Consumer Protection
Fictitious Name Matters
Florida’s Fictitious Name Act (Fla. Stat. § 865.09), the “D/B/A” Registration & How It Compares to Florida and Federal Trademark Registration
One of the first decisions a business owner makes is what to call the business — and one of the most common mistakes is assuming that a single filing takes care of the name. It does not. Florida law treats a business’s name three different ways, through three different registrations that do three different jobs. A fictitious name registration under § 865.09 tells the State and the public who stands behind a name and preserves the owner’s right to sue in Florida courts; it creates no rights in the name at all. A Florida trademark registration under Chapter 495 and a federal registration with the United States Patent and Trademark Office create enforceable rights in the name as a brand — the right to use it for specific goods and services and to stop others from using confusingly similar names. Businesses that confuse the first for the second discover the difference when a competitor adopts their name, or when they try to enforce a contract and learn that their unregistered “d/b/a” has closed the courthouse door.
Our Miami intellectual property attorneys help business owners sort out which names need which registrations — the legal entity name, the fictitious names it operates under, and the trademarks that carry its goodwill — and handle the fictitious name, Florida trademark, and USPTO filings that put each name on the right footing.
What a Fictitious Name Is — and Why Florida Requires Registration
Transparency for the public, and a litigation bar for those who skip it
A fictitious name in Florida is any name under which a person transacts business in the state other than the person’s legal name — for an individual, something other than his or her own name; for a corporation, limited liability company, or partnership, something other than the name on file with the Division of Corporations (§ 865.09(2)(c)). “Business” is defined broadly to include any enterprise in which a person sells, buys, exchanges, barters, deals in anything of value, or renders services for compensation (§ 865.09(2)(a)). Commonly called a “d/b/a” (“doing business as”), the fictitious name is the behind-the-scenes name under which the owner operates. The statute is direct: a person may not engage in business under a fictitious name unless the person first registers it with the Division (§ 865.09(3)).
The purpose of the requirement is transparency. Registration notifies customers, vendors, creditors, other businesses, and government agencies exactly who owns the enterprise operating under the name, so that when a dispute arises everyone knows whom to hold accountable. The registration is published in the Division’s searchable public database, which is also the reason the Division’s guidance warns that a fictitious name search is not a trademark search — and why a clearance search of the state and federal trademark registers should precede the adoption of any new business name.
| Provision | What It Says | Why It Matters |
|---|---|---|
| Registration requirement — § 865.09(3) | Before engaging in business under a fictitious name, the person must register it with the Division of Corporations, providing the name, the business’s mailing address, the name and address of each registrant, and — for an entity registrant — its Florida document number and federal employer identification number. | Applies to every sole proprietor, partnership, and entity operating under any name other than its legal name; multiple d/b/a names require multiple registrations. |
| Advertisement — § 865.09(3)(a) | At least one registrant must certify that the intention to register the fictitious name has been advertised at least once in a newspaper, as defined in Chapter 50, in the county of the registrant’s principal place of business. | The advertisement is a certification, not an attachment; the Division does not verify it, but a false certification is a false statement on a government filing. |
| Fees — § 865.09(11) | $50 to register; $50 to renew; $50 to cancel and reregister; $30 for a certified copy; $10 for a certificate of status. | Filing is online through Sunbiz and is typically processed within days. |
| Term — § 865.09(5) | A registration is valid from the date of registration through December 31 of the fifth calendar year, counting the year of registration as year one. | A name registered in November 2026 expires December 31, 2030 — the calendar year, not the anniversary, controls. |
| Renewal and expiration — § 865.09(6) | Renewal may be filed at any time from January 1 through December 31 of the expiration year and extends the registration five more years. The Division sends a reminder by September 1, but if the renewal and fee are not filed by December 31, the registration expires. | There is no grace period and no appeal; an expired name must be registered anew, and any lapse reopens the litigation bar. |
| Cancellation and transfer — § 865.09(4) | A registrant that ceases business under the name must file a cancellation within 30 days; on a transfer of the business, the new owner may reregister the name at the same time the cancellation is filed. | A missed cancellation leaves the former owner publicly listed as responsible for a business it no longer operates. |
| Exemptions — § 865.09(7) | Registration is not required of an attorney actively licensed in Florida, a person licensed by the Department of Business and Professional Regulation or the Department of Health practicing that profession, or a corporation, LLC, partnership, or other entity organized or registered and in active status with the Division — unless the exempt person or entity transacts business under a name other than its own. | The entity exemption is narrow: an LLC named “Sunshine Holdings, LLC” that opens “Sunshine Café” must register the café name. |
| Effect of registration — § 865.09(8) | Registration is for public notice only; it creates no presumption of the registrant’s right to own or use the name, does not affect trademark, service mark, trade name, or corporate name rights previously acquired by others in the same or a similar name, and does not reserve the name against future use. | The single most misunderstood provision in the statute — see the comparison below. |
The Consequences of Not Registering
A closed courthouse, fee exposure, and a noncriminal violation
The most significant consequence of failing to register is the litigation bar of § 865.09(9)(a): if a business fails to comply, “neither the business nor the person or persons engaging in the business may maintain any action, suit, or proceeding in any court of this state with respect to or on behalf of such business until this section is complied with.” An unregistered business cannot sue in a Florida court to enforce a contract, collect a receivable, evict a tenant, or pursue any other claim arising from its operations until the name is registered. The bar is procedural rather than substantive — the statute expressly provides that noncompliance does not impair the validity of any contract and does not prevent the business from defending itself in court (§ 865.09(9)(b)) — and it is cured by registration, so a case filed before compliance is typically abated rather than dismissed with prejudice. But the practical costs are real. A counterparty who defaults has little incentive to negotiate with a plaintiff who cannot yet file; the business is left scrambling to advertise and register under time pressure; and the delay can run against a limitations period, let a dispute fester, or force a settlement at a disadvantage.
Two further consequences are frequently overlooked. First, § 865.09(9)(b) allows a party who is put to the expense of the business’s noncompliance to recover the reasonable attorney’s fees and court costs it necessitated. Second, § 865.09(9)(c) makes failure to comply a noncriminal violation under § 775.08(3), punishable by a fine under § 775.083 — not a crime, but not nothing. A business that has operated for years under an unregistered name should register before its next dispute, not after.
| Situation | What Happens | How to Cure |
|---|---|---|
| Business sues under an unregistered d/b/a | The action cannot be maintained; the defendant may move to abate or dismiss under § 865.09(9)(a) | Advertise, register, and pay the fee; the action may then proceed |
| Business is sued while unregistered | The business may defend itself; the bar applies only to maintaining its own claims | Register promptly to preserve counterclaims |
| Registration lapses on December 31 of the expiration year | The registration expires automatically; the litigation bar reattaches | File a new registration (a lapsed name cannot be renewed) |
| Business changes hands | The former owner remains listed as the responsible party until cancellation is filed | File the cancellation and the buyer’s reregistration together |
| Entity operates a branded location or product line | The entity exemption does not apply to any name other than the entity’s own | Register each fictitious name the entity uses; file the trademark applications separately |
Fictitious Name, Florida Trademark & USPTO Registration Compared
A disclosure filing, a state brand registration, and a national one — three different jobs
The most widely misunderstood aspect of a fictitious name is what the registration actually provides. Section 865.09(8) answers the question in the negative: registration is for public notice only, supports no presumption of an exclusive right to own or use the name, and does not diminish trademark, service mark, trade name, or corporate name rights previously acquired by others in the same or a similar name. A fictitious name filing is not a defense to a trademark infringement claim, and it is not evidence of one. The Division accepts fictitious name registrations without examining them against anything — two businesses may register the identical fictitious name, and neither acquires a right against the other by doing so.
Trademark rights come from a different body of law entirely. At common law they arise from use of a name, logo, or slogan to identify the source of goods or services, and they last as long as the use continues. Registration — with the Florida Department of State under Chapter 495 or with the USPTO under the Lanham Act — adds presumptions, remedies, and public notice to those use-based rights, and the two registrations differ from each other in speed, cost, reach, and remedies. A registered trademark is what allows a business to stop a competitor from using a confusingly similar name; a fictitious name registration only tells the competitor who to serve.
| Fictitious Name — § 865.09 | Florida Trademark — Chapter 495 | USPTO Federal Registration | |
|---|---|---|---|
| Legal function | Disclosure of who operates under the name; prerequisite to maintaining suit in Florida courts | Registration of a mark used in Florida to identify the source of goods or services | Registration of a mark used in interstate commerce; nationwide constructive notice and priority |
| Rights conferred | None — public notice only (§ 865.09(8)) | Exclusive right to use the mark in Florida for the registered goods or services, subject to prior users | Presumption of validity, ownership, and exclusive nationwide right (15 U.S.C. § 1057(b)); incontestability after five years |
| Examination | None; identical names may be registered by different persons | Checked against the Florida register of marks | Full examination, including likelihood-of-confusion refusals and publication for opposition |
| Use requirement | None — registration precedes use | Actual use in Florida before filing; no intent-to-use option | Use in commerce, or an intent-to-use application that ripens on proof of use |
| Government fee | $50 (registration, renewal, or cancellation and reregistration) | $87.50 per class | $350 per class base fee, plus surcharges in some cases; separate maintenance fees |
| Time to issue | Days | Two to five business days per the Division’s guidelines | 4.45 months to first action; 10.03 months average total pendency (USPTO, first half of FY 2026) |
| Term and renewal | Through December 31 of the fifth calendar year; renew during the expiration year | 5 years; renewable for successive 5-year terms within six months before expiration | 10 years, renewable indefinitely; Section 8 declaration of use required in years 5–6 and with each renewal |
| Territorial effect | Florida disclosure only | Florida only | Nationwide, including U.S. territories |
| Enforcement remedies | None in the name itself; attorney’s fees recoverable against a non-compliant business (§ 865.09(9)(b)) | Injunction; profits; damages up to three times actual damages; attorney’s fees “according to the circumstances of the case” (§ 495.141) | Injunction; profits; damages, up to trebled; attorney’s fees in exceptional cases (15 U.S.C. § 1117); customs recordation; ® symbol |
| Consequence of lapse | Litigation bar reattaches; noncriminal violation | Registration expires; common-law rights continue with use | Registration cancelled; common-law rights continue with use |
The practical sequence for a new business name follows from the comparison. Search first — the state and federal trademark registers, common-law sources, domain names, and the fictitious name database — because a fictitious name registration will not protect a business that has adopted someone else’s mark. Register the fictitious name before the first transaction, so the courthouse stays open. File the Florida trademark application at the same time, in the licensing entity’s name where the business has one, to obtain a registration within days and the fee-shifting remedy of § 495.141. And file the federal application — on an intent-to-use basis if the launch is still ahead — to secure nationwide priority as of the filing date. Each filing does a job the others cannot.
Clearance searching, Florida and USPTO filing strategy, and the reasons a Florida registration issues in days rather than months are covered in our Trademark Matters summary; the advertising claims a business may make under its name are addressed in our False Advertising Matters summary.
Key Considerations for Business Owners
Three names, three registrations — and a calendar for each
- Inventory every name the business uses. The entity name on file with the Division, every storefront, product line, website, and social-media name the business transacts under, and every brand it wants to own. Each fictitious name needs its own § 865.09 registration; each brand needs its own trademark analysis.
- Search before you register. A fictitious name registration is granted without examination and confers nothing; adopting a name that conflicts with a registered or common-law trademark invites a demand letter that the d/b/a filing cannot answer. Run the clearance search first.
- Register the d/b/a before the first transaction — and before the first dispute. The litigation bar is cured by registration, but a business that registers only when it needs to sue has already lost leverage, time, and possibly a limitations period.
- Calendar the December 31 expiration. The five-year term runs to December 31 of the fifth calendar year, the Division’s September 1 reminder is a courtesy, and a missed renewal cannot be revived. Docket it alongside the Florida trademark’s five-year renewal and the federal registration’s Section 8 and Section 9 deadlines.
- Match the registrant to the entity that should own the name. A fictitious name registered to an individual owner rather than the operating entity, or a trademark registered to the operating entity rather than a licensing company, creates ownership problems at the moment of sale, investment, or dispute. Get the registrant right the first time.
- Cancel what you no longer use. File the cancellation within 30 days of ceasing business under a name, and pair it with the buyer’s reregistration on a transfer, so the public record does not leave the former owner answerable for a business it sold.
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