Name of the Game

"Business information, this is David..."

Back in the Dark Ages when I used to help answer the Minnesota Secretary of State's corporate information lines, one of my major duties was to check on "name availability" for new corporations and businesses that wished to change their corporate name.

I had a computer that accessed a database; I would punch in the proposed name and an alphabetical listing of similar names popped up on my screen. It was my job to do a preliminary check, trying to determine if the proposed name conflicted with any other names currently registered with the Secretary of State.

Previous state law said the name standard for the filing of a business name was that names could not be registered that were "deceptively similar" to another on file. The name standard changed in recent years to allowing the Secretary of State to accept names that were "distinguishable" from all others registered. This helped free up options for businesses trying to file an acceptable name. It also was a big change in the law.

For example, under the old law, businesses wishing to file a name that contained the word, "Daytons" would have a difficult time getting a name accepted. Under the new law, a business probably would be allowed to file the name "Hudson-Dayton, Corporation" because the name is different and thus distinguishable from "Dayton-Hudson Corporation."

The key in all this is that names are not filed with the state to establish rights to that name. Rights to a business name are established by a business using the name in the market place and thus developing common law rights to its corporate name. So, while it would probably be possible to file the name "Hudson Dayton Corporation" Daytons no doubt would probably have a problem with the other business, and would send a room full of hungry young lawyers after the other company. If the other business had begun using the name, Daytons probably could claim any earnings used under the name "Hudson Daytons" infringed on their rights to the name and punitive damages would be awarded.

People took name registration very seriously. For good reason- deciding on what you should call your business somehow hovers over all the other decisions you have to make to succeed. No matter how good your product or service, if your name is inappropriate, chances are you won't make it. Registering a name was yet one more area where the threat of a lawsuit hung heavy in the air. The mantra I chanted after many of the tens of thousands of calls I answered was:

"That name appears to be available, however we will not make the final decision until you submit your papers and a final search is conducted."

Names are filed with the Secretary of State, the great keeper of records, for public information, to help maintain a certain amount of information on corporations. One of the major stress factors in answering a great number of these phone calls was having to tell callers that yes indeed, there was a $35 dollar fee for filing information such as a name or address change. "$35 bucks to change my address? I'm going to call my congressperson!" What people didn't understand was that the filing fee wasn't for changing the information, it was for the process of reviewing the change for legal standards, plus the costs of maintaining a database as well as microfilm and retrieval costs.

The point of bringing all this up is not to impress you all with my knowledge of filing articles of incorporation and corporate amendments. The point being the relationship that exists between businesses and the government is a difficult one. The current administration is moderately "business friendly" trying to establish an atmosphere that will keep Minnesota businesses happy and profitable. Working from the government side, I had to straddle the line between helping business people with paperwork, while also trying to deal with a public that wanted to find out as much as they could about the businesses.

With the changes we are all facing in our company, deciding on the corporate name will be challenging. To find a creative and innovative name that helps describe and promote our business will be hard enough. That the name has to meet certain criteria to be accepted for filing with the state, makes it all the more difficult. So for all of you with input on what our new stores will be called, good luck.

Next week: D/B/A (doing business as) names.