Incorporator The Journal of U.S. Formation
Start Free Quiz
Editorial 11 MIN READ

DBA, a December 2020 field report: pandemic volume meets digital plumbing

A Texas centralization that finally settled in, a Los Angeles portal that stopped requiring a trip downtown, and the surge of new filers who think a name in a public register is a property right

The Editors
Staff, Incorporator.org
11 min read Updated
Contents 7 sections
  1. The volume story
  2. Texas HB 3609 is now fully operational
  3. California: digital where you can get it, still county by county
  4. New York, Florida, Illinois: where the digital seams show
  5. The Lanham Act gap is not closing
  6. What to do in December 2020
  7. Sources

he DBA in December 2020 is the same instrument it has always been, filed by roughly twice as many people, through pipes that have been quietly rebuilt since the spring. The pandemic pushed a surge of new sole proprietors and single-member LLCs into the fictitious-name system at exactly the moment the counties and secretaries of state were learning to accept paperwork without a counter visit. The legal substance did not change. The plumbing did.

This is a report on what a DBA filing looks like right now, twenty months after our April 2019 revisit, in the five jurisdictions readers ask about most, with attention to what moved and what did not.

The volume story

Formations are up, sharply. The Census Bureau's Business Formation Statistics series, which tracks new EIN applications, shows business applications running roughly 80 percent above the 2019 baseline through the third quarter of 2020, with the July weekly total (over 551,000 applications) the highest ever recorded in the series. High-propensity applications (the subset the Census flags as likely to become employers) are running roughly 38 percent above 2019. Most of those filings are sole proprietorships or single-member LLCs, and a large share need a DBA to open a business bank account.

The downstream effect at county clerks and secretaries of state is a backlog problem the offices met with digital infrastructure they had already been building. The Los Angeles County Registrar-Recorder's FBN portal, which in 2019 still required an in-person visit for the notarization step, moved to a fully online workflow during the spring closures and has not walked that back. Harris County in Texas, Cook County in Illinois, and Miami-Dade in Florida each expanded or launched online intake. The secretaries of state that had been on the fence about centralization, notably Texas, started to look prescient.

Texas HB 3609 is now fully operational

Our August 2017 piece caught House Bill 3609 mid-flight. The April 2019 revisit caught it pending in committee. Governor Abbott signed it on June 14, 2019, and it took effect September 1, 2019. Fifteen months in, the centralization is the visible change in Texas DBA practice.

Under current Tex. Bus. & Com. Code section 71.152, as amended by HB 3609, a corporation, LLC, limited partnership, LLP, or foreign filing entity that transacts business in Texas under a name other than its legal name files a single assumed name certificate with the Secretary of State on Form 503. No county filing is required for the entity. The fee remains $25. The certificate is effective for up to ten years. Section 71.103 still routes unincorporated filers (sole proprietors, general partnerships) to the county clerk in each county where business is conducted, which is the part of the regime HB 3609 deliberately left alone.

The practical result over 2020 is that a Texas LLC that would have had to file in five county clerks' offices under the old rule files once in Austin and is done. The Secretary of State's SOSDirect system accepts the filing online. County clerks continue to accept entity filings that come in, but the statute no longer requires them, and the clerks who watch their fee revenue noticed. Several of the larger urban clerks have redirected staff from entity intake to the sole proprietor queue, which is still running well above normal volume.

Founders still sometimes file the old dual route, which is legal but unnecessary, and still sometimes believe the county filing gives them rights the state filing does not. Neither does. A DBA filed anywhere in Texas is still a public notice; it is not a property right in the name, regardless of which office stamps the form.

California: digital where you can get it, still county by county

California's fictitious business name system is statutory and local. Cal. Bus. & Prof. Code section 17910 requires the filing in the county where the principal place of business sits, within 40 days of first use. Section 17917 still demands publication once a week for four consecutive weeks in a newspaper of general circulation in that county, with an affidavit of publication filed back with the clerk within 30 days. Section 17920 still expires the statement at five years. None of that changed in 2019 or 2020.

What changed is the filing ergonomics, one county at a time. Los Angeles County's Registrar-Recorder/County Clerk moved the complete FBN filing workflow online during the March-May closures. A filer creates an account, completes the statement, uploads identification, and remits payment; identity verification that had required an in-person appearance is now handled through the portal. The county publishes an approved list of adjudicated newspapers the filer selects from in the same session. The base filing fee in Los Angeles County is $26 for the first business name with one registrant, plus $5 per additional name or registrant on the same statement; those numbers match the published fee schedule the Registrar-Recorder posts.

Other large California counties moved at different speeds. San Francisco, Alameda, and San Diego all accept online or mail-in filings for most transactions; some smaller counties still require a signed, notarized form returned by mail. The statutory regime is unchanged, which means a California entity operating in multiple counties under one fictitious name still has to file in each of those counties, pay each of those clerks, and publish in each of those counties' papers. Publication remains the cost that surprises people. In Los Angeles County, the adjudicated-paper rates for a four-week FBN notice in late 2020 run roughly $60 to $250 depending on the paper, which often exceeds the county's filing fee.

No bill in the 2019-2020 session centralized California FBN filings at the state level, and nothing pending on the Legislature's calendar suggests that is changing. The county-clerk architecture is the architecture.

New York, Florida, Illinois: where the digital seams show

New York splits the filing by entity form, as it has since 1956. A sole proprietor or general partnership files a business certificate with the county clerk under N.Y. Gen. Bus. Law section 130(1)(a). A corporation, LLC, limited partnership, or LLP files a Certificate of Assumed Name with the Department of State under section 130(1)(b). The state's $25 filing fee for a corporation's assumed name remains the base, with the per-county surcharge stacking on top: $25 per county for most counties, $100 per county for each of the five New York City counties (New York, Kings, Queens, Bronx, Richmond). An entity that files for the whole state pays the $25 base plus the sum of the county surcharges, which for statewide use clears $1,700.

Albany accepts filings by mail and fax, and accepts expedited processing for additional fees. The Department of State's e-file system exposes some transactions (reservations, some annual filings) but the assumed name certificate for a corporation still moves as a paper form for the most part, with signatures and certifications. County clerks in New York took different approaches to 2020 operations; the five boroughs accepted the partnership and sole proprietor filings by mail, and some clerks expanded e-filing for business certificates, but coverage is uneven. If you are a New York sole proprietor this quarter, call the clerk's office in your borough or county before you assume the counter is open.

Florida remains the cleanest of the five. Fla. Stat. section 865.09 puts the whole filing with the Division of Corporations at Sunbiz. One state-level filing, $50, renewable every five years on December 31 of the expiration year. Section 865.09(3)(b) still requires an applicant to advertise the intent to register at least once in a newspaper of general circulation in the county of the principal place of business before filing, a requirement that remains routinely missed and rarely enforced. Sunbiz's online intake handled the 2020 surge without visible slippage in turnaround. The statute says, and Florida has said since 1990, that the registration "is for public notice only" and gives rise to no presumption of rights to the name. If a state had to pick one sentence to put on the wall of every DBA clerk's office, that one would do.

Illinois continues to run its split regime. Sole proprietors and general partnerships file under the Assumed Business Name Act at 805 ILCS 405 with the county clerk in every county of operation, and must publish notice once a week for three consecutive weeks with proof of publication filed back within 50 days. LLCs file Form LLC-1.20 with the Secretary of State under 805 ILCS 180/1-20; there is no state-level publication requirement. The LLC assumed name fee remains tied to the year-digit cycle that Illinois uses across several LLC transactions, which means LLC assumed name filers in 2020 (a year ending in zero) pay at the top of the tier. Cook County expanded online intake during the spring and had not retreated from it by the fall.

The Lanham Act gap is not closing

Everything above is about the plumbing of a disclosure regime. None of it creates trademark rights. The federal trademark statute is still the Lanham Act, 15 U.S.C. sections 1051 through 1141n. Section 1051 sets out the application process for principal-register registration: the owner of a mark used in commerce, or an applicant with a bona fide intent to use, files an application with the U.S. Patent and Trademark Office, specifies goods or services, submits a specimen, and pays a fee. Section 1057(b) establishes a registrant's presumption of validity; section 1072 gives nationwide constructive notice; sections 1114 and 1125 establish the infringement causes of action. None of that is triggered by a DBA filing in any state.

The 2020 cohort of new filers includes a large population of first-time small-business owners who filed a DBA, saw the name appear in a public register, and concluded that the name is now "theirs." It is not. A Los Angeles FBN tells the public that a named person or entity is operating under "Sunday Bread"; it does not tell the public that "Sunday Bread" is exclusive property. A Texas Form 503, filed on a Thursday afternoon in November 2020, does the same thing the prior county-level filings did and no more. The Ninth Circuit's logic in Brookfield Communications v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999), that trademark rights follow use rather than paperwork, remains the operative point.

The Supreme Court's more recent contribution to the field, USPTO v. Booking.com B.V., 140 S. Ct. 2298 (2020), decided June 30, 2020, does not move the DBA analysis. Booking.com is about the registrability of a generic-plus-.com mark at the USPTO; the Court held that such a mark is not per se generic if consumers perceive it as identifying a particular source. That is a win for a class of applicants at the trademark office. It says nothing about whether a state-level assumed name filing creates enforceable rights in a name. It still does not.

The practical failure mode has not changed. A founder files an assumed name certificate, a fictitious business name statement, or a certificate of assumed name; believes the name is now exclusively theirs; invests in signage, a website, packaging; and, eighteen months in, receives a cease-and-desist from a company that has a federal registration or senior common-law use. The DBA was doing its job the entire time; it is a disclosure instrument, not a shield. If the name is commercially important, federal registration is the separate, more expensive, longer-lead project that matches the founder's expectation.

What to do in December 2020

Texas: file Form 503 with the Secretary of State, once, for any corporation, LLC, or other filing entity that uses a name other than its legal name. Do not duplicate with county filings; HB 3609 removed the requirement over a year ago. Sole proprietors and general partnerships still file at the county level under section 71.103.

California: expect county-clerk filing, expect publication, expect the five-year renewal clock. If you are in Los Angeles County, use the online portal; if you are in a smaller county, call first. Budget for the newspaper notice; it is often the larger number.

New York, Florida, Illinois: use the primary filing office your entity type sits under. Albany for New York corporations and LLCs, Sunbiz for any Florida registrant, Springfield for Illinois LLCs and corporations, county clerks for Illinois sole proprietors and partnerships.

Every state: if the name matters commercially, treat the DBA as a compliance filing and the trademark as a separate project. The clerk's office is not the USPTO, and no amount of county-level or state-level DBA filing adds up to the rights section 1051 provides with a single federal application.

The digital infrastructure shifted in 2020 because it had to. The Lanham Act gap did not shift, because nothing forced it to. The second fact is the one that will still cost founders money in 2021.

Sources

Keep reading

More from the journal.