TITLE 1. ADMINISTRATION PART 4. OFFICE OF THE SECRETARY OF

title 1. administration part 4. office of the secretary of state chapter 79. business entity filings subchapter c. entity names §79.30. applicability...
26 downloads 698 Views 154KB Size
Download PDF
Love PNG Images
TITLE 1. ADMINISTRATION PART 4. OFFICE OF THE SECRETARY OF STATE CHAPTER 79. BUSINESS ENTITY FILINGS SUBCHAPTER C. ENTITY NAMES §79.30. Applicability

§79.31. Characters of Print Acceptable in Names

§79.32. False Implication of Governmental Affiliation;

False Implication of Purpose

§79.33. Grossly Offensive Name

§79.34. Words of Organization

§79.35. Categories of Name Similarity

§79.36. Same or Identical Defined

§79.37. Deceptively Similar Defined

§79.38. Deceptively Similar Name Not Acceptable

§79.39. Deceptively Similar Name

§79.40. Similar Requiring Letter of Consent Defined

§79.41. Similar Requiring Letter of Consent Acceptable with Letter

§79.42. Form of Consent

§79.43. Similarity of Names Requiring Letter of Consent

§79.44. Alphabet Names

§79.45. Surnames

§79.46. Exception for Churches and Ministries

§79.47. Foreign Words Not Translated

§79.48. Matters Not Considered

§79.49. Final Determination of Name Availability

§79.50. Professional Entities

§79.53. Restricted Words

§79.54. Examples Not Exclusive

1

§79.30. Applicability. Pursuant to §5.053 of the Texas Business Organizations Code, a proposed entity name may not be the same as, or deceptively similar to, the name of a Texas or registered foreign corporation, limited partnership, or limited liability company. Such names may be set forth in an entity's organizational document, reserved or registered name, or application for a foreign entity to transact business in Texas. Wherever the terms "entity" or "entities" appear in this entity name availability section, they may be replaced with the following terms: "domestic or foreign corporation"; "domestic or foreign limited partnership"; or "domestic or foreign limited liability company" or the plural of such terms. Source Note: The provisions of this §79.30 adopted to be effective February 19, 1988, 13 TexReg 602; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective January 1, 2010, 34 TexReg 9169. §79.31. Characters of Print Acceptable in Names. (a) Entity names may consist of letters of the Roman alphabet, Arabic numerals, symbols capable of being reproduced on a standard English language keyboard, and such other symbols as permitted by the secretary of state's database and as posted on the secretary of state's website, or a combination thereof. (b) No distinction as to type face or font in the presentation of an entity name will be recognized. Subscript or superscript characters cannot be entered into the computer records of the secretary of state; consequently, such characters will not appear above or below the other characters in the entity name. Example: H2 O will appear as H2O. The secretary of state, however, will recognize the use of either upper or lower case letters in the presentation of the entity name. (c) Arabic numerals include 0, 1, 2, 3, 4, 5, 6, 7, 8, and 9. (d) The symbols recognized as part of a name may include ! " $ % ' ( ) * ? # = @ [ ] / + & and -. Source Note: The provisions of this §79.31 adopted to be effective January 1, 1976; amended to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective October 20, 2004, 29 TexReg 9671; amended to be effective January 1, 2010, 34 TexReg 9169. §79.32. False Implication of Governmental Affiliation; False Implication of Purpose. (a) The entity name may not be one that might falsely imply governmental affiliation (example: Texas Real Estate Commission, Inc.). (b) The entity name may not imply a purpose that would be unlawful for the entity to conduct. (1) The words "insurance" or "surety" must be accompanied by other words that remove the implication that the entity purpose is to be an insurer. The name may include the phrase "insurance agency, " "insurance agent," "surety agency," or "surety agent." (A) Example: John Hancock Insurance Company or A-1 Surety Company would not be filed. (B) Example: John Hancock Insurance Agency, Inc. or A-1 Surety Agents, Company would be filed. (2) The words "bail bond" imply an unlawful purpose as entities with these powers must be organized under the Texas Insurance Code and these words may not be used in the name of a business entity. Example: Ace Bail Bonds, Inc. would not be filed. Source Note: The provisions of this §79.32 adopted to be effective January 1, 1976; amended 2

to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective October 20, 2004, 29 TexReg 9671. §79.33. Grossly Offensive Name. The entity name may not be one that is deemed to be so grossly offensive as to be unacceptable as an entity name. Source Note: The provisions of this §79.33 adopted to be effective January 1, 1976; amended to be effective January 2, 1992, 16 TexReg 7469. §79.34. Words of Organization. (a) Acceptable words of organization, or abbreviations thereof are set forth in §§5.054 5.059 of the Texas Business Organizations Code. (b) The following words, when used alone, do not satisfy the statutory requirements for words of organization: (1) "companies," "corporations," "incorporation," and "unlimited;" (2) "limited partnerships;" and (3) "limited" or "company," to identify a limited liability company. (c) Neither the words nor the abbreviations of the words of organization listed in §§5.054 - 5.059 of the Texas Business Organizations Code are a sufficient basis to distinguish among otherwise deceptively similar or same names. Source Note: The provisions of this §79.34 adopted to be effective January 1, 2010, 34 TexReg 9169. §79.35. Categories of Name Similarity. There are three categories of name similarity: (1) same; (2) deceptively similar; (3) similar requiring letter of consent. Source Note: The provisions of this §79.35 adopted to be effective January 1, 1976; amended to be effective September 15, 1981, 6 TexReg 3249. §79.36. Same or Identical Defined. Entity names are the same or identical if a comparison of the names reveals no difference. Source Note: The provisions of this §79.36 adopted to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective January 1, 2010, 34 TexReg 9169. §79.37. Deceptively Similar Defined. Entity names are deceptively similar if on comparison of the names by the secretary of state there is an apparent difference, but the difference is such that the names are likely to be confused. Source Note: The provisions of this §79.37 adopted to be effective January 1, 1976; amended to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469. §79.38. Deceptively Similar Name Not Acceptable. A proposed entity name which is deemed to be deceptively similar to an entity name on file with the secretary of state cannot be filed even though the existing entity may grant a letter of consent. 3

Source Note: The provisions of this §79.38 adopted to be effective January 1, 1976; amended to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469. §79.39. Deceptively Similar Name. A proposed entity name is deemed to be deceptively similar to an entity name on file if any of the following conditions exist. (1) The difference in the names consists in the use of different words of incorporation or organization. Example: Sampson, Inc., is deceptively similar to Sampson Corporation. (2) The difference in names consists in the use of different articles, prepositions, or conjunctions. Example: The Slaughter Co. is deceptively similar to Slaughter Co. (3) The difference consists in the use of periods, spaces, or other spacing symbols that do not alter the names sufficiently to make them readily distinguishable. (A) Example: The following names are deceptively similar: (i) AGX Corp.; (ii) A G X Corp; (iii) A.G.X. Corp; (iv) AG*X* Corp; (v) A/G/X Corp; (vi) AG-X Corp. (B) Example: Fair View Rest Home, Inc., is deceptively similar to Fairview Rest Home, Inc. (C) Example: A and B Trucking, Inc. is not deceptively similar to AB Trucking, LLC. (D) Example: Double X Tire Company is not deceptively similar to XX Tires, Inc., and neither Double X Tire Company nor XX Tires, Inc. is deceptively similar to 2X Tires Incorporated. (4) The difference consists in the presence or absence of letters that do not alter the names sufficiently to make them readily distinguishable. This includes the use of singular, plural or possessive terms. (A) Example: Exon, Exxonn, Exxons, or Exxon's are deceptively similar to Exxon. (B) Example: Centennial Alarm Systems Corp. is deceptively similar to Centennial Alarm System Company. (C) Example: Medina Media Cabinets LLC is deceptively similar to Meddina's Media Cabinets, Inc. (5) The names are spelled differently or use alternative symbols, but sound alike when spoken, thus making the names phonetic equivalents and difficult to distinguish upon hearing. (A) Example: Chemtech Corporation is deceptively similar to Kemtek Incorporated. (B) Example: A and A Trucking, Inc. is deceptively similar to A & A Trucking Company. (C) Example: Four Winds, Inc. is deceptively similar to 4 Winds Corp. and IV Winds Ltd. (6) The difference in names consists of the use of common abbreviations or acronyms for the same term. (A) Example: Johnson Bros. Company is deceptively similar to Johnson Brothers Company. (B) Example: The Commons Northwest, Inc. is deceptively similar to The Commons NW, Company. (C) Example: Central Texas Hideaways, LLC is deceptively similar to CenTex 4

Hideaways, Inc. (D) Example: DFW Carpet Cleaning, Inc. is deceptively similar to Dallas-Fort Worth Carpet Cleaning Company. Source Note: The provisions of this §79.39 adopted to be effective January 1, 1976; amended to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective October 20, 2004, 29 TexReg 9671. §79.40. Similar Requiring Letter of Consent Defined. Entity names are similar requiring letter of consent if a comparison of the names by the secretary of state reveals similarities which may tend to be misleading as to the identity or affiliation of the entity, but not to the extent that the names are the same or deceptively similar. Source Note: The provisions of this §79.40 adopted to be effective January 1, 1976; amended to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469. §79.41. Similar Requiring Letter of Consent Acceptable with Letter. (a) A proposed name which is deemed to be similar requiring letter of consent cannot be filed without a letter of consent. No waiver of a required letter of consent will be allowed even though it may appear that the existing entity is not actively engaged in business, is about to change its name, be dissolved, forfeited, or merged out of existence. (b) The letter of consent must accompany the document to which the consent relates at the time of submission. (c) Upon the simultaneous submission of documents relating to the formation of two or more related entities, consent for the use of a name that would be considered similar requiring consent will be implied. Example: No letter of consent is required for the simultaneous formation of ABC Ventures, Ltd., a Texas limited partnership, and its general partner, ABC Ventures GP, LLC. (d) If proposed entity name conflicts with more than one entity name, the secretary of state will request that the letter of consent be obtained from the entity with the longest continuous use of the entity name as determined by the records of the secretary of state. Source Note: The provisions of this §79.41 adopted to be effective January 1, 1976; amended to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective October 20, 2004, 29 TexReg 9671. §79.42. Form of Consent. No particular form of consent is required. The consent must be in writing and signed by an officer or authorized agent of the consenting entity. Consent given orally cannot be accepted. Consent from more than one entity may be required in some instances. The letter of consent must not state conditions; it must give unequivocal consent. Source Note: The provisions of this §79.42 adopted to be effective January 1, 1976; amended to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective January 1, 2010, 34 TexReg 9169. §79.43. Similarity of Names Requiring Letter of Consent. A proposed entity name is similar to an existing name and requires a letter of consent if any of the following conditions exists. (1) The proposed entity name is the same as, or deceptively similar to, an entity name on file except for a geographical designation at the end of the name. For purposes of this 5

paragraph, geographic designation includes the recognized name or abbreviation of a city, county, state, country, lake or ocean, a region (Permian Basin, Metroplex, Central Texas, etc.), a recognized subdivision within the state, a continent, or a compass point of reference. For purposes of this section, the term geographic designation does not include street names or nonspecific location terms such as "International," "Gulf," or "Central." (A) Example: Bull and Bear Club of San Antonio would need a letter of consent from Bull and Bear Club. (B) Example: San Antonio Bull and Bear Club would not need a letter of consent from Bull and Bear Club. (C) Example: Acme, Ltd. would need a letter of consent from Acme Southwest, Inc. (D) Example: Exhibits International, LLC would not need a letter of consent from Exhibits, Inc. (E) TempStaff, Inc. would need a letter of consent from TempStaff of Central Texas, Limited Partnership. (2) The first two or more words of a proposed entity name are the same as, or deceptively similar to, the first two words of an entity name on file, and are not frequently used in combination. (A) Example: Houston Service and Supply, Inc., would need a letter of consent from Houston Service, Inc. (B) Example: Sunset Oil Co. would need a letter of consent from Sunset Oil and Gas, Inc. (C) Example: First Texas Mortgage and Title Company would need a letter of consent from First Texas Mortgage Company. (D) Example: Hot Dog Publications, Inc., would not need a letter of consent from Hot Dog Enterprises Corp. (3) The proposed entity name is the same as, or deceptively similar to, an entity name on file except for a numerical expression which implies that the proposed entity is an affiliate of or in a series with the existing entity. Example: A letter of consent from an existing entity named United Company would be required in order to file any of the following: (A) United IV; (B) United No. 7; (C) United Phase Two; (D) United 2005. (4) If the entity name on file has only one significant word and the proposed entity name consists of the same word followed by some other significant word, the proposed entity name is not similar requiring letter of consent. Example: A letter of consent from an existing entity named United Company would not be required in order to file any of the following: (A) United Sales; (B) United Service; (C) United Supply; (D) United Industries; (E) United Associates; (F) United International; (G) United Systems; (H) United Products; (I) United Productions. (5) The proposed entity name contains the same words as an existing entity name but the words are inverted. (A) Example: Energy Ventures, Inc., would need a letter of consent from Ventures 6

Energy Corp. (B) Example: Austin Auto Parts, Inc., would need a letter of consent from Auto Parts of Austin, Incorporated. (6) The difference in the names consists in the use of the term "companies." Example: Satterwhite Companies, Ltd. would need a letter of consent from Satterwhite Corporation. (7) The proposed entity name is the same as or deceptively similar to that of an existing entity name except for an Internet locator designation at the end or at the beginning of the name. (A) Example: BusinessWorks.com, Inc. would need a letter of consent from Business Works, L.P. (B) Example: WWW.ARTBEAT Company would need a letter of consent from ArtBeats, LLC. (8) The difference in names consists of words or contractions of words that are derived from the same root word and there is no other distinguishing word in the name. (A) Example: Magic Show, Inc. would need a letter of consent from Magical Show, Ltd. (B) Example: Management Education Incorporated would need a letter of consent from Management.edu L.P. (C) Example: Acme Electrical Products Incorporated would not need a letter of consent from Acme Electric Company. Source Note: The provisions of this §79.43 adopted to be effective January 1, 1976; amended to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective February 18, 1998, 23 TexReg 1529; amended to be effective October 20, 2004, 29 TexReg 9671. §79.44. Alphabet Names. Where a name or a unit of names consists of initials only or letters of the alphabet, the combination of initials will be considered as one word for the purpose of applying name availability rules. (1) Example: The following are different "words" and are not considered to be similar: (A) A & A; (B) AA; (C) AAA; (D) ABA; (E) AAB. (2) Example: A & B Supply is not similar when compared to A & B, Inc. (3) Example: A+A Car Rental, Inc. is deceptively similar to A & A Car Rental, Corp. (4) Example: A and B Trucking, Inc. is not similar when compared to AB Trucking, LLC. Source Note: The provisions of this §79.44 adopted to be effective January 1, 1976; amended to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective October 20, 2004, 29 TexReg 9671. §79.45. Surnames. (a) A surname is considered to be a "word." Where a proposed entity name contains a surname as the second "word" and contains a given name or initials as a first "word" which is different from the first "word" of an existing entity, the name is not similar. (1) Example: E. G. Williams Electric Company is not similar when compared to Williams Electric Company. 7

(2) Example: Jim Smith, Inc., is not similar when compared to Smith, Inc. (3) Example: Ralph A. Johnson, Inc., is not similar when compared to Ralph Johnson, Inc. (b) The use of a surname, or surnames, as part of a proposed entity name is not similar if there is some other sufficient basis for distinction of the two entity names. (1) Example: Davis & Davis, P.C., is not similar when compared to Davis & Davis Publication, Inc. (2) Example: Allyn Investments, Inc. is not similar when compared to Allan Investments Group, LLC. (3) Example: Brown Manufacturing Company is deceptively similar to Brown's Manufacturing, Ltd. (4) Example: Davis & Davis Publications, Inc. is not similar when compared to Davis Publications Company. (5) Example: John Brown Manufacturing Company is not similar when compared to John Brown Sales, Inc. (6) Example: Flores Family Company is not similar when compared to Flores Family Foundation. (7) Example: Conlee Construction Company is not similar when compared to Conley Construction Incorporated. (8) Example: Parson & Parson Company would need a letter of consent from Parson & Parson - Dallas, Inc. Source Note: The provisions of this §79.45 adopted to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective October 20, 2004, 29 TexReg 9671. §79.46. Exception for Churches and Ministries. Entity names of churches and ministries will not be considered similar if there is some sufficient basis for distinguishing the name from an existing entity name. (1) Example: First Baptist Church of Wimberley is not similar when compared to First Baptist Church of Austin. (2) Example: God in Heaven Ministries is not similar when compared to God in Heaven Church. Source Note: The provisions of this §79.46 adopted to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective October 20, 2004, 29 TexReg 9671; amended to be effective January 1, 2010, 34 TexReg 9169. §79.47. Foreign Words Not Translated. (a) Although entity names may consist, in whole or in part, of words in a foreign language which utilize letters of the Roman alphabet, such words will not be translated for purposes of determining entity name availability. (1) Example: Tejas Enterprises, Inc., is not similar when compared to Texas Enterprises, Inc. (2) Example: Casa Blanca Productions, Inc., is not similar when compared to White House Productions, Inc. (b) Where the difference in the names consists in the use or omission of different particles of speech, although in a foreign language, the names will be considered deceptively similar. (1) Example: Las Brisas Corp. is deceptively similar when compared to Brisas, Inc. 8

(2) Example: La Boutique, Inc., is deceptively similar when compared to Le Boutique, Co. Source Note: The provisions of this §79.47 adopted to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective January 1, 2010, 34 TexReg 9169. §79.48. Matters Not Considered. Only the proposed entity name, the current names of active (not revoked, cancelled, merged, dissolved, withdrawn, terminated, or forfeited) entities, name reservations, and name registrations for entities on file are considered in determining the availability of the entity name for purposes of filing with the secretary of state. Among matters not considered are the following: (1) whether the purpose of a proposed entity is the same as or similar to the purpose of an existing entity; (2) whether the entities will be carrying out activities in the same or nearby locations; (3) whether an analogous situation has previously been acted upon by the Corporations Section; (4) whether an "opinion" as opposed to a final determination has previously been expressed by an employee of the secretary of state in response to an oral or written request; (5) whether an existing entity is actively engaged in business, or has a telephone listing, or a location of a place of business; (6) whether an existing entity is about to change its name, or be terminated, or merged out of existence; (7) whether a response to an inquiry can be obtained from an existing entity; (8) whether the applicant has ordered stationery, opened a bank account, signed a contract, or otherwise altered his position in the expectation, hope, or belief that the proposed name would be available; (9) whether the applicant is more or less important, extensive, widely known, or influential than an existing entity; (10) whether the applicant has a prior or superior right to the use of a name apart from what might be shown on inspection of the names of active entities on file in the entity records of the secretary of state; (11) whether infringement or unfair trade practice has occurred or might occur; (12) whether an existing entity has filed for or intends to file for bankruptcy; or (13) whether an applicant's submission of a document relating to the entity name at issue was prior to the submission of the document effecting the conflicting existing name. Source Note: The provisions of this §79.48 adopted to be effective September 15, 1981, 6 TexReg 3249; amended to be effective February 19, 1988, 13 TexReg 602; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective February 18, 1998, 23 TexReg 1529; amended to be effective October 20, 2004, 29 TexReg 9671; amended to be effective January 1, 2010, 34 TexReg 9169. §79.49. Final Determination of Name Availability. An employee of the Corporations Section may express an opinion on name availability in response to a written, telephone, or other oral request, but such an opinion is not a final determination that the name will or will not be accepted for filing and stamped filed. A final determination is made only when the document is submitted for filing. Source Note: The provisions of this §79.49 adopted to be effective September 15, 1981, 6 9

TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469. §79.50. Professional Entities. (a) Names of professional entities; i.e., professional corporations, professional limited liability companies, and professional associations, are governed by these rules and by the laws or ethics regulating the practice of the professional service rendered through the professional entity. (b) Names of professional entities will not be considered similar if there is sufficient basis for distinguishing the name from an existing professional entity name. (1) Example: Oncology Associates of Houston, P.L.L.C. is not similar to Oncology Associates of Dallas, P.A. (2) Example: Law Offices of Robert Sumners, P.C. is not similar to Law Offices of Janice Crow, P.C. Source Note: The provisions of this §79.50 adopted to be effective September 15, 1981, 6 TexReg 3249; amended to be effective January 2, 1992, 16 TexReg 7469; amended to be effective February 18, 1998, 23 TexReg 1529. §79.53. Restricted Words. An entity name cannot include the words, "Olympic," "Olympiad," or "Citius Altius Fortius," or a combination or simulation of those words or use a trademark, trade name, symbol or insignia of the International Olympic Committee or the United States Olympic Committee without the authorization or permission of the United States Olympic Committee. Example: Olympian Tours, Inc. would require a letter of consent, authorization, or no objection from the United States Olympic Committee. Example: Olympic Construction Company would require a letter of consent, authorization or no objection from the United States Olympic Committee. Source Note: The provisions of this §79.53 adopted to be effective November 28, 1995, 20 TexReg 9405; amended to be effective October 20, 2004, 29 TexReg 9671. §79.54. Examples Not Exclusive. (a) The determination of similarity is based on the definitions of same, deceptively similar, and similar requiring a letter of consent. (b) The conditions used in these sections are not meant to be exclusive, nor should they be used to limit the determination of whether a proposed name is the same as, deceptively similar to, or similar to the name of an existing entity. (c) The examples used in these sections are not meant to be exclusive, nor should they be used to limit the determination of whether a proposed name is the same as, deceptively similar to, or similar to the name of an existing entity. Source Note: The provisions of this §79.54 adopted to be effective November 5, 1981, 6 TexReg 3908; amended to be effective January 2, 1992, 16 TexReg 7469.

10