§ 17.3. Use of a confusingly similar name.
(a) Section 802(a)(x) of the Banking Code (7 P. S. § 802(a)(x)), section 1303(b)(1) of the BCL (relating to corporate name), 5303(b)(1) of the NPCL (relating to corporate name) and 54 Pa.C.S. § 311(e)(1) (relating to registration), provide that an entity may adopt a name which is confusingly similar to the name of another association with the consent of the other association. In all these cases, the written consent of the association to the adoption of the name which is confusingly similar to its name shall be executed on Form DSCB:17.3 (Consent to Use of Similar Name).
(b) If a confusingly similar name is made available on the basis of Form DSCB:17.3 which recites that the senior association is about to change its name, or to cease to do business, or is being wound up or is about to withdraw from doing business in this Commonwealth, and the senior association continues to use its name in this Commonwealth, and does not change its name, cease to do business, be wound up or withdraw as it proposed to do in its consent, the senior association is liable to injunction proceedings at the instance of the Attorney General or a person adversely affected.
(c) In determining whether one name is confusingly similar to another, the Department will apply the following criteria:
(1) A name is confusingly similar if it fails to adequately differentiate an association from other associations. The following individually or in a combination result in a confusingly similar name, producing a conflict which requires written consent:
(i) The use of a different corporate designator; for example, Corp., Co., Inc., Ltd., and the like.
(ii) The use of a plural.
(iii) The use of an article, that is, a or the.
(iv) The use of a geographic designator after the association name.
(v) The use of a numeral or spelled number after the association name.
(2) The use of one or more different initials shall constitute a different name, for example, J. G. Doe Incorporated and F. G. Doe Incorporated.
(3) Phonetic similarities involving the principal name or word in the corporate name does not constitute a conflict if one or more of the following circumstances exist, but in all other cases written consent is required:
(i) One or more different initials are included in the name.
(ii) A different corporate designator is used.
(iii) A plural is used.
(iv) A geographic designator is included.
(v) One or more numbers are used.
(vi) The location is far removed from the conflicting name.
(4) If a synonym is used which indicates the same purpose and is of like spelling and pronunciation, a conflict will be deemed to exist and written consent is required.
(5) In the case of professional corporations, a confusingly similar name is permitted if it constitutes one of the professionals own names.
(6) In the case of affiliates using the same name with geographic or other designator, written consent will be required from the parent or prime affiliate only.
(7) The following are examples of the application of the standards set forth in this section:
Confusingly Similar Not Confusingly Similar XYZ Corp. and XYZ Co. XYZs Inc. and XYZ Inc. A XYZ Inc. and The XYZInc. XYZ of Pittsburgh and XYZ of Philadelphia 1302 Elm St. Inc. and 1304 Elm St. Inc. J. G. Doe Inc. and F. G. Doe Inc. Two XYZ Inc. and Four XYZ Inc. XYZ Inc. andXYZ of Pittsburgh XYZ Inc. and XYZ I XYZ I and XYZ II XYZ 2 and XYZ II XYZ One Inc. and XYZ Inc. XYZ Company Inc. and XYZ Inc. XYZ North Inc. and XYZ Inc.
(d) Words and places in common usage are not subject to preemption by a single person or association and will be recognized as such.
(e) In borderline cases, the Department will take the following into consideration:
(1) Differences in geographic location.
(2) Differences in type of business.
(f) In the case of nonprofit corporations, the following do not constitute confusing similarity:
(1) Geographic location.
(3) Phonetic similarity.
(g) Section 4123(b) of the BCL (relating to requirements for foreign corporation names) and section 6123(b) of the NPCL (relating to requirements for foreign corporation names) provide that the Department may issue a certificate of authority to a foreign business corporation or a foreign nonprofit corporation setting forth a name that is confusingly similar to a name then registered under 54 Pa.C.S. Chapter 5 (relating to corporate and other association names), to a name reserved as provided in this chapter, or a name it is prevented from using by its failure to obtain the required consent of a department, board, commission or other agency of the Commonwealth (see § 17.9 (relating to professional names)), if the foreign business corporation or foreign nonprofit corporation applying for a certificate of authority files in the Department one of the following:
(1) A resolution of its board of directors adopting a fictitious name for use in transacting business in this Commonwealth which fictitious name is not confusingly similar to the name of the other association or to a name reserved as provided in this chapter.
(2) The written consent of the other association or holder of a reserved name to use the same or confusingly similar name and one or more words are added to make the name applied for distinguishable from the other name. In these cases, the written consent of the association to the adoption of the name which, except for the distinguishing word or words, is the same or confusingly similar to its name shall be executed on Form DSCB:17.3.
(h) It is not possible to provide a guideline in sufficient detail to cover every possible problem that may develop for corporate names. Upon recognition of unusual cases, the personnel of the Department will refer them to the Director of the Corporation Bureau for review.
The provisions of this § 17.3 adopted June 22, 1973, effective June 23, 1973, 3 Pa.B. 1164; amended January 27, 1984, effective January 28, 1984, 14 Pa.B. 336; amended April 17, 1992, effective April 18, 1992, 22 Pa.B. 1993. Immediately preceding text appears at serial pages (87012) to (87014).
This section cited in 19 Pa. Code § 17.41 (relating to foreign association names); and 19 Pa. Code § 17.204 (relating to general restrictions on name availability).
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