Barber Co. v. Department of State ( 1937 )

Bliss, J. (dissenting).

I respectfully dissent from the opinion for annulment and vote to affirm the determination under review and to dismiss the petition.

It is apparent to the most unobserving that the names “ The Barber Co., Inc.,” and “ Barber & Co., Inc.,” would, to the ordinary person, represent one and the same corporation and it would be almost impossible to distinguish the two corporations by name alone. There is, therefore, a direct conflict of names and a confusion of identity would result. Added to this is the fact that the powers of these two corporations overlap. Each is authorized to engage in transportation by water, engage in manufacturing, own patents and inventions and own securities of other corporations. It is hard to conceive how there could be a greater duplication of names and lines of business. Clearly, all but the most meticulous would be apt to be deceived by these conflicts. Also, while perhaps not as strong from a purely financial standpoint, the record shows that the name Barber & Co., Inc., has long borne an honorable and favorable reputation in the shipping world and that this reputation gives to the name considerable value in that line. The majority opinion intimates that perhaps the intervenor was stirred into activity by the publication of the fact that the petitioner was about to change its corporate name. The supplemental affidavit filed in behalf of the intervenor clearly shows that the reason for the formation of the new corporation had no connection with the activities of the petitioner, but that such corporation was formed solely because of a new act of Congress which made such action highly advisable. Even if the intervenor was diligent in the protection of a name which had become valuable through a long and honorable business career, it should not now be penalized for such diligence. There is also the added fact that under section 215 of the General Corporations Law the petitioner might have pre-empted the name which it desired to adopt for a period sufficiently long to enable it to make the necessary change, but by its own delays failed to make such change within the statutory period, so that any equities which might have arisen by reason of its correspondence with the respondent Secretary of State vanished through its own neglect. It is clear to me that there is a direct conflict of both names and corporate powers and that the name of petitioner would be calculated to deceive. There are no equities which merit an annulment of the determination of the Secretary of State even if we have the right so to do in the face of such conflicts.

Application to have intervening respondent’s petition made part of record granted.

Determination annulled, with fifty dollars costs and disbursements.