Home » 2013 Issues » July 31, 2013 » DOS-16-13-00006-A Distinguishability of Corporation and Other Business Entity Names
DOS-16-13-00006-A Distinguishability of Corporation and Other Business Entity Names
7/31/13 N.Y. St. Reg. DOS-16-13-00006-A
NEW YORK STATE REGISTER
VOLUME XXXV, ISSUE 31
July 31, 2013
RULE MAKING ACTIVITIES
DEPARTMENT OF STATE
NOTICE OF ADOPTION
I.D No. DOS-16-13-00006-A
Filing No. 765
Filing Date. Jul. 16, 2013
Effective Date. Jul. 31, 2013
Distinguishability of Corporation and Other Business Entity Names
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Repeal of section 156.2 and addition of new section 156.2 to Title 19 NYCRR.
Statutory authority:
Executive Law, section 91
Subject:
Distinguishability of corporation and other business entity names.
Purpose:
To implement State law entity name distinguishability requirements.
Text of final rule:
Section 156.2 is repealed and a new section 156.2 is added to read as follows.
156.2 Standards
This section furnishes general guidelines used to determine whether a proposed name is acceptable as the name of an entity in the records of the Secretary of State.
(a) Definitions
(1) The term “entity” means a domestic corporation, limited liability company, limited partnership or registered limited liability partnership or foreign corporation, limited liability company, limited partnership or New York registered foreign limited liability partnership.
(2) The term “name” means the real name of a domestic corporation, limited liability company, limited partnership or registered limited liability partnership or the real or fictitious name of a foreign corporation, limited liability company, limited partnership or New York registered foreign limited liability partnership.
(3) The term “existing entity” means a domestic corporation, limited liability company or limited partnership that has not been dissolved, annulled, or had its authority to do business cancelled or revoked, or a foreign corporation, limited liability company or limited partnership that has not surrendered its authority, terminated its existence or had its authority to do business or conduct activities annulled.
(4) “Entity indicator” means the words “corporation”, “incorporated”, “limited”, “limited liability company”, “professional service limited liability company”, “professional service corporation”, “design professional corporation”, “limited partnership”, “limited liability partnership”, “registered limited liability partnership” or any permitted abbreviation thereof used in the name of an entity. An entity indicator must be separate from other words or parts of words in the entity name to be considered an entity indicator.
(5) “Key Word” means a word other than an article of speech, preposition, conjunction, or an entity indicator.
(b) General Matters
(1) Typography. A name may consist of only letters of the English alphabet, Arabic and Roman numerals, and symbols capable of being reproduced on a standard English language keyboard.
(2) Special Characters and Punctuation.
(i) The following special characters will be allowed in the name, however they will not, by themselves, make a name distinguishable: ampersand (&), asterisk (*),backslash (\), left brace ({), right brace ( }), “greater than” sign (>), and “less than” sign (<).
(ii) The following special characters will be allowed in the name and will, by themselves, make a name distinguishable: “at” sign (@), dollar sign ($), “equal to” sign (=), percentage sign (%), plus sign (+), number sign (#), and cent sign (¢).
(iii) The following punctuation marks will be allowed in the name, however they will not, by themselves, make a name distinguishable: apostrophe (‘), left bracket ([), right bracket (]), colon (:), comma (,), dash or hyphen (-), exclamation point (!), left parenthesis ((), right parenthesis ()), period (.), question mark (?), single quote mark ("), double quote mark (" "), semicolon (;) and slash (/).
(3) Terms indicating form. A name shall contain no more than one entity indicator. An entity indicator of one form shall not be used as part of the name of an entity of a different form. An entity indicator shall not be used as part of an assumed name.
(4) Every initial certificate and every certificate amending the name of an entity shall include an English translation of the entity’s name if the name contains a word or words in a language other than English.
(c) Distinguishable Names
In order to be accepted for filing, a proposed name of a domestic corporation, limited liability company or limited partnership or foreign corporation, limited liability company or limited partnership must be distinguishable from the name of any existing entity and from any reserved name on the records of the Secretary of State. A name is distinguishable if:
(1) Each name contains one or more different letters or numerals, or has a different sequence of letters or numerals, except that adding or deleting the letter “s” to make a word plural, singular, or possessive shall not make a name distinguishable; or
(2) One of the key words is different; or
(3) The key words are the same, but they are in a different order; or
(4) The key word or words are the same, but the spelling of at least one key word is different.
(d) Indistinguishable Names
A proposed name is not distinguishable from the name of any other existing entity or from a reserved name if the only difference between them is one or more of the following:
(1) Differences in punctuation or hyphenation, use of plural or possessive form of the same word, differences in tense, including present versus past tense, or the addition or omission of spaces between words or letters.
(2) As determined by the Department of State, the addition or omission of any article of speech, preposition or conjunction or use of a contraction of words in the name of the existing entity or reserved name.
(3) As determined by the Department of State, use of the commonly used abbreviation of a word in one name and the spelling out of a word in another name.
(4) The use of special characters instead of spelling out the names of special characters or what they stand for, or vice versa, as determined by the Department of State. The use of the special character shall be considered the equivalent of the spelling of the name of the special character.
(5) Addition or exclusion of special characters other than those listed in section 156.2(b)(2)(ii).
(6) The expression of a number or numbers using letters instead of Arabic Numerals.
(7) The inclusion or exclusion of an entity indicator (e.g., “Corporation,” “Limited Liability Company,” etc.) or any abbreviation thereof.
(8) Addition or omission of the word or abbreviations of “Company” or “Companies.”
(9) Deviations from or derivatives of the same key word, as determined by the Department.
(10) Differences between upper and lower case letters, typeface or font.
(e) The filing of a name does not grant rights or interests in that name. The Department of State’s role is ministerial. The Secretary of State does not have the power to determine or settle competing claims to a name under other statutes or under common law.
(f) The methodology used by the Department of State to ascertain whether a proposed name is acceptable will not insure that in all instances a name which is unacceptable is rejected. It is the responsibility of the entity to determine to its satisfaction that the proposed name is in compliance with all applicable laws and rules. When a name which has been accepted for filing is later found to be unacceptable, the Department of State will notify the entity that it is required to amend the filed document in order to comply with all applicable statutory and regulatory provisions. Upon the failure of the entity to amend the filed document within thirty days of such notification, its authority to carry on, conduct or transact business or conduct activities in this state shall be suspended by the Department of State. If, at any time following the suspension of an entity’s authority to carry on, conduct or transact business or conduct activities in this state, pursuant to this paragraph, such entity shall amend its filed document so as to comply with all applicable statutory and regulatory provisions, or if the Department of State shall determine that the filed name is acceptable, the suspension shall be annulled and the entity’s authority to carry on, conduct or transact business or conduct activities in this state shall be restored and continue as if no suspension had occurred.
(g) The conditions set forth in these regulations are not exclusive, and the Secretary of State may exercise discretion in determining whether a proposed name is distinguishable from the real or fictitious name of an existing domestic or foreign authorized organization or a reserved name.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 156.2(b)(2)(i) and (ii).
Text of rule and any required statements and analyses may be obtained from:
Gary M. Trechel, Esq., Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231, (518) 473-2278, email: gary.trechel@dos.ny.gov
Revised Regulatory Impact Statement
A Revised Regulatory Impact Statement is not required because changes made to the last published rule do not necessitate revision to the previously published rule. It is evident from the subject matter of this rule that it will not impose any additional costs or requirements.
Revised Regulatory Flexibility Analysis
A Revised Regulatory Flexibility Analysis for Small Businesses and Local Governments is not required because changes made to the last published rule do not necessitate revision to the previously published rule. It is evident from the subject matter of this rule that it will have no adverse economic impact or any reporting, record keeping or other compliance requirements on small businesses or local governments.
Revised Rural Area Flexibility Analysis
A Revised Rural Are Flexibility Analysis is not required because changes made to the last published rule do not necessitate revision to the previously published rule. It is evident from the subject matter of this rule that it will have no adverse economic impact on rural areas, nor any reporting, record keeping or other compliance requirements on public or private entities in rural areas.
Revised Job Impact Statement
A Revised Job Impact Statement is not required because changes made to the last published rule do not necessitate revision to the previously published rule. It is evident from the subject matter of this rule that it will have no impact on jobs and employment opportunities.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2016, which is no later than the 3rd year after the year in which this rule is being adopted.
