Chapter 648 — Assumed Business Names

 

2013 EDITION

 

ASSUMED BUSINESS NAMES

 

TRADE REGULATIONS AND PRACTICES

 

648.005     Definitions

 

648.007     Requirement to register assumed business name and service mark; exceptions

 

648.008     Optional registration of real and true name

 

648.010     Registration of assumed business name; contents of application; designation of representative; effect

 

648.012     Registration duty of Secretary of State

 

648.014     Forms; rules

 

648.017     Renewal of registration; fee; contents of application; rules; effect of failure to renew; notice

 

648.018     Reactivation of assumed business name; application; notification of denial; appeal

 

648.025     Amendment of registration; application; statement of withdrawal, incapacity or death; designation of representative

 

648.029     Alteration of registration to reflect corporate structure change

 

648.051     When registration refused; affidavit of applicant; registration effective until canceled

 

648.055     Cancellation of registration upon dissolution or when corporate authority withdrawn or revoked

 

648.057     Cancellation of registration upon termination of business; signature of registrant; delivery

 

648.061     Consent of nonresident persons to service of process

 

648.070     Service of process on nonresident

 

648.081     False or fraudulent registration prohibited; cancellation of conflicting registration; effect on other remedies

 

648.115     Filing, service, copying and certification fees

 

648.125     Rules

 

648.135     Effect of violation of ORS 648.007; damages and attorney fees; effect on other laws

 

648.990     Penalties

 

648.992     Penalty for signing false document

 

      648.005 Definitions. As used in this chapter:

      (1)(a) “Assumed business name” means one or more words or numerals, or a combination of words and numerals, that a person uses to identify a 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 that is carrying on, conducting or transacting the business.

      (b) “Assumed business name” includes a name that a person uses to identify a business that incorporates a word or phrase that suggests the existence of additional owners, such as “Company,” “& Company,” “& Daughters,” “& Associates,” or a similar word or phrase, unless the name is the real and true name of the person that carries on, conducts or transacts the business.

      (2) “Business” means activity carried on, conducted or transacted by or on behalf of nonprofit, social, fraternal and charitable entities and unincorporated associations, or for commercial gain.

      (3) “Carry on, conduct or transact business” means:

      (a) To sell, purchase or lease real estate, goods, intangible property or services from or to another person;

      (b) To solicit an investment in or a donation to a business;

      (c) To knowingly permit another person to solicit an investment in or a donation to a business in which a person has an interest; or

      (d) To apply for an extension of credit.

      (4) “Entity” means 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 limited partnership, foreign or domestic general partnership, foreign or domestic limited liability company, two or more persons that have a joint or common economic interest, a state, the United States, a federally recognized Native American or American Indian tribal government or a foreign government.

      (5) “Person” means an individual or an entity.

      (6) “Real and true name” means:

      (a) The surname of an individual coupled with a combination of the individual’s given names or 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);

      (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 the 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 the documents filed with the office of the Secretary of State.

      (7) “Registrant” means a person for which the Secretary of State has registered an application filed under ORS 648.012.

      (8) “Service mark” has the meaning given in ORS 647.005. [1963 c.551 §1; 1967 c.269 §5; 1971 c.194 §1; 1971 c.594 §35; 1985 c.677 §66a; 1985 c.728 §90; 1987 c.94 §105; 1995 c.454 §3; 2009 c.14 §6; 2009 c.294 §19; 2011 c.147 §28]

 

      648.007 Requirement to register assumed business name and service mark; exceptions. (1) No person shall carry on, conduct or transact business under an assumed business name in a county where the business is located, where a physical facility of the business is located or where an employee of the business is stationed, unless the person has registered the assumed business name as provided in this chapter and maintains a current registration.

      (2) A person shall register a service mark as an assumed business name if the person carries on, conducts or transacts business under the service mark and the person does not disclose conspicuously the person’s real and true name at the time and place that the person carries on, conducts or transacts business.

      (3) ORS 648.010 and subsection (1) of this section do not apply to:

      (a) A foreign corporation that applied for and was issued a certificate of authority prior to September 20, 1985, and that carries on, conducts or transacts business in this state exclusively under the name that it stated in its application that it elects to use in this state, as shown on the records of the Office of the Secretary of State.

      (b) A partnership which uses the surname of all or some of the partners all of whom are licensed by a common licensure board or commission.

      (c) A mutual and voluntary association composed of 10 or more farmers and landowners formed for the purpose of constructing, owning and operating reservoirs, irrigation ditches and irrigation works. The secretary of each association shall maintain a complete and current record of the association’s members, and shall furnish a copy of the record upon request.

      (4) Nothing in this chapter shall preclude a person from registering more than one assumed business name. [1985 c.728 §92]

 

      648.008 Optional registration of real and true name. (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. [1995 c.454 §2]

 

      648.010 Registration of assumed business name; contents of application; designation of representative; effect. (1) Each person who will carry on, conduct or transact business under an assumed business name shall sign 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 applicant’s primary business activity.

      (f) Any other information that the Secretary of State by rule may require.

      (3) 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. [Amended by 1961 c.355 §1; 1963 c.551 §2; 1969 c.154 §1; 1971 c.194 §2; 1985 c.728 §94; 1987 c.843 §21; 1995 c.454 §4; 2007 c.186 §18]

 

      648.012 Registration duty of Secretary of State. (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. [1995 c.454 §13]

 

      648.014 Forms; rules. (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. [1995 c.454 §14]

 

      648.015 [1963 c.551 §7; 1967 c.233 §3; 1969 c.154 §2; 1971 c.318 §13; 1981 c.633 §74; repealed by 1985 c.728 §110]

 

      648.017 Renewal of registration; fee; contents of application; rules; effect of failure to renew; notice. (1) A registrant must apply to renew a registration of an assumed business name within 30 days before the second anniversary of the date that the Secretary of State registered the assumed business name and each second anniversary thereafter. The registrant must apply to the Office of the Secretary of State for renewal of the registration and submit with the renewal a renewal fee. The application for renewal must include all identifying information required by rule of the Secretary of State. Failure to apply for renewal and pay the required fee is grounds for administrative cancellation of the registration.

      (2) Not less than 30 days before the application for renewal is due, the Secretary of State shall notify each authorized representative of the requirement to apply for renewal. The notice shall indicate the date by which the renewal application must be submitted, and shall include the renewal application. The notice shall state that if the registrant fails to submit the renewal application and renewal fee on or before the renewal deadline, the registration of the assumed business name will be canceled without further notice.

      (3) If the Secretary of State finds that the application for renewal conforms to the requirements of this section, and all fees have been paid, the Secretary of State shall renew the registration. [1969 c.154 §6; 1977 c.78 §6; 1981 c.633 §75; 1985 c.728 §98; 1987 c.94 §161]

 

      648.018 Reactivation of assumed business name; application; notification of denial; appeal. (1) A registrant, within five years after the date on which the Secretary of State administratively canceled an assumed business name under ORS 648.017, may apply to the Secretary of State to reactivate the assumed business name. The application must comply with the requirements set forth in ORS 648.010.

      (2) The application must:

      (a) State the assumed business name and the date on which the Secretary of State administratively canceled the registration for the assumed business name; and

      (b) State that the grounds for the cancellation do not exist or have been eliminated.

      (3) The registrant or an authorized representative of the registrant shall sign and deliver the application described in subsection (1) of this section to the office of the Secretary of State for filing.

      (4) If the Secretary of State determines that the application described in subsection (1) of this section contains the information required under subsection (2) of this section, that the information is correct, that the application otherwise complies with the requirements of ORS 648.010 and that the registrant has paid all fees and charges due since the date of cancellation, the Secretary of State shall reactivate the assumed business name. The reactivation is effective when the Secretary of State files the application.

      (5) If the Secretary of State denies a registrant’s application for reactivation under this section, the Secretary of State shall notify the registrant in writing and explain the reason for the denial.

      (6) A registrant may appeal the Secretary of State’s decision to deny an application the registrant submitted under this section. The registrant’s appeal is subject to the provisions of ORS chapter 183. [2011 c.147 §31]

 

      648.020 [Repealed by 1963 c.551 §21]

 

      648.025 Amendment of registration; application; statement of withdrawal, incapacity or death; designation of representative. (1)(a) A registrant or an authorized representative of the registrant may at any time deliver to the Secretary of State for filing an application to amend an assumed business name that is registered under this chapter. The application must conform to the requirements set forth in ORS 648.010.

      (b) A registrant or an authorized representative of the registrant shall deliver an application to amend an assumed business name to the office of the Secretary of State for filing within 60 days after any of the following occurs:

      (A) The identity, name or address of a person that carries on, conducts or transacts the business for which the assumed business name is registered changes;

      (B) The identity, name or address of the person authorized to represent the registrant or registrants changes;

      (C) The registrant commences to carry on, conduct or transact business under the assumed business name in a county or counties other than the county or counties where the registrant’s application stated that the registrant intended to carry on, conduct or transact business under the assumed business name; or

      (D) The address of the principal place of business changes.

      (2) Except as provided in this subsection, the application required by subsection (1) of this section must 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, 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 authorized representative, instead of the registrant or registrants, may sign an application required under subsection (1) of this section if:

      (a) The address of a person under subsection (1)(b)(A) or (B) of this section changes.

      (b) A county is added or deleted under subsection (1)(b)(C) of this section.

      (c) The address of the principal place of business under subsection (1)(b)(D) of this section changes.

      (3) If a person who has an interest in a business with a registered assumed business name withdraws from the business, becomes incapacitated or dies, the person who withdraws, or in case of the person’s incapacity or death, the legal representative of the person, or the authorized representative, shall submit to the office of the Secretary of State a statement of the withdrawal, incapacity or death.

      (4) Amending 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 a new authorized representative by rule if the authorized representative withdraws and a new authorized representative is not appointed within the time period prescribed in this section. [1963 c.551 §6; 1969 c.154 §3; 1981 c.633 §76; 1985 c.728 §99; 1987 c.94 §162; 1995 c.454 §6; 2011 c.147 §29]

 

      648.029 Alteration of registration to reflect corporate structure change. Where a domestic corporation is the registrant of an assumed business name and the corporation 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. [1969 c.154 §8; 1995 c.454 §7]

 

      Note: 648.029 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 648 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      648.030 [Repealed by 1963 c.551 §21]

 

      648.035 [1963 c.551 §5; 1967 c.233 §1; repealed by 1969 c.154 §10]

 

      648.040 [Repealed by 1963 c.551 §21]

 

      648.045 [1963 c.551 §4; repealed by 1981 c.633 §83]

 

      648.050 [Amended by 1955 c.661 §1; 1963 c.551 §8; 1969 c.154 §4; repealed by 1985 c.728 §110]

 

      648.051 When registration refused; affidavit of applicant; registration effective until canceled. (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 the name of a person, including a reserved name or registered 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 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. [1985 c.728 §96; 1995 c.454 §8]

 

      648.055 Cancellation of registration upon dissolution or when corporate authority withdrawn or revoked. (1) If the only registrant of an assumed business name is a domestic corporation that has been dissolved, the Secretary of State may cancel the registration.

      (2) If the only registrant of an assumed business name is a foreign corporation whose authority to transact business in this state has been withdrawn or revoked, the Secretary of State may cancel the registration. [1969 c.154 §7; 1987 c.94 §165; 2005 c.22 §452]

 

      648.057 Cancellation of registration upon termination of business; signature of registrant; delivery. (1) An assumed business name must be canceled not later than the 60th day after the registrant or registrants of the assumed business name cease doing business under that name.

      (2) The application required by subsection (1) of this section shall be signed by the registrant or registrants of the assumed business name or by the authorized representative of the registrant or registrants and shall be delivered to the Office of the Secretary of State for filing. [1987 c.94 §164]

 

      648.060 [Amended by 1963 c.551 §9; repealed by 1967 c.152 §1 (648.061 enacted in lieu of 648.060)]

 

      648.061 Consent of nonresident persons to service of process. Any of the persons not domiciled within this state or foreign persons not authorized to do business within this state who appear as 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. [1967 c.152 §2 (enacted in lieu of 648.060); 1995 c.454 §9]

 

      648.070 Service of process on nonresident. A person making service of process authorized by ORS 648.061 shall make the service by delivering a copy of the process in person or by certified mail to the Office of the Secretary of State. The service shall be sufficient and valid personal service upon the persons not domiciled in this state to whom ORS 648.061 applies if the plaintiff immediately sends notice of the service and a copy of the process by certified mail to the principal office of the persons against whom the process or pleadings are directed, and the return receipt of the latter and plaintiff’s affidavit of compliance with this section are appended to the process and entered as a part of the return thereof. The defendant persons against whom the process or pleadings are directed shall have 30 days after the date of mailing of the process or pleadings in which to appear and plead. Personal service outside the state in accordance with the statutes of Oregon relating to personal service of summons outside the state shall relieve the plaintiff from mailing copies of the summons or process by registered mail as provided in this section. [Amended by 1963 c.551 §10; 1983 c.717 §33; 1991 c.132 §24]

 

      648.080 [Amended by 1963 c.551 §11; repealed by 1985 c.728 §110]

 

      648.081 False or fraudulent registration prohibited; cancellation of conflicting registration; effect on other remedies. (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 the words “corporation,” “incorporated,” “limited liability company,” “limited partnership” or “business trust” or an abbreviation of any of those 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.

      (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 judgment of a court 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 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.

      (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. [1985 c.728 §97; 1987 c.94 §106; 1995 c.454 §10; 2003 c.576 §529]

 

      648.090 [Amended by 1963 c.551 §12; repealed by 1985 c.728 §110]

 

      648.100 [Amended by 1961 c.355 §2; repealed by 1963 c.551 §21]

 

      648.105 [1963 c.551 §13; repealed by 1983 c.717 §42]

 

      648.110 [Repealed by 1963 c.551 §21]

 

      648.115 Filing, service, copying and certification fees. The Secretary of State shall collect the fees described in ORS 56.140 for each document delivered for filing under this chapter and for process served on the secretary under this chapter. The secretary may collect the fees described in ORS 56.140 for copying any public record under this chapter, certifying the copy or certifying to other facts of record under this chapter. [1963 c.551 §15; 1967 c.233 §2; 1969 c.154 §9; 1981 c.633 §77; 1985 c.351 §26; 1987 c.94 §166; 1989 c.383 §5; 1991 c.132 §25; 1995 c.454 §11; 1999 c.652 §18]

 

      648.125 Rules. In accordance with any applicable provisions of ORS chapter 183, the Secretary of State may adopt rules the secretary considers necessary or proper for the administration of this chapter. [1963 c.551 §14; 2003 c.14 §393]

 

      648.130 [1971 c.194 §4; repealed by 1985 c.728 §110]

 

      648.135 Effect of violation of ORS 648.007; damages and attorney fees; effect on other laws. (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.

      (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 that the court determines that the plaintiff reasonably incurred to ascertain the real and true name of the defendant, whichever is greater. The court may award reasonable attorney fees to the prevailing party in an action under this subsection.

      (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. [1985 c.728 §93; 1987 c.390 §1; 1995 c.454 §12; 1995 c.618 §106]

 

      648.990 Penalties. (1) Violation of any of the provisions of this chapter is punishable by a civil penalty not exceeding $100.

      (2) A penalty imposed under this section is in addition to any other penalty which may be imposed by the state or a political subdivision of this state under any other civil or criminal statute. [Amended by 1963 c.551 §17; 1985 c.728 §101]

 

      648.992 Penalty for signing false document. (1) A person commits the crime of signing a false document for filing if the person:

      (a) Knows the document is false in any material respect; and

      (b) Signs the document with an intent that the document be delivered to the office of the Secretary of State for filing under this chapter.

      (2) Signing a false document for filing is a Class A misdemeanor.

      (3) This section does not limit or affect any civil penalty the Secretary of State may impose for violating a provision of this chapter or any person’s right to seek a remedy that is otherwise available under this chapter. [2013 c.158 §16]

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