What if my business name is not available in every state where I would like to foreign qualify?
3 Answers from Attorneys
Well, it will depend upon the laws of each such state where your chosen name cannot be registered by you because someone else already has the same or a very similar name. However, I note that businesses from other states that try to register as foreign corporations so as to do business here, but which are unable to do so, file a registration that gives them a registered name something like this: "Flibbertygibberish, Inc., a Utah corporation, which will do business in California as Flibbertygibberish of California, Inc." I have never encountered this problem so I can't tell you EXACTLY how this slight re-naming is done here, but I'd thing that if you looked at the foreign corporation registration form, it would give the necessary clues.
Of course, every state's rules are going to be at least a tiny bit different, so you'll have to try to process your registration on a state-by-state basis.
Finally, you might want to check each state's rules as to when you have a duty to qualify there before tackling the hassle and expense of actually qualifying there. Be pretty sure it's really necessary for the level of activity you'll have in that state.
I would need more information about what you mean by "not available." If it is not available because it is exactly the same as the name already registered, then you will not be able to use that name. However, you may be able to register your foreign company under a different name.
Alternatively, if "not available" is due to your business name being "similar to" but not exactly the same as another business name already registered, you may be able to use that similar name subject to an approve from the other business. However, as the attorney above mentioned, every state has a slightly different rule. I would recommend that you contact an attorney to review your situation is more detail and provide you some guidance on what to do next.
Unfortunately this is a swearch you should have done early in the processo of selectiing your name. If the exact name (or one that is confusingly similar) is already in use, it may well be the case that the other party has the right to use the name in that state. Depending on their actual use, they could have greater right to the name than you do. This will be determined by a number of factors, including the question of how long the name has been used, the possible state or federal registration of the name, and other matters. You really should discuss this with counsel who can do the legwork. You can also do a search through Thompson. Find out quickly if you do, in fact, have the right to the particular name. You may not. Then you have to change. If you do have the prior right, you may be able to ask others using your name to stop. Only capable counsel in the area will be able to advise you on your facts. This gratuitous response does not create an attorney client relationship. The advice provided herein is generic, may not apply to your circumstances and is not to be relied upon in your actions. An attorney client relationship is created only upon execution of an engagement letter hiring me or my firm.
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