96 Wash. 163 | Wash. | 1917
— The relator, Progressive Motion Picture Company, a domestic corporation, seeks in this court a writ of mandamus to compel the secretary of state to strike from the records of his office the name of the “Progressive Motion Picture Company,” a California corporation, and cancel the license of that corporation authorizing it to do business in this state.
On September 23, 1916, Gerard Ryzek and J. E. Doughty, residents of Pasco, in this state, duly executed articles of incorporation looking to the organization of relator under the laws of this state. On September 25, 1916, they filed in the office of the secretary of state the articles so executed, paid the filing fee therefor, and also paid the annual license fee required by law, received from him a certificate of incorporation evidencing its existence under the name of “Progressive Motion Picture Company,” and also received from him a license authorizing it to do business. At that time the records in the office of the secretary of state did not show that any other corporation of the same or a similar name was organized under the laws of this state, or that any foreign corporation of the same or similar name had complied with the laws of this state authorizing it to do business therein. On November 24, 1916, the “Progressive Motion Picture
For the purpose of inducing the secretary of state to file its certified copy of articles of incorporation and its appointment of a resident agent, and to issue a license to it as a foreign corporation, notwithstanding the relator was then shown by the records of his- office to be an existing domestic corporation of the same name, the California corporation caused! to be presented to the secretary of state certain affidavits wherein it was stated, in substance, that a controversy between the incorporators of relator and the California corporation arose and was existing at the time of the incorporation of relator, in connection with the film or motion picture business at Pasco, and that the incorporation of relator was a move on the part of its incorporators in connection with that
Counsel for relator rests its claimed right to have the name of the California corporation stricken from the records of the office of the secretary of state and its license cancelled upon the provisions of Rem. Code, § 3680, reading as follows :
“No corporation shall take the name of a corporation theretofore organized under the laws of this state, nor of any foreign corporation having complied with the laws of this state, nor one so nearly resembling the name of such other corporation as to be misleading. The secretary of state shall refuse to file said articles of incorporation of any association or corporation violating the provisions of this section.”
It is provided by our mandamus statute that a writ of mandamus “may be issued by any court, except a justice’s or a
Much discussion is indulged in, and many authorities cited by counsel for the secretary of state, having to do with the respective rights of these corporations to the use of the name “Progressive Motion Picture Company” as a trade-name. Whatever the rights of either of these companies may be to the use of that name as a trade-name we think is foreign to any proper subject of inquiry here. There are numerous authorities holding that the mere acquiring of a corporate name by the organization of a corporation in accordance with statute, or the mere acquiring of the right of a foreign corporation to do business in a state in accordance with statute, does not give to either of such corporations the right to do business in its corporate name in violation of the trade-name rights of others. Grand Lodge A. O. U. W. of Iowa v. Graham, 96 Iowa 592, 65 N. W. 837, 31 L. R. A. 133; Hainque v. Cyclops Iron Works, 136 Cal. 351, 68 Pac. 1014; General Film Co. v. General Film Co., 237 Fed. 64; Blackwell’s Durham Tobacco Co. v. American Tobacco Co., 145 N. C. 367, 59 S. E. 123. But this is not the question here for decision,
We have not lost sight of the general rule invoked by counsel for the secretary of state, citing 26 Cyc. 149, and other authorities, that mandamus will ordinarily not be awarded as a remedy where the rights of third parties may be injuriously affected, they not being heard. But we are of the opinion, in view of the plain duty of the secretary of state to have refrained from filing the California corporation’s articles and the issuing to it of a license, and the prompt application of the relator for mandamus in this proceeding, that such remedy should not be denied relator because the California corporation is not being heard here. We think the undisputed facts before us render it plain that the California corporation has no such possible rights as entitle it to be heard here. It is true it will, by the issuance of a writ in this proceeding, be in effect denied the right to do business in this state as a foreign corporation, except such business as a foreign corporation may do without filing copies of its articles and procuring a license, but this is a right that it manifestly never possessed. It was bound to know the law, and having actual knowledge of the existence of a domestic corporation of exactly the same name, it never acquired any right under our statutes relating to the doing of business in this state by a foreign corporation. Whether or not it has the right to do business in this state such as a foreign corporation may do without complying with the provisions of our statute relative to the domestication of foreign corporations, and has acquired any trade-name rights in that behalf as against the rights of the Washington corporation, is a question it is free to litigate in our courts. Whether or not the Washington corporation may be adjudged to have no lawful existence because of fraud in its organization, by pro
We conclude that a writ of mandamus must issue as prayed for, requiring the secretary of state to strike the name of the California corporation from the records of his office and cancel its license to do business in this state. It is so ordered.
Ellis, C. J., Fullerton, and Holcomb, JJ., concur.