Submission Date:
Question:
[NOTE: Since they authorized a public reply, we're keeping the name of the member organization submitting the question in this RAQ. Usually, we genericize, but in this case, we trust you see why we kept the member's name in the question.]
QUESTION
Our organization has voted to change its name in an effort to re-brand to a more contemporary audience. Our original charter, granted in 1909, will not change, nor our legal name (Ticonderoga Historical Society).
What steps do we need to take to register our new name? Is this what is called a "DBA" and are there other steps we must take?
Answer:
I am continually fascinated by the evolution and impact of names.
For instance, when I read the name of the member submitting the question, I immediately thought:
- Fort
- Pencil
- Mountains
- Not "Canestoga"
Given that the Ticonderoga Historical Society has a fairly recognizable name[1], it is interesting to see what their "next act", name-wise, will be.
To answer their question about re-branding without legally changing a name, we'll take it in order of recommended operations:
Step 1: Name Inventory
Before deciding to change a name--or officially adopt a nickname to operate under--an organization should take stock of all the areas where its name is "official." [2]
While this "inventory" will be different for each organization, there are some standard places this will appear:
Charter (or certificate of incorporation)
Bylaws
Policies
501(c)(3) registration
New York Charities Bureau Registration
Department of Education Annual Reports
Annual Reports to your community/membership
Real property documents (deeds, mortgages, leases)
Intellectual property documents (trademarks, copyrights, trade secrets, social media accounts)
Restricted assets (trusts, endowment, etc.)
Bank accounts (Important! --ask the bank/s what they need if you effect a name change, and what they need if checks are written to an assumed name)
Official posted signage
Branded physical items (stationary, business cards, membership cards, etc.)
Cultural guides published by 3rd parties (hard copy and online)
Charitable giving documents (such as being listed in a will)
Cooperation agreements
Contracts
Grant documents (which are often contracts, but in their own special category)
This should be a rolling list that is updated as needed as people come up with more and more places that feature the corporate name.
Why is this? When your re-brand is complete, all of these will need to be updated. Some of them, however, will require not only updating, but are also of legal consequence.
Step 2: Critical Review
Once the "name inventory" is done (although as I say, it will be updated...probably over the next few years, as instances of the "old" name come out of the woodwork), it is time for a critical review.
The "critical review" is based on just a few questions:
1. What is the current name?
2. What is the future name?
3. What is/are the reason/s for the new name?
4. Based on the "inventory", does the new name, and the organization's reason for adopting it, require a legal change, or can it operate "D/B/A"?
This is the stage the member is at. What does the review--ideally conducted with an attorney, but also a good task for a thoughtful group used to non-profit strategic planning--look like?
Current name: Ticonderoga Historical Society
Future name: We don't know the new name, but let's say it's "Ticonderoga H2.0"[3]
Reason for new name: In this case, the Society has decided they would like a new name to help them reach out to a more contemporary audience.
Legal change or "DBA”? This is the part you want the lawyer or experienced group for. It will be important to make sure the new name is available, to make sure it isn't prohibited by law, that the change isn't prohibited or complicated by considerations in the inventory, and that it won't cause trouble in accessing library assets. This final assessment should be in writing, since it will be used to inform the remaining steps.
Step 3: No matter what, check in with the Education Department
Once a library, museum or historical society decides to re-brand--whether with an actual name change, or as the member describes, using an assumed name (or "DBA”) --it is best to check in with the "Mother Ship" of each and every education corporation in New York: State Ed.
One of the great pleasures of my work with members of the 3R councils is that from time to time I get to check with the folks at the Archives, Library Development, and the State Museum--and their legal department--on issues like the one described by the member.
While, in my experience, the different reps at Ed will not tell an entity what to do (because that is not their job), they are very willing to provide options and cautions to help inform board decisions about assumed names, name changes, and charter revisions.
This includes pointing you to the right forms and giving a timeline for the process.
So call, and be ready to get information, not instructions, to plan the next steps for the re-brand.
Step 4: Make plan, THEN make a decision
Based on the above steps, an organization can develop a plan for a re-brand--whether it's going to be a full name change, or an assumed name/"DBA".
Once the plan is in hand (although it will surely continue to evolve throughout the process), a board can vote on what to do.
But wait, isn't that backwards? Shouldn't a board make a decision, and then approve the plan?
No.
While there is not one right way to do this, I have found that developing the plan is the best way to reach a decision on a re-brand. It makes sure things that can cause frustrating expenses and roadblocks (like a selected name being denied, a legal issue blocking approval, or a new name being a trademark violation), are instead assessed as factors in decision-making.
Step 5: Get it Done
Once the plan is finalized and the decision is made, there are three paths:
Path 1. Stick with the old name.
Sometimes, a museum or historical society will do a thorough review (steps 1-4) and find out they really don't want to change, after all.
That's fine. Sometimes doing nothing is actually the result of informed decision-making.
Path 2. Move ahead with a legal name change.
Very often, step 1 ("name inventory") will reveal factors that warrant not just a new brand, but an actual, official name change...which will require official amendment of your certificate of incorporation or charter.
What factors could that be? It could be anything, but examples are:
- The old name is out-of-step with the mission;
- The entity is buying new property and wants everything in the new name going forward;
- After review, the board found it would actually be simpler to spend 1 year changing everything, rather than worry about being "DBA".
In this "name change" option, the organization passes the proper resolution and files with State Ed to amend its founding documents, lines up the process to immediately update critical documents the minute the change is official, and makes sure someone is responsible for getting it all done.
The checklist for this includes (but is not limited to):
- Bylaws revision
- NY Charities registration update (if currently registered)
- 501(c)(3) update
- EIN update
- Bank account update
- Real property documents and records update
- Tax-exempt registration update
- Sales tax registration update
- Change of owner in all social media accounts
...et cetera.
NOTE: Many of the items on an institution's "update immediately!" list will be taken from the "name inventory", which is why it is so handy to start that inventory early.
CAUTION: The above steps for re-naming are NOT the steps if your organization has "re-chartered" and dissolved the former entity! Re-chartering means you have ended the old organization and created a NEW entity; when this is done, assets must be moved to the new entity, not just tagged with a new name (think of a name change as putting a new label on a box, but re-chartering requires moving things from one box to another).
Path 3. Stick with the old name officially, but register an assumed name to operate under.
This is handy when an organization has many assets, has restricted funds in the old name, and doesn't want to run the risk that could be caused by an official name change (like donor confusion), but knows it needs a new identity to remain relevant.
In this case, there are some filings that need to be performed, but the process is not as extensive as an official name change.
While the considerations on the "name inventory" will still be critical, the legal steps for an education corporation filing to use an assumed name are:
a. Contact State Ed to let them know you are sending in the form for an assumed name; the forms for that are here.[4]
b. Once State Ed grants permission, assess if you must also file with the NY Department of State (I'd err on the side of caution and assume this is a must); the forms for that are here.[5]
c. Review any critical considerations on the Name Inventory (like what your bank needs to accept payment in the assumed name) to make sure they can be timely addressed.
...and that's it. With an assumed name, the "official" (old) name on all tax numbers, registrations, real property deeds, etc., will be unchanged. Some filings, going forward, will have places to note assumed names, and you'll want to properly list them, but the change is much simpler.
I can't wait to see the re-brand!
[1] As I wrote this comment about the recognizability of the name, I realized that I am likely NOT part of the "contemporary audience" the re-brand is supposed to attract! Ah, age...at least it comes with wisdom.
[2] An organization that has already decided to change its name has likely already done this
[3] I have tested this name with my kids, 17 and 8, and it's a hit.
[4] As of June 22, 2022, the form is posted at: http://www.counsel.nysed.gov/common/counsel/files/certassumname1.pdf
[5] As of June 22, 2022, the form is posted at: https://dos.ny.gov/system/files/documents/2019/01/1338-f_0.pdf
