North Dakota Code 10-33-10 – Corporate name
(Contingent effective date – See note) 1. The corporate name:
Terms Used In North Dakota Code 10-33-10
- 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 in letters or characters used in the English language as those letters or characters appear in the American standard code for information interchange (ASCII) table.
b. Need not contain the word “company”, “corporation”, “incorporated”, “limited”, or an abbreviation of one or more of these words.
c. May not contain the words “limited liability company”, “limited partnership”, “limited liability partnership”, “limited liability limited partnership”, or any abbreviation of these words.
d. May not contain a word or phrase that indicates or implies that the corporation: (1) Is incorporated for a purpose other than:
(a) A lawful nonprofit purpose for which a corporation may be incorporated under this chapter; or
(b) For a purpose stated in its articles; or
(2) May not be incorporated under this chapter. e. May not be the same as or deceptively similar to:
(1) The name, whether foreign and authorized to conduct activities in this state or domestic unless there is filed with the articles a record that complies with subsection 2, of:
(a) Another corporation; (b) A corporation incorporated or authorized to do business in this state under another provision of this code; (c) A limited liability company; (d) A limited partnership; (e) A limited liability partnership; or
(f) A limited liability limited partnership; (2) A name the right to which is, at the time of incorporation, 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 corporate name is “deceptively similar” to another name for purposes of this chapter.
3. If the secretary of state determines that a corporate name is “deceptively similar” to another name for purposes of this chapter, then the corporate 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 the proposed name is determined to be deceptively similar to; 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. Subsection 3 does not affect the right of a corporation existing on August 1, 1997, or a foreign corporation authorized to do business in this state on that date to continue the use of its name.
5. This section and section 10-33-11 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, or service marks; or
(4) Any other rights to the exclusive use of names or symbols; or b. Derogate the common law or the principles of equity.
6. A domestic or foreign corporation 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 other organization whose name is sought to be used:
a. Was incorporated, organized, formed, or registered under the laws of this state; b. Is authorized to conduct activities or transact business 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.
7. The use of a name by a corporation in violation of this section does not affect or vitiate its corporate existence, but a court in this state may, upon application of the state or of an interested or affected person, enjoin the corporation from conducting activities under a name assumed in violation of this section, although its articles may have been filed with the secretary of state and a certificate of incorporation issued.
8. A corporation whose period of existence has expired or that is involuntarily dissolved by the secretary of state pursuant to section 10-33-139 may reacquire the right to use that name by refiling articles of incorporation pursuant to section 10-33-08 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 corporation that cannot reacquire the use of its corporate name must adopt a new corporate name that complies with the provisions of this section:
a. By refiling articles of incorporation pursuant to section 10-33-08; b. By amending pursuant to section 10-33-14; or c. By reinstating pursuant to section 10-33-139.
9. Subject to section 10-33-126, this section applies to any foreign corporation transacting business in this state, having a certificate of authority to transact business in this state, or applying for a certificate of authority.
10. An amendment that only changes the name of the corporation 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 section 10-33-15.
11. A corporation that files its articles of incorporation with an effective date later than the date of filing as provided in section 10-33-09 shall maintain the right to the name until the effective date.
Corporate name. (Contingent effective date – See note) 1. The corporate name:
a. Must be in letters or characters used in the English language as those letters or characters appear in the American standard code for information interchange (ASCII) table.
b. Need not contain the word “company”, “corporation”, “incorporated”, “limited”, or an abbreviation of one or more of these words.
c. May not contain the words “limited liability company”, “limited partnership”, “limited liability partnership”, “limited liability limited partnership”, or an abbreviation of these words.
d. May not contain a word or phrase indicating or implying the corporation: (1) Is incorporated for a purpose other than:
(a) A lawful nonprofit purpose for which a corporation may be incorporated under this chapter; or
(b) For a purpose stated in its articles; or
(2) May not be incorporated under this chapter.
e. Must be distinguishable in the records of the secretary of state from:
(1) The name, whether foreign and authorized to conduct activities in this state or domestic unless there is filed with the articles a record that complies with subsection 3, of:
(a) Another corporation; (b) A corporation incorporated or authorized to do business in this state under another provision of this code; (c) A limited liability company; (d) A limited partnership; (e) A limited liability partnership; or
(f) A limited liability limited partnership; (2) A name the right to which is, at the time of incorporation, 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 corporate 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 that a corporate name is indistinguishable in the secretary of state’s records from another name for purposes of this chapter, the corporate 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 the proposed name is 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. Subsection 3 does not affect the right of a corporation existing on August 1, 1997, or a foreign corporation authorized to do business in this state on that date to continue the use of its name.
5. This section and section 10-33-11 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, or service marks; or
(4) Any other rights to the exclusive use of names or symbols; or b. Derogate the common law or the principles of equity.
6. A domestic or foreign corporation 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 other organization whose name is sought to be used:
a. Was incorporated, organized, formed, or registered under the laws of this state; b. Is authorized to conduct activities or transact business 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.
7. The use of a name by a corporation in violation of this section does not affect or vitiate its corporate existence, but a court in this state may, upon application of the state or of an interested or affected person, enjoin the corporation from conducting activities under a name assumed in violation of this section, although its articles may have been filed with the secretary of state and a certificate of incorporation issued.
8. A corporation whose period of existence has expired or that is involuntarily dissolved by the secretary of state pursuant to section 10-33-139 may reacquire the right to use that name by refiling articles of incorporation pursuant to section 10-33-08 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 corporation that cannot reacquire the use of its corporate name must adopt a new corporate name that complies with the provisions of this section:
a. By refiling articles of incorporation pursuant to section 10-33-08; b. By amending pursuant to section 10-33-14; or c. By reinstating pursuant to section 10-33-139.
9. Subject to section 10-33-126, this section applies to a foreign corporation transacting business in this state, having a certificate of authority to transact business in this state, or applying for a certificate of authority.
10. An amendment that only changes the name of the corporation may be authorized by a resolution approved by the board and may be submitted to and approved by the members as provided in section 10-33-15.
11. A corporation that files its articles of incorporation with an effective date later than the date of filing as provided in section 10-33-09 shall maintain the right to the name until the effective date.