19 Pa. Code § 17.3 - Use of a confusingly similar name
(a) Section 802(a)(x) of the Banking Code
(7 P.
S. §
802(a)(x)),
section 1303(b)(1) of the BCL (relating to corporate name), 5303(b)(1) of the
NPCL (relating to corporate name) and
54 Pa.C.S. §
311(e)(1) (relating to
registration), provide that an entity may adopt a name which is confusingly
similar to the name of another association with the consent of the other
association. In all these cases, the written consent of the association to the
adoption of the name which is confusingly similar to its name shall be executed
on Form DSCB:17.3 (Consent to Use of Similar Name).
(b) If a confusingly similar name is made
available on the basis of Form DSCB:17.3 which recites that the senior
association is about to change its name, or to cease to do business, or is
being wound up or is about to withdraw from doing business in this
Commonwealth, and the senior association continues to use its name in this
Commonwealth, and does not change its name, cease to do business, be wound up
or withdraw as it proposed to do in its consent, the senior association is
liable to injunction proceedings at the instance of the Attorney General or a
person adversely affected.
(c) In
determining whether one name is confusingly similar to another, the Department
will apply the following criteria:
(1) A name
is confusingly similar if it fails to adequately differentiate an association
from other associations. The following individually or in a combination result
in a confusingly similar name, producing a conflict which requires written
consent:
(i) The use of a different corporate
designator; for example, Corp., Co., Inc., Ltd., and the like.
(ii) The use of a plural.
(iii) The use of an article, that is, "a" or
"the."
(iv) The use of a geographic
designator after the association name.
(v) The use of a numeral or spelled number
after the association name.
(2) The use of one or more different initials
shall constitute a different name, for example, J. G. Doe Incorporated and F.
G. Doe Incorporated.
(3) Phonetic
similarities involving the principal name or word in the corporate name does
not constitute a conflict if one or more of the following circumstances exist,
but in all other cases written consent is required:
(i) One or more different initials are
included in the name.
(ii) A
different corporate designator is used.
(iii) A plural is used.
(iv) A geographic designator is
included.
(v) One or more numbers
are used.
(vi) The location is far
removed from the conflicting name.
(4) If a synonym is used which indicates the
same purpose and is of like spelling and pronunciation, a conflict will be
deemed to exist and written consent is required.
(5) In the case of professional corporations,
a confusingly similar name is permitted if it constitutes one of the
professionals' own names.
(6) In
the case of affiliates using the same name with geographic or other designator,
written consent will be required from the parent or prime affiliate
only.
(7) The following are
examples of the application of the standards set forth in this section:
Confusingly Similar | Not Confusingly Similar |
XYZ Corp. and XYZ Co. | 1302 Elm St. Inc. and |
XYZ's Inc. and XYZ Inc. | 1304 Elm St. Inc. |
A XYZ Inc. and The XYZ | J. G. Doe Inc. and |
Inc. | F. G. Doe Inc. |
XYZ of Pittsburgh and | Two XYZ Inc. and |
XYZ of Philadelphia | Four XYZ Inc. |
XYZ Inc. andXYZ of Pittsburgh | |
XYZ Inc. and XYZ I | |
XYZ I and XYZ II | |
XYZ 2 and XYZ II | |
XYZ One Inc. and XYZ Inc. | |
XYZ Company Inc. and XYZ Inc. | |
XYZ North Inc. and XYZ Inc. |
(d) Words and places in common usage are not
subject to preemption by a single person or association and will be recognized
as such.
(e) In borderline cases,
the Department will take the following into consideration:
(1) Differences in geographic
location.
(2) Differences in type
of business.
(f) In the
case of nonprofit corporations, the following do not constitute confusing
similarity:
(1) Geographic location.
(2) Synonyms.
(3) Phonetic similarity.
(g) Section 4123(b) of the BCL (relating to
requirements for foreign corporation names) and section 6123(b) of the NPCL
(relating to requirements for foreign corporation names) provide that the
Department may issue a certificate of authority to a foreign business
corporation or a foreign nonprofit corporation setting forth a name that is
confusingly similar to a name then registered under 54 Pa.C.S. Chapter 5
(relating to corporate and other association names), to a name reserved as
provided in this chapter, or a name it is prevented from using by its failure
to obtain the required consent of a department, board, commission or other
agency of the Commonwealth (see §
17.9 (relating to professional
names)), if the foreign business corporation or foreign nonprofit corporation
applying for a certificate of authority files in the Department one of the
following:
(1) A resolution of its board of
directors adopting a fictitious name for use in transacting business in this
Commonwealth which fictitious name is not confusingly similar to the name of
the other association or to a name reserved as provided in this
chapter.
(2) The written consent of
the other association or holder of a reserved name to use the same or
confusingly similar name and one or more words are added to make the name
applied for distinguishable from the other name. In these cases, the written
consent of the association to the adoption of the name which, except for the
distinguishing word or words, is the same or confusingly similar to its name
shall be executed on Form DSCB:17.3.
(h) It is not possible to provide a guideline
in sufficient detail to cover every possible problem that may develop for
corporate names. Upon recognition of unusual cases, the personnel of the
Department will refer them to the Director of the Corporation Bureau for
review.
Notes
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