4-27-404. Use of fictitious names.

4-27-404. Use of fictitious names. (a) No corporation (domestic or foreign) 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 the state of the applicant corporation. (b) Each such form shall be executed (without verification) in duplicate and filed with the Secretary of State. 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, filed by it with the county clerk. An index of such filings shall be maintained in each office. However, the Secretary of State shall not accept such filing unless the proposed fictitious name is distinguishable upon the records of the Secretary of State from the name of any domestic corporation, or any foreign corporation authorized to do business in the state or any name reserved or registered under §§ 4-27-402 and 4-27-403. (c) Copies of such filed forms, certified by the respective filing officers, shall be admitted in evidence where the question of filing may be material. (d) If, after a filing hereunder, the applicant corporation is dissolved, or (being a foreign corporation) surrenders or forfeits its rights to do business in Arkansas or (whether a domestic or foreign corporation) ceases to do business in Arkansas under the specified fictitious name, such corporation shall be obligated to file in each of the offices aforesaid a cancellation of its privilege hereunder. If such cancellation is not filed, the Secretary of State, upon satisfactory evidence, may cancel such privilege; in which event such cancellation shall be certified by the Secretary of State to the county clerk, who will file the same without fee. (e) If a corporation which has not filed hereunder has heretofore or shall hereafter become a party to any contract, deed, conveyance, assignment or instrument of encumbrance in which such corporation is referred to exclusively by a fictitious name, the obligations imposed upon such corporation under said instrument and the right sought to be conferred upon third parties thereunder may be enforced against it; but the rights accruing to such corporation under said 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); and in any suit by a corporation upon an instrument executed on or after midnight, December 31, 1987, which identifies it exclusively by a fictitious name, the corporation shall be required to allege compliance with this section. (f) 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 authorized to do business in this state. But 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.