Effective January 1, 2020, the Clerk’s Office of the State Corporation Commission became the central filing office in Virginia for all certificates of assumed or fictitious name, effectively streamlining the previous two-step process into a one-step process. The initial step of filing a Certificate of Assumed Name with the circuit court clerk of the city or county in which the business was located has been eliminated. Here are the top 10 things to know about assumed name filings in Virginia:
1. What is an Assumed Name? An assumed name (also known as a fictitious name or d/b/a (doing business as) is a name that a person or entity uses instead of the person’s (or entity’s) legal name, usually in the course of transacting or offering to transact business. For example, the legal entity ABC Enterprises, LLC might own and operate a business branded and promoted to the world as “Sparky’s Car Wash”. The name “Sparky’s Car Wash” would be considered an assumed name.
2. What are the filing requirements for using an assumed name in Virginia? Before a person or entity may conduct business in Virginia under an assumed name, the person must file a Certificate of Assumed Name in the Office of the Clerk of the Commission on a form prescribed by the Commission. The filing can be submitted by mail or electronically through the SCC Clerk’s website. The statutes that govern conducting business in Virginia under a fictitious name are §§ 59.1-69 – 59.1-76 of the Code of Virginia (the “Code”).
3. Can a sole proprietor file an Assumed Name Certificate with the SCC? Yes, sole proprietors can (and should) file a Certificate of Assumed Name as applicable to their business.
4. Is there a required form to use for an assumed name filing? Yes, the SCC has adopted a new version of a Certificate of Assumed Name that must be used. Submissions using “old” versions will be rejected.
5. Is there a Filing Fee for an Assumed Name Filing? Yes, the filing fee is $10. Checks should be made payable to “State Corporation Commission.”
6. What is the Penalty for Using an Unregistered Assumed Name in Virginia? The potential penalties for ignoring this filing requirement may seem severe to the casual observer. An individual or entity that conducts business under an assumed name without making the required filing is subject to criminal prosecution (a misdemeanor), punishable by a fine not exceeding $2,500 or confinement in jail for not more than one year, or both. See § 59.1-75 of the Code. In addition, the person or entity is precluded from maintaining an action in any courts of the Commonwealth as set forth in § 59.1-76 of the Code.
7. What should I do if I stop using a registered assumed name? When the business owner stops using the assumed name, a “release” filing (on the SCC-designated form) should be submitted (along with a $10 filing fee).
8. Does filing an Assumed Name Certificate give me exclusive rights to that assumed name in Virginia? No, the SCC does not grant anything resembling exclusive rights to names through the assumed name filing system. Intellectual property rights are addressed through other legal mechanisms. Filing an Assumed Name Certificate is more akin to a public notice system.
9. Is there an annual fee associated with maintaining an Assumed Name Registration? No, filing fees are only due when an assumed name is registered or released. There are no annual fee or filing requirements.
10. What is the Underlying Purpose of Requiring Registration of Assumed Names? The fundamental policy relates to consumer protection in the sense that someone walking into a “sweetFrog” frozen yogurt location can have access to public notice as to what person or entity owns and operates that business.