COMMENT

Source: Model Act, § 15.06. This replaces provisions formerly contained in § 14-2-312.

The purpose of Section 14-2-1506, like that of Section 14-2-401 relating to the name of a domestic corporation, is to ensure that names are distinguishable from one another upon the records of the Secretary of State. Like Section 14-2-401, it does not impose upon the Secretary of State the responsibility of deciding issues of unfair competition or commercial similarity of names.

A foreign corporation applying for a certificate of authority must apply under its true corporate name if that name qualifies under subsections (a) or (c). If the true corporate name qualifies except that it does not contain one of the words of corporateness set forth in Section 14-2-1506(a), the corporation may simply add one of those words to its true corporate name and apply under that name as modified. Subsection (a)(1). If the true corporate name is unavailable because it is indistinguishable upon the records of the Secretary of State from a name already in use or reserved, the corporation may use a fictitious name (if available) under subsection (a)(2) simply by delivering to the Secretary of State for filing, together with its application for a certificate of authority, a certified copy of a resolution of its board of directors authorizing the use of the fictitious name in the state. Finally, the otherwise unavailable name of a foreign corporation may be augmented by the name of the state of its incorporation so as to make it distinguishable upon the records of the Secretary of State. For example, a Delaware corporation, "Utopian Products, Inc." which finds that a domestic corporation is using that name, may qualify under the name "Utopian Products, Inc. (Delaware)," under subsection (a)(1).

Subsection (b) parallels Section 14-2-401(b), in describing the names in the records of the Secretary of State from which a foreign corporation's name must be distinguishable. Subsection (b)(5) is a Georgia addition to the Model Act, reflecting the addition of records concerning limited partnerships and professional associations to the files of the Secretary of State.

Subsection (c) follows the pattern of Section14-2-401(c), and varies from the Model Act approach. The purpose is to make certain that only one corporation is listed under a single name at any one time. Thus, in a sale of a business where the buyer wishes to use the seller's name, the seller must also file articles of amendment to its articles of incorporation changing its name to one distinguishable upon the records of the Secretary of State from the name which the buyer wishes to use. See the Comment to Section14-2-401(d). This preserves the approach of former § 14-2-312(c).

Subsection (d) permits a foreign corporation that is the surviving corporation in a merger to use the other corporation's name (subsection (d)(1)), and provides similar treatment for corporations formed by reorganization (subsection (d)(2)). Subsection (d)(3) departs from the Model Act, which permits a foreign corporation to use the name of a domestic or other foreign corporation when it has purchased its assets, including the corporate name. The Code only permits such use when the other corporation has changed its name on the records of the Secretary of State. This prevents two corporations from having the same name registered with the Secretary of State.

Note to 2006 Amendment Subsection (b)(2) of Code Section 14-2-1506 was amended for purposes of deleting references to "or registered" and "or 14-2-403." Code Section 14-2-403, which was repealed in 2002, provided a means by which a foreign corporation, not qualified to transact business in Georgia, could preserve the right to use its unique real name if it subsequently elected to qualify in Georgia.

Cross-References Amended certificate of authority, see § 14-2-1504. Corporate names generally, see Article 4. "Deliver" includes mail, see § 14-2-140. Effective time and date of filing, see § 14-2-123. Filing fees, see § 14-2-122. Filing requirements, see § 14-2-123. Registered name, see § 14-2-403. Reserved name, see § 14-2-402.

RESEARCH REFERENCES