The Honorable W.J. "Bill" McCuen Secretary of State State Capitol Little Rock, Arkansas 72201
Dear Mr. McCuen:
This is in response to your request for an opinion regarding fictitious name filings under Ark. Stat. Ann. 64-111 (Repl. 1980).
You have asked, specifically, whether your office should permit a corporation to file a fictitious name when the name is identical or confusingly similar to the corporate name. You make reference in this regard to a potential conflict between 64-111(f) and 64-111(b).
The answer to this question is no. Section 64-111(b) is clear in providing that ". . . the Secretary of State shall not accept such filing if the proposed fictitious name is the same as, or confusingly similar to, the name of any domestic corporation, or any foreign corporation admitted to this State . . ." It is my opinion that the Secretary of State would be acting within his authority in refusing to accept a filing for a fictitious name such as "XYZ" when "XYZ, Inc." is the name of a domestic or foreign corporation existing under State law. It seems clear, moreover, that 64-111(j), viewed in conjunction with 64-111(b), effectively precludes "XYZ, Inc." from using the name "XYZ." "XYZ, Inc." may find itself subject to the $300.00 civil penalty imposed by 64-111(j) in its attempt to enforce rights accruing under the name "XYZ," and the Secretary of State is precluded under 64-111(b) from accepting the "XYZ" fictitious name filing under these circumstances.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.