North Dakota Code 10-32.1-11 – Limited liability company name
(Contingent effective date – See note) 1. The limited liability company name:
Terms Used In North Dakota Code 10-32.1-11
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Organization: includes a foreign or domestic association, business trust, corporation, enterprise, estate, joint venture, limited liability company, limited liability partnership, limited partnership, partnership, trust, or any legal or commercial entity. See North Dakota Code 1-01-49
- Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
- Partnership: includes a limited liability partnership registered under chapter 45-22. See North Dakota Code 1-01-49
- Person: means an individual, organization, government, political subdivision, or government agency or instrumentality. See North Dakota Code 1-01-49
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- United States: includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- written: include "typewriting" and "typewritten" and "printing" and "printed" except in the case of signatures and when the words are used by way of contrast to typewriting and printing. See North Dakota Code 1-01-37
a. Must be expressed in letters or characters used in the English language as those letters or characters appear in the American standard code for information interchange table; b. Must contain the words “limited liability company”, or must contain the abbreviation “L.L.C.” or the abbreviation “LLC”, either of which abbreviation may be used interchangeably for all purposes authorized by this chapter, including real estate matters, contracts, and filings with the secretary of state; c. May not contain:
(1) The word “corporation”, “incorporated”, “limited partnership”, “limited liability partnership”, “limited liability limited partnership”, or any abbreviation of these words; or
(2) The words “limited” or “company” without association to the words “limited liability company” or the abbreviations of these words as provided in subsection b; d. May not contain a word or phrase that indicates or implies that the limited liability company:
(1) Is organized for a purpose other than:
(a) A lawful business purpose for which a limited liability company may be organized under this chapter; or
(b) For a purpose stated in its articles of organization; or
(2) May not be organized under this chapter; and e. May not be the same as, or deceptively similar to:
(1) The name, whether foreign and authorized to do business in this state or domestic, unless there is filed with the articles a record which complies with subsection 3, of:
(a) Another limited liability company; (b) A corporation; (c) A limited partnership; (d) A limited liability partnership; or
(e) A limited liability limited partnership; (2) A name, the right of which is, at the time of organization, reserved in the manner provided in section 10-19.1-14, 10-32.1-12, 10-33-11, 45-10.2-11, 45-13-04.2, or 45-22-05; (3) A fictitious name registered in the manner provided in chapter 45-11; (4) A trade name registered in the manner provided in chapter 47-25; or
(5) A trademark or service mark registered in the manner provided in chapter 47-22.
2. The secretary of state shall determine whether a limited liability company name is deceptively similar to another name for purposes of this chapter.
3. If the secretary of state determines that a limited liability company name is deceptively similar to another name for purposes of this chapter, then the limited liability company name may not be used unless there is filed with the articles:
a. The written consent of the holder of the rights to the name to which the proposed name has been determined to be deceptively similar; or
b. A certified copy of a judgment of a court in this state establishing the prior right of the applicant to the use of the name in this state.
4. This section and section 10-32.1-12 do not:
a. Abrogate or limit:
(1) The law of unfair competition or unfair practices; (2) Chapter 47-25; (3) The laws of the United States with respect to the right to acquire and protect copyrights, trade names, trademarks, service names, and service marks; or
(4) Any other rights to the exclusive use of names or symbols. b. Derogate the common law or the principles of equity.
5. A domestic or foreign limited liability company that is the surviving organization in a merger with one or more other organizations, or that acquires by sale, lease, or other disposition to or exchange with an organization all or substantially all of the assets of another organization including its name, may have the same name, subject to the requirements of subsection 1, as that used in this state by any of the other organizations, if the organization whose name is sought to be used:
a. Was organized, incorporated, formed, or registered under the laws of this state; b. Is authorized to transact business or conduct activities in this state; c. Holds a reserved name in the manner provided in section 10-19.1-14, 10-32.1-12, 10-33-11, 45-10.2-11, 45-13-04.2, or 45-22-05; d. Holds a fictitious name registered in the manner provided in chapter 45-11; e. Holds a trade name registered in the manner provided in chapter 47-25; or
f. Holds a trademark or service mark registered in the manner provided in chapter 47-22.
6. The use of a name by a limited liability company in violation of this section does not affect or vitiate its limited liability company existence. However, a court in this state may, upon application of the state or of an interested or affected person, enjoin the limited liability company from doing business under a name assumed in violation of this section, although its articles of organization may have been filed with the secretary of state and a certificate of organization issued.
7. A limited liability company whose period of existence has expired or that is involuntarily terminated by the secretary of state pursuant to section 10-32.1-89 may reacquire the right to use that name by refiling articles of organization pursuant to section 10-32.1-20, unless the name has been adopted for use or reserved by another person, in which case the filing will be rejected unless the filing is accompanied by a written consent or judgment pursuant to subsection 2. A limited liability company that cannot reacquire the use of its limited liability company name shall adopt a new limited liability company name which complies with the provisions of this section:
a. By refiling the articles of organization pursuant to section 10-32.1-20; b. By amending pursuant to section 10-32.1-21; or c. By reinstating pursuant to section 10-32.1-91.
8. Subject to section 10-32.1-73, this section applies to any foreign limited liability company transacting business in this state, having a certificate of authority to transact business in this state, or applying for a certificate of authority.
9. An amendment that only changes the name of the limited liability company may be authorized by a resolution approved by the board and may, but need not, be submitted to and approved by the members as provided in subdivision b of subsection 1 of section 10-32.1-21.
10. A limited liability company that files its articles of organization with an effective date later than the date of filing as provided in subdivision b of subsection 2 of section 10-32.1-20 shall maintain the right to the name until the effective date.
Limited liability company name. (Contingent effective date – See note) 1. The limited liability company name:
a. Must be expressed in letters or characters used in the English language as those letters or characters appear in the American standard code for information interchange table; b. Must contain the words “limited liability company”, or must contain the abbreviation “L.L.C.” or the abbreviation “LLC”, either of which abbreviation may be used interchangeably for all purposes authorized by this chapter, including real estate matters, contracts, and filings with the secretary of state; c. May not contain:
(1) The word “corporation”, “incorporated”, “limited partnership”, “limited liability partnership”, “limited liability limited partnership”, or an abbreviation of these words; or
(2) The words “limited” or “company” without association to the words “limited liability company” or the abbreviations of these words as provided in subsection b; d. May not contain a word or phrase indicating or implying the limited liability company:
(1) Is organized for a purpose other than:
(a) A lawful business purpose for which a limited liability company may be organized under this chapter; or
(b) For a purpose stated in its articles of organization; or
(2) May not be organized under this chapter; and
e. Must be distinguishable in the records of the secretary of state from:
(1) The name, whether foreign and authorized to do business in this state or domestic, unless there is filed with the articles a record which complies with subsection 3, of:
(a) Another limited liability company; (b) A corporation; (c) A limited partnership; (d) A limited liability partnership; or
(e) A limited liability limited partnership; (2) A name, the right of which is, at the time of organization, reserved in the manner provided in section 10-19.1-14, 10-32.1-12, 10-33-11, 45-10.2-11, 45-13-04.2, or 45-22-05; (3) A fictitious name registered in the manner provided in chapter 45-11; (4) A trade name registered in the manner provided in chapter 47-25; or
(5) A trademark or service mark registered in the manner provided in chapter 47-22.
2. The secretary of state shall determine whether a limited liability company name is distinguishable in the secretary of state’s records from another name for purposes of this chapter and may adopt rules reasonable or necessary for making these determinations.
3. If the secretary of state determines a limited liability company name is indistinguishable in the secretary of state’s records from another name for purposes of this chapter, the limited liability company name may not be used unless there is filed with the articles:
a. The written consent of the holder of the rights to the name to which the proposed name has been determined to be indistinguishable; or
b. A certified copy of a judgment of a court in this state establishing the prior right of the applicant to the use of the name in this state.
4. This section and section 10-32.1-12 do not:
a. Abrogate or limit:
(1) The law of unfair competition or unfair practices; (2) Chapter 47-25; (3) The laws of the United States with respect to the right to acquire and protect copyrights, trade names, trademarks, service names, and service marks; or
(4) Any other rights to the exclusive use of names or symbols.
b. Derogate the common law or the principles of equity.
5. A domestic or foreign limited liability company that is the surviving organization in a merger with one or more other organizations, or that acquires by sale, lease, or other disposition to or exchange with an organization all or substantially all of the assets of another organization including its name, may have the same name, subject to the requirements of subsection 1, as that used in this state by any of the other organizations, if the organization whose name is sought to be used:
a. Was organized, incorporated, formed, or registered under the laws of this state; b. Is authorized to transact business or conduct activities in this state; c. Holds a reserved name in the manner provided in section 10-19.1-14, 10-32.1-12, 10-33-11, 45-10.2-11, 45-13-04.2, or 45-22-05; d. Holds a fictitious name registered in the manner provided in chapter 45-11; e. Holds a trade name registered in the manner provided in chapter 47-25; or
f. Holds a trademark or service mark registered in the manner provided in chapter 47-22.
6. The use of a name by a limited liability company in violation of this section does not affect or vitiate its limited liability company existence. However, a court in this state may, upon application of the state or of an interested or affected person, enjoin the limited liability company from doing business under a name assumed in violation of this section, although its articles of organization may have been filed with the secretary of state and a certificate of organization issued.
7. A limited liability company whose period of existence has expired or that is involuntarily terminated by the secretary of state pursuant to section 10-32.1-90 may reacquire the right to use that name by refiling articles of organization pursuant to section 10-32.1-20, unless the name has been adopted for use or reserved by another person, in which case the filing will be rejected unless the filing is accompanied by a written consent or judgment pursuant to subsection 3. A limited liability company that cannot reacquire the use of its limited liability company name shall adopt a new limited liability company name which complies with the provisions of this section:
a. By refiling the articles of organization pursuant to section 10-32.1-20; b. By amending pursuant to section 10-32.1-21; or c. By reinstating pursuant to section 10-32.1-91.
8. Subject to section 10-32.1-73, this section applies to a foreign limited liability company transacting business in this state, having a certificate of authority to transact business in this state, or applying for a certificate of authority.
9. An amendment that only changes the name of the limited liability company may be authorized by a resolution approved by the board and may be submitted to and approved by the members as provided in subdivision b of subsection 1 of section 10-32.1-21.
10. A limited liability company that files its articles of organization with an effective date later than the date of filing as provided in subdivision b of subsection 2 of section 10-32.1-20 shall maintain the right to the name until the effective date.