What is a Trade Name?

A trade name is the name the business uses for advertising and trade purpose.  In Ohio, a trade name is a name used in business or trade to designate the business of the user and to which the user asserts a right to exclusive use.  An example of a trade name is the use of the name “Sam’s Burger Joint” by a company whose official, registered name is Dahman Restaurants, LLC.  Trade names are names that are generally viewed by the public on signs, on websites, and on advertisements.  It is important to understand that a business’ trade name may be different from its registered name.

 What is a Fictitious Name?

A fictitious name is a name used in business or trade that that the user has not registered or is not entitled to register as a trade name.  If a business is using a trade name that is different from the registered name of its business, it needs to file a fictitious name statement (also known as a d/b/a/ statement, which stands for “doing business as”).  Users of fictitious names are required to file a fictitious name statement with the county because doing so allows the public to know who is actually running the company.  Fictitious name statements are typically registered with the Secretary of State.

So What’s the Difference between a Trade Name, a Trademark, and a Service Mark?

People often confuse trade names with trademarks and service marks.  Many small businesses assume that once they have chosen a business name and registered that name with their state of incorporation, they have unlimited rights to the name in connection with their business.  This is not the case – registering a trade name does not provide any trademark or service mark rights to the registrant at all.

A trademark is any word, name, symbol, or device, or any combination thereof, other than a trade name in its entirety, adopted and used by a business to identify their goods and distinguish them from similar goods made or sold by others.  Trademark rights include the right to use something to identify goods and services and to distinguish them from competitors’ goods and services.

A service mark is any word, name, symbol, or device, or any combination thereof, other than a trade name in its entirety, adopted and used by a person in the sale or advertising of services to identifytheir services and distinguish them from similar services of others.

Normally trademarks appear on products or on their packaging, while service marks appear on advertising for services.  A trade name, on the other hand, is simply the name under which a company does business, not a name for specific products or services.

A trade name can be used as a trademark, to identify its products or services, but only to the extent that it does not infringe upon existing trademarks.  Because trademark infringement is not always obvious, it is easy to get into trouble by using names that are sufficiently similar and likely to cause customer confusion. Having to change your businesses’ name or spend money to correct advertising, or even worse, having to pay for the lost profits of the holder of the registered trademark and just some of the problems that can arise with confusing trade names and trademarks.  If you want to use your trade name to represent your products or businesses, be sure to consult with an attorney, such as Dahman Law, who can help you avoid these problems.

When many people think about S Corps and LLCs, they think that the two are different types of entity structures.  In reality though, “S Corp” is a taxation election, not a separate business entity.  As an S Corp, income, losses, deductions and credit pass through to their shareholders for federal tax purposes.  Typically, LLCs are taxed as partnership flow-through entities, but they can elect to be taxed as an S-Corp under certain circumstances.

What is S Corp Tax Status?

To qualify for S Corp status, the corporation or LLC must meet the following requirements:

• Be a domestic corporation or LLC
• Have only allowable shareholders or members
  • including individuals, certain trust, and estates and
  • may not include partnerships, C-corporations or non-resident alien shareholders
• Have no more than 100 shareholders
• Have one class of stock
• Not be an ineligible corporation i.e. certain financial institutions, insurance companies, and domestic international sales corporations.

How are LLCs Taxed?

The federal government does not recognize an LLC as a classification for federal tax purposes. Thus, an LLC business entity must file either a corporation, partnership, or sole proprietorship tax return.  An LLC that is not automatically classified as a corporation can file Form 8832 to elect their business entity classification.  An LLC with at least 2 members can choose to be classified as an association taxable as a corporation or a partnership, and an LLC with a single member can choose to be classified as either an association taxable as a corporation or disregarded as an entity separate from its owner, a “disregarded entity.”

Some Differences Between S Corp Election and LLC Partnership Taxation

Personal Liability:  Shareholders in a corporation taxed as an S Corp and members in an LLC (taxed as either an S Corp or a flow-through partnership) are typically not held personally responsible for business debts and liabilities.

Taxation:  For both an S Corp and an LLC, there is no tax at the entity level.  Rather, the income in both the S Corp and LLC are passed through to the shareholders or members.  Thus, neither an LLC nor an S Corp are subject to double taxation.

Self-Employment Tax:  In both an S Corp and an LLC, salary is subject to self-employment taxes.  In an S Corp, however, shareholder distributions are not subject to employment tax.

Transferability of Interest:  In an S Corp, interest is transferable if done in compliance with IRS regulations concerning who can own stock.  With LLCs, interest may be transferrable, but if and how such transfers are made depends upon the restrictions outlined in the operating agreement.

One of the major reasons companies choose to form a legal entity (such as an LLC or corporation) is to limit personal liability of the shareholders or members.  Simply put, the personal assets of the company’s owner(s) – including their homes, cars, savings, and personal property – are not at risk for actions taken by the company when the company is a limited liability legal entity.  This limited liability is typically referred to as the “corporate veil” because the owners of the company are protected behind it.  It is very important, though, for business owners to understand that there are situations where the corporate veil can be “pierced” to reach the personal assets of the business owners.

The Corporate Veil in Ohio and Michigan

In Ohio, the corporate veil may be pierced (and the owners can be held personally liable) if the following three things are all true:

1. control over the corporation by those to be held liable is so complete that the corporation has no separate mind, will, or existence of its own
2. control of the entity is used to commit fraud or wrong or other dishonest or unjust act; and
3. injury or unjust loss resulted to the plaintiff from such control and wrong.[1]

In Michigan, the following three things must be proven to pierce the corporate veil:

1. the corporate entity must be a mere instrumentality of another entity or individual,
2. the corporate entity must be used to commit a fraud or wrong
3. there must have been an unjust loss or injury to the plaintiff. [2]

How to Avoid Piercing the Corporate Veil

Taking these tests into consideration, here are some steps to take to avoid personal liability arising from your limited liability business:

• open up a separate business banking account
• obtain a federal tax ID number for your business
• maintain corporate formalities
• have an operating agreement drafted for your business
• either have enough money in your bank account to cover expected liabilities for the business or take out an insurance policy to cover expected liabilities for the business
• keep formal meeting minutes for your company
• maintain corporate records
• hold at least one meeting per year, even if you are a single member LLC (Dahman Law can serve as the meeting secretary and assist in keeping your corporate records)
• do not use include personal expenses in those of the business
• do not comingle personal assets with those of the business
• do not commit fraud

An Operating Agreement is an agreement among the members of a limited liability company (an “LLC”) which governs how the LLC will operate.  It also contains general procedures as well as member’s financial and managerial rights and duties.

In Ohio, LLCs are governed by the default rules set forth Ohio Revised Code Chapter 1705.  In Michigan, the applicable rules are found in MCL 450.4101 et seq.  Operating Agreements help you guard your limited liability status, head off financial and management disputes, and ensure that your business is governed by your own rules rather than your state’s default rules.  Thus, it is strongly recommended that your LLC have one.  Here are a few of their main benefits:

1. Operating Agreements protect your LLC’s limited liability status.  In single member LLCs, an operating agreement is a declaration of the structure that the member has chosen for the company and sometimes used to prove (in court or with the IRS) that the LLC structure is separate from that of the individual owner.  An Operating Agreement is necessary documentation that the owner is separate from the entity itself.  In fact, many states, including Michigan, have laws saying that an operating agreement for a single-member LLC is not invalid simply because only one individual signed the document.
2. Operating Agreements define the LLC’s financial and management structure.  It is essential for multi-member LLCs to document their profit-sharing and decision-making protocols as well as their procedures for handling the additions of and departure of members.  Without an Operating Agreement, even the smallest financial and managerial disputes can cripple your LLC.
3. Operating Agreements override default rules imposed by a state’s LLC Act.  In order to do so, an Operating Agreement generally addresses the following things:  the initial members of the LLC; the members’ percentage interests in the business; the allocation of profits and losses among members; the capital contributions of members; the members’ voting power; and rules for holding meetings and taking votes; and “buy-sell” provisions, which set out rules for what to do when a member wants to sell his or her interest, dies, or becomes disabled.

This internal agreement, which is agreed upon by the company members, contains provisions for critical rules and provisions relating to how the company is run.  So if you live in Ohio or Michigan and have an LLC, it would be foolish not to protect yourself and your business with an Operating Agreement.

A common first question for small owners is whether to incorporate as an LLC or a corporation.  While the two entities are similar in many ways, they also have several differences.  LLCs, as opposed to corporations, combine the personal liability protection of a corporation with the tax benefits and simplicity of a partnership.  Also, corporations can elect to be taxed as an S corporation.  S corporation status provides many of the benefits of partnership taxation, but there are certain restrictions.  There are benefits to both entity structures, but personal liability protection is basically the same for both, so your decision to form a corporation or an LLC should not hinge on the asset protection issue.  Consequently, which entity is best for you will depend on your businesses’ individual needs and circumstance.

Advantages of a Corporation

Here are four principal advantages to forming a corporation rather than an LLC:

Corporation profits are not subject to self-employment taxes.  Salaries and profits of an LLC are subject to Medicare, Social Security, and certain other taxes.  In the case of a corporation, though, only salaries (not profits) are subject to such taxes.

Corporations are able to offer a greater variety of fringe benefits.  In fact, various retirement, stock option and employee stock purchase plans are available only for corporations.

Judicial treatment of corporations is more predictable.  Unlike corporations that have been around for a long time, LLCs are a relatively new legal creature and still being tested by courts.  Furthermore, some states place restrictions on the type of business conducted by an LLC.  For Ohio LLC restrictions and rules, see the Ohio Revised Code, Chapter 1705.

Transfer of ownership is easy for corporation.  Corporation stock is freely transferable, as long as IRS ownership restrictions are met.  LLC membership interest (ownership) typically is not freely transferable – approval from other members is often required.

Advantages of an LLC

Here are four main advantages to forming an LLC rather than a corporation:

There are fewer corporate formalities with LLCs.  Corporations have a relatively detailed list of things that need to be done in order to insure the courts will “respect” the corporate structure and liability shield.  For example, corporations must hold regular meetings of the board of directors and shareholders and they must keep written corporate minutes.  Conversely, members and managers of an LLC are not required to hold such meetings.

LLCs have no ownership restrictions.  S corporations, for example, cannot have more than 100 stockholders.  Also, each stockholder in an S corporation must be a U.S. resident or citizen. S corporations cannot be owned by C corporations, other S corporations, LLCs, partnerships or many trusts.  These restrictions do not apply to LLCs (or C corporations).  And LLCs are allowed to have subsidiaries without restriction.

LLCs have greater tax flexibility.  LLCs are treated as a “pass-through” entity for tax purposes.  In fact, LLCs can elect to be taxed as either a C corporation or an S corporation.

LLCs have the ability to deduct certain losses.  Members who are active participants in an LLC’s business can deduct operating losses against their regular income to the extent permitted by law.  But taxes issues are usually not a legal question.  They are an accounting question, so please consult your tax planner also.

There are many reasons business owners choose to form a legal entity – whether a limited liability company, corporation, S-corporation or otherwise.  The most important reason is that forming a legal entity reduces personal liability.  Forming a legal entity also adds credibility and permits the business to grow.  Plus, a legal entity permits the business to build its own credit.  And ownership in the entity can be more easily transferred.

Limit Personal Liability.  First, and foremost, forming a legal entity shields the owner(s) from personal liability for debts of the business and lawsuits against the company.  So the existence of a legal entity protects the your personal assets such as your home, car, possessions, and savings.  It does not, however, shield you against personal torts (injuries) that the owner commits on behalf of the entity.  This limited liability is often referred to as the “corporate veil” because the owners of the company are protected behind it.  It is very important, though, for business owners to understand that there are some limited situations where the corporate veil can be pierced to reach the personal assets of the business owners, such as where the owner co-mingles assets or does not abide by corporate formalities.

Grow Your Business, Now and Later.  Second, forming a legal entity adds credibility to the business.  Forming a legal entity communicates not only credibility but also permanence and prestige.  The credibility that comes with forming a legal entity can also help your new business with potential customers, employees, vendors and partners.  At the same time, it informs those same people that they are dealing with an entity and not you personally.

Build Buiness Credit.  Third, because a legal entity – whether corporation or an LLC – is a separate entity, you are able to establish both a new and separate credit profile completely distinct from your own personal credit profile.  Being able to establish business credit is especially advantageous for those who may have poor personal credit because it enables you to build a clear credit profile for the business.  As a result, you may be able to receive loans, credit cards and credit lines that you might not be able to obtain as an individual, and eventually at better interest rates.

Transfer of Ownership.  Corporation ownership can be easily transferable (with some restrictions on S corporations).  Capital can be raised more easily through the sale of stock.  Another advantage is that many banks prefer handling loans with incorporated borrowers.  And while you can’t live forever—your corporation can.  Even if an owner dies or sells interest, the corporation still exists.