Stricken language would be deleted from and underlined language would be added to present law.
Act 256 of the Regular Session
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State of Arkansas 1
94th General Assembly A Bill 2
Regular Session, 2023 SENATE BILL 205 3
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By: Senator C. Penzo 5
By: Representative Lundstrum 6
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For An Act To Be Entitled 8
AN ACT TO ASSIST SMA LL BUSINESS OWNERS T O FORM A 9
LEGAL ENTITY IN THIS STATE; TO CLARIFY TH E PROCEDURES 10
AND STANDARDS USED F OR NAME AVAILABILITY FOR CERTAIN 11
CORPORATIONS AND LIM ITED LIABILITY COMPA NIES; AND FOR 12
OTHER PURPOSES. 13
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Subtitle 16
TO ASSIST SMALL BUSINESS OWNERS TO FORM A 17
LEGAL ENTITY IN THIS STATE; AND TO 18
CLARIFY THE PROCEDURES AND STANDARDS USED 19
FOR NAME AVAILABILITY FOR CERTAIN 20
CORPORATIONS AND LIMITED LIABILITY 21
COMPANIES. 22
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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 25
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SECTION 1. DO NOT CODIFY. Legislative intent. 27
It is the intent of the General Assembly that this act shall: 28
(1) Confirm that the standard to be used for name availability 29
for a corporation or legal entity in this state is that the name is 30
distinguishable and that the standard shall not be whether or not the name is 31
confusingly similar; and 32
(2) Provide the only factors that the Secretary of State may use 33
in determining whether or not a corporate or legal entity name is 34
distinguishable. 35
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SECTION 2. Arkansas Code § 4 -26-401(3), concerning the standard for 1
corporate name availability, is amended to read as follows: 2
(3)(A) Shall not be the same as or confusingly similar to be 3
distinguishable from the name of any domestic corpo ration existing under the 4
laws of this state or any foreign corporation authorized to transact business 5
in this state, or a name the exclusive right to which is, at the time, 6
reserved under § 4-26-402, or the name of a corporation which has in effect a 7
registration of its corporate name under § 4 -26-403. 8
(B) No A foreign corporation may shall not be admitted to 9
this state if its corporate name is identical with or confusingly similar to 10
not distinguishable from the name of any domestic corporation, or t he name of 11
any foreign corporation then admitted to this state, or any name then 12
reserved or registered under § 4 -26-402 or § 4-26-403. 13
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SECTION 3. Arkansas Code § 4 -26-401, concerning corporate name 15
requirements, is amended to add an additional subdivis ion to read as follows: 16
(4) In determining whether or not a corporate name is 17
distinguishable under subdivision (3)(A) of this section, a corporate name 18
that is different from the name of another entity or filing is 19
distinguishable unless the only diffe rence is one (1) or more of the 20
following: 21
(A) A suffix; 22
(B) A definite or indefinite article; 23
(C) The word "and" and the symbol "&"; 24
(D) The singular, plural, or possessive form of a word; or 25
(E) A punctuation mark or a symbol. 26
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SECTION 4. Arkansas Code § 4 -26-405(b)(3), concerning acceptance of a 28
proposed fictitious name of a corporation, is amended to read as follows: 29
(3) However, the Secretary of State shall not accept such filing 30
if the proposed fictitious name is not distinguishable under § 4 -26-401 from 31
the same as or confusingly similar to the name of any domestic corporation, 32
or any foreign corporation admitted to this state, or any name reserved or 33
registered under §§ 4 -26-402 and 4-26-403. 34
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SECTION 5. Arkansas Code § 4-27-401 is amended to read as follows: 36 SB205
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4-27-401. Corporate name. 1
(a) A corporate name: 2
(1) must contain the word “corporation,” “incorporated,” 3
“company,” or “limited,” or the abbreviation “corp.,” “inc.,” “co.,” or 4
“ltd.,” or words or abbrev iations of like import in another language; and 5
(2) may not contain language stating or implying that the 6
corporation is organized for a purpose other than that permitted by § 4 -27-7
301 and its articles of incorporation. 8
(b) Except as authorized by sub sections (c) and (d) of this section, a 9
corporate name must be distinguishable upon the records of the Secretary of 10
State from: 11
(1) the corporate name of a corporation incorporated or 12
authorized to transact business in this state; 13
(2) a corporate nam e reserved or registered under § 4 -27-402 or 14
§4-27-403; 15
(3) the fictitious name adopted by a foreign corporation 16
authorized to transact business in this state because its real name is 17
unavailable; and 18
(4) the corporate name of a not -for-profit corporation 19
incorporated or authorized to transact business in this state. 20
(c) In determining whether or not a corporate name is distinguishable 21
under subsection (b) of this section, a corporate name that is different from 22
the name of another entity or filing is distinguishable unless the only 23
difference is one (1) or more of the following: 24
(1) A suffix; 25
(2) A definite or indefinite article; 26
(3) The word "and" and the symbol "&"; 27
(4) The singular, plural, or possessive form of a word; or 28
(5) A punctuation mark or a symbol. 29
(d) A corporation may apply to the Secretary of State for 30
authorization to use a name that is not distinguishable upon his records from 31
one (1) or more of the names described in subsection (b) of this section. The 32
Secretary of State shall authorize use of the name applied for if: 33
(1) the other corporation consents to the use in writing and 34
submits an undertaking in form satisfactory to the Secretary of State to 35
change its name to a name that is distinguishable upon the recor ds of the 36 SB205
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Secretary of State from the name of the applying corporation; or 1
(2) the applicant delivers to the Secretary of State a certified 2
copy of the final judgment of a court of competent jurisdiction establishing 3
the applicant's right to use the nam e applied for in this state. 4
(d)(e) A corporation may use the name of another domestic or foreign 5
corporation that is used in this state if the corporation is incorporated or 6
authorized to transact business in this state and the proposed user 7
corporation: 8
(1) has merged with the other corporation; 9
(2) has been formed by reorganization of the other corporation; 10
or 11
(3) has acquired all or substantially all of the assets, 12
including the corporate name, of the other corporation. 13
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SECTION 6. Arkansas Code § 4-27-404(b), concerning the use of a 15
fictitious name under the Arkansas Business Corporation Act of 1987, is 16
amended to read as follows: 17
(b) Each such form shall be executed (without verification) in 18
duplicate and filed with the Secretary of Stat e. The Secretary of State 19
shall retain one (1) counterpart; and the other counterpart, bearing the file 20
marks of the Secretary of State, shall be returned to the corporation and, 21
unless its registered office is in Pulaski County, filed by it with the 22
county clerk. An index of such filings shall be maintained in each office. 23
However, the Secretary of State shall not accept such filing unless the 24
proposed fictitious name is distinguishable under § 4-27-401 upon the records 25
of the Secretary of State from th e name of any domestic corporation, or any 26
foreign corporation authorized to do business in the state or any name 27
reserved or registered under §§ 4 -27-402 and 4-27-403. 28
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SECTION 7. Arkansas Code § 4 -33-401 is amended to read as follows: 30
4-33-401. Corporate name. 31
(a) A corporate name may not contain language stating or implying that 32
the corporation is organized for a purpose other than that permitted by § 4 -33
33-301 and its articles of incorporation. 34
(b) Except as authorized by subsections (c) , and (d), and (e) of this 35
section, a corporate name must be distinguishable upon the records of the 36 SB205
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Secretary of State from: 1
(1) the corporate name of a nonprofit or business corporation 2
incorporated or authorized to do business in this state; 3
(2) a corporate name reserved or registered under § 4 -33-402 or 4
§ 4-33-403 of this chapter or § 4 -26-402 or § 4-27-402; or 5
(3) the fictitious name of a foreign business or nonprofit 6
corporation authorized to transact business in this state because its real 7
name is unavailable; 8
(c) In determining whether or not a corporate name is distinguishable 9
under subsection (b) of this section, a corporate name that is different from 10
the name of another entity or filing is distinguishable unless the only 11
difference is one (1) or more of the following: 12
(1) a suffix; 13
(2) a definite or indefinite article; 14
(3) the word "and" and the symbol "&"; 15
(4) the singular, plural, or possessive form of a word; or 16
(5) a punctuation mark or a symbol. 17
(d) A corporation may apply to the Secretary of State for 18
authorization to use a name that is not distinguishable upon the Secretary of 19
State's records from one (1) or more of the names described in subsection (b) 20
of this section. The Secretary of State shall authorize use of the name 21
applied for if: 22
(1) the other corporation consents to the use in writing and 23
submits an undertaking in form satisfactory to the Secretary of State to 24
change its name to a name that is distinguishable upon the records of the 25
Secretary of State from the name of the applying corporation; or 26
(2) the applicant delivers to the Secretary of State a certified 27
copy of a final judgment of a court of competent jurisdiction establishing 28
the applicant's right to use the name applied for in this state. 29
(d)(e) A corporation may use the name (including the fictitious name) 30
of another domestic or foreign business or nonprofit corporation that is used 31
in this state if the other corporation is incorporated or authorized to do 32
business in this state and the pr oposed user corporation: 33
(1) has merged with the other corporation; 34
(2) has been formed by reorganization of the other corporation; 35
or 36 SB205
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(3) has acquired all or substantially all of the assets, 1
including the corporate name, of the other corporation. 2
(e)(f) This chapter does not control the use of fictitious names. 3
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SECTION 8. Arkansas Code § 4 -38-112 is amended to read as follows: 5
4-38-112. Permitted names. 6
(a) The name of a limited liability company must contain the phrase 7
“limited liability company” or “limited company” or the abbreviation 8
“L.L.C.”, “LLC”, “L.C.”, or “LC”. “Limited” may be abbreviated as “Ltd.”, and 9
“company” may be abbreviated as “Co.”. 10
(b) Except as otherwise provided in subsection (d)(e), the name of a 11
limited liability company, and the name under which a foreign limited 12
liability company may register to do business in this state, must be 13
distinguishable on the records of the Secretary of State from any: 14
(1) name of an existing person whose formation required the 15
filing of a record by the Secretary of State and which is not at the time 16
administratively dissolved; 17
(2) name of a limited liability partnership whose statement of 18
qualification is in effect; 19
(3) name under which a person is registered to do business in 20
this state by the filing of a record by the Secretary of State; 21
(4) name reserved under § 4 -38-113 or other law of this state 22
providing for the reservation of a name by the filing of a record by the 23
Secretary of State; 24
(5) name registered under § 4-38-114 or other law of this state 25
providing for the registration of a name by the filing of a record by the 26
Secretary of State; and 27
(6) name registered under § 4 -26-405, § 4-27-404, § 4-38-122, 28
and § 4-42-707. 29
(c) In determining whether or not a limi ted liability company name is 30
distinguishable under subsection (b) of this section, a limited liability 31
company name that is different from the name of another entity or filing is 32
distinguishable unless the only difference is one (1) or more of the 33
following: 34
(1) a suffix; 35
(2) a definite or indefinite article; 36 SB205
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(3) the word "and" and the symbol "&"; 1
(4) the singular, plural, or possessive form of a word; or 2
(5) a punctuation mark or a symbol. 3
(d) If a person consents in a record to the use o f its name and 4
submits an undertaking in a form satisfactory to the Secretary of State to 5
change its name to a name that is distinguishable on the records of the 6
Secretary of State from any name in any category of names in subsection (b), 7
the name of the consenting person may be used by the person to which the 8
consent was given. 9
(d)(e) Except as otherwise provided in subsection (e)(f), in 10
determining whether a name is the same as or not distinguishable on the 11
records of the Secretary of State from the nam e of another person, words, 12
phrases, or abbreviations indicating a type of person, such as “corporation”, 13
“corp.”, “incorporated”, “Inc.”, “professional corporation”, “P.C.”, “PC”, 14
“professional association”, “P.A.”, “PA”, “Limited”, “Ltd.”, “limited 15
partnership”, “L.P.”, “LP”, “limited liability partnership”, “L.L.P.”, “LLP”, 16
“registered limited liability partnership”, “R.L.L.P.”, “RLLP”, “limited 17
liability limited partnership”, “L.L.L.P.”, “LLLP”, “registered limited 18
liability limited partnership”, “R.L.L .L.P.”, “RLLLP”, “limited liability 19
company”, “L.L.C.”, “LLC”, “limited cooperative association”, “limited 20
cooperative”, or “L.C.A.”, or “LCA” may not be taken into account. 21
(e)(f) A person may consent in a record that is satisfactory to the 22
Secretary of State to the use of a name that is not distinguishable on the 23
records of the Secretary of State from its name except for the addition of a 24
word, phrase, or abbreviation indicating the type of person as provided in 25
subsection (d)(e). In such a case, the p erson need not change its name 26
pursuant to subsection (c)(d). 27
(f)(g) The name of a limited liability company or foreign limited 28
liability company may not contain the name of any person who is not a member, 29
except that the name of a former member or membe r of a predecessor 30
organization may continue to be included in the name. 31
(g)(h) A limited liability company or foreign limited liability 32
company may use a name that is not distinguishable from a name described in 33
subsections (b)(1) through (6) if the com pany delivers to the Secretary of 34
State a certified copy of a final judgment of a court of competent 35
jurisdiction establishing the right of the company to use the name in this 36 SB205
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state. 1
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SECTION 9. Arkansas Code § 4 -38-122(c), concerning the acceptability 3
of a proposed fictitious name under the Uniform Limited Liability Company 4
Act, is amended to read as follows: 5
(c) The Secretary of State shall not accept a filing if the proposed 6
fictitious name is the same as, or confusingly similar to, not 7
distinguishable under § 4-38-112 from the name of any domestic corporation, 8
limited liability company, limited partnership, limited liability partnership 9
or any other entity registered with the Secretary of State, or any foreign 10
entity authorized to do business in the state or any name reserved or 11
registered under §§ 4 -27-402, 4-27-403, 4-38-113, or 4-47-109. 12
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SECTION 10. Arkansas Code § 4 -42-707(b), concerning the acceptability 14
and use of fictitious names under the Uniform Partnership Act, is amended to 15
read as follows: 16
(b) Each such form shall be executed, without verification, in 17
duplicate and filed with the Secretary of State. The Secretary of State 18
shall retain one (1) counterpart and the other counterpart, bearing the file 19
marks of the Secretary of State, shal l be returned to the registered limited 20
liability partnership. However, the Secretary of State shall not accept such 21
filing if the proposed fictitious name is the same as, or confusingly similar 22
to, not distinguishable from the name of any domestic corpor ation, limited 23
liability company, limited partnership, limited liability partnership, or any 24
other entity registered with the Secretary of State, or any such foreign 25
entity authorized to do business in the state or any name reserved or 26
registered under § 4 -27-402, § 4-27-403, § 4-38-113, § 4-38-114, or § 4-47-27
109. 28
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SECTION 11. Arkansas Code § 4 -47-108 is amended to read as follows: 30
4-47-108. Name. 31
(a) The name of a limited partnership may contain the name of any 32
partner. 33
(b) The name of a limited partnership that is not a limited liability 34
limited partnership must contain the phrase “limited partnership” or the 35
abbreviation “L.P.” or “LP” and may not contain the phrase “limited liability 36 SB205
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limited partnership” or the abbrev iation “LLLP” or “L.L.L.P.”. 1
(c) The name of a limited liability limited partnership must contain 2
the phrase “limited liability limited partnership” or the abbreviation “LLLP” 3
or “L.L.L.P.” and must not contain the abbreviation “L.P.” or “LP.” 4
(d) Unless authorized by subsection (e), the name of a limited 5
partnership must be distinguishable in the records of the Secretary of State 6
from: 7
(1) the name of each person other than an individual 8
incorporated, organized, or authorized to transact business in this State; 9
and 10
(2) each name reserved under § 4 -47-109 or other state laws 11
allowing the reservation or registration of business names, including 12
fictitious name statutes. 13
(e) In determining whether or not a limited liability partnership name 14
is distinguishable under subsection (d) of this section, a limited liability 15
partnership name that is different from the name of another entity or filing 16
is distinguishable unless the only difference is one (1) or more of the 17
following: 18
(1) a suffix; 19
(2) a definite or indefinite article; 20
(3) the word "and" and the symbol "&"; 21
(4) the singular, plural, or possessive form of a word; or 22
(5) a punctuation mark or a symbol. 23
(f) A limited partnership may apply to the Secretary of State for 24
authorization to use a name that does not comply with subsection (d). The 25
Secretary of State shall authorize use of the name applied for if, as to each 26
conflicting name: 27
(1) the present user, registrant, or owner of the conflicting 28
name consents in a signed rec ord to the use and submits an undertaking in a 29
form satisfactory to the Secretary of State to change the conflicting name to 30
a name that complies with subsection (d) and is distinguishable in the 31
records of the Secretary of State from the name applied for; 32
(2) the applicant delivers to the Secretary of State a certified 33
copy of the final judgment of a court of competent jurisdiction establishing 34
the applicant's right to use in this State the name applied for; or 35
(3) the applicant delivers to the Secre tary of State proof 36 SB205
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satisfactory to the Secretary of State that the present user, registrant, or 1
owner of the conflicting name: 2
(A) has merged into the applicant; 3
(B) has been converted into the applicant; or 4
(C) has transferred substantially a ll of its assets, 5
including the conflicting name, to the applicant. 6
(f)(g) Subject to § 4-47-905, this section applies to any foreign 7
limited partnership transacting business in this State, having a certificate 8
of authority to transact business in this S tate, or applying for a 9
certificate of authority. 10
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APPROVED: 3/9/23 13
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