partnership, or limited liability company is not required to or does not maintain a registered office in this state, in the office of the county clerk of the county in which its office within this state is located or if the corporation, limited partnership, registered limited liability partnership, or limited liability company is not incorporated, organized, or associated under the laws of this state, in the office of the county clerk of the county in which its principal place of business in this state is located if not the same as its office. (Section 36.11)
|  |
