SB447: relative to corporate names.

SB 447 - AS INTRODUCED

2004 SESSION

04-3153

03/10

SENATE BILL 447

AN ACT relative to corporate names.

SPONSORS: Sen. Foster, Dist 13

COMMITTEE: Executive Departments and Administration

ANALYSIS

This bill modifies the standard for determining when the name of a business organization is impermissibly similar to that of another business organization.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

04-3153

03/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Four

AN ACT relative to corporate names.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Voluntary Corporations and Associations; Name. Amend RSA 292:3 to read as follows:

292:3 Name. Any corporate name assumed under this chapter shall [not be deceptively similar to] be distinguishable upon the records in the office of the secretary of state from the name of any of those entities listed under RSA 293-A:4.01(b), [without] except with the written consent of such entities, which consent shall be filed with the secretary of state.

2 Business Corporation Act; Corporate Name. Amend RSA 293-A:4.01(b)-(c) to read as follows:

(b) Except as authorized by subsections (c) and (d), a corporate name shall [not be the same as, or deceptively similar to] be distinguishable upon the records in the office of the secretary of state from:

(1) the corporate name of a corporation incorporated or authorized to transact business in this state;

(2) a name reserved or registered under RSA 293-A, RSA 293-B, RSA 301, RSA 301-A, RSA 304-A, RSA 304-B, RSA 304-C, RSA 305-A, or RSA 349;

(3) the fictitious name of another foreign corporation authorized to transact business in this state;

(4) the corporate name of a not-for-profit corporation incorporated or authorized to transact business in this state;

(5) the name of an agency or instrumentality of the United States or this state or a subdivision thereof; and

(6) the name of any political party recognized under RSA 652:11, unless written consent is obtained from the authorized representative of the respective political organization.

(c) A corporation may apply to the secretary of state for authorization to use a name that is [the same as, or deceptively similar to,] not distinguishable from one or more of the names described in subsection (b). The secretary of state shall authorize the use of the name applied for if:

(1) the holder or holders of the name as described in subsection (b) gives written consent to use the [same or deceptively similar] indistinguishable name; and if the name is the same, one or more words are added to the name to make the new name distinguishable from the other name; or

(2) the corporation consents to the use in writing and submits an undertaking in form satisfactory to the secretary of state to change its name to a name that is [not the same as, or deceptively similar to,] distinguishable from the name of the applying corporation; or

(3) the applicant delivers to the secretary of state a certified copy of the final judgment of a court of competent jurisdiction establishing the applicant's right to use the name applied for in this state.

3 Business Corporation Act; Administrative Dissolution. Amend RSA 293-A:14.21(d) to read as follows:

(d) The secretary of state shall not permit any other individual, corporation, or other business entity to assume [the same name or a deceptively similar name, of] a name that is not distinguishable from a corporation administratively dissolved under this section, or any trade name registered by such corporation pursuant to RSA 349, for a period of 120 days following the notice of administrative dissolution without the written consent of such corporation.

4 Investment Trusts; Use of Names Regulated. Amend RSA 293-B:16, I to read as follows:

I. The name of each New Hampshire investment trust as set forth in its certificate of trust shall [not be the same as or deceptively similar to] be distinguishable upon the records in the office of the secretary of state from the name of any of those entities listed under RSA 93-A:4.01(b), [without] except with the written consent of such entities, which consent shall be filed with the secretary of state.

5 Professional Corporations; Corporate Name. Amend RSA 294-A:7, III to read as follows:

III. Shall [not be the same as, or deceptively similar to,] be distinguishable upon the records in the office of the secretary of state from the name of any domestic corporation existing under the laws of this state or any foreign corporation admitted to do business in this state, or a name the exclusive right to which is, at the time, reserved in the manner provided in the law of this state applicable to business corporations, or the name of a corporation which has in effect a registration of its corporate name as provided in the law of this state applicable to business corporations, except that this provision shall not apply if:

(a) The similarity results from the use in the corporate name of personal names of its stockholders or former shareholders or of natural persons who were associated with a predecessor entity; or

(b) The applicant files with the secretary of state either of the following:

(1) The written consent of the other corporation or holder of a reserved or registered name to use the [same or deceptively similar] indistinguishable name and one or more words are added to make the name distinguishable from the other name; or

(2) A certified copy of a final decree of a court of competent jurisdiction establishing the right of the applicant to the use of the name in this state; and

6 Cooperative Associations; Use of Name Regulated. Amend RSA 301:43-a to read as follows:

301:43-a Use of Name Regulated. The secretary of state shall decline to register any cooperative name under this chapter that is [the same as or deceptively similar to] not distinguishable upon the records in the office of the secretary of state from the name of any of those entities listed under RSA 293-A:4.01(b), without the written consent of such entities, which consent shall be filed with the secretary of state.

7 Name of Registered Limited Liability Partnership. Amend RSA 304-A:45, II-III to read as follows:

II. Shall [not be the same as, or deceptively similar to the name of] be distinguishable upon the records in the office of the secretary of state from a:

(a) Corporation organized under RSA 292, RSA 293-A, RSA 301, or RSA 301-A, or foreign corporation registered under RSA 292, RSA 293-A, 301, or RSA 301-A.

(b) Foreign partnership registered under RSA 305-A.

(c) Limited liability company or foreign limited liability company registered under RSA 304-C.

(d) Registered limited liability partnership or foreign registered limited liability partnership registered under RSA 304-A.

(e) Limited partnership or foreign limited partnership registered under RSA 304-B.

(f) New Hampshire investment trust registered under RSA 293-B.

(g) Trade name registered under RSA 349.

(h) Name reserved under RSA 293-A, RSA 304-A, RSA 304-B, or RSA 304-C.

(i) An agency or instrumentality of the United States or this state or a subdivision thereof or of any political party recognized under RSA 652:11, unless written consent is obtained from the authorized representative of such party.

III. An applicant for a registered limited liability partnership or foreign registered limited liability partnership may apply to the secretary of state for authorization to use a [same name or deceptively similar name to] name that is not distinguishable from one or more of the names described in subparagraphs II(a) through II(h) and the secretary of state shall authorize the use of the name applied for if the holder or holders of the name gives consent in writing.

8 Limited Partnership Act; Name. Amend RSA 304-B:2, II to read as follows:

II. The name of each limited partnership as set forth in its certificate of limited partnership shall [not be the same as or deceptively similar to] be distinguishable upon the records in the office of the secretary of state from the name of any of those entities listed under RSA 293-A:4.01(b), [without] except with the written consent of such entities, which consent shall be filed with the secretary of state.

9 Limited Liability Companies; Name Set Forth in Certificate. Amend RSA 304-C:3, III to read as follows:

III. Shall [not be the same as or deceptively similar to] be distinguishable upon the records in the office of the secretary of state from the name of any of those entities listed under RSA 293-A:4.01(b), [without] except with the written consent of such entities, which consent shall be filed with the secretary of state; and

10 Limited Liability Companies; Administrative Dissolution. Amend RSA 304-C:53, IV to read as follows:

IV. The secretary of state shall not permit any other individual, corporation, limited liability company, or other business entity to assume [the same name or a deceptively similar name,] a name that is not distinguishable from the name of a limited liability company administratively dissolved under this section, or any trade name registered by such limited liability company pursuant to RSA 349, for a period of 120 days following the notice of administrative dissolution without the written consent of such limited liability company.

11 Foreign Limited Liability Companies; Name. Amend RSA 304-C:66, I(d)-(e) to read as follows:

(d) That a foreign limited liability company may not register under any name which [is the same or deceptively similar to] is not distinguishable upon the records in the office of the secretary of state from the name of any domestic or foreign corporation, business trust, proprietorship, New Hampshire investment trust, voluntary association, trade name, limited liability company, foreign partnership, or limited partnership reserved, registered, qualified to do business, or organized under the laws of New Hampshire, or the name of an agency or instrumentality of the United States or this state or a subdivision thereof, or any political party recognized under RSA 652:11 unless written consent is obtained from the authorized representative of such party; and

(e) That a foreign limited liability company may register under any name that is [the same as or deceptively similar to] not distinguishable from the name of any domestic or foreign corporation, limited partnership, proprietorship, New Hampshire investment trust, voluntary association, trade name, business trust, or limited liability company reserved, registered, formed, or organized under the laws of New Hampshire if:

(1) The applicant files with the secretary of state the written consent of such other entity or holder of a reserved or registered name and one or more words are added to make the name applied for distinguishable from the other name; or

(2) The applicant delivers to the secretary of state a certified copy of a final judgment of a court of competent jurisdiction establishing the applicant's right to use the name applied for in this state.

12 Name of Professional Limited Liability Company. Amend RSA 304-D:6, III to read as follows:

III. Shall satisfy the requirements of RSA 304-C:3, except that a name shall not constitute [a deceptively similar] an indistinguishable name if the similarity results from the use in the professional limited liability company's name of personal names of its members or former members or of natural persons who were associated with a predecessor entity;

13 Registration of Foreign Partnerships. Amend RSA 305-A:1, IV to read as follows:

IV. A foreign partnership may not assume any name which [is the same as or deceptively similar to] is not distinguishable upon the records in the office of the secretary of state from the name of any of those entities listed under RSA 293-A:4.01(b), without the written consent of such entities, which consent shall be filed with the secretary of state.

14 Effective Date. This act shall take effect 60 days after its passage.