Current Status Bill Number:78 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19970114 Primary Sponsor:Holland All Sponsors:Holland Drafted Document Number:s-jud\holland\jud6006.dhh Residing Body:House Current Committee:Judiciary Committee 25 HJ Date of Last Amendment:19980602 Subject:Businesses and Corporations, assumed or fictious names misrepresenting geographic origin or location of certain
Body Date Action Description Com Leg Involved
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House 19980604 Debate adjourned
House 19980604 Reconsidered vote whereby
committed to Committee
House 19980604 Recommitted to Committee 25 HJ
House 19980604 Debate adjourned
House 19980603 Debate adjourned until
Thursday, 19980604
House 19980602 Read second time
House 19980602 Amended
House 19980527 Committee report: Favorable with 25 HJ
amendment
House 19970205 Introduced, read first time, 25 HJ
referred to Committee
Senate 19970205 Read third time, sent to House
Senate 19970204 Read second time
Senate 19970130 Committee report: Favorable 11 SJ
Senate 19970114 Introduced, read first time, 11 SJ
referred to Committee
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Indicates Matter Stricken
Indicates New Matter
AMENDED
June 2, 1998
S. 78
S. Printed 6/2/98--H.
Read the first time February 5, 1997.
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.