Getting a name past the Secretary of State is not the same as owning it

By David J.S. Madgett

Minnesota attorney, license no. 390494 · Published August 7, 2026

There are two entirely separate questions about a business name, and the fact that the first one is easy misleads people about the second.

1. Will the Secretary of State accept it? A clerical availability question.
2. Can you actually use it without being sued? A trademark question the Secretary of State does not ask, does not answer, and takes no position on.

Passing the first tells you nothing about the second.

What the state requires

For an LLC, Minn. Stat. § 322C.0108 requires the name to “contain the words ‘limited liability company,’ or must contain the abbreviation ‘LLC’” — with an exception for professional firms under chapter 319B.

Then the availability standard. The name must be:

distinguishable upon the records in the Office of the Secretary of State from the name of each domestic limited liability company, limited liability partnership, corporation, and limited partnership

and from foreign entities of those types authorized to do business here.

“Distinguishable upon the records” is a records-comparison test. It is not “confusingly similar,” which is the trademark standard. Two names can be plainly confusing to an ordinary customer and still be distinguishable enough for the Secretary of State to register both.

Three ways past a conflict

If your name is not distinguishable from one already on file, § 322C.0108 gives three routes:

1. Written consent from the holder of the conflicting name.
2. A certified court decree establishing your prior right to use the name.
3. An affidavit showing the conflicting entity has been inactive for three or more years, plus evidence of unsuccessful attempts to contact it and that it is not currently operating.

That third route is genuinely useful and underused. If the name you want is held by a company that dissolved years ago and cannot be reached, there is a documented path — not just a dead end.

Note also that the Secretary of State has discretion in deciding whether names are distinguishable. It is a judgment, not a mechanical string comparison, which means a name that “looks available” in the search may still be rejected.

What the state is not telling you

The Secretary of State does not check:

• Federal trademarks. Someone can hold a registered mark covering your exact name and your exact industry. Registering your entity name in Minnesota does not give you a defense.
• Common-law trademark rights. In the United States, rights arise from use, not just registration. A business that has been using the name in your market without registering anything may still have superior rights.
• Domain names and social handles. Obviously separate, and usually the first practical constraint anyone hits.
• Whether the name is a good idea. Names that merely describe what you do are hard to protect and easy for competitors to approximate.

The order to do this in

1. Search the Secretary of State’s business database for anything close.
2. Search the USPTO’s federal trademark database for your name in your goods or services class. This is free and takes ten minutes.
3. Search the ordinary web for anyone using the name in your line of work anywhere in the country.
4. Check the domain and the social handles before you fall in love with it.
5. Then reserve or file.

Doing this in the reverse order — file first, discover the trademark conflict after you have paid for signage, vehicle wraps, and a website — is a common and entirely avoidable expense.

Reserving a name

If you have settled on a name but are not ready to file, a name reservation costs $35 by mail or $55 online or in person, and cancelling it is free. It holds the name while you get organized.

Where a conflict exists and the other party is willing, a consent to use of name filing runs $35 by mail or $55 in person, and must be submitted along with the original filing or amendment it relates to.

Trading under a different name

If you will operate under a name other than the one on your filed articles, that is an assumed name, and it carries its own requirements — including the newspaper publication step under Minn. Stat. § 333.01 that so many businesses skip. See the assumed name step almost everyone skips.

State trademark registration

Minnesota does register trademarks and service marks: $50 by mail or $70 online, renewing for ten years at $25 or $45 in the six months before expiry. It is inexpensive and provides state-level rights. It is not a substitute for federal registration if you operate or sell across state lines — but for a genuinely local business, it is a cheap and sensible step that almost nobody takes.