“I obtained a DBA (“doing business as”) for my corporation by filing a fictitious business name statement. Does that mean that the name of my business is protected from others who may want to use it?”
Unfortunately, quite a few small business owners are under the impression that a fictitious business name protects the name of their business from others who may want to use the same name. This is simply not true (see Cal. Bus. & Prof. Code Section 14418.)
A fictitious business name (“FBN”) establishes a “rebuttable presumption” that the business owner has the exclusive right to use the trade name, in the county where the FBN was filed, if the business owner was the first to file in that county and actually transacts business using the FBN. (Cal. Bus. & Prof. Code Section 14411.) In contrast, if a domestic corporation (formed in the state in which it transacts business) files articles of incorporation, then a rebuttable presumption is established that the corporation has the exclusive right to use the corporate name in that state if the corporation is the first to have filed the articles of incorporation. (Cal. Bus. & Prof. Code Section 14415.) If a conflict arises between a corporation and a fictitious business name registrant regarding the use of a specific name, then such conflicts are addressed by Business and Professions Code Section 14416, which sets forth that whomever obtained the articles of incorporation (or fictitious business name statement) first, is entitled to the presumption against the other party in the county where the registrant has filed his FBN statement.
In more simple terms, the fact that a FBN statement was filed first does not preserve the exclusive usage of a name for a registrant. Instead, the “first in time” rebuttable presumption, discussed above, simply affects the burden of producing evidence should a dispute arise between the two parties.
Ben Schwefel is an Associate Attorney at The Loftin Firm. For questions relating to a business, nonprofit, real estate, or estate planning matter, contact Ben at 760-814-9649.