Minnesota Business Filings: Identical Names and Trademark Implications

The Minnesota Secretary of State recently released business filing statistics for 2013.  The total number of filings for 2013 was 58,260, down about 3% from 2012.  Other statistics from 2013:

  1. Of all Minnesota Limited Liability Companies and Minnesota Business Corporations filings, LLCs represented 83%.
  2. LLCs and Corporations filings represented 60% of all filings.
  3. Approximately 6% of the total filings were foreign registrations.
  4. Assumed Names filings were just short of 15,000, less than 50% of the business entity filings.
  5. There were only 340 Trademark filings.
  6. The number of Foreign LLCs filings(1,838) was only slightly greater than the number of Foreign Corporations filings (1,658).

The following is an explanation of one current practice in the filings process that Foley & Mansfield wants to ensure that business clients fully understand as well as the implications for company trademarks.

The Secretary of State’s Office will now accept filings with identical names if differentiated by the entity type.  That is, “Frog Burgers, Inc.” and “Frog Burgers, LLC”  can both be filed.  MS 302A.115 Subdivision 3 states that the SOS is to determine whether a name is “distinguishable.”  Apparently “Inc.” and “LLC,” as well as the other entity designations, are now distinguishing elements.  This is a fairly recent development.

Of the 35,000 business entity filings the Assumed Names filings are less than 50%. Realizing that many of the Assumed Names filings are held by older entities or by individuals, it becomes clear that relatively few of the new entity filings are also doing Assumed Name filings.  Given the lack of discrimination being applied by the SOS, the better practice should now be that all entity filings are also filed as an Assumed Name.

This name issue also increases the importance of the name as a trademark. The very low number of Trademark filings may reflect an attitude that those filings are somewhat of an unnecessary practice at the state level.  But, it also should increase our attention to the need for federal trademark searches and filings, especially in this time of increased inter-state commerce.

Paul Christensen is an attorney with Foley & Mansfield, where he assists businesses and individuals with estate, business succession and select tax matters. He can be reached at pchristensen@foleymansfield.com

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