Nebraska
State Statutes (as
of August, 2010)
Trade
Name Registration
Tradename
application form
& filing instructions
Business Entity
& Trade Name Search
To confirm name availability, you must submit, in
writing,
a request to the Secretary of State's Corporate office
by postal mail - or email - or FAX: (402) 471-3666
Contact:
Nebraska Secretary of State - Corporations Office
State Capitol - Room 1301
Lincoln, NE 68509-4608
Phone: 402-471-4079 / email: sos.corp@nebraska.gov
87-208.
Terms, defined.
As
used in sections 87-208 to 87-220, unless
the
context otherwise requires:
(1)
Applicant means a person filing an application for
registration of a trade name under such sections or his or her legal
representatives, successors, or assigns;
(2)
Person means an individual, corporation, government or
governmental subdivision or agency, business trust, estate, trust,
partnership,
limited liability company, unincorporated association, or two or more
of the
foregoing having a joint or common interest or any other legal or
commercial
entity;
(3)
Registrant means a person to whom registration of a
trade name under such sections is issued or his or her legal
representatives,
successors, or assigns; and
(4) Trade
name means every name under which any person does
or transacts any business in this state other than the true name of
such
person.
Source:Laws
1967, c. 628, § 1, p. 2099; Laws 1971, LB 486, § 1;
Laws 1993, LB 121, § 556; Laws 1997, LB 453, § 6.
Annotations
Under
this and succeeding sections,
right to use trade name and to prevent its use by another may be
obtained by
registration or adoption without recording it, but where parties had
adequate
remedy at law for damages and failed to show irreparable injury,
neither was
entitled in private antitrust action to injunction against use of
certain name
for buildings handled by them. Morton Buildings of Nebraska, Inc. v.
Morton
Buildings, Inc., 333 F.Supp. 187 (D. Neb. 1971).
87-209.
Trade name; not registered; when.
A
trade name shall not be registered if it:
(1)
Consists of or comprises immoral, deceptive, or
scandalous matter;
(2)
Consists of or comprises matter which may disparage,
bring into contempt or disrepute, or falsely suggest a connection with,
persons
living or dead, institutions, beliefs, or national symbols;
(3)
Consists of, comprises, or simulates the flag or coat of
arms or other insignia of the United States, any state or municipality,
or any
foreign nation;
(4)
Consists of or comprises the name, signature, or
portrait of any living individual without his or her consent;
(5)(a)
Is merely descriptive or misdescriptive, or is
primarily geographically descriptive or geographically misdescriptive
as
applied to the business of the applicant, or (b) is primarily merely a
surname,
but nothing in this subdivision shall prevent the registration of a
trade name
which has become distinctive of the applicant's business in this state.
The
Secretary of State may accept as evidence that a trade name has become
distinctive proof of continuous use by the applicant as a trade name in
this
state or elsewhere for five years preceding the date of the filing of
the
application for registration;
(6)
Consists of or comprises a trade name which so resembles
a trade name registered under sections 87-208 to 87-220,
registered in
this state, or the name of a business entity on file or registered with
the
Secretary of State pursuant to Nebraska law as to be likely to cause
confusion,
mistake, or deception of purchasers, except that a name, although
similar, may
be used if the business entity affected consents in writing and such
writing is
filed with the Secretary of State. The word incorporated, inc., or
corporation
shall not be a part of the trade name being registered unless the firm
is duly
incorporated in the State of Nebraska or some other state; or
(7)
Consists of the word geologist or any modification or
derivative of such word, and the applicant does not meet the
requirements of
subsection (6) of section 81-3528.
Source:Laws
1967, c. 628, § 2, p. 2100; Laws 1969, c. 856, § 2,
p.
3225; Laws 1971, LB 486, § 2; Laws 1997, LB 44, § 12;
Laws 1997, LB 453, § 7;
Laws 1998, LB 1161, § 91.
87-210.
Trade name; application for registration; requirements; Secretary of
State.
(1)
Subject to the limitations set forth in sections 87-208 to 87-220, any
person who
adopts a trade name for use in this state may file in the office of the
Secretary
of State on a form furnished by the Secretary of State an application,
in
duplicate, for registration of the trade name setting forth, but not
limited
to, the following information:
(a)
The name and street address of the applicant for
registration; and, if a corporation, the state of incorporation;
(b)
The trade name sought to be registered;
(c)
The general nature of the business in fact conducted by
the applicant;
(d)
The length of time during which the trade name has been
used in this state;
(e)
The signature of the applicant; and
(f) A
filing fee of one hundred dollars.
(2)
Upon compliance by the applicant with the requirements
of sections 87-208 to 87-220, the
Secretary
of State shall return the duplicate copy stamped with the date of
filing to the
applicant or the representative submitting the applications for filing.
Source:Laws
1967, c. 628, § 3, p. 2100; Laws 1971, LB 486, § 3;
Laws 1975, LB 95, § 9; Laws 1982, LB 928, § 78; Laws
1997, LB 453, § 8; Laws
2005, LB 450, § 1.
87-211.
Trade name; registration; term effective; renewal; fee; statement.
Registration of a trade name
under sections 87-208 to 87-220 shall be
effective for a term of ten years from the date of registration
and, upon
application filed in duplicate within six months prior to the
expiration of
such term on a form to be furnished by the Secretary of State, the
registration
may be renewed for a like term. A renewal fee of one hundred dollars
payable to
the Secretary of State shall accompany the application for renewal of
the
registration.
A
trade name registration may be renewed for successive
periods of ten years in like manner.
The
Secretary of State shall notify registrants of trade
names under sections 87-208 to 87-220 of the
necessity
of renewal within the year next preceding the expiration of the ten
years from
the date of registration or of last renewal by writing to the
last-known street
address of the registrants.
Any
registration in force on August 27, 1971, shall expire
ten years from the date of the registration or of the last renewal
thereof,
whichever is later, and may be renewed by filing an application with
the
Secretary of State on a form furnished by him or her and paying the
renewal fee
as provided in this section within six months prior to the expiration
of the
registration.
All
applications for renewals under sections 87-208 to 87-220 whether
of
registrations made under sections 87-208 to 87-220 or of
registrations effected under any prior act shall include a statement
that the
trade name is still in use in this state.
Source:Laws
1967, c. 628, § 4, p. 2101; Laws 1971, LB 486, § 4;
Laws 1975, LB 95, § 10; Laws 1984, LB 1016, § 1; Laws
1997, LB 453, § 9.
Any
trade name registered under sections 87-208 to 87-220 shall be
assignable
with the goodwill of the business in which the trade name is used.
Assignment
shall be by an instrument in writing duly executed, in duplicate, and
may be
recorded with the Secretary of State upon the payment of a fee of five
dollars.
The street address, city, and state of the assignee must be included in
the
assignment. Upon recording of the assignment, the Secretary of State
shall
return the duplicate copy stamped with the date of filing to the
applicant or
the representative submitting the applications for filing. An
assignment of any
registration under sections 87-208 to 87-220 shall be
void as
against any subsequent purchaser for value without notice unless the
assignment
is recorded with the Secretary of State prior to the subsequent
purchase.
Source:Laws
1967, c. 628, § 5, p. 2101; Laws 1969, c. 856, § 3,
p.
3226; Laws 1997, LB 453, § 10.
The
Secretary of State shall keep for public examination a
record of all trade names registered or renewed under sections 87-208 to 87-220.
Source:Laws
1967, c. 628, § 6, p. 2102; Laws 1997, LB 453, § 11.
The
Secretary of State shall cancel from the register:
(1)
Any registration concerning which the Secretary of State
shall receive a voluntary request for cancellation from the registrant
or the
assignee of record;
(2)
Any registration granted under sections 87-208 to 87-220 and not
renewed
in accordance with such sections;
(3)
Any registration concerning which a court of competent
jurisdiction shall find:
(a)
That the registered trade name has been abandoned;
(b)
That the registrant is not the owner of the trade name;
(c)
That the registration was granted improperly; or
(d)
That the registration was obtained fraudulently;
(4)
Any registration that a court of competent jurisdiction
shall order canceled on any ground; and
(5)
Any registration where the registrant has failed to
publish such trade name within forty-five days from the filing in the
office of
the Secretary of State and filing proof of publication with the
Secretary of
State and county clerk within the forty-five
days.
Source:Laws
1967, c. 628, § 7, p. 2102; Laws 1997, LB 453, § 12;
Laws 2010, LB690, § 1.
Effective Date: July 15, 2010
Annotations
Where
one has acquired a common-law
right in a trade name by its use, the subsequent registration of the
trade name
by the Secretary of State upon the application of another is invalid
and
subject to cancellation. White v. Board of Regents of Univ. of Neb. at
Lincoln,
260 Neb. 26, 614 N.W.2d 330 (2000).
Any
person who, for himself or herself or on behalf of any
other person, procures the registration of any trade name in the office
of the
Secretary of State under the provisions of sections 87-208 to 87-220, by
knowingly
making any false or fraudulent representation or declaration, verbally
or in
writing, or by any other fraudulent means, shall be liable to pay all
damages
sustained in consequence of this filing or registration, to be
recovered by any
party injured in any court of competent jurisdiction.
Source:Laws
1967, c. 628, § 8, p. 2102; Laws 1997, LB 453, § 13.
Subject
to the provisions of section 87-218, any
person
shall be liable to a civil action by the registrant of the trade name
for any
or all of the remedies provided in section 87-217 if that
person
shall:
(1)
Use in connection with his or her business, without the
consent of the registrant, any reproduction, counterfeit, copy, or
colorable
imitation of a trade name registered under sections 87-208 to 87-220 in a
manner
likely to cause confusion, mistake, or deception of purchasers; or
(2)
Reproduce, counterfeit, copy, or colorably imitate any registered
trade name and apply the reproduction, counterfeit, copy, or colorable
imitation to labels, signs, prints, packages, wrappers, receptacles, or
advertisements intended to be in conjunction with another business in
this
state; except that the registrant shall not be entitled to recover
profits or
damages unless the acts were committed with knowledge that the
imitation was
intended to be used to cause confusion, mistake, or deception of
purchasers.
Source:Laws
1967, c. 628, § 9, p. 2103; Laws 1997, LB 453, § 14.
Any
registrant of a trade name may proceed by suit to enjoin
the use, display, or sale of any counterfeits or imitations thereof,
and a
court of competent jurisdiction may restrain this use, display, or sale
on
terms which the court deems just and reasonable and may require the
defendants
to pay to the registrant either all profits attributable to the
wrongful use,
display, or sale, or all damages caused by the wrongful use, display,
or sale,
or both such profits and damages and reasonable attorney's fees. The
court may
order that any counterfeits or imitations in the possession or under
the
control of any defendant be delivered to an officer of the court, or to
the
complainant, to be destroyed.
Source:Laws
1967, c. 628, § 10, p. 2103; Laws 1997, LB 453, § 15.
Sections
87-208 to 87-220 shall not
adversely affect rights in trade names, or the enforcement of rights in
trade
names, acquired at any time in good faith at common law.
Source:Laws
1967, c. 628, § 11, p. 2104; Laws 1997, LB 453, § 16.
Every
duplicate of the registration of a trade name shall be
published by the applicant once in a newspaper of general circulation
published
in the city or village where the business is to be located, or, if
there is no
newspaper in the city or village, in some newspaper of general
circulation in
the county. Proof of such publication shall be filed in the office of
the
Secretary of State and with the county clerk of the county wherein the
principal office is located, within forty-five days from the date of
registration in the office of the Secretary of State. If proof of
publication
is not filed with the Secretary of State and county clerk within the
forty-five
days, the registration shall be canceled by the Secretary of State.
Source:Laws 1967, c. 628, §
13, p. 2104; Laws 2010, LB690, § 2.
Effective Date: July 15,
2010
87-219.01.
Trade name; protest registration; procedure.
(1)
Within sixty days after the publication of a new
registered trade name as provided in section 87-219, a person
holding a valid registration of a trade name, corporate name, or
limited
liability company name may protest the registration of the new trade
name. The
protest shall be submitted in writing to the Secretary of State. The
Secretary
of State shall forward a copy of the written complaint to the new
registrant
who shall have thirty days to respond to the complaint in writing. If,
upon
review of the complaint and the response to the complaint, the
Secretary of
State finds that the new registered trade name violates any provision
of
section 87-209, the
Secretary
of State shall cancel such trade name. Unless the dispute over the
registration
of the new trade name is otherwise resolved or settled by the parties,
the
Secretary of State shall make his or her finding within fifteen days
after the
response by the new registrant.
(2)
The Secretary of State's decision may be appealed to the
district court of Lancaster County within thirty days after notice of
the
decision is received by the appealing party. The appeal shall be
commenced by
petitioning the district court to compel the Secretary of State to
cancel or
reinstate such trade name, and attached to the petition shall be copies
of the
original filing for the trade name, proof of publication, the
complaint, the
response to the complaint, if any, and the Secretary of State's
finding. The
district court may summarily order the Secretary of State to cancel or
reinstate such trade name or take any other action the district court
considers
appropriate. The district court's final decision may be appealed as in
other
civil proceedings.
Source:Laws
1997, LB 453, § 17.
Any
person, not excepted by section 87-210,
who shall
engage in or transact any business in this state under a trade name, as
defined
in sections 87-208
to 87-220,
without
registering such trade name shall be deemed guilty of a Class V
misdemeanor.
Each day any violation shall continue shall be deemed a separate and
distinct
offense.
Source:Laws 1969, c. 856, §
4, p. 3227; Laws 1977, LB 39, § 331;
Laws 1997, LB 453, § 18.