Entity and Trade Name Registration Requirements and Customs in Colorado

• Publication year: 1999
• Pages: 5

28 Colo.Law. 5 Colorado Lawyer 1999.

1999, January, Pg. 5. Entity and Trade Name Registration Requirements and Customs in Colorado

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5

Vol. 28, No. 1, Pg. 5

The Colorado Lawyer
January 1999
Vol. 28, No. 1 [Page 5]

Articles

Entity and Trade Name Registration Requirements and Customs in Colorado
by Beat U. Steiner

This article summarizes the Colorado statutory scheme for entity names and trade names. It updates an article the author wrote in 19871 to take into account the plethora of new entities authorized by statute since then,2 as well as other changes in the law related to entity and trade names Every business lawyer needs to be aware of the rules applicable to entity and trade names and the various filing requirements imposed on entities

THE CHART

The attached chart (see Appendix) summarizes the filing and recording requirements and customs presently in effect. The filings listed in the chart are only those that relate to the formation of entities, and assumed and trade names. The chart does not include numerous other filings mandated by statute nor annual or bi-annual reports required of many entities The chart covers the most common entities; it does not deal with special purpose corporations3 and other not-so-common entities provided for by statute in Colorado.4

PURPOSES OF THE FILINGS

The filings listed in the chart serve different purposes. Most of the Secretary of State filings are required to form the entity, give notice of its existence, and identify its registered agent for service of process. A few of the Secretary of State filings serve other specific purposes, as indicated in the chart. Certificates of Assumed or Trade Names filed with the Secretary of State and Trade Name Registrations filed with the Department of Revenue are required to use a trade or assumed name. Their primary purpose is to permit consumers to determine the owners with whom they are dealing when a business uses a trade or assumed name. Recordings with the clerk and recorder have as their primary function the creation of prima facie evidence to aid in rendering real estate titles marketable.

TRADEMARKS AND NAME PROTECTION

The popular conception of trade names is in some respects incorrect. Many people assume that filing a trade name protects the name from use by others, which may not be true at all or may be only partly true. In addition, trade names and trademarks are distinct concepts that many people use interchangeably.

Registering a trade name does not necessarily protect the name from use by others,5 nor does it authorize use of the name insofar as federal or common law is concerned. Trade names registered in a Trade Name Registration with the Department of Revenue are added to a computer file, but no attempt is made to ascertain, and certainly no notice to the person filing the name is given, whether the name is already used by another. The Department of Revenue is not authorized to police the use of trade names and makes no attempt to do so.

Entity names, trade names and assumed names filed with the Secretary of State are given a limited measure of protection by the filing since the statutes do not permit, and the Secretary of State will not accept, a filing for an entity using a name that is the "same as or deceptively similar to"6 the name of another entity that is filed in the office of the Secretary of State. However, if a name is accepted by the Secretary of State for filing, the person filing it should not assume too much. Filing a name with the Colorado Secretary of State does not authorize the name to be used in another state, nor does it protect the name from use by someone else in another state. At the same time, the mere fact that the name is filed does not mean that other laws, such as federal statutes and the common law relating to trademarks and copyrights, do not apply to restrict the use of the filed name by the person who filed it.

Trademarks and trade names are not the same thing, although trade names, or portions of trade names, may be registered as trademarks.7 Trade names merely are names under which persons conduct business. Trademarks, on the other hand, include "any word, name, symbol, or device or any combination thereof adopted and used by a person to identify goods made or sold or services rendered by him and to distinguish them from goods made or sold or services rendered by others,"8 and may include the true name of the person.

Once registered in Colorado, trademarks are accorded substantial protection against infringement.9 However, registration does not serve to trump the rights of a person who can prove prior ownership of the registered trademark at common law.10 Such common law ownership can be established by adequate use and policing of an unregistered trademark.11 Further, the registration of a trademark may be cancelled at the request of another person under certain circumstances, such as if the claimed trademark is too generic.12 State registration also cannot protect a person from a superior claim under federal trademark registration statutes, which provide substantially broader protection to the owner of a trademark than can state registration.13 Still, "because a trademark gains strength based in part on the protection given the mark by the owner, and because registration of a mark is a significant act of ownership assertion and protection," a person using a trademark in Colorado should register that trademark under CRS §§ 7-70-101 et seq.14

Finally, sole proprietors and general partnerships, which are precluded from filing trade names under CRS § 7-71-101, can protect their trade name to some degree by filing it as a trademark under CRS § 7-70-101. By doing so, other entities will not be able to reserve or file a name that is the same as or deceptively similar to its name with the Colorado Secretary of State.

TYPES OF FILINGS

There is no uniform approach to the types of entity and trade name filings. Each filing has its own origin and history. As a result, each filing has its own requirements, and the applicable statutes should be consulted prior to making any filing. This section discusses the three most common filings listed in the chart.

Certificate of Assumed Or Trade Name

A Certificate of Assumed or Trade Name (pursuant to CRS § 7-71-101) is required to be filed with the Secretary of State by any corporation; limited liability partnership; limited partnership; limited liability limited partnership; limited liability company; and limited partnership association domestic or foreign, that conducts its business or affairs under an assumed or trade name. For this filing, an "assumed name" is a name required to be adopted by a foreign entity seeking a Certificate of Authority to do business in Colorado that is not able to use its true name because that name is the same as, or deceptively similar to, a name already...