marks may be valid marks—and they are much more difficult to discover. The last step of your trademark conflict search should be an internet search with one of the popular search engines. Such a search will likely discover any use of your proposed name.
Searching the Secretary of State’s Records for LLC and Corporation Names
Assuming that your name does not trigger a conflict with a registered or unregistered trademark, you should then search an online database of LLC and corporate names with the secretary of state in the state in which you intend to organize. You must search for both LLC and corporation names. Why? Because an “Inc.” or an “LLC” designation at the end of an entity’s name is not sufficient to distinguish between two companies; in most states, the secretary of state will not register an LLC with the same name as an existing corporation or a corporation with the same name as an existing LLC. For example, the secretary of state may not allow you to register “First American, LLC” if “First American Corp.” is already registered. This decision will be a matter of secretary of state policy and will vary; contact the secretary of state’s office if you wish to pursue the matter.
Nearly all secretary of state web sites offer free searching of existing corporate names. See the State Reference Information on the accompanying CD for information on locating the secretary of state’s web site in your state of incorporation. Alternatively, some secretary of state offices offer informal searches over the telephone, but searching a database is always preferred.
Your LLC’s name must not be confusingly similar to the name of any existing LLC or fictitious name registered to an LLC or any other business entity. A fictitious name is a trade name. For example, Publishing Services, Inc., an Oregon LLC, does business as PSI Research. The name “PSI Research” has been registered as a fictitious name with the Oregon Secretary of State.
States differ in their interpretations of what is “confusingly similar.” For some states, the phrase is synonymous with “identical.” In other states, even minor deviations are not permitted. For example, the names “AAA Body Shop” and “AAA Body Repair” would be considered confusingly similar in some states and not in others.
Your LLC’s name should reflect LLC status. Most states require at least some sort of LLC identifier. Perhaps more important, you should always hold your company out to the public as an LLC to ensure maximum liability protection. Therefore, your LLC’s name should include one of the following terms:
• Limited Liability Company
• LLC or L.L.C.
• Some states allow “Limited Company” (Florida) or LC. I’d recommend avoiding any designation other than LLC or Limited Liability Company.
Your LLC’s name should not include any of the following terms, which are usually restricted by state and/or federal law, unless your LLC meets the legal requirements for such terms:
• Bank
• Trust or Trustee
• Insurance
• Investment and Loan
• Thrift
• Doctor, Medical, Dental, and the like
• Mortgage
• Cooperative
• Olympic or Olympiad
▼ Expert Tip
As we’ll learn in later chapters, the cornerstone of LLC liability protection is the degree of legal separateness between LLC and owner. For this reason, it may be unwise to use your personal name in the name of your LLC (e.g., John Jones Construction, LLC). Such a use implies a strong connection between owner and LLC and erodes the all-important separateness.
Reserving an LLC Name
When you have selected an appropriate name, you may wish to reserve the name of the LLC. This step is optional. In my law practice, I almost always skip reserving a company name. The form for reserving an LLC name is typically nearly as long as the form for filing the articles of organization! To me, name reservation just creates more work. If my search reveals that a name has not been taken, I simply file the articles within a few days. If my filing is rejected, I simply work with my client to pick a new name and file again.
If name reservation is important to you, nearly all states offer a name reservation service. Typically, the service requires you to file a brief name reservation application with the secretary of state’s office. See the State Reference Information on the accompanying CD for the basics on name reservation for each state, appropriate forms, and associated filing fees.
A foreign corporation may have established name recognition in one state, but when it seeks authority to do business in another state, it may find that the name it has been using is unavailable because it is already being used.
Name availability is also a concern for foreign LLCs. A foreign LLC is an LLC formed in another state. (LLCs from foreign nations can also be foreign LLCs.) LLCs formed and organized pursuant to the laws of your state are considered domestic LLCs. For example, a California LLC that is doing business in Nevada is a foreign LLC in Nevada and a domestic LLC in California. We discuss foreign LLCs in more detail below in this chapter.
▼ Expert Tip
Before you submit your articles of organization, make certain that the name that you have chosen is available. When selecting a name, have two or three choices ready in the event that your first choice is not available.
If a foreign LLC has established name recognition in one state, but finds that name is already being used in another state, this could be a problem. For example, say you own and operate Advantis LLC in California. Later, you expand into Nevada, so you try to register in Nevada as a foreign LLC, but there is an Advantis Corporation that is a domestic corporation in Nevada. Nevada may not let your LLC qualify there.
Here are some steps you can take to secure and preserve your LLC name:
• Register your LLC name or logo as a trademark or service mark pursuant to federal laws and acquire the right to use your name anywhere in the country, subject to the right of persons using the name prior to your registration of the mark.
• Use state trademark or service mark registration laws to protect your name within the state where you register.
• Reserve the LLC name in all states where your LLC will do business. Name reservations are generally available for no more than 60 to 90 days. Some states do not permit renewal of a name reservation.
Registered Office and Registered Agent
A registered agent (or registered office or resident agent—the terms are synonymous) is a person or entity authorized and obligated to receive legal papers on behalf of an LLC. (Corporations have registered agents also.) The registered agent is identified in the articles of organization, but it can typically be changed by filing a notice with the secretary of state. The registered agent serves an important function: an LLC is not a physical person, so it would be impossible
