Consider that when your company is conducting business under a name that is different from the entity name registered with the Secretary of State, this name is considered your “doing business as” name, or “DBA.” Because selecting a strong brand name takes time and effort, businesses may choose to form its formal business entity under one name, but ultimately choose a different name for its brand.
DBA’s are also referred to as “fictitious business names,” but there is nothing fictitious about it. To the relevant target customer, the DBA is just as real as any other business name. And, just like other business names, DBAs must be registered with the county where the company’s principal place of business is located. A company planning to operate under a DBA is required to register its DBA within 40 days of commencing operations.
Steps for Registering a DBA in California:
(1) Determine whether the DBA is available by searching the applicable county clerk’s records
However, before selecting a brand name that will be outwardly facing to customers and prospective customers, it is critical to first assess whether a proposed brand/DBA name is available from a legal trademark perspective, without a substantial risk of a challenge from someone else already using or claiming rights in the same or a similar name for the same or related products or services. As we discussed in connection with our blog post on the Importance of Trademark Clearance (https://www.evoke.law/importance-of-trademark-clearance/), the “financial costs of rebranding can be wide-ranging—pulling product from the market, disruption of the business, customer uncertainty, customer re-education, new marketing campaigns, revised product packaging, etc. Because the costs associated with a comprehensive search and potential rebranding before launch are much lower than post-launch, it is recommended to conduct a comprehensive search on proposed brand names prior to implementation.”
(2) File the DBA form with county clerk/recorder’s office
(3) Publish the DBA statement in local newspaper within 30 days of submitting the DBA form; (Publication must appear in the newspaper once a week for four consecutive weeks)
(4) Obtain affidavit of publication from newspaper within 30 days after the final publication and file with county clerk/recorder’s office
While the registration process is relatively simple, there are some restrictions to consider. For example, a fictitious business name cannot contain words such as ‘Inc.,’ ‘Corporation,’ ‘LLC,’ because the DBA is not legally formed as one of those business structures.
Keep in mind that merely registering a DBA or a business entity name with the relevant Secretary of State does not in-and-of-itself grant any trademark rights in that name. Rather, trademark rights are developed through actual use of a mark in commerce.