Colorado § 7-71-101 - Statement of trade name required.

§ 7-71-101. Statement of trade name required.

Except as otherwise provided in section 7-71-107, a person shall not transact business in this state under a name other than the true name of the person or, in the case of a general partnership that is not a limited liability partnership, under a name other than the true name of each general partner of the general partnership, except in compliance with this article and not unless an effective statement of trade name is on file in the records of the secretary of state.

Source: L. 2004: Entire article R&RE, p. 1538, § 1, effective May 30, 2006.

Editor's note: This section is similar to former § 7-71-101 (1) as it existed in prior to 2006.

ANNOTATION

I. General Consideration.

II. Trade Names.

III. Assumed Names.

I. GENERAL CONSIDERATION.

Law reviews. For article, "The New Colorado Trade-Mark Law — Its Practical Effect", see 28 Dicta 183 (1951). For article, "One Year Review of Corporations, Partnership, and Agency", see 36 Dicta 27 (1959). For article, "Signatures on Documents Affecting Title to Colorado Real Property — Part I", see 12 Colo. Law. 61 (1983). For article, "Trade Name Registration Requirements and Customs in Colorado — Parts I and II", see 16 Colo. Law. 238 and 454 (1987). For article, "Entity and Trade Name Registration: 2004 Update", see 34 Colo. Law. 11 (Jan. 2005). For article, "Entity and Trade Name Filing Requirements and Customs in Colorado — Part I", see 41 Colo. Law. 57 (Nov. 2012). For article, "Entity and Trade Name Filing Requirements and Customs in Colorado — Part II", see 41 Colo. Law. 25 (Dec. 2012).

Annotator's note. Since § 7-71-101 is similar to § 7-71-101 as it existed prior to the 2006 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.

The purpose of this section is to afford the public the means of ascertaining the individual names of persons doing business under a common name where such names could not be found in the common name itself. Smith v. Stubbs, 16 Colo. App. 130, 63 P. 955 (1901).

Registration of a certificate of assumed or trade name pursuant to this section is intended only to afford the public a means of ascertaining the identities of persons or entities doing business under an assumed name and adds nothing to the common law relating to trademarks or unfair competition. MacPhail v. Stevens, 41 Colo. App. 99, 586 P.2d 1339 (1978).

However, this section makes no requirement of recordation; it is enough if the instrument is filed and thereafter kept in the office of the county clerk and recorder. Wallace Plumbing Co. v. Dillon, 71 Colo. 224, 205 P. 950 (1922).

Applied in Rosebud Corp. v. Boggio, 39 Colo. App. 84, 561 P.2d 367 (1977); Masinton v. Dean, 659 P.2d 50 (Colo. App. 1982); Beneficial Fin. Co. v. Bach, 665 P.2d 1034 (Colo. App. 1983).

II. TRADE NAMES.

A partnership using a company name must file with the county clerk and recorder an affidavit setting forth the names and addresses of its members. Fisher v. Colorado Cent. Power Co., 94 Colo. 218, 29 P.2d 641 (1934).

But not when surnames used. This section does not apply to a partnership of two members doing business under a name composed of the surnames of the partners. Smith v. Stubbs, 16 Colo. App. 130, 63 P. 955 (1901).

Nor in case of nonresident partnership. A nonresident partnership having its principal place of business outside of the state from which it transacts business through salesmen coming into the state is not "doing business in this state" within the meaning of that phrase as used in this section, and consequently, it has no application to such partnerships. Doll v. Rodgers, 98 Colo. 36, 52 P.2d 1147 (1935).

An affidavit is insufficient under this section where it does not contain the full name or the address of the person represented by the company. Wallace Plumbing Co. v. Dillon, 71 Colo. 224, 205 P. 950 (1922).

Failure to comply with the provisions of this section is a matter of abatement to be pleaded in the answer, and if not pleaded, one cannot raise the objection upon the trial of the case. Smith v. Stubbs, 16 Colo. App. 130, 63 P. 955 (1901); Rocky Mt. Seed Co. v. McArthur, 85 Colo. 1, 272 P. 1117 (1928).

Defense of plaintiff's failure to comply with this statute must be affirmatively pleaded, and where the defendants failed to so plead they are estopped from raising the objection at a later time. Zambruk v. Perlmutter 3rd Generation Bldrs., Inc., 32 Colo. App. 276, 510 P.2d 472 (1973).

But an allegation in an answer that plaintiff has failed to file an affidavit as required by this section and should not bring the action is a good defense, and a motion to strike it out may be properly denied. Elgin Jewelry Co. v. Wilson, 42 Colo. 270, 93 P. 1107 (1908).

Moreover, dismissal proper where variance between affidavit and caption in complaint. In an action by a party doing business under the trade name, a dismissal is proper where a variance is shown between the statutory affidavit on record and the caption in the complaint. Michard v. Myron Stratton Home, 144 Colo. 251, 355 P.2d 1078 (1960).

However, upon correction of the caption, or the filing of a new trade name affidavit to conform to the complaint, the action may be reinstated. Michard v. Myron Stratton Home, 144 Colo. 251, 355 P.2d 1078 (1960).

And only issue at new trial is compliance with this section. Where a cause of action is reversed on the ground that the plaintiff, an individual doing business under a trade name, has failed to file the affidavit required by this section, the only issue on a new trial is that of compliance with the statute. Wallace Plumbing Co. v. Dillon, 71 Colo. 224, 205 P. 950 (1922).

For it is not necessary that there be a new trial as to any issue except the one as to the filing of a proper trade name affidavit, since plaintiff's failure to file the proper affidavit is merely a matter in abatement. Admiral Corp. v. Trio Television Sales & Serv. Corp., 138 Colo. 157, 330 P.2d 1106 (1958); Michard v. Myron Stratton Home, 144 Colo. 251, 355 P.2d 1078 (1960); Campbell v. Graham, 144 Colo. 532, 357 P.2d 366 (1960).

And the affidavit may be filed at any time prior to the new trial. Wallace Plumbing Co. v. Dillon, 71 Colo. 224, 205 P. 950 (1922).

III. ASSUMED NAMES.

Foreign corporation not excluded from transacting business under assumed name. The phrase, "any corporation existing under the laws of this state", in this section is not intended to exclude foreign corporations from the right to transact all or a part of its business under an assumed name. Admiral Corp. v. Trio Television Sales & Serv., Inc., 138 Colo. 157, 330 P.2d 1106 (1958).

Hence, a foreign corporation can resort to court action to enforce its rights if it carries on its business in any name other than that adopted in the state where it is incorporated. Admiral Corp. v. Trio Television Sales & Serv., Inc., 138 Colo. 157, 330 P.2d 1106 (1958).

And where a foreign corporation doing business in Colorado under an assumed name fails to comply with this section requiring the filing of a certificate with respect to such assumed name, such failure serves only to abate an action during the time the required certificate remains unrecorded. Admiral Corp. v. Trio Television Sales & Serv., Inc., 138 Colo. 157, 330 P.2d 1106 (1958).