In the State of Florida, the Fictitious Name Registration Act requires all business operating under a name besides the legal name of the owner or owners to register with the Division of Corporations before conducting business under a different name. Please read through this guide to answer any questions and to read an explanation of some of the tenants of this act and what they mean for your new or growing business.
A fictitious name is, according to the Florida Department of State, Division of Corporations, “any name under which a person transacts business in [the state of Florida], other than his [or her] legal name.” The most common usage for a fictitious name is a corporation name because it exists as an entity outside of the individuals who work there or own it. The advantages of using such a name are rooted in the fact that it makes business or commercial exchanges that much easier. For example, when a person makes a payment at a store, other than cash, they make the check out to or the charge on a card is made to the business name rather the individual tender. The same concept applies for corporations using such a name to hold a bank account or make return payments of their own.
This is just one use of a fictitious name however, as the concept extends to all facets of business. In the state of Florida, business is defined as “any enterprise or venture in which a person sells, buys, exchanges, barters, deals, or represents the dealing in any thing or article of value, or renders services for compensation.” This means that even individuals who do not own a corporation may elect to register a fictitious name if they feel it would be best suited to their practice. A writer who uses a pen name for example may use a registered fictitious name rather than their legal name for payment purposes.
Other examples of fictitious names might include trademarks, limited partnerships, or service marks. Note however that an assumed name of this kind must be registered with the state of Florida in order to be considered a valid fictitious name. A person cannot simply make up a business name and it be considered valid for monetary exchange. However, any acceptable name is valid once registered. There are numerous benefits to doing so, and it is usually recommended as a good business practice.
Although it is usually a good idea to register a fictitious name, and is normally required for the legal usage of such a name, this is not always the case. There are a few scenarios where the filing of a fictitious name would not be required by law. One scenario might be if the person who is applying for a name is a licensed attorney forming a business for the practice of law within the state of Florida.
An applicant also need not register for a fictitious name is he or she is already registered with the Department of Business and Professional Regulation. This exception would not apply, however, if their licensing board has exclusively mandated such a registration, in which case it would be required anyways. Obviously, if the entity applying is already a registered corporation or partnership that is in good standing with the Division of Corporations, they do not need to apply again unless they are planning to conduct business under a different name, in which case that name would need to be registered and associated with the already existing name.
A final, generic exception to file for a fictitious name would be if the entity applying is a federally chartered corporation. The logic behind this is that if the name is already registered on the federal level, it does not need to be registered on a state level. Again, this would not be the case however if such an entity was aiming to conduct business under an additional name, in which case the additional name would need to be registered either federally or with the state of Florida.
There may, of course, be other exceptions to filing for a fictitious name, however any additional circumstances would need to be handled on a case by case basis. If there is any doubt as to whether you should apply, it would be a good idea to do so or ask the State.
The Fictitious Name Registration Act, placed into effect this year, requires all businesses that are using a fictitious name to register it before conducting business under that name. Under the act, the desired name, mailing address of the business or entity, and the legal names and addresses of each owner must be registered. If it is a corporation that is taking on the fictitious name, then the federal employer’s identification number and Florida incorporation or registration number must also be noted. In addition, the person or persons applying must certify that they have advertised the intention to register their fictitious name in at least one newspaper in the county where the business will be conducted, and provide any other necessary information to the public or government agencies.
The intention behind the Fictitious Name Registration Act is primarily to place on record the various names that individuals and corporations use to conduct business in this state. However, the other main objective is to notify the public as to these business names and who owns them. With fictitious names now being registered, they become public knowledge and thus bolster the company’s presence in their respective county and the state. That is why there is a requirement to advertise the fictitious name before it is registered. In this way, a new company or business will already have somewhat of a community presence, which increases its chances of surviving in the longer run. It also shows the dedicated intent to cultivate a business by not only making it an official name, but also presenting it to the community.
To further help business owners, particularly small business owners, promote their business, there is a requirement to renew the name every five years. This helps keep the business in the public eye and also helps keep the records up to date. Although not all businesses have to register their fictitious names, it is a boost to solidifying new and thriving companies and keeping their names alive for years.
Contrary to what it may seem on the surface, the primary effect of registering under the Fictitious Name Registration Act is not merely to set into stone the name used by a business, corporation, or partnership. Rather, the main effect of registration is to public notice only. What does this mean? It means that registering a name places it in the public eye, gives widespread recognition to it, and even provides minor marketing for the fledgling business. This is a big aid to small, home-owned businesses or rookie entrepreneurs starting out, as it gives them a level of credibility and official standing. Registration also guarantees that business can be conducted uninterrupted, barring any additional legal complications of course, in the State of Florida, which allows the registrants to focus on building their business and not worry about naming problems.
To clear up any confusion, there are a few things that registering a fictitious name with the State of Florida does not guarantee or protect the name owner from. There should be no presumption here that the person or persons registering the fictitious name have a right to own or use it. In other words, if they would not have the ability to through other means, this Act does not grant it. In addition, registering a fictitious name this way has no bearing or effect on trademarks, service marks, any names that were previously used or acquired through trade or business transactions, or any similar-sounding names. In fact, the registration of a fictitious name does not necessarily guarantee that it won’t be able to be used in the future by a separate party, especially once the registration time period, which is five years, is over. If that is the goal, then one would be better suited getting a trademark, copyright, or patent instead. Similar sounding names are not protected as well. Two different individuals can register a similar or nearly identical name under this Act, so one should be aware of this when registering and executing subsequent marketing plans.
If a person or persons fails to register their fictitious name, they may not conduct any business under that name under the registration is completed and confirmed. If the business does execute any transaction, they are in violation of the act and can be penalized accordingly. The Fictitious Name Registration Act outlines three tenants of penalty that accrue if a violation does occur.
Firstly, the entity may not continue to conduct business under the fictitious name until it is registered. This includes taking any action, suit, or proceeding in any court in the State of Florida. This is not necessarily lock the business out of participating in a court of law, but rather requires that they complete their registration and comply with the Act before proceeding. This of course can be easily avoided by filing in the first place.
This being said, the Fictitious Name Registration Act also states that “The failure of a business to comply with this section does not impair the validity of any contract, deed, mortgage, security interest, lien, or act of such business and does not prevent such business from defending any action, suit, or proceeding in any court of this state.” This means that the legitimacy of the case or anything presented in it is not hindered by a violation, as well as confirms that the case can proceed without unnecessary gridlock. However, the Act also states that the violating business may incur the penalty of having to forfeit reasonable attorney’s fees and court costs tallied up by the State during the case.
Ultimately, the Fictitious Name Registration Act declares that the violation of it is a second degree misdemeanor. Under Florida law, the penalty for a crime under this category is a fine of $500, as well as a definite term of imprisonment that is no longer than 60 days. Such sentencing also goes on record, so it is best to avoid complications like this if at all possible to prevent a stain on the reputation of you as an individual or the new business you are trying to start or grow.
When you file for your fictitious name with the State of Florida, there are a number of fees that are outlined by the Fictitious Name Registration Act. The first and only mandatory one is a one-time fee of fifty dollars. This is a non-refundable processing fee required to complete the registration of your fictitious name. If you would like to cancel and reregister a fictitious name, then there is another fee of fifty dollars, non-refundable, that does not stack with the previous one. After you’ve registered a name the first time, it will need to be renewed at the end of the term and reregistered. This will incur another processing fee of fifty dollars.
Although filing for a fictitious name in the State of Florida is a requirement (except in certain circumstances), it is not permanent. After an initial registration of the fictitious name, it is valid and active for a period of five years. However, the name will not expire until December 31st, the last day of the year, of the final year.
Depending on when you register then, it is possible that the name remain valid for an additional period of time. For example, if you were to apply on November 1st, 2016, the name would not expire on November 1st 2021, it would expire instead on December 31st 2021. This essentially grants you an “extra” month or so of the fictitious name being valid. This is useful to keep track of in order to make the most of your fictitious name registration, however, this need not influence your decision as to when you should register the name; the name should be registered as soon as it is relevant for transacting business and before any business is undergone.
When it comes time for you to reregister your business or partnership’s fictitious name, the Florida Division of Corporations will send you a renewal application via mail at least three months before the December expiration date. This not only serves as a reminder to you that the time of registration is fast approaching, but is also convenient because you do not need to go out of your way to find the renewal form. Since the form is sent to the current address that is on file for the business’s fictitious name, it is important to make sure that the address for the business, and really all important and contact information for it, is up to date to reduce the risk of the form getting lost in the mail. If you need to update the address for the business operating under the fictitious name, a letter or other form of written communication must be sent to the Florida Division of Corporations; simply e-mailing a change of address request will not suffice.