S 1444 Session 111 (1995-1996)
S 1444 General Bill, By Holland
A Bill to amend Section 33-4-101, as amended, Code of Laws of South Carolina,
1976, relating to corporate names, so as to prohibit the use of an assumed or
fictious name which intentionally misrepresents the geographic origin or
location of the domestic corporation; to amend Section 33-15-106, as amended,
relating to corporate names of foreign corporations, so as to prohibit the use
of an assumed or fictitious name which intentionally misrepresents the
geographic origin or location of the foreign corporation; to amend the Code of
Laws of South Carolina, 1976, by adding Section 33-41-315, so as to prohibit
the use of an assumed or fictitious name which intentionally misrepresents the
geographic origin or location of the partnership; and by adding Section
39-5-37, so as to designate the use of an assumed or fictitious name to
intentionally misrepresent the geographic origin or location of any person or
business entity as an unlawful trade practice.
06/12/96 Senate Introduced and read first time SJ-7
06/12/96 Senate Referred to Committee on Judiciary
A BILL
TO AMEND SECTION 33-4-101, AS AMENDED, CODE OF
LAWS OF SOUTH CAROLINA, 1976, RELATING TO
CORPORATE NAMES, SO AS TO PROHIBIT THE USE OF AN
ASSUMED OR FICTITIOUS NAME WHICH INTENTIONALLY
MISREPRESENTS THE GEOGRAPHIC ORIGIN OR LOCATION
OF THE DOMESTIC CORPORATION; TO AMEND SECTION
33-15-106, AS AMENDED, RELATING TO CORPORATE
NAMES OF FOREIGN CORPORATIONS, SO AS TO PROHIBIT
THE USE OF AN ASSUMED OR FICTITIOUS NAME WHICH
INTENTIONALLY MISREPRESENTS THE GEOGRAPHIC
ORIGIN OR LOCATION OF THE FOREIGN CORPORATION;
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING SECTION 33-41-315, SO AS TO PROHIBIT
THE USE OF AN ASSUMED OR FICTITIOUS NAME WHICH
INTENTIONALLY MISREPRESENTS THE GEOGRAPHIC
ORIGIN OR LOCATION OF THE PARTNERSHIP; AND BY
ADDING SECTION 39-5-37, SO AS TO DESIGNATE THE USE
OF AN ASSUMED OR FICTITIOUS NAME TO
INTENTIONALLY MISREPRESENT THE GEOGRAPHIC
ORIGIN OR LOCATION OF ANY PERSON OR BUSINESS
ENTITY AS AN UNLAWFUL TRADE PRACTICE.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 33-4-101 of the 1976 Code is amended to
read:
"Section 33-4-101. (a) Except as otherwise authorized
by either subsection (f) or (g), a corporate name:
(1) must contain the word `corporation', `incorporated',
`company', or `limited', the abbreviation `corp.', `inc.', `co.', or
`ltd.', or words or abbreviations of like import in another language;
and
(2) may not contain language stating or implying that the
corporation is organized for a purpose other than that permitted by
Section 33-3-101 and its articles of incorporation.
(b) Except as authorized by subsections (c) and (d), a corporate
name must be distinguishable upon the records of the Secretary of
State from:
(1) the corporate name of a corporation incorporated or
authorized to transact business in this State;
(2) a corporate name reserved or registered under Section
33-4-102 or 33-4-103;
(3) the fictitious name adopted by a foreign corporation
authorized to transact business in this State because its real name is
unavailable;
(4) the corporate name of a not-for-profit corporation
incorporated or authorized to transact business in this State;
(5) the name of a limited partnership authorized to transact
business in this State.
(c) A corporation may apply to the Secretary of State for
authorization to use a name that is not distinguishable upon his
records from one or more of the names described in subsection (b).
The Secretary of State shall authorize use of the name applied for
if:
(1) the other corporation consents to the use in writing and
submits an undertaking in form satisfactory to the Secretary of State
to change its name to a name that is distinguishable upon the
records of the Secretary of State from the name of the applying
corporation; or
(2) the applicant delivers to the Secretary of State a certified
copy of the final judgment of a court of competent jurisdiction
establishing the applicant's right to use the name applied for in this
State.
(d) A corporation may use the name (including the fictitious
name) of another domestic or foreign corporation that is used in this
State if the other corporation is incorporated or authorized to
transact business in this State and the proposed user corporation:
(1) has merged with the other corporation;
(2) has been formed by reorganization of the other
corporation; or
(3) has acquired all or substantially all of the assets, including
the corporate name, of the other corporation.
(e) Chapters 1 through 20 of this title does do
not control the use of fictitious names.
(f) The following corporations are exempt from subsection
(a)(1):
(1) a bank, building and loan association, savings and loan
association, insurance company, public utility, and railroad;
(2) a corporation which was organized before January 1,
1964, and whose charter or articles of incorporation on the effective
date of this Business Corporation Act of 1988 specified a corporate
name that would not meet the requirements of subsection (a) of this
section, may continue to use that name as its official name;
(3) nonprofit corporation; and
(4) a professional corporation governed by Chapter 19 of this
title, but the name of the professional corporation must comply with
Section 33-19-150.
(g) Any corporation incorporated in South Carolina which, prior
to the effective date of Chapters 1 through 20 of this Title
title, filed a renewable certificate with the Secretary of
State adopting an `assumed name' pursuant to the provisions of
Section 33-5-35 in Section 2 of Act 146 of 1981, and which filed
assumed name would not meet the requirements of subsection (a) of
this section, may continue to use the name as its name until
December 31, 1994, at which time the name of the corporation
must meet the requirements of subsections (a) and (b) of this
section. If necessary to meet the requirements of subsections (a)
and (b), the corporation must amend its articles of incorporation
prior to December 31, 1994.
If any corporation incorporated in South Carolina prior to the
effective date of Chapters 1 through 20 of this Title adopted an
assumed name which complies with all of the provisions of
subsections (a) and (b), that assumed name, upon filing of amended
articles designating such name as the name of the corporation, is the
corporation's name.
No certificate of assumed name may be renewed after the
effective date of Chapters 1 through 20 of Title 33, and all such
certificates, regardless of stated expiration date, automatically expire
on December 31, 1994.
(h) No corporation shall use an assumed or fictitious
name in the conduct of its business to intentionally misrepresent the
geographic origin or location of any such entity."
SECTION 2. Section 33-15-106 of the 1976 Code is amended
to read:
"Section 33-15-106. (a) Except as authorized by
subsection (f), if the corporate name of a foreign corporation does
not satisfy the requirements of Section 33-4-101, the foreign
corporation to obtain or maintain a certificate of authority to
transact business in this State may:
(1) add `corporation', `incorporated', `company', or `limited'
or the abbreviation `corp.', `inc.', `co.', or `ltd.' to its corporate
name for use in this State; or
(2) use a fictitious name in this State if its real name is
unavailable and it delivers to the Secretary of State for filing a copy
of the resolution of its board of directors, certified by its secretary,
adopting the fictitious name which includes one or more of the
words or abbreviations in item (1) of this subsection.
(b) Except as authorized by subsections (c) and (d), the
corporate name (including a fictitious name) of a foreign
corporation must be distinguishable upon the records of the
Secretary of State from:
(1) the corporate name of a corporation incorporated or
authorized to transact business in this State;
(2) a corporate name reserved or registered under Section
33-4-102 or 33-4-103;
(3) the fictitious name of another foreign corporation
authorized to transact business in this State; and
(4) the corporate name of a not-for-profit corporation
incorporated or authorized to transact business in this State.
(c) A foreign corporation may apply to the Secretary of State
for authorization to use in this State the name of another
corporation incorporated or authorized to transact business in this
State that is not distinguishable upon his records from the name
applied for. The Secretary of State shall authorize use of the name
applied for if:
(1) the other corporation consents to the use in writing and
submits an undertaking in form satisfactory to the Secretary of State
to change its name to a name that is distinguishable upon the
records of the Secretary of State from the name of the applying
corporation; or
(2) the applicant delivers to the Secretary of State a certified
copy of a final judgment of a court of competent jurisdiction
establishing the applicant's right to use the name applied for in this
State.
(d) A foreign corporation may use in this State the name
(including the fictitious name) of another domestic or foreign
corporation that is used in this State if the other corporation is
incorporated or authorized to transact business in this State and the
foreign corporation has:
(1) merged with the other corporation;
(2) been formed by reorganization of the other corporation;
or
(3) acquired all or substantially all of the assets, including the
corporate name, of the other corporation.
(e) If a foreign corporation authorized to transact business in
this State changes its corporate name to one that does not satisfy the
requirements of Section 33-4-101, it may not transact business in
this State under the changed name until it adopts a name satisfying
the requirements of Section 33-4-101 and obtains an amended
certificate of authority under Section 33-15-104.
(f) If any foreign corporation authorized to transact business in
South Carolina had filed, prior to the effective date of Chapters 1
thru 20 of this title, a certificate with the Secretary of State
adopting an assumed name pursuant to Section 33-5-35 in Section 2
of Act 146 of 1981 which does not meet the requirements of either
Section 33-4-101(a) and (b) or Section 33-15-106(a) through (e) of
Chapters 1 thru 20 of this title, it may continue to use the assumed
name as its name until December 31, 1994, at which time the name
of the corporation must meet the requirements of Chapters 1 thru 20
of this title and, if necessary to meet them, must be adopted by an
amended certificate of authority under Section 33-15-104. If any
filed assumed name does not meet the requirements of Section
33-4-101(a) and (b), but does meet the requirements of this
section, the corporation may continue to use the name in this State
as its name and is not required to file the certificate mentioned in
item (2) of subsection (a) of this section.
(g) No foreign corporation shall use an assumed or
fictitious name in the conduct of its business to intentionally
misrepresent the geographic origin or location of any such
entity."
SECTION 3. The 1976 Code is amended by adding:
"Section 33-41-315. No partnership shall use an assumed
or fictitious name in the conduct of its business to intentionally
misrepresent the geographic origin or location of any such
entity."
SECTION 4. The 1976 Code is amended by adding:
"Section 39-5-37. It shall be an unlawful trade practice
under Section 39-5-20 to use an assumed or fictitious name in the
conduct of a business to intentionally misrepresent the geographic
origin or location of such business."
SECTION 5. This act takes effect upon approval by the
Governor.
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