Cover all the legal bases when deciding what to call your business.
Think back to the old Newhart show. Remember Larry's familiar
introduction, "This is my brother Daryl, and this is my other brother
Daryl?" With these hapless siblings, the duplication of names was
both confusing and comical. However, when it happens with a business
name, the owners rarely find the situation comical and are often confused
by the circumstances.
Many people think that because they have filed a name for their business
with the state, it can't be used by anyone else. However, this is not
always the case.
Sole Proprietors
In the State of Missouri, sole proprietors generally file a "Fictitious
Name Statement." However, contrary to what many business owners believe,
filing this statement does not provide any name protection, and you
will not be notified if the name you filed is already being used. You
can request a name search by calling the Secretary of State's office
at (573) 751-4153, or you can visit their Web site at https://www.sos.mo.gov/businessentity/soskb/csearch.asp. 
If you find that someone is using the business name you have selected,
be sure to determine the form of organization of that business. If a
sole proprietorship or partnership is using the name, you may too if
you choose. If a corporation is using the name, though, you should not
use it. Note the phrase should not. We'll come back to that.
Say, for example, you are planning to open a secretarial service and
are considering the name Secretarial Solutions. A search of the Missouri
Secretary of State's Web site would reveal four businesses with that
name in the state—one in each of the following cities: Raytown,
Lee's Summit, Ballwin and St. Louis. Since each one is a sole proprietorship,
the decision is yours.
In Kansas, there is no requirement for sole proprietors to register
their business name. You could conduct a limited search through telephone
books and business directories; however, it would be very difficult
to carry out a comprehensive search for business names used by sole
proprietors in Kansas.
Corporations
The rules of the game change for corporations. In both Missouri and
Kansas, a corporation's name must be distinguishable from the names
of any active domestic or foreign corporations already registered in
the state, as well as any limited partnership, limited liability partnership
or any limited liability company. The name of every Missouri and Kansas
corporation must contain the word company, corporation,
incorporated or limited or the abbreviation of one of
these words.
At this point you might ask, "Can a sole proprietor use the same
name as a corporation without the indication of corporate status (i.e.
Inc., Corp., LLC, etc.)?" After all, that would make the name different.
Again we'll use an example from the Missouri Web site: If you look up
the business name Computer Solutions, you'll find 14 listings of businesses
operated as sole proprietorships throughout Missouri with that name,
and you will also find four listings for Computer Solutions, Inc. However,
only one corporation listed under this name is active. The others existed
at different times in the past.
Clearly, only one corporate form of Computer Solutions can be active
at one time, while technically sole proprietors and partnerships can
use the same name without the corporate reference. However, remember
the earlier statement, "If a corporation is using the name, you
should not use it." Be advised that a fictitious name properly
filed with the Secretary of State does not eliminate the possibility
of a corporation seeking an injunction against the use of that name.
Experts recommend that you avoid putting yourself and your business
in this position.
If you intend to establish a corporation in Missouri, you can reserve
a name by filing an application along with a $25 fee with the Secretary
of State's office. In this case, the availability of the name will be
determined and you will be notified. If the name is available, it will
be reserved for 60 days. You can also do a preliminary search for name
availability at the Secretary of State's Web site mentioned earlier.
The site gives you the ability to search all entities or search by form
of organization.
In Kansas you may reserve a name for corporate use by filing a name
reservation application with the Secretary of State and submitting a
$20 filing fee. You can do a preliminary search of corporation names
in Kansas at www.accesskansas.org/corporations.
Other Considerations
Another factor to consider when determining your business name is trademark.
A trademark is a distinctive word, name, symbol or device used to distinguish
a product or service from those of competitors. Trademarks can be registered
at the state level for statewide protection or at the national level
for nationwide protection.
To determine if someone has a registered trademark for a name you are
considering for your business, you can conduct a trademark search using
a database such as www.uspto.gov/main/trademarks.htm
or www.nameprotect.com. You can also consult an attorney who specializes in trademarks and patents.
Authored by: Barbara Cunningham, former business specialist
with University of Missouri Extension and Missouri Small Business
Development Centers
