68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 329
B-Engrossed
House Bill 2217
Ordered by the Senate May 15
Including House Amendments dated March 7 and Senate Amendments
dated May 15
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Corporation Division,
Secretary of State)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Changes registration period of assumed business names from two
years to one year. Allows registration of real and true names
{ + for purpose of conducting or transacting business in
state + }.
{ - Takes effect January 1, 1996. - }
A BILL FOR AN ACT
Relating to assumed business names; creating new provisions; and
amending ORS 648.005, 648.010, 648.025, 648.029, 648.051,
648.061, 648.081, 648.115 and 648.135.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2, 13 and 14 of this Act are added to
and made a part of ORS chapter 648. + }
SECTION 2. { + (1) Notwithstanding any provision of this
chapter, a person that will carry on, conduct or transact
business under the real and true name of the person may apply for
registration of the real and true name with the Office of the
Secretary of State.
(2) An application for registration of a real and true name
shall be treated in the same manner as an application to register
an assumed business name under this chapter. If a real and true
name is registered under this chapter, all provisions of this
chapter applicable to an assumed business name shall also apply
to a real and true name. + }
SECTION 3. ORS 648.005 is amended to read:
648.005. As used in this chapter:
(1) 'Assumed business name' means one or more words or
numerals, or a combination of words and numerals, that a person
uses to identify any business that the person carries on,
conducts or transacts, if at the time and place that the person
carries on, conducts or transacts the business, the person does
not conspicuously disclose the real and true name of each person
who is carrying on, conducting or transacting the business. Any
name that a person uses to identify a business that includes a
word or phrase that suggests the existence of additional owners,
such as ' Company,' '& Company,' '& Daughters,' '& Associates,'
or a similar word or phrase, is an assumed business name, unless
it is the real and true name of the { - corporation - }
{ + person + } that carries on, conducts or transacts the
business.
(2) 'Business' includes activity carried on, conducted or
transacted by or on behalf of nonprofit, social, fraternal and
charitable entities and unincorporated associations, as well as
activity carried on, conducted or transacted for commercial gain.
(3) 'Carry on, conduct or transact business' means:
(a) To sell or to lease to another, real estate, goods,
intangible property or services;
(b) To purchase or to lease from another, real estate, goods,
intangible property or services;
(c) To solicit an investment in or a donation to a business;
(d) Knowingly to permit another person to solicit an investment
in or a donation to a business in which one has an interest; or
(e) To apply for an extension of credit.
{ + (4) 'Entity' includes a foreign or domestic corporation,
foreign or domestic nonprofit corporation, foreign or domestic
profit or nonprofit unincorporated association, foreign or
domestic business trust, foreign or domestic estate, foreign or
domestic limited partnership, foreign or domestic general
partnership, foreign or domestic limited liability company,
foreign or domestic business trust, two or more persons having a
joint or common economic interest, any state, the United States
or any foreign government.
(5) 'Person' includes individual and entity. + }
{ - (4) - } { + (6) + } 'Real and true name' means:
(a) The surname of an individual coupled with a combination of
the individual's given names and initials;
(b) The corporate name of a domestic corporation stated in the
articles of incorporation or amendment filed with the Office of
the Secretary of State or the corporate name of a foreign
corporation as stated under ORS 60.707 (1); { - or - }
{ - (c) The name of a limited partnership stated in the
certificate filed under ORS chapter 70. - }
{ + (c) The name of a foreign or domestic limited partnership
stated in the documents filed with the Office of the Secretary of
State under ORS chapter 70;
(d) The name of a foreign or domestic limited liability company
stated in the documents filed with the Office of the Secretary of
State under ORS chapter 63;
(e) The name of a foreign or domestic nonprofit corporation
stated in the documents filed with the Office of the Secretary of
State under ORS chapter 65;
(f) The name of a foreign or domestic general partnership
stated in any documents filed with the Office of the Secretary of
State under this chapter; or
(g) The name of a foreign or domestic business trust or estate
stated in any documents filed with the Office of the Secretary of
State. + }
{ - (5) - } { + (7) + } 'Service mark' has the meaning
given in ORS 647.005.
SECTION 4. ORS 648.010 is amended to read:
648.010. (1) Each person who will carry on, conduct or transact
business under an assumed business name shall sign { - a
verified - } { + an + } application to register the assumed
business name and shall submit the application to the Office of
the Secretary of State, with the fee prescribed by this chapter.
All of the persons who will carry on, conduct or transact a
single business under an assumed business name shall file a
consolidated application to register the assumed business name.
(2) The application shall state:
(a) The assumed business name to be registered. The applicant
shall write the assumed business name in the alphabet used to
write the English language. The assumed business name may include
numerals and incidental punctuation.
(b) The real and true name and street address of each person
who intends to carry on, conduct or transact business under the
assumed business name.
(c) The principal address at which the applicant intends to
carry on, conduct or transact business and a listing of each
county in which the applicant intends to carry on, conduct or
transact business to the extent that ORS 648.007 would require
the applicant to register the assumed business name for that
county.
(d) The name and the mailing address of the person whom the
applicant authorizes to represent the applicant in transactions
with the Office of the Secretary of State with respect to the
registration. All of the registrants of an assumed business name
for a single business shall designate the same person under this
subsection.
(e) { - The category of the classification code established
by rule of the Secretary of State most closely designating the
character of business that the applicant intends to carry on,
conduct or transact under the assumed business name. - }
{ + The applicant's primary business activity. + }
(f) Any other information that the Secretary of State by rule
may require.
(3) { - The Secretary of State may require by rule - } Any
application for registration submitted under this section or any
report submitted under ORS 648.017 { - , to - } { + shall + }
set forth the social security number or federal employer
identification number of each { - of the parties of
interest - } { + applicant or registrant + }named in the
application or report. { - The rules of the Secretary of State
may identify classes of registrations for which a social security
number or federal employer identification number shall be
required. - }
(4) The person named in the application to be authorized to
represent the applicant is authorized to receive notices under
this chapter and to perform any duty that this chapter requires
of the registrant of the assumed business name, but is not by the
application or registration made the registrant's agent for the
service of process.
{ + NOTE: + } Section 5 was deleted by amendment. Subsequent
sections were not renumbered.
SECTION 6. ORS 648.025 is amended to read:
648.025. (1) An application to amend a registration of an
assumed business name shall be delivered to the Office of the
Secretary of State for filing within 60 days after any of the
following occurs:
(a) There is a change in the identity, names or addresses of
the persons carrying on, conducting or transacting the business
for which the assumed business name is registered;
(b) There is a change in the identity, name or address of the
person authorized to represent the registrant or registrants;
{ - or - }
(c) The registrant commences to carry on, to conduct or to
transact business under the assumed business name in a county or
counties different from those that the registrant stated in the
application where the registrant intended to carry on, to conduct
or to transact business under the assumed business name;
{ + or + } { - and - }
(d) The address of the principal place of business is changed.
(2) Except as provided in this subsection, the application
required by subsection (1) of this section shall be signed by the
registrant, if the registrant is an individual, by the officer of
a { + foreign or domestic + } corporation who is authorized to
sign, if the registrant is a { + foreign or domestic + }
corporation, { - or - } by a general partner of a { + foreign
or domestic + } limited partnership, if the registrant is a
{ + foreign or domestic + } limited partnership { + , by a
manager of a foreign or domestic limited liability company, or by
a member of a foreign or domestic member-managed limited
liability company, if the registrant is a foreign or domestic
limited liability company, or by a trustee of a foreign or
domestic business trust, if the registrant is a foreign or
domestic business trust + }. The application required by
subsection (1) of this section may be signed by the authorized
representative instead of the registrant or registrants in any of
the following cases:
(a) The address of a person under subsection (1)(a) or (b) of
this section is changed.
(b) Any county is added or deleted under subsection (1)(c) of
this section.
(c) The address of the principal place of business under
subsection (1)(d) of this section is changed.
(3) Whenever any person having an interest in a business with a
registered assumed business name withdraws from the business or
dies, the person who is withdrawing, or in case of the person's
death or incapacity, the legal representative of such person or
the authorized representative, shall submit to the Office of the
Secretary of State a statement of such withdrawal, incapacity or
death.
(4) The amendment of the registration of an assumed business
name supersedes the original registration of the assumed business
name on all matters amended but does not renew the registration
as required under ORS 648.017.
(5) The Secretary of State may designate by rule who shall be
the authorized representative if the authorized representative
withdraws and no new authorized representative is appointed
within the time period prescribed in this section.
SECTION 7. ORS 648.029 is amended to read:
648.029. Where a domestic corporation { - is a party of
interest to - } { + is the registrant of + } an assumed
business name and { + the corporation + }
{ - consolidates, - } merges or amends its articles of
incorporation to change its corporate name or a foreign
corporation procures an amended certificate of authority, the
Secretary of State may alter the assumed business name
registration to indicate the surviving or changed corporate name.
SECTION 8. ORS 648.051 is amended to read:
648.051. (1) Subject to subsection (2) of this section, the
Secretary of State shall register the assumed business name
contained in the application.
(2) The Secretary of State shall not register the assumed
business name if the Secretary of State determines that the
assumed business name is not distinguishable on the records of
the Office of the Secretary of State from another assumed
business name { - , or from a corporate name or limited
partnership name - } { + or from the name of a person + },
including a reserved name or registered
{ - corporate - } name of active record with the Office of the
Secretary of State except as provided in subsection (3) of this
section.
(3) The Secretary of State shall register an assumed business
name if the applicant submits for filing an affidavit that the
applicant has a right to use the assumed business name in the
county or counties stated in the application for the character of
business that the applicant will carry on, conduct or transact
under the assumed business name. The affidavit shall state:
(a) That the affiant has been advised of the penalties for
false swearing;
(b) The facts upon which the affidavit is based and that the
affiant swears to the existence of the facts from the affiant's
own knowledge; and
(c) That the affiant believes that the facts stated are
sufficient to establish either:
(A) That prior use of the name by the applicant or by the
licensor of the applicant has vested in the applicant a right to
use the assumed business name for the character of business
stated in the application in the county or counties listed in the
application; or
(B) That the character of business that the applicant intends
to carry on, conduct or transact under the assumed business name
will not so resemble the character of business, if any, that the
person who filed, reserved or registered the assumed business
name { - , corporate name or limited partnership name - }
{ + or the name of the person + } identified under subsection
(2) of this section conducts under the name in the county or any
of the counties listed in the application as to be likely to
cause confusion or mistake or to deceive.
(4) The registration of an assumed business name remains in
effect until canceled.
SECTION 9. ORS 648.061 is amended to read:
648.061. Any of the persons not domiciled within this state or
foreign { - corporations - } { + persons + } not authorized
to do business within this state who appear as { - parties of
interest - } { + persons who will carry on, conduct or transact
business under an assumed business name + } in an application for
registration filed under ORS 648.010 shall be deemed to have
appointed the Secretary of State as agent upon whom may be served
at any time any process, notice or demand required or permitted
by law to be served upon them.
SECTION 10. ORS 648.081 is amended to read:
648.081. (1) No person shall procure or maintain the
registration of an assumed business name with the Office of the
Secretary of State by knowingly making any false or fraudulent
representation or declaration, orally or in writing, or by any
other fraudulent means. No person shall register or use an
assumed business name with an intent to create a likelihood of
confusion with another person.
(2) A person that is not a corporation { + , limited liability
company, business trust or limited partnership + } violates
subsection (1) of this section if the person registers an assumed
business name that contains { - either - } { + the words + }
'corporation { + , + } ' { - or - } 'incorporated { + , + } '
{ + ' limited liability company,' 'limited partnership' or
'business trust' + } or an abbreviation of { - one or both - }
{ + any + } of those { - words - } { + terms + }.
{ + (3) + } A { + foreign or domestic profit or
nonprofit + } corporation may register as an assumed business
name its corporate name minus the word, abbreviation or phrase
that ORS 60.094 or 60.717 requires.
{ + (4) A foreign or domestic limited liability company may
register as an assumed business name its limited liability
company name minus the word, abbreviation or phrase that ORS
63.094 or 63.717 requires.
(5) A foreign or domestic limited partnership may register as
an assumed business name its limited partnership name minus the
word, abbreviation or phrase that ORS 70.010 or 70.365 requires.
(6) A foreign or domestic business trust may register as an
assumed business name its business trust name minus the word,
abbreviation or phrase that ORS 60.094 or 60.717 requires. + }
{ - (3) - } { + (7) + } The Secretary of State shall cancel
the registration of a conflicting assumed business name if a
person other than the registrant submits to the Office of the
Secretary of State a certified copy of a final decree of a court
of competent jurisdiction that finds that the person has a right
superior to that of the registrant to use the name in this state.
Nothing in this subsection shall preclude the Secretary of State
from seeking { - an injunction under ORS 648.135 or - } a
civil penalty under ORS 648.990 after cancellation if the former
registrant continues to carry on, to conduct or to transact
business under the assumed business name.
{ - (4) - } { + (8) + } Nothing in this section shall limit
any person's right to seek a remedy under ORS 646.638 or to seek
an injunction under ORS 647.107.
SECTION 11. ORS 648.115 is amended to read:
648.115. (1) The Secretary of State shall charge and collect:
_________________________________________________________________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Document Fee
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
(a)Application $10
(b)Renewal $10
(c)Each county designated
on { -
registration - }
{ +
application
or renewal + }
$ 2
(d)Each county added { -
to
registration or - }
{ +
by
amendment or upon + }
r$ne2al
(e)Amendment $10
(f)Cancellation $10
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
(2) The Secretary of State shall collect a fee of $20 each time
process is served on the Secretary of State under this chapter.
(3) The Secretary of State by rule may establish fees, in
addition to those provided for in subsections (1) and (2) of this
section, for:
(a) Copying any public record maintained by the Office of
Secretary of State and relating to assumed business names, and
for certifying the copy.
(b) Certifying to facts of record, pursuant to this chapter.
{ + (4) An application fee submitted under subsection (1) of
this section is nonrefundable. + }
SECTION 12. ORS 648.135 is amended to read:
648.135. { - (1) The Secretary of State may bring a suit in
the name of the state in the Circuit Court for Marion County, or
in the circuit court of any county in which the defendant carries
on, conducts or transacts business, to enjoin a violation of ORS
648.007. Upon a proper showing, the court shall grant a permanent
or temporary injunction or restraining order. The court shall not
require the Secretary of State to post a bond. - }
{ - (2) - } { + (1) + } A person who carries on, conducts
or transacts business in violation of ORS 648.007 shall lack
standing before the courts of this state to maintain a cause of
action for the benefit of the business. The person may cure the
incapacity at any time by complying with ORS 648.007. Nothing in
this section shall extend any statute of limitations.
{ - (3) - } { + (2) + } In any action or suit in which the
cause of action arises out of business that the defendant carried
on, conducted or transacted in violation of ORS 648.007, the
plaintiff shall be entitled to recover $500 or the actual costs,
including attorney fees, that the court determines that the
plaintiff reasonably incurred to ascertain the real and true name
of the defendant, whichever is greater. The plaintiff may recover
under this subsection even if the defendant prevails in the
action or suit, unless the court finds that the action or suit
was frivolous.
{ - (4) - } { + (3) + } Except as provided in this section,
nothing in this chapter shall abrogate or limit the law as to
unfair competition or unfair trade practices or derogate from the
common law, the principles of equity or the statutes of this
state or of the United States with respect to the right to
acquire and to protect trade names.
SECTION 13. { + (1) If an application delivered to the Office
of the Secretary of State for filing satisfies the requirements
of ORS 648.010, the Secretary of State shall register it.
(2) The Secretary of State registers an application by
indicating thereon that it has been filed by the Secretary of
State and the date of registration.
(3) If the Secretary of State refuses to register an assumed
business name, the Secretary of State shall return the
application to the applicant within 10 business days after the
application was delivered together with a brief written
explanation of the reason for the refusal.
(4) The duty of the Secretary of State to register assumed
business names under this section is ministerial. The Secretary
of State is not required to verify or inquire into the legality
or truth of any matter included in any application delivered to
the Office of the Secretary of State. The Secretary of State's
registering or refusing to register an assumed business name does
not:
(a) Affect the validity or invalidity of the application in
whole or part; or
(b) Relate to the correctness or incorrectness of information
contained in the application.
(5) The Secretary of State's refusal to register an assumed
business name does not create a presumption that the application
is invalid or that information contained in the application is
incorrect. + }
SECTION 14. { + (1) Upon request, the Secretary of State may
furnish forms for documents required or permitted to be filed by
this chapter.
(2) The Secretary of State may by rule require the use of the
forms. + }
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