4-26-405. Use of fictitious names.

4-26-405. Use of fictitious names. (a) No domestic or foreign corporation shall conduct any business in this state under a fictitious name unless it first files with the Secretary of State, and, in case of a domestic corporation, with the county clerk of the county in which the corporation's registered office is located unless it is located in Pulaski County, a form supplied or approved by the Secretary of State giving the following information: (1) The fictitious name under which business is being or will be conducted by the applicant corporation; (2) A brief statement of the character of business to be conducted under the fictitious name; (3) The corporate name, state of incorporation and location, giving city and street address, of the registered office in this state of the applicant corporation. (b)(1) Each form shall be executed, without verification, in duplicate and filed with the Secretary of State. (2) The Secretary of State shall retain one (1) counterpart; and the other counterpart, bearing the file marks of the Secretary of State, shall be returned to the corporation and, unless its registered office is in Pulaski County, the corporation will file it with the county clerk. An index of such filings shall be maintained in each office. (3) However, the Secretary of State shall not accept such filing if the proposed fictitious name is the same as or confusingly similar to the name of any domestic corporation, or any foreign corporation admitted to this state, or any name reserved or registered under §§ 4-26-402 and 4-26-403. (c) Copies of the filed forms, certified by the respective filing officers, shall be admitted in evidence where the question of filing may be material. (d) A foreign corporation not admitted to this state and authorized to do business in this state may not file under this section. (e)(1) If, after a filing under this section, the applicant corporation is dissolved, or if a foreign corporation surrenders or forfeits its rights to do business in Arkansas, or if a domestic or foreign corporation ceases to do business in Arkansas under the specified fictitious name, the corporation shall be obligated to file in each of the offices aforesaid, a cancellation of its privilege under this section. (2) If the cancellation is not filed, the Secretary of State, upon satisfactory evidence, may cancel the privilege. The cancellation shall be certified by the Secretary of State to the county clerk who will file the cancellation without fee. (f)(1) If a corporation which has not filed under this section becomes a party to any contract, deed, conveyance, assignment, or instrument of encumbrance in which the corporation is referred to exclusively by a fictitious name, the obligations imposed upon the corporation under the instrument and the rights sought to be conferred upon third parties thereunder may be enforced against it. However, the rights accruing to the corporation under the instrument may not be enforced by the corporation in the courts of this state until it complies with this section and pays to the Treasurer of State a civil penalty of three hundred dollars ($300). (2) In any suit by a corporation upon an instrument executed after midnight, December 31, 1965, which identifies it exclusively by a fictitious name, the corporation shall be required to allege compliance with this section. (g)(1) Compliance with this section does not give a corporation an exclusive right to the use of the fictitious name; and the registration of a fictitious name hereunder will not bar the use of the same name as the corporate name of any domestic corporation or any foreign corporation admitted to this state. (2) However, this chapter is not intended to bar any aggrieved party in such a situation from applying for equitable relief under principles of fair trade law. (h) Where a communication, contract, deed, conveyance, assignment, or instrument of encumbrance executed by or in favor of a corporation refers to, or is executed by, the corporation under an assumed name, the assumed name will not be a fictitious name within the meaning of this section if it is reflected in the body of the instrument, or in connection with the signature, that the assumed name represents a division or department of the contracting corporation, or a name assumed by it, the contracting corporation being adequately identified by its true name.