S 78 Session 112 (1997-1998)
S 0078 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
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.
01/14/97 Senate Introduced and read first time SJ-110
01/14/97 Senate Referred to Committee on Judiciary SJ-110
01/30/97 Senate Committee report: Favorable Judiciary SJ-17
02/04/97 Senate Read second time SJ-20
02/05/97 Senate Read third time and sent to House SJ-12
02/05/97 House Introduced and read first time HJ-19
02/05/97 House Referred to Committee on Judiciary HJ-19
05/27/98 House Committee report: Favorable with amendment
Judiciary HJ-70
06/02/98 House Amended HJ-56
06/02/98 House Read second time HJ-57
06/03/98 House Debate adjourned until Thursday, June 4, 1998 HJ-14
06/04/98 House Debate adjourned HJ-178
Indicates Matter Stricken
Indicates New Matter
AMENDED
June 2, 1998
S. 78
Introduced by Senator Holland
S. Printed 6/2/98--H.
Read the first time February 5, 1997.
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.
Amend Title To Conform
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
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,
ownership of manufacturing facilities, or location of such
business."
SECTION 5. This act takes effect upon approval by the Governor.
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