How do I determine whether the name I have chosen for my entity will be accepted for filing by the secretary of state?
Under section 5.053 of the BOC, a filing entity cannot have a name that is the same as or deceptively similar to a filing entity, foreign filing entity, name reservation, or name registration filed with the secretary of state. Furthermore, a filing entity cannot have a name that is similar to an existing name on file with the secretary of state unless the existing entity consents in writing to the use of the similar name.
Texas Administrative Code, title 1, part 4, chapter 79, subchapter C sets out the rules for determining whether names are the same, deceptively similar, or similar. If you wish the secretary of state to provide a preliminary determination on name availability, you may call (512) 463-5555, dial 7-1-1 for relay services, or e-mail your name inquiry to Corporations Section. A final determination cannot be made until the document is received and processed by the secretary of state. Do not make financial expenditures or execute documents based on a preliminary clearance. Also note that the preclearance of a name or the issuance of a certificate of formation under a name does not authorize the use of a name in violation of another personâ€™s rights to the name. See Trademark FAQs for more information.
Yes. Name reservations are now â€œgenericâ€ and can be used to form any type of filing entity.
Yes. You can file a name reservation through SOSDirect 24 hours a day, 7 days a week.
A name registration is a filing that can be made by an organization that is authorized to do business in Texas as a bank, trust company, savings association, or insurance company, or that is a foreign filing entity not registered to transact business in Texas under the Texas Business Organizations Code. A name registration prevents the secretary of state from filing another certificate of formation or application for registration under a name that the secretary of state determines is the same as, or deceptively similar to the registered name.
It depends. Filing a name registration does not give an entity the authority to transact business in Texas. A valid name registration precludes another entity from filing under a legal or fictitious name that is the same as or deceptively similar to the registered name. A name registration is valid for one year and may be renewed.
An application for registration, formerly called a certificate of authority, is filed by a foreign corporation, limited liability company, limited partnership, limited liability partnership, professional association, or other foreign entity as listed in section 9.001 of the Texas Business Organizations Code when the entity will be transacting business in Texas. Filing an application for registration gives a foreign filing entity the authority to transact business in Texas. However, the need to file an application for registration depends on the nature and extent of the activities of the entity in Texas. In addition, a foreign entity may need to file an application for registration with the secretary of state in order to meet other state law requirements.
If you are unsure whether to file a name registration or application for registration, please contact your private attorney.
A filing entity changes its legal name by following the applicable provisions in its governing documents and the Texas Business Organizations Code regarding the procedure and necessary approval for amending the entityâ€™s formation document. After complying with the necessary provisions for amending the formation document, the entity shall file a Certificate of Amendment with the secretary of state. See Form 424 (Word, PDF). Alternatively, if an entity wants to keep its legal name but conduct business under a different name, it can do so by filing an assumed name certificate. See Form 503 (Word, PDF).
Yes. A domestic entity can file name change amendments online through SOSDirect 24 hours a day, 7 days a week.
Should an assumed name certificate be rejected if there is a certificate already on file for the same or a similar name?
No. Chapter 71 of the Texas Business & Commerce Code does not authorize rejection of an assumed name certificate on the basis of a name conflict. Therefore, there may be multiple assumed name certificates on file with the secretary of state for the exact same name. An assumed name certificate provides information about the underlying businessâ€™s identity and location. It does not give the registrant any right to use the assumed name in a way that violates the law, infringes on the rightful use of the name by others, and it does not prevent anyone else from filing the same assumed name or using the name to form a new entity with the secretary of state. It is up to each business entity to protect its name and good will.
Secretary of State filings: You do not need to submit an assumed name certificate with an original signature. Faxed copies and photocopies of signed certificates are acceptable for filing. Assumed name certificates filed with the secretary of state do not need to be notarized. Form 503 (Word, PDF) may be used for purposes of filing with the secretary of state.
County Clerk filings: Assumed name certificates filed at the county level must have original signatures of each person whose name is required to be stated in the certificate. If the person is not an individual, the certificate must be signed by an officer, general partner, member, manager, representative, or attorney in fact of that person, and be notarized. A certificate that is signed and acknowledged by an attorney in fact also must include a statement that the attorney in fact has been duly authorized in writing by the principal to sign and acknowledge the assumed name certificate to be filed. Contact each county for information on its filing procedures. Please note that secretary of state Form 503 cannot be used to file an assumed name certificate at the county level.
No. However, the law requires an assumed name registrant to file a new assumed name certificate when the information contained in the certificate is or becomes materially misleading. Certain events can cause the information in a certificate to become â€œmaterially misleading.â€ For example, a change in the registrantâ€™s name, address, or business structure would be considered a material change. If a material change has been made, a new assumed name certificate must be filed within 60 days. See Tex. Bus. & Comm. Code Â§71.152.
An assumed name certificate must include a stated term or duration for the filing, which cannot exceed 10 years from the date of filing. The certificate expires at the end of the stated term or 10 years from the date of filing. If the registrant decides to continue using the same assumed name, a new assumed name certificate must be filed prior to the expiration of the current certificate.
If you have filed an assumed name certificate with either the secretary of state or with a county clerk and you are no longer conducting business under that assumed name, you may file a statement of abandonment.
The statement of abandonment must include the following:
- The assumed name which is being abandoned;
- The offices with which the assumed name certificate was filed and the date of filing;
- The office where the statement is being filed; and
- Each registrantâ€™s name and residence or office address.
The secretary of state has a statement of abandonment form (Form 504 Word, PDF) that may be used to file an abandonment of an assumed name certificate recorded with the secretary of state. Because of the differences in execution requirements you cannot use Form 504 when filing a statement of abandonment on the county level.
Counties: Filing fees may vary depending on the county, so check with the county clerk in the county in which you intend to file.
Secretary of State: The secretary of state is required to collect $25 for each assumed name certificate and $10 for each statement of abandonment which is filed with this office.
Yes. An entity may not file an assumed name for its exact legal name because this does not meet the definition of an â€œassumed name.â€ This is true for both domestic entities and for foreign entities that are required to register with the secretary of state under a fictitious name.
- Example: If the legal name of your business is ABC, Inc:
- You may not file an assumed name certificate for ABC, Inc.
- You may file an assumed name certificate for ABC.
- You may file an assumed name certificate for A.B.C., Inc.
- You may file an assumed name certificate for Austin Boating Club.
- An assumed name certificate is not required to include an organizational identifier such as Incorporated, Inc., LLC, Limited, etc.
- Example: If the legal name of your business is ABC, Inc:
By filing an assumed name certificate, you are notifying the public that a particular business entity intends to conduct business under a name other than its legal name. This means that generally an entity may advertise under the assumed name, use the assumed name on business cards and letterhead, etc. However, if you have a question regarding how to sign any contracts or legal documents, or other uses of the assumed name, you should consult with a private attorney. The secretary of stateâ€™s office cannot offer advice on how any entity should use its assumed name.
Regardless of where in Texas you are using an assumed name, an assumed name certificate must be filed as follows:
The following types of persons are required to file an assumed name certificate with the county clerk in each county in which a business office is or will be maintained. If the person does not maintain a business office in Texas, then in each county in which the person conducts business.
- Sole proprietorship
- General partnership or joint venture
- Real Estate Investment Trusts
- Any other type of business entity not included above or those listed below as filing with the secretary of state.
The following types of Texas or foreign business entities are required to file an assumed name certificate both with the secretary of state and with the appropriate county clerk. Entities that are required to maintain a registered agent file in the county where the entityâ€™s principal office is located, if the principal office is located in Texas, or where the registered office is located, if the entityâ€™s principal office is not located in Texas. A domestic entity that is not required to maintain a registered agent shall file in the county where the entity maintains its office in Texas. A foreign entity that is not required to maintain a registered agent in Texas shall file a certificate in the county where it maintains its principal place of business in Texas.
- Corporations (for-profit, nonprofit and professional) or other incorporated entities
- Limited liability companies (including professional limited liability companies)
- Limited partnerships
- Professional associations
- Limited liability partnerships
- Foreign filing entities
If an entity would like to file an assumed name certificate in additional counties, other than what is required by Chapter 71 of the Texas Business & Commerce Code, the entity should contact the applicable county clerksâ€™ offices for information on filing a certificate.
I filed an assumed name certificate, but another business is using a name that is similar/the same as mine. What should I do?
You should contact a private attorney about what steps can be taken to protect your business name and good will in commerce. Filing an assumed name does not give you any right to use the assumed name in a way that violates the law, including the laws of unfair competition, unfair trade practices, copyright, and trademark, and it does not prevent anyone else from filing the same assumed name or using the name to form a new entity. The secretary of state will file an assumed name certificate without determining what rights, if any, you have to use the name. Consequently, more than one person can have the same assumed name on file.
I am using an assumed name, but I have not made the proper filings at the state or county levels. Are there any penalties?
Yes. The Texas Business & Commerce Code sections 71.201, 71.202 provide for civil and criminal penalties for noncompliance with the assumed name provisions of Chapter 71.
I have a limited partnership (LP) that is registered as an LLLP. How does the partnership file an assumed name certificate with the Secretary of State?
When a limited partnership (LP) that has registered as a limited liability limited partnership (LLLP) uses an assumed name in Texas, the partnership must file two assumed name certificates with the secretary of state. The LP must file a certificate, and a second certificate must be filed for the LLLP registration. See Form 503 (Word, PDF). The partnership must also file assumed name certificates at the county level. Tex. Bus. & Com. Code Â§Â§ 71.101, Â§ 71.103(b)-(c).
Yes. If each or any series of the LLC conducts business under a name other than the name of the LLC, the LLC must file an assumed name certificate for the name of the series in compliance with chapter 71 of the Texas Business & Commerce Code. [See HB 1624, effective 9/01/13]. See Form 503 (Word, PDF).