What’s in a [fictitious] name?
A fictitious name is a pseudonym for a business or person that is often most beneficial in marketing and advertising efforts. Fictitious names are regulated by Florida Statute 865.09 and must be registered with the Division of Corporations and published in a local newspaper.
A properly filed and registered fictitious name allows the business or person that owns it to conduct business legally under that name and claims the name so it cannot be easily used by others.
A properly filed and registered fictitious name allows the business or person that owns it to conduct business legally under that name and claims the name so it cannot be easily used by others.
The Fictitious Name Statute
Florida’s Fictitious Name Act is found at Section 865.09 in the Florida Statutes. The Act defines how and why a person or business must register a fictitious name and the effects of failing to do so. Registration of a fictitious name is good for five years and must be renewed before it expires.
A business need not register its own name as a fictitious name. It only has to register a d.b.a. (doing business as) if that name is different from its filed corporate name. The caveat is that the d.b.a. may not contain terms like Inc. or LLC.
Failure to register a fictitious name does not preclude its use in Florida. Failure to file a fictitious name registration only prevents the business from filing or maintaining a lawsuit in that name according to the Act so the practical impact is actually minimal.
It is important to note that the Act states clearly in subpart eight that registration does not convey any intellectual property rights. The Act explains that registration does not create a presumption of the right of the registrant to use the name nor does it even guarantee or reserve the future use of the name.
While the Act itself may not convey those rights to the owner registering and using a fictitious name will put the registrant in a position to preclude others from using the name. However it is not a bad idea to couple registration with a trademark for additional protection. My other article on how to trademark your business logo provides information about that process.
A business need not register its own name as a fictitious name. It only has to register a d.b.a. (doing business as) if that name is different from its filed corporate name. The caveat is that the d.b.a. may not contain terms like Inc. or LLC.
Failure to register a fictitious name does not preclude its use in Florida. Failure to file a fictitious name registration only prevents the business from filing or maintaining a lawsuit in that name according to the Act so the practical impact is actually minimal.
It is important to note that the Act states clearly in subpart eight that registration does not convey any intellectual property rights. The Act explains that registration does not create a presumption of the right of the registrant to use the name nor does it even guarantee or reserve the future use of the name.
While the Act itself may not convey those rights to the owner registering and using a fictitious name will put the registrant in a position to preclude others from using the name. However it is not a bad idea to couple registration with a trademark for additional protection. My other article on how to trademark your business logo provides information about that process.
How do you register a fictitious name in Florida
Step One - publication in a newspaper
Mechanically the process of registering a fictitious name in Florida consists of two simple steps. The first step is to publicize the intent to use the fictitious name in a local newspaper at least one time. The paper must have a circulation in the County in which the d.b.a. owner has or will have its principle place of business.
The Act only requires that the registrant publish the intent to use the fictitious name. The Act does not contain mandatory language for that legal notice. But some papers like the Palm Beach Post charge a flat $40 rate for publishing a fictitious name legal notice with an affidavit of publication and its website automatically generates the notice based on input from the registrant.
If your newspaper does not automatically generate the fictitious name legal notice an example of language that you can use for that legal notice is: NOTICE IS HEREBY GIVEN that the undersigned desiring to engage in business under fictitious name of [Fictitious Name] located at [Address] in the County of [County] in the City of [City], Florida [Zip Code], intends to register the said name with the Division of Corporations of The Florida Department of State, Tallahassee, Florida. Dated at [City], Florida, this [Date] 2023. Owner [Owner Name].
Another way to craft the legal notice is to search recently published legal notices in the newspaper in which the registrant intends to publish to see examples of prior fictitious name notices. Those can also serve as a convenient template but the more words in the notice the more it will cost.
If your local newspaper does not charge a flat amount for the notice then it likely charges for each word for the legal notice. So keeping the notice short and to the point will help contain the cost of the publication. The registrant should also preserve a copy of the published notice to later show compliance with the Act but the newspaper may also provide an affidavit of publication as part of the package.
The Act only requires that the registrant publish the intent to use the fictitious name. The Act does not contain mandatory language for that legal notice. But some papers like the Palm Beach Post charge a flat $40 rate for publishing a fictitious name legal notice with an affidavit of publication and its website automatically generates the notice based on input from the registrant.
If your newspaper does not automatically generate the fictitious name legal notice an example of language that you can use for that legal notice is: NOTICE IS HEREBY GIVEN that the undersigned desiring to engage in business under fictitious name of [Fictitious Name] located at [Address] in the County of [County] in the City of [City], Florida [Zip Code], intends to register the said name with the Division of Corporations of The Florida Department of State, Tallahassee, Florida. Dated at [City], Florida, this [Date] 2023. Owner [Owner Name].
Another way to craft the legal notice is to search recently published legal notices in the newspaper in which the registrant intends to publish to see examples of prior fictitious name notices. Those can also serve as a convenient template but the more words in the notice the more it will cost.
If your local newspaper does not charge a flat amount for the notice then it likely charges for each word for the legal notice. So keeping the notice short and to the point will help contain the cost of the publication. The registrant should also preserve a copy of the published notice to later show compliance with the Act but the newspaper may also provide an affidavit of publication as part of the package.
Step Two - registration with the State of Florida
The second step to register a fictitious name in Florida is to file the registration form with the State and pay the $50 fee. That can be done easily online with a credit card for payment or the registrant can download and complete the form and mail that with a $50 check to the State.
The registration form is easy to understand and even contains instructions on the second page explaining how to fill it out. In the signature section the form contains a certification that the newspaper publication has occurred. But do not worry if you accidentally reverse the order or perform both actions at the same time because that will not void your registration. As long as both actions of registering the d.b.a. and publishing the intent to use it in the proper newspaper occur then the Act will be satisfied.
The Law Office of David Steinfeld registered the fictitious name of Palm Beach Business Mediation for the mediation service that attorney David Steinfeld provides. The process of compiling the legal notice and paying for that online with the Palm Beach Post and registering and paying for the fictitious name with the State took about ten minutes. The point being that the process of registration and publication is very easy for any business owner to perform.
The registration form is easy to understand and even contains instructions on the second page explaining how to fill it out. In the signature section the form contains a certification that the newspaper publication has occurred. But do not worry if you accidentally reverse the order or perform both actions at the same time because that will not void your registration. As long as both actions of registering the d.b.a. and publishing the intent to use it in the proper newspaper occur then the Act will be satisfied.
The Law Office of David Steinfeld registered the fictitious name of Palm Beach Business Mediation for the mediation service that attorney David Steinfeld provides. The process of compiling the legal notice and paying for that online with the Palm Beach Post and registering and paying for the fictitious name with the State took about ten minutes. The point being that the process of registration and publication is very easy for any business owner to perform.
What can you do with a fictitious name
A properly filed fictitious name allows a person or business to legally conduct business in that name. A fictitious name can be very useful in marketing and advertising because the registrant does not have to organize a new LLC or incorporate a new corporation to use that new name. The person or business can continue to do business under the existing entity using the catchy fictitious name.
While the Act provides that registration of a fictitious name does not guarantee exclusive use of the name if another business or person were to use the same d.b.a. then consumer confusion with the registered name would likely preclude the second party from continuing to use the properly registered name or even a name that is substantially similar. To enhance the protections afforded to a fictitious name one should consult with counsel and consider registering a trademark for the name and logo associated with it.
While registration of a fictitious name or trademark by itself does not absolutely prevent misuse by another such registration does provide enhanced and efficient protection capabilities to force the offender from continuing to use the registered name or logo.
The proper owner can even hold the offender liable for damages as well. This can be seen in recent years in what is termed cybersquatting or cyberpiracy. Given the importance of an online presence to most businesses and particularly e-commerce enterprises my article on how to combat cybersquatting and fight cyberpiracy may be particularly illuminating.
While the Act provides that registration of a fictitious name does not guarantee exclusive use of the name if another business or person were to use the same d.b.a. then consumer confusion with the registered name would likely preclude the second party from continuing to use the properly registered name or even a name that is substantially similar. To enhance the protections afforded to a fictitious name one should consult with counsel and consider registering a trademark for the name and logo associated with it.
While registration of a fictitious name or trademark by itself does not absolutely prevent misuse by another such registration does provide enhanced and efficient protection capabilities to force the offender from continuing to use the registered name or logo.
The proper owner can even hold the offender liable for damages as well. This can be seen in recent years in what is termed cybersquatting or cyberpiracy. Given the importance of an online presence to most businesses and particularly e-commerce enterprises my article on how to combat cybersquatting and fight cyberpiracy may be particularly illuminating.
Conclusion
It is very easy to register a fictitious name or d.b.a. in Florida. A person or business seeking to use such name need only publish the d.b.a. in a local newspaper and file registration of the name with the State. The whole process can be accomplished in about ten minutes. The minimal cost of $50 to the State plus the expense of the legal newspaper notice which is $40 with the Palm Beach Post affords the party seeking to use the fictitious name lawful use the name in its business for five years.
While registration by itself does not automatically provide intellectual property protections like a trademark complying with the Fictitious Name Act does hold the d.b.a. out to the public which can also be separately trademarked to afford it intellectual property protections.
While registration by itself does not automatically provide intellectual property protections like a trademark complying with the Fictitious Name Act does hold the d.b.a. out to the public which can also be separately trademarked to afford it intellectual property protections.
Written by expert business lawyer David Steinfeld
David Steinfeld is one of the few Board Certified business law experts in Florida. He has been licensed for over 25 years. He is AV-Preeminent rated, ranked as one of the Best Lawyers in America by U.S. News and World Report, and consistently named a Florida Super Lawyer and one of Florida’s Legal Elite. Dave has also received Martindale’s prestigious Judicial Edition Award for high reviews by Judges, its Platinum Client Champion Award and has a 10.0-Superb rating on AVVO as well as a 10.0 rating on Justia, lawyer reviews websites.
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.
