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Introduced Version House Bill 3066 History

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H. B. 3066

 

         (By Delegates Morgan, D. Poling, Swartzmiller,

Manypenny and Stephens)

(By Request of the Secretary of State)

         [Introduced February 9, 2011; referred to the

         Committee on the Judiciary.]

 

 

A BILL to amend and reenact §47-8-3 and §47-8-4 of the Code of West Virginia, 1931, as amended; to amend and reenact §47-9-2 of said code; to amend and reenact §31B-1-105 of said code; and to amend and reenact §31B-10-1005 of said code, all relating to trade names; clarifying the type of certificates for which county clerks must maintain indices; and providing that registered trade names must be distinguishable from the names or trade names of other business entities on record with the Secretary of State.

Be it enacted by the Legislature of West Virginia:

    That §47-8-3 and §47-8-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §47-9-2 of said code be amended and reenacted; that §31B-1-105 of said code be amended and reenacted; and that §31B-10-1005 of said code be amended and reenacted, all to read as follows:

CHAPTER 47. REGULATION OF TRADE.

ARTICLE 8. TRADE NAMES.

§47-8-3. Indexing of certificates filed with clerk of county commission.

    The clerks of county commissions of this state shall keep an alphabetical index of all persons filing certificates provided for in section two of this article.

§47-8-4. Corporations, associations, limited partnerships, limited liability partnerships, and limited liability companies not to conduct business under assumed name without certificate of trade name; application; issuance of certificate of trade name.

    (a) No business entity organized as a corporation, limited partnership, limited liability partnership, limited liability company, business trust or voluntary association required to register with the Secretary of State in order to conduct business within the state may conduct or transact any business in this state under any assumed trade name, or under any designation, name or style, corporate or otherwise, other than the name established by the original certificate establishing the business entity or by an amendment thereto, unless the business entity files in the office of the Secretary of State an application for registration of trade name. The application shall set forth:

    (1) The name under which the business entity is organized and registered;

    (2) The trade name under which the business of such business entity is, or is to be, conducted or transacted upon approval of the application, which name must be distinguishable from the name or trade name of any other corporation, limited partnership, limited liability partnership, limited liability company, business trust or voluntary association, on record with the Secretary of State and from any name reserved name or registered name for any of those business entities on record with the Secretary of State;

    (3) The address of the principal office within the state or, if no office is maintained within the state, the address of the principal office in the state in which the business entity is established; and

    (4) The name, title and signature of a person having authority to make the application.

    The Secretary of State shall grant a certificate of registration to any applicant who has met the requirements of this subsection. A new certificate of registration is to be filed if the business entity desires to conduct or transact any business in this state under any other assumed name not on file in the office of the Secretary of State.

    (b) One original executed of the application for trade name registration shall be delivered to the Secretary of State. Delivery may be made by electronic transmission if permitted by the Secretary of State. If the filing officer finds that the application for trade name registration conforms to law, he or she shall, when all fees have been paid as prescribed by law, file it and shall deliver to the entity or its representative a receipt for the record and fee.

    (c) Upon discontinuing the use of a registered trade name the certificate of registration of trade name shall be withdrawn by filing a certificate of withdrawal with the office of the Secretary of State setting forth the name to be discontinued, the real name, the address of the party transacting business and the date upon which the original certificate of registration of trade name was filed.

    (d) Any corporation authorized to transact business in this state shall procure an amended certificate of incorporation in the event it changes its corporate name by filing articles of amendment with the office of the Secretary of State as provided in article ten, chapter thirty-one-d, or article ten, chapter thirty-one-e of this code.

    (e) Any limited liability company registering a trade name pursuant to the provisions of this section is subject to the limitations set forth in subsections (b), (c) and (d) section one hundred five, article one, chapter thirty-one-b of this code.

    (f) The amendments to this section enacted in the regular session of 2011 shall be effective as to all applications received on or after the effective date of the amendments.

ARTICLE 9. UNIFORM LIMITED PARTNERSHIP ACT.

§47-9-2. Name of limited partnership.

    (a) The name of each limited partnership as set forth in its certificate of limited partnership:

    (1) Shall contain the words “limited partnership,” or the abbreviation “Ltd. Partnership,” “LP” or “L.P.”;

    (2) May not contain the name of a limited partner unless: (i) It is also the name of a general partner or the corporate name of a corporate general partner; or (ii) the business of the limited partnership had been carried on under the name before the admission of that limited partner;

    (3) May not be the same as, and must be distinguishable from, the name or trade name of any corporation, limited partnership, limited liability partnership, or limited liability company organized under the laws of this state or licensed or registered as a foreign corporation, limited partnership, limited liability partnership, or limited liability company in this state; and

    (4) May not include the words “engineer”, ”engineers”, “engineering” or any combination of those words unless the purpose of the corporation is to practice professional engineering as defined in article thirteen, chapter thirty of this code, as amended, and one or more of the incorporators is a registered professional engineer as defined therein.

    (b) The amendments to this section enacted in the regular session of 2011 shall be effective as to all applications received on or after the effective date of the amendments.

CHAPTER 31B. UNIFORM LIMITED LIABILITY COMPANY ACT.

ARTICLE 1. GENERAL PROVISIONS.

§31B-1-105. Name.

    (a) The name of a limited liability company must contain “limited liability company” or “limited company” or the abbreviation “L.L.C.”, “LLC”, “L.C.” or “LC”. “Limited” may be abbreviated as “Ltd.” and “company” may be abbreviated as “Co.”.

    (b) Except as authorized by subsections (c) and (d) of this section, the name of a limited liability company must be distinguishable upon the records of the Secretary of State from:

    (1) The name of any corporation, limited partnership, limited liability partnership or limited liability company incorporated, organized or authorized to transact business in this state;

    (2) A name reserved or registered under sections 1-106 or 1-107 of this article or under sections twelve or thirteen of article one, chapter thirty-one of this code;

    (3) A fictitious name approved under section 10-1005 for a foreign company authorized to transact business in this state because its real name is unavailable; or

    (4) The name of any other entity whose name is carried on the records of the Secretary of State.

    (c) A limited liability company may apply to the Secretary of State for authorization to use a name that is not distinguishable upon the records of the Secretary of State from one or more of the names described in subsection (b) of this section. The Secretary of State shall authorize use of the name applied for if:

    (1) The present user, registrant or owner of a reserved name consents to the use in a record and submits an undertaking in form satisfactory to the Secretary of State to change the name to a name that is distinguishable upon the records of the Secretary of State from the name applied for; or

    (2) The applicant delivers to the Secretary of State a certified copy of the final judgment of a court of competent jurisdiction establishing the applicant's right to use the name applied for in this state.

    (d) A limited liability company may use the name, including a fictitious name, of another domestic or foreign company which is used in this state if the other company is organized or authorized to transact business in this state and the company proposing to use the name has:

    (1) Merged with the other company;

    (2) Been formed by reorganization with the other company; or

    (3) Acquired substantially all of the assets, including the name, of the other company.

    (e) The amendments to this section enacted in the regular session of 2011 shall be effective as to all applications received on or after the effective date of the amendments.

ARTICLE 10. FOREIGN LIMITED LIABILITY.

§31B-10-1005. Name of foreign limited liability company.

    (a) If the name of a foreign limited liability company does not satisfy the requirements of section 1-105, the company, to obtain or maintain a certificate of authority to transact business in this state, must use a fictitious name to transact business in this state if its real name is unavailable and it delivers to the Secretary of State for filing a copy of the resolution of its managers, in the case of a manager-managed company, or of its members, in the case of a member-managed company, adopting the fictitious name.

    (b) Except as authorized by subsections (c) and (d) of this section, the name, including a fictitious name to be used to transact business in this state, of a foreign limited liability company must be distinguishable upon the records of the Secretary of State from:

    (1) The name of any corporation, limited partnership, or company incorporated, organized or authorized to transact business in this state;

    (2) A name reserved or registered under section 1-106 or 1-107; and

    (3) The fictitious name of another foreign limited liability company authorized to transact business in this state; or

    (4) The name of any other entity whose name is carried on the records of the Secretary of State.

    (c) A foreign limited liability company may apply to the Secretary of State for authority to use in this state a name that is not distinguishable upon the records of the Secretary of State from a name described in subsection (b) of this section. The Secretary of State shall authorize use of the name applied for if:

    (1) The present user, registrant or owner of a reserved name consents to the use in a record and submits an undertaking in form satisfactory to the Secretary of State to change its name to a name that is distinguishable upon the records of the Secretary of State from the name of the foreign applying limited liability company; or

    (2) The applicant delivers to the Secretary of State a certified copy of a final judgment of a court establishing the applicant's right to use the name applied for in this state.

    (d) A foreign limited liability company may use in this state the name, including the fictitious name, of another domestic or foreign entity that is used in this state if the other entity is incorporated, organized or authorized to transact business in this state and the foreign limited liability company:

    (1) Has merged with the other entity;

    (2) Has been formed by reorganization of the other entity; or

    (3) Has acquired all or substantially all of the assets, including the name, of the other entity.

    (e) If a foreign limited liability company authorized to transact business in this state changes its name to one that does not satisfy the requirements of section 1-105, it may not transact business in this state under the name as changed until it adopts a name satisfying the requirements of section 1-105 and obtains an amended certificate of authority.

    (f) The amendments to this section enacted in the regular session of 2011 shall be effective as to all applications received on or after the effective date of the amendments.

 

    NOTE: The purpose of this bill is to amend the code provisions relating to trade names so as to prevent a business from adopting a trade name already in use.



    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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