public policy deserves the same consideration and protection from a court of equity.

Under the law the corporate name is a necessary element of the corporation's existence; without it a corporation can not exist. Any act which produces confusion or uncertainty concerning this name is well calculated to injuriously affect the identity and business of a corporation. And as a matter of fact, in some degree at least, the natural and necessary consequence of the wrongful appropriation of a corporate name is to injure the business and rights of the corporation by destroying or confusing its identity. The motives of the persons attempting the wrongful appropriation are not material. They neither aggravate or extenuate the injury caused by such appropriation. The act is an illegal one, and must, if necessary, be presumed to have been done with an intent to cause the results which naturally flow from it. Nor will a court of equity refuse to enjoin the wrongful appropriation of a corporate name until the right of the first corporation to the name has been established by the verdict of a jury in an action at law. Such right does not rest in parol but is shown by the record, if at all, and is determined by the court in any form of proceeding. Neither in such case has the party injured an adequate and complete remedy at law. As in the case of patents for inventions and copyrights, the remedy at law can only give redress for the past injury, and that often inadequately. But to protect the injured corporation from the mischief arising from continued violation of its rights and perpetual litigation concerning them, resort must be had to the equitable remedy by injunction. (Story's Eq., § 930.)

Nor do I deem it material in this case to the jurisdiction in equity, that the defendant should be insolvent-unable to respond to the complaint in damages. The jurisdiction in this class of cases-trademarks, patents and copyrights-depends upon the fact that the matter is intrinsically of equitable cognizance-that the legal rights of the party can only be protected in equity, and not upon the uncertain and irrelevant test of the insolvency of the defendant.

Demurrer sustained on another ground suggested in argument, i. e., that the old company should be a party to the suit.

Note. See note at end of next case.

Sec. 224, Same.

ARMINGTON v. PALMER ET AL.1

1898. IN THE SUPREME COURT OF RHODE Island. 21 R. I. 109, 79 Am. St. Rep. 786, 42 Atl. Rep. 308, 43 L. R. A. 95, 9 Am. & Eng. C. C. N. S. 802.

[Bills by Armington and Sims, individually and as stockholders in the Armington and Sims Engine Company, to enjoin Palmer and others from using the name "Armington and Sims Company, successors 1 Statement abridged. Arguments and part of opinion omitted.

to Armington and Sims Engine Company." The engine company was incorporated in 1883, and had acquired the assets, including patents and good-will, of a former partnership and corporation by the name of Armington and Sims Company. It had, however, in 1896, become embarrassed, and by agreement of all interested, its property was sold at auction to pay its debts, Palmer and others being purchasers. They immediately organized a corporation under the general corporation law, with the name Armington and Sims Company, and afterward a meeting of the engine company was called to ratify the use of the name chosen. At this meeting, against the written protest of Sims, Armington not being present, a resolution granting the right to use the name was passed. The defendants demurred on the ground that an injunction against the use of a corporate name authorized by the state could not be maintained by a private party, but only by the state; also, that no facts set out entitled complainants to relief.]

STINESS, J. Upon the first ground of demurrer, the question is whether a private party can maintain a bill against a corporation for the wrongful assumption of its name. The respondents rely upon Rice v. Bank, 126 Mass. 300; Boston Rubber Shoe Co. v. Boston Rubber Co., 149 Mass. 436, 21 N. E. Rep. 875; American Order of Scottish Clans v. Merrill, 151 Mass. 558, 24 N. E. Rep. 918, and Paulino v. Association, 18 R. I. 165, 26 Atl. Rep. 36. The first of these cases was an information quo warranto, to exclude the respondents from exercising the franchise of being a corporation. The court held that such a bill must be filed by the state, and not by private parties. With this doctrine we need not disagree. The second case was a petition for leave to file an information quo warranto, and to restrain the respondent from doing business under the name of the Boston Rubber Company, claiming that this was distinct from the franchise to be a corporation. The statutes of Massachusetts of 1870 provided that the name assumed in the agreement of association should not be changed but by act of the legislature, and also that the agreement was to be submitted to a commissioner of corporations for his approval. The court held that, as it was within his discretion to refuse to approve it, the court could not exercise that discretion, and the certificate was conclusive. The court said that the statute was not intended to prevent the fraudulent use of trade-names, but to prevent the identity of corporate names. The statute, like our own, required that the name should not be one in use by any existing corporation of the state. The statutes of Massachusetts (Pub. St., ch. 186, § 17) provide for an application to the court in cases of private injury; but as the petitioner had acquiesced in the use of the name for ten years without injury, the court held that it did not make out a case for injunction under the statute. The third case is to the same effect, that the approval by the insurance commissioner of the name adopted by a beneficial association is conclusive in a private suit of the right of the association to such corporate name. Both of these latter cases so clearly rest upon the conclusiveness of the judgment of the commissioner that they are hardly in point in respect to our statute, which

has no such provision. Judge Holmes, in American Order of Scottish Clans v. Merrill, foresaw a case like this one in saying: "When there are no statute provisions as to the choice of names, and parties organize a corporation under general laws, it may be that they choose a name at their peril, and that, if they take one so like that of an existing corporation as to be misleading and thereby to injure its business, they may be enjoined, if there is no language in the statute to the contrary. The possibility here suggested is fully sustained by many cases, among which are the following, some of which were cited by Judge Holmes: Putnam v. Sweet, 1 Chand. 286; Newby v. Railway Co., Deady 609; Holmes, Booth & Haydens v. Holmes, Booth and Atwood Mfg. Co., 37 Conn. 278; Farmers' Loan and Trust Co. v. Farmers' Loan and Trust Co. of Kansas (Sup.), 1 N. Y. Supp. 44; Higgins Co. v. Higgins' Soap Co., 144 N. Y. 462, 39 N. E. Rep. 490; Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 Fed. Rep. 94; R. W. Rogers Co. v. William Rogers' Mfg. Co., 17 C. C. A. 576, and note; Plant Seed Co. v. Michel Plant and Seed Co., 23 Mo. App. 579, affirmed 37 Mo. App. 313.

The principles upon which these cases rest are, that although a corporation may be legally created, it can no more use its corporate name in violation of the rights of others than an individual can use his name, legally acquired, so as to mislead the public and to injure another. The principle adopted is similar to that of a trade-name or trade-mark, and is applied accordingly. Consequently a court of equity has jurisdiction in such a case without the intervention of the state. The case of Paulino v. Association is quite different from the case now before us. In that case the complainants, a voluntary association, had appointed a committee to procure a charter, which was procured, and under which the corporators had organized. The bill sought to annul the charter because of alleged misconduct on the part of the corporators. The court held that this could not be done. Clearly, the remedy of the complainants was of a different sort. After referring to some of the cases cited above, the court used the same language herein quoted from the opinion of Judge Holmes in American Order of Scottish Clans v. Merrill, thus intimating the very right which is claimed in this case. But the respondents argue, as was argued in the Massachusetts cases, that to restrain the use of the name is practically to annul the corporation, because it can not act without a name. We do not think that this result follows. According to the allegations of the bill, the name assumed by the respondents is so like that of the older corporation as to be misleading and injurious. We see no reason why the corporation, if it is restrained from using its present name, may not, under Gen. Laws R. I., ch. 176, § 7, choose another name.

Stated generally, the defense is that, having the right to make the engine, the respondents have the right to use the name, which, for this reason, can not injure the complainants; that no fraud was intended in the choice of the name, and the authority given by the vote above referred to for the use of the name by the respondents. The

use of a trade-name is in some respects different from that of a tradeThe latter usually relates chiefly to the thing sold, while, in addition to this, the former involves the source from which it comes, the individuality of the maker, both for protection in trade and for avoiding confusion in business affairs, as well as for securing to him the advantage of any good reputation which he may have gained. The law of trade-mark is designed chiefly for the protection of the public from imposition; that of trade-name for the protection of the party entitled to it. A case, therefore, in regard to trade-name is of somewhat broader scope than one relating to a trade-mark. It would be of little use to go over the numerous cases upon these objects, as they all agree in principle, however variant may have been its application. For this case it is enough to say that although one may make and sell an unprotected article, he can not simulate the name or product of another so as to trench upon the latter's rights or to mislead the public.

Applying this principle to this case, it is demonstrative. The name adopted by the respondent is so close a resemblance to that of the Armington & Sims Engine Company that there can be little doubt that it would be misleading and confusing in business matters, and the respondent advertises itself as the successor of said company. That company is still in existence. So far as appears, it still has assets, because its accounts, bills and notes receivable were excepted from the sale of its property. As such corporation, it has the right to its name, free from simulative interference.

But the respondents claim that the Armington & Sims Engine Company is not in business, and so no injury can follow. As we have said, the company is still in existence, and may be put on a footing for active business by a further contribution of capital, a thing which is often done. It has the right to its name, and, if its right be violated, it is not necessary to show actual damage, nor will the absence of fraudulent intent be a defense. Davis v. Kendall, 2 R. I. 566. This disposes of the defense on the ground of innocent intent.

The third branch of the defense, the claim of authority, can not prevail. The respondents did not acquire the right to use the name by purchase. They bought only the plant, machinery, stock and such visible property. The purchase of these does not carry the franchise or name of the corporation.

The vote of the corporation is of no effect.

It was done after the sale of the property and the organization of a new company, and without consideration. It was therefore a purely voluntary

act.

Demurrer overruled.

Note. 1. The right to a corporate name is a franchise of the corporation, if lawfully acquired: 1889, Boston Rubber Shoe Co. v. Boston Rubber Co., 149 Mass. 436, 27 Am. & E. C. C. 380; 1890, American Order Scottish Clans v. Merrill, 151 Mass. 558, 8 L. R. A. 320; 1892, Illinois Watch Case Co. v. Pearson, 140 Ill. 423, 41 Am. & E. C. C. 11; 1893, Paulino et al. v. Portuguese B. Assn., 18 R. I. 165, 41 Am. & E. C. C. 8; but see, 1891, Hazelton Boiler Co. v. Hazelton Tripod Co., 137 Ill. 231, 28 Ń. E. Rep. 248, holding that rights in

a corporate name are not a franchise within the meaning of statutes relating to jurisdiction of courts; 1893, Hygeia Water Ice Co. v. N. Y. Hygeia Water Ice Co., 140 N. Y. 94; 1899, Aiello v. Montecalo, 21 R. I. 496, 44 Atl. Rep. 931. 2. A corporation, unincorporated association, or an individual who has acquired a prior right to a name used as a trade-name or trade-mark may enjoin its subsequent appropriation and use by another corporation, association or person when it does substantial damage to the plaintiff or misleads the public: 1869, Newby v. Oregon Cent. R. Co., Deady 609, Fed. Cas. 10144, supra, p. 819; 1870, Holmes, Booth & Haydens v. Holmes B. & A., 37 Conn. 278, 9 Am. Rep. 324; 1877, Singer Machine Co. v. Wilson, 3 App. Cas. 376; 1878, Merchants' Banking Co., etc., v. Mer. J. S. Co., 9 Ch. Div. 560, 47 L. J. Ch. 828; 1881, Hendricks v. Montagu, 44 L. T. 879, 50 L. J. Ch. 456, 17 Ch. Dec. 630; 1884, Goodyear Rubber Co. v. Goodyear Rubber Mfg. Co., 21 Fed. Rep. 276, reversed 128 U. S. 598; 1885, Drummond Tobacco Co. v. Rundle, 114 III. 412, 10 Am. & E. C. C. 9; 1887, Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 Fed. Rep. 94; 1890, Rendle v. J. Edgcumbe R. Co., 63 L. T. 94; 1890, Gato v. El. Modello Cigar Mfg. Co., 25 Fla. 886, 6 L. R. A. 823; 1890, Madame Tussaud & Sons v. Louis Tussaud, L. R. 44 Ch. Div. 678, 32 Am. & E. C. C. 11; 1892, Hazelton Boiler Co. v. Hazelton T. Co., 142 Ill. 494, 37 Am. & E. C. C. 7; 1892, Vonderbank v. Schmidt, 44 La. Ann. 264, 15 L. R. A. 462; 1892, Fish Bros. Wagon Co. v. Fish, 82 Wis. 546, 16 L. R. A. 453; 1892, Le Page Co. v. Russia Cement Co., 51 Fed. Rep. 941, 17 L. R. A. 354; 1895, Higgins v. Higgins Soap Co., 144 N. Y. 462, 27 L. R. A. 42; 1895, Grand Lodge A. O. U. W. v. Graham, 96 Iowa 592, 31 L. R. A. 133; 1895, Rogers Co. v. Rogers Mfg. Co., 17 C. C. Ap. 579, 70 Fed. Rep. 1017; 1895, Elgin Butter Co. v. Elgin Creamery Co., 155 Ill. 127; 1896, Snyder Mfg. Co. v. Snyder, 54 Ohio St. 86, 31 L. R. A. 657; 1896, Investor Pub. Co. v. Dobinson, 72 Fed. Rep. 603; 1897, Supreme Lodge K. of P. v. Imp. Or. K. of P., 113 Mich. 133, 38 L. R. A. 658; 1898, Bingham School v. Gray, 122 N. C. 699, 41 L. R. A. 243; 1898, Bristol Bank & T. Co. v. Jonesboro B. & T. Co., 101 Tenn. 545; 1898, Reed v. Wilmington S. Co., 1 Marvel (Del.) 193, 40 Atl. Rep. 955; 1898, Walter A. Baker & Co. v. Baker, 87 Fed. Rep. 209; 1899, St. Patrick's Alliance, etc., v. Byrne, 59 N. J. Eq. 26, 44 Atl. Rep. 716; 1899, Red Polled Cattle Club v. Red Polled Cattle Club, 108 Iowa 105, 78 N. W. Rep. 803; 1899, Lamb Knit Goods Co. v. Lamb G., etc., Co., 120 Mich. 159, 44 L. R. A. 841, 78 N. W. Rep. 1072. But compare, 1890, Amer. Order, etc., v. Merrill, 151 Mass. 558, 8 L. R. A. 320; 1891, Internatl. T. Co. v. Int. L. & T. Co., 153 Mass. 271, 10 L. R. A. 758.

3. A sale of the property and good-will of the business carries with it the right to use the trade-name, though the name be the name of an individual or corporation: 1892, Le Page Co. v. Russia Cement Co., 51 Fed. Rep. 941, 17 L. R. A. 354; 1892, Vonderbank v. Schmitt, 44 La. Ann. 264, 15 L. R. A. 462; 1892, Fish Bros. v. Fish, 82 Wis. 546, 16 L. R. A. 453; 1894, Pillsbury v. Pillsbury-Washburn F. M. Co., 12 C. C. App. 432, 64 Fed. Rep. 841; 1895, Higgins v. Higgins Soap Co., 144 N. Y. 462, 27 L. R. A. 42; 1896, Snyder Mfg. Co. v. Snyder, 54 Ohio St. 86, 31 L. R. A. 657; 1898, Bingham School v. Gray, 122 N. C. 699, 41 L. R. A. 243; 1898, Walter A. Baker v. Baker, 87 Fed. Rep. 209.

4. It has, however, been held that a foreign corporation can not prevent the use of a corporate name afterward selected by a domestic corporation: 1892, Hazelton Boiler Co. v. Hazelton, T. B. Co., 142 Ill. 494; 1897, People v. Assurance Co., 111 Mich. 405. But see contra, 1897, Re Bradley Fertilizer Co., 19 Pa. Co. Ct. 271; 1899, Red Polled Cattle Club v. Red Polled Cattle Club, 108 Iowa 105, 78 N. W. Rep. 803.

5. But no exclusive trade-name rights can be acquired in geographical names, though selected by a corporation as its name: 1889, Nebraska L. & T. Co. v. Nine, 27 Neb. 507, 27 Am. & Eng. C. C. 374; 1893, Columbia Mill Co. v. Alcorn, 150 U. S. 460; 1899, Illinois Watch Case Co. v. Elgin N. W. Co., 94 Fed. Rep. 667. But compare 1899, Waltham Watch Co. v. U. S. Watch Co., 173 Mass. 85, 53 N. E. Rep. 141.

6. The secretary of state or the proper registering officer has discretionary power to refuse to register a company that chooses a name closely resembling one already in use by another corporation; and this discretion is not to be