The Fiction of Fictitious Names

As is the case in many states, Missouri requires a business to register a “fictitious name” (which is the same as a d/b/a, or “doing business as” name) in order to conduct business in Missouri using a name other than the actual name of the person or entity conducting the business.  (Kansas happens to not have a similar requirement.)  Failing to comply with this requirement in Missouri is a misdemeanor offense.  Registration lasts only five years, and a registration must be renewed when the five-year period expires or it will expire.  This requirement also applies to a foreign entity doing business in Missouri.

However, the effect of registering is commonly misunderstood.  In short, the only effect of registering is to give the general public a means to discover the actual identity of the person or entity doing business under the fictitious name.  This is especially important to would-be plaintiffs, who may want to sue the business, so they know who is the correct person or entity to name in their lawsuit.

What registration does not do is to provide any protection for or rights of exclusivity in the name being registered.  It does not provide any kind of trade name or trademark rights or protection.  If fact, multiple registrations can be filed, by different persons or entities, for the very same name.

In order to obtain rights in a name or mark, and potentially to prevent others from using the same name or mark, it must be actually used for commercial purposes, and then those rights may be strengthened through federal and state trademark registrations.  But this is an entirely different matter from fictitious name registration.

When businesses use a fictitious name in their business communications, we recommend that the actual name of the business be identified somewhere in the communication. Good examples of this include websites, letterhead stationery and business cards.  In the website example, the actual business name should be noted on the first page of the website (often at the bottom, where copyright notices are often stated), and in terms or use or privacy policy pages within the website. The reason for this recommendation is to help preserve the liability protection of using an entity for conducting business, such as a corporation or limited liability company.