In re United States Mercantile Reporting & Collecting Ass'n

Majority

p. 494

In the Matter of the Application of the United States Mercantile Reporting and Collecting Association (Limited) for Leave to Change Its Name.

(Supreme Court, General Term, First Detriment,

Filed March 29, 1889.)

Headnote

Corporations—Charge oe name—When application denied—Laws 1870, chap. 822, § 8.

It is only where the court is satisfied that there is no reasonable objection to a proposed change in a corporate name that it is empowered to' make an order authorizing the alteration; and where there is a strongly-indicated intent to imitate the name of an existing corporation as closely as might be without actually appropriating it, the application will be denied.

p. 495

Appeal by the United States Mercantile Reporting Company from a special term order authorizing the United States Mercantile Reporting and Collecting Association (limited) to assume the name of the United States Commercial Agency and Collecting Company (limited).

William F. MacRae, for app’lt; Benedict S. Wise, for resp’t.

—In 1875 the appellant was incorporated under the laws of this state as the United States Mercantile Reporting Company. In 1887 the respondent was incorporated under the laws of this state as the United States Mercantile Reporting and Collecting Association (limited). Both corporations appear to have carried on substantially the same business, which was that of ascertaining the financial standing of mercantile men throughout the United States and issuing reports with reference thereto to their customers for compensation. Soon after the incorporation of the respondent, the appellant brought an action against it in the superior court of the city of New York to enjoin the respondent herein from using its name of the United States Mercantile Reporting and Collecting Association (limited), on the ground that the use of such corporate name was an infringement and a wrongful imitation of the name of the United States Mercantile Reporting Company.

In this suit the United States Mercantile Reporting Company was successful; and a judgment was entered from which no appeal has ever been taken, enjoining the defendant in that suit—the petitioner and respondent here—from calling itself the United States Mercantile Reporting and Collecting Association,. Limited.

Subsequently, the corporation thus enjoined applied to this court at special term for an order authorizing it to assume another corporate name, to wit: The United States Mercantile Agency and Collecting Company, Limited. This application was denied by Mr. Justice Barrett, on the ground that it would not be just to the United States Mercantile Reporting Company to permit the petitioner to call itself The United States Mercantile Agency and Collecting-Company. He intimated, however, that if it had proposed to change its name to the United States Commercial Agency and Collecting Company, a different question would have arisen. Thereupon the petitioner made a second application under the statute for leave to change its name, and an order was made by Mr. Justice Andrews permitting it to adopt the title of the United States Commercial Agency and Collecting Company. From this order the United States Mercantile Reporting Company now appeals.

If the petitioner is to be allowed to continue to do business .at all, it is plain that it must assume some new designation,

p. 496

for it has been prohibited by the judgment in the superior-court from any longer using its original name. But in authorizing it to assume a new title the court should be careful not to sanction the selection of any appellation which will be likely to do injury to other existing corporations, or to lead to confusion by reason of the similarity of the proposed name to other corporate names already in use. The petitioner has been legally restrained from using the name which it originally adopted. It has been refused permission to use the second name which it proposed for itself. In each case, it was the opinion of the court that the name could not be employed without doing, wrong to the appellant, The United States Mercantile Reporting Company.

In our opinion, that corporation will be very likely, if not certain, to suffer injury if the petitioner is allowed to-do business under the name of the United States Commercial Agency and Collecting Company, as authorized by the order of the court below. Mr. Justice Barrett was entirely right in refusing the petitioner leave to change its name to The United States Mercantile Agency and Collecting Company. The present title differs from that then proposed only in the substitution of the word “ commercial” for “mercantile.” As adjectives qualifying the noun agency, there is no material distinction between the meaning of these words as ordinarily understood. A commercial agency is the same thing as a mercantile agency. It is only when the court is satisfied that there is no* reasonable objection to the proposed change in a corporate name that it is empowered to make an order authorizing; the alteration. Laws of 1870, chap. 322, § 3.

There are objections in this case which we deem not only reasonable but controlling. The course pursued by the petitioner both in adopting the title which it originally assumed, and in its first application to the court to change that name, strongly indicates an intent to imitate the name of the appellant as closely as might be, without actually appropriating it. It is doubtless true that no exclusive-right can be obtained to the use of the words “ United! States,” or any other general geographical designation; but-the use of these wmrds in connection with others already appropriated as the title of another corporation, may be unlawfful. It can hardly be contended in the present case-that there are not other names which would just as well indicate that the respondent was doing or intended to do a. general business throughout the country; and we do not think its persistence in the effort to assume and retain a name closely resembling that of the appellant, in meaning if not in form, should receive judicial approval.

The order appealed from should be reversed, but as the

p. 497

application appears to have been based upon what was supposed to be a suggestion in the opinion of Mr. Justice Barrett, the reversal should be without costs.

Van Brunt, P. J., concurs.