Fictitious Names: Don’t Count on ‘Em

jason Uncategorized

It has become quite common for people, corporations, and other entities to employ a variety of names by which they choose to identify themselves. These alternative names are better known in the legal profession as fictitious names and are regulated in Florida by Florida Statute § 865.09. This statute defines fictitious names as “any name under which a person transacts business in this state, other that the person’s legal name” and requires registering the names with the Division of Corporations of the Department of State before a person may use the name to engage in business. (See Florida Statute § 865.09) There is, however, a common misconception about the protections afforded by the use of fictitious names.

The registering of a fictitious name does not act as a reservation of rights to that name. Many are under the impression that using a fictitious name for business purposes will afford them the same protection as the name used for incorporation. This is certainly not the case. There have been many instances where the same fictitious name has been shared by multiple people or entities. When such a scenario presents itself, no protection will be extended to any of the holders of the same fictitious name. In essence, if two people share the same fictitious name, courts will refuse to recognize one party’s claim to that name over another’s. In Worm World, the court held that “a fictitious name has no independent legal existence; rather, it is a fiction involving the name if the real party in interest and nothing more.” Worm World, Inc. v. Ironwood Productions, 917 So.2d 274 (Fla. 1st DCA, 2005) However, in furtherance of justice, the same court held that failure to comply with registration requirements for fictitious names will not impair the validity of contracts entered into by the party using the fictitious name. Id. It is clear that, in Florida, the courts will seek to avoid inequitable outcomes caused by the use of fictitious name. Therefore, it would be unwise to expect the legal protection and recognition associated with legal names to be extended to fictitious name.

If your buying or selling a business or need help starting a new business, the attorneys at Law Offices of Oates & Oates, P.A., can assist you in every step along the way.

Jason Abitbol is a graduate student pursuing a Juris Doctorate degree at Nova Southeastern University College of Law in Fort Lauderdale, Florida. He is a law clerk for the Law Offices of Oates & Oates, P.A.