241 F. 137 | S.D.N.Y. | 1917
The defendant incorporated February 10,'1916, under the laws of Delaware, with the object of doing an import and export business in the state of New York. Tt entered upon this business in New York immediately after its incorporation. The complainant incorporated in New York on. March 10, 1916, and engaged in a similar business, without any knowledge of the
Section 15 of the General Corporation Law of New York provides that :
“No foreign stock corporation other than a moneyed corporation, shall do business in this state without having first procured from the secretary of state a certificate that it has complied with all the requirements of law to authorize it to do business in this state. * * * No foreign stock corporation doing business in this state shall maintain any action in this state upon any contract made by it in this state, unless prior to the making of such contract it shall have procured such certificate. * * * No certificate of authority shall be granted to any foreign corporation having the same name as an existing domestic corporation, or a name so nearly resembling it as to be calculated to deceive. * * * ”
The defendant, though it began business in New York prior to the incorporation of the complainant, has never obtained a license to do business there, and its name so nearly resembles that of complainant as to be calculated to deceive. More than that, the proof shows the close resemblance,: and that defendant’s name does in fact cause deception and confusion. The complainant seeks in this suit to restrain defendant from the use of its name within the state of New York, and the defendant in its answer asks for similar relief against the complainant.
'Fhe New York Appellate Division in the case of American Tarter Co. v. American Tarter Company, 57 App. Div. 411, 68 N. Y. Supp. 236, refused to enjoin a domestic corporation at the suit of a foreign corporation which was incorporated first, but had failed to obtain an authorization to do business in New York, from the use of its name. The real reason for such a decision was, not that the foreign corporation had not a right to sue, or to use its name where no rights of innocent third parties were prejudiced, but because it had neglected to comply with a statute which would have fully protected both the other party and the public. If a foreign corporation by reason of careless„ and unlawful conduct has lost the right to protect its own name, con-versely its competitor should be granted an injunction to prevent the use of a name which is misleading.
The complainant’s bill for an injunction should therefore be sustained, and the defendant’s cross-bill for an injunction should be dismissed, with costs.