Registration of trade name used by corporation in lieu of corporate name, § 10-1-490 et seq

COMMENT Source: Model Act, § 4.01, former § 14-2-40. Section 14-2-401 deals with two basic name requirements: (1) the name must indicate ‘‘corporateness,’’ and (2) the name must be distinguishable upon the records of the Secretary of State. Subsections (a)(1) and (2) parallel former Sections 14-2-40(a)(1) and (2). Subsections (a)(3) and (4) were taken directly from former § 14-2-40(a)(2)(C) and (a)(4), respectively. The space limit on corporate names is required to facilitate computerization of the Secretary of State’s records. Subsection (b)(3) lists classes of ‘‘official names’’ that are not available. The Secretary of State becomes involved with fictitious or assumed names only in the situation where a foreign corporation, planning to transact business in a state, discovers that its name is not available in that state. To qualify it must adopt an assumed or fictitious name as its ‘‘official name’’ in the state, see Section 14-2-1506. Such a fictitious or assumed name is thereafter an ‘‘official’’ name and is unavailable to the same extent as any other ‘‘official name’’ in use is unavailable. Subsection (c) varies considerably from the Model Act. The purpose of the revisions is to make certain that only one corporation is listed under a single name at any one time. Certain restrictions on corporate names do not appear in the Code. Section 14-2-40(a)(2)(A) formerly provided that the corporate name shall not contain any word or phrase that implies the corporation is organized for any purpose other than those stated in its articles of incorporation. The modern practice of permitting incorporation for any lawful business purpose renders this obsolete. Perhaps more important is elimination of § 40(a)(2)(B), which provided that the corporate name shall not contain any word or phrase which implied that the corporation was ‘‘organized by, affiliated with, or sponsored by any fraternal, veterans’, service, religious, charitable, or professional organization, unless that fact is certified in writing in a manner satisfactory to the Secretary of State by the organization with which affiliation or sponsorship is claimed.’’ The Code views the duties of the Secretary of State as primarily ministerial; if the name is distinguishable upon the records of the Secretary of State from other entities the names of which are on file, that is enough. Note to 1989 Amendment The 1989 amendment added the last two sentences to subsection (e). This amendment reinforced the limited ministerial role of the Secretary of State — that a decision that a corporate name is available is based only on an inspection of the records of the Secretary of State, and has no broader commercial or legal implications. Cross-References ‘‘Deliver’’ includes mail, see § 14-2-140. Effective time and date of filing, see