R.C. 1329.01 Interpretation
Ohio, an agent may also be liable to a third party when he contracts in the name of a nonexistent or fictitious principal or assumes to act as an agent for a principal who has no legal status or existence. Plain Dealer Publishing Co. v. Worrell, 178 Ohio App.3d 485, 2008 Ohio 4846, P 13, 898 N.E.2d 1009, citing to James G. Smith & Assoc., supra, at 121.
Nevertheless, "a corporation may use a name other than its corporate name in the conduct of its business." Plain Dealer Publishing Co., supra, at P 16, citing to Baldwin's Ohio Practice Business Organizations, Section 17:9.
For example, "an action may be commenced or maintained against the user of a fictitious name whether or not the name has been reported," but a person doing business under an unreported fictitious name cannot bring an action against a third party in that name. Id.
Thus, a distinction has been found between a fictitious name and a fictitious or nonexistent principal. Id. at P 15.
Under R.C. 1329.01, a fictitious name is defined as "a name used in business or trade that is fictitious and that the user has not registered or is not entitled to register as a trade name." R.C. 1329.01(A)(2); Plain Dealer Publishing Co., supra, P 14.
Further, "any person may register with the secretary of state, on a form prescribed by the secretary of state, any trade name under which the person is operating." R.C. 1329.01(B).
If an entity does not register a trade name with the secretary of state, then the name is, by default, a fictitious name. See R.C. 1329.01(D).
An agent who acts on behalf of an entity merely using a fictitious name, does not act as an agent of a non-existent or fictitious principal. See Plain Dealer Publishing Co., supra, at P 17.