7ASR3d161
RUGBY FOOTBALL ASSOCIATION (ASRFA), SENATOR TE`O J. FUAVAI, PRESIDENT,
VICE-PRESIDENT, FALEFATA LEMANA,
SECRETARY/TREASURER, Plaintiffs,
v.
IULI ALEX GODINET, PURPORTED PRESIDENT OF IUNI LAKAPI
AMERIKA SAMOA (ILAS), AUMAVAE T. AUMAVAE, PURPORTED EXECUTIVE COMMITTEE MEMBER
OF ILAS, TITI NOFOAGATOTO`A, PURPORTED EXECUTIVE COMMITTEE MEMBER OF ILAS,
SILIVA SILIVA, PURPORTED EXECUTIVE COMMITTEE MEMBER OF ILAS, Defendants.
High
Court of American Samoa
Trial
Division
CA
No. 51-03
September
12, 2003
[1] A
preliminary injunction is properly issued when there is a substantial
likelihood the applicant will prevail at trial on the merits and obtain a
permanent injunction against the opposing party, and great or irreparable
injury will result to the applicant before a full and final trial can be fairly
held on the permanent injunction issue.
[2] A.S.C.A. §
30.0104(a) requires that a corporation’s name be such as to distinguish it upon
the records of the territorial registrar from the name of any other
corporation.
[3] A.S.C.A. §
30.0104(a) prevents a corporation from using a name similar to another
corporation’s name where the public is likely to be deceived by the similarity.
[4] Where
corporation had registered and used literal, Samoan translation of other
corporation’s name, as its name, injunctive relief was appropriate.
Before RICHMOND, Associate Justice, and
Tapopo, Associate Judge.
Counsel: For Plaintiffs, Robert K. Maez
For Defendants, Katopau T. Ainu`u
PRELIMINARY
INJUNCTION
Plaintiffs brought this action for
preliminary and permanent injunctions enjoining Defendants from using “Iuni
Lakapi Amerika Samoa” as the name of their corporation. Plaintiffs’ application for a preliminary
injunction was heard on August 22, 2003, with both counsel present. During the hearing, the Court invoked
T.C.R.C.P. 65 to advance and consolidate the trial on the merits with the
application hearing.
[1] A preliminary
injunction is properly issued when “there is a substantial likelihood the
applicant will prevail at trial on the merits” and obtain a permanent
injunction against the opposing party, and “great or irreparable injury will
result to the applicant before a full and final trial can be fairly held” on
the permanent injunction issue. A.S.C.A.
§ 43.1301(j).
[2] Defendants
acknowledge that they named their corporation “Iuni Lakapi Amerika Samoa.” They also acknowledge that they use this name
in conducting the affairs of the corporation, even after the Territorial
Register, correctly or incorrectly, voided the registration of their
corporation so named and informed Defendants of her action. They are apparently relying on an opinion
issued by the Attorney General that their use of this name does not violate
A.S.C.A. § 30.0104(a), which provides that “[t]he name of each corporation must
be such as to distinguish it upon the records of the territorial registrar from
the name of any other corporation.”
We disagree
with the Attorney General. The name of
Plaintiffs’ corporation, registered in 1990, is “American Samoa Rugby Football
Association.” The two names are clearly
different at face value. However, “Iuni
Lakapi Amerika Samoa” is a literal translation in the Samoan language of
“American Samoa Rugby Football Association” in the English language.
The right of a corporation to the
exclusive use of its corporate name is a common-law right, and equity will
prohibit another from using a similar name has the potential to deceive the
public.
6 Fletcher Cyclopedia of Corp. § 2422
(1926).
The protection of a
corporate name against use by another person or business entity has been
frequently based on the theory of fraud and the resulting deception of the
public. The injury guarded against is
twofold: (1) Public confusion caused by the palming off of goods and services
of another corporation; and (2) Diversion of business from another
corporation. The ultimate question is
whether a person or entity is using a name to deceive the public into
purchasing goods or services that they believe belong to another corporation.
Id.
at § 2423.
[3-4] The common-law
principles are, in our view, codified in A.S.C.A. § 30.0104(a). Accordingly, if the public is likely to be
deceived by the similarity of the corporate names, injunctive relief is
appropriate. In American Samoa, where
most people speak both Samoan and English, the likelihood of public confusion
from the Defendants’ use in the Samoan language as their corporation’s name the
identical official name of Plaintiffs’ corporation in the English language is
great. The public is likely to assume
the names are interchangeable and belong to the same corporate entity.
Apparently, for
several years, Plaintiffs have not actively pursued the affairs of the American
Samoa Rugby Football Association, particularly towards achieving the objectives
of promoting and developing rugby for both local and regional competition. Additionally, Plaintiffs may be serving as
officers without complying with selection procedures of the Association’s
bylaws. Defendants proclaim to have
organized the Iuni Lakapi Amerika Samoa to overcome this inertia of purpose and
the bylaw violations. Nonetheless, for
preliminary injunction purposes, the likelihood of issuing a permanent
injunction against Defendants upon completion of the trial on its merits is
substantial, and until then, Plaintiffs will be greatly harmed by public
confusion over which corporation is sponsoring noticed activities through
Defendants’ continuing use as a corporate name the Samoan translation of
Plaintiffs’ English corporate name.
The issue would
be simply resolved if Defendants would select a clearly distinct name and amend
their articles of incorporation accordingly.
Order
1. During the pendency of this action, or until
further order of the Court, Defendants, their officers, agents, servants,
employees, and attorneys, and those persons in active concert or participation
with them are enjoined from using “Iuni Lakapi Amerika Samoa” as the name of
their corporation.
2. Either Plaintiffs or Defendants may move to
schedule a date for completion of the trial of this action.
It is so
ordered.
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