REPORT TITLE:
Bus; Name Infringement



DESCRIPTION:
Allows a corporation, partnership, limited liability partnership,
or limited liability company to obtain an order of abatement from
the director of commerce and consumer affairs against an entity
registering or using a name substantially identical or
confusingly similar to its own name. (SD2)

 
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                                                        1142
THE SENATE                              S.B. NO.           S.D. 2
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO THE NAMES OF CORPORATIONS, PARTNERSHIPS, AND LIMITED
   LIABILITY COMPANIES.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Chapter 415, Hawaii Revised Statutes, is amended
 
 2 by adding a new section to be appropriately designated and to
 
 3 read as follows:
 
 4      "415-     Administrative order of abatement for
 
 5 infringement of corporate name.  (a)  Any domestic corporation in
 
 6 good standing or foreign corporation authorized to do business in
 
 7 this State claiming that the name of any domestic corporation,
 
 8 partnership, limited partnership, limited liability partnership,
 
 9 or limited liability company existing under the laws of this
 
10 State, or any foreign corporation, partnership, limited
 
11 partnership, limited liability partnership, or limited liability
 
12 company authorized to transact business in this State is
 
13 substantially identical to or confusingly similar with its name
 
14 may file a petition with the director for an administrative order
 
15 of abatement to address the infringement of its name.  The
 
16 petition shall set forth the facts and authority which support
 
17 the petitioner's claim that further use of the name should be
 
18 abated.  The petitioner, at its expense, shall notify the
 
19 registrant of the hearing in the manner prescribed by chapter 91
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 and the registrant shall be given an opportunity to respond to
 
 2 the petition at a hearing held in accordance with chapter 91.
 
 3      (b)  In addition to any other remedy or sanction allowed by
 
 4 law, the order of abatement may:
 
 5      (1)  Allow an entity to retain its registered name, require
 
 6           the entity to register a new trade name with the
 
 7           director, and require the entity to conduct business in
 
 8           this State under its new trade name; or
 
 9      (2)  Require an entity to change its registered name, to
 
10           register the new name with the director, and to conduct
 
11           business in this State under its new name.
 
12      If the entity fails to comply with the order of abatement
 
13 within sixty days, the director may involuntarily dissolve or
 
14 terminate the entity, or cancel or revoke the entity's
 
15 registration or certificate of authority, after the time to
 
16 appeal has lapsed and no appeal has been timely filed.  The
 
17 director shall mail notice of the dissolution, termination, or
 
18 cancellation to the entity at its last known mailing address.
 
19 The entity shall wind up its affairs in accordance with chapter
 
20 415, 415A, 415B, 425, 425D, or 428, as applicable.
 
21      (c)  Any person aggrieved by the director's order under this
 
22 section may obtain judicial review in accordance with chapter 91
 
23 by filing a notice of appeal in circuit court within thirty days
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 after the issuance of the director's order.  The trial by the
 
 2 circuit court of any such proceeding shall be de novo.
 
 3 Proceedings for review by the supreme court may be had and taken
 
 4 in the same manner as is provided for a review of a judgment of a
 
 5 circuit court."
 
 6      SECTION 2.  Chapter 415A, Hawaii Revised Statutes, is
 
 7 amended by adding a new section to be appropriately designated
 
 8 and to read as follows:
 
 9      "415A-    Administrative order of abatement for
 
10 infringement of corporate name.  (a)  Any professional
 
11 corporation in good standing claiming that the name of any
 
12 domestic corporation, partnership, limited partnership, limited
 
13 liability partnership, or limited liability company existing
 
14 under the laws of this State, or any foreign corporation,
 
15 partnership, limited partnership, limited liability partnership,
 
16 or limited liability company authorized to transact business in
 
17 this State is substantially identical to or confusingly similar
 
18 with its name may file a petition with the director for an
 
19 administrative order of abatement to address the infringement of
 
20 its name.  The petition shall set forth the facts and authority
 
21 which support the petitioner's claim that further use of the name
 
22 should be abated.  The petitioner, at its expense, shall notify
 
23 the registrant of the hearing in the manner prescribed by chapter
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 91 and the registrant shall be given an opportunity to address
 
 2 the petition at a hearing held in accordance with chapter 91.
 
 3      (b)  In addition to any other remedy or sanction allowed by
 
 4 law, the order of abatement may:
 
 5      (1)  Allow an entity to retain its registered name, require
 
 6           the entity to register a new trade name with the
 
 7           director, and require the entity to conduct business in
 
 8           this State under its new trade name; or
 
 9      (2)  Require an entity to change its registered name, to
 
10           register the new name with the director, and to conduct
 
11           business in this State under its new name.
 
12      If an entity fails to comply with the order of abatement
 
13 within sixty days, the director may involuntarily dissolve or
 
14 terminate the entity, or cancel or revoke the entity's
 
15 registration or certificate of authority, after the time to
 
16 appeal has lapsed and no appeal has been timely filed.  The
 
17 director shall mail notice of the dissolution, termination, or
 
18 cancellation to the entity at its last known mailing address.
 
19 The entity shall wind up its affairs in accordance with chapter
 
20 415, 415A, 415B, 425, 425D, or 428, as applicable.
 
21      (c)  Any person aggrieved by the director's order under this
 
22 section may obtain judicial review in accordance with chapter 91
 
23 by filing a notice of appeal in circuit court within thirty days
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 after the issuance of the director's order.  The trial by the
 
 2 circuit court of any such proceeding shall be de novo.
 
 3 Proceedings for review by the supreme court may be had and taken
 
 4 in the same manner as is provided for a review of a judgment of a
 
 5 circuit court."
 
 6      SECTION 3.  Chapter 415B, Hawaii Revised Statutes, is
 
 7 amended by adding a new section to be appropriately designated
 
 8 and to read as follows:
 
 9      "415B-     Administrative order of abatement for
 
10 infringement of corporate name.  (a)  Any domestic corporation in
 
11 good standing or foreign corporation authorized to do business in
 
12 this State claiming that the name of another domestic
 
13 corporation, partnership, limited partnership, limited liability
 
14 partnership, or limited liability company existing under the laws
 
15 of this State, or any foreign corporation, partnership, limited
 
16 partnership, limited liability partnership, or limited liability
 
17 company authorized to transact business in this State is
 
18 substantially identical to or confusingly similar with its name
 
19 may file a petition with the director for an administrative order
 
20 of abatement to address the infringement of its name.  The
 
21 petition shall set forth the facts and authority which support
 
22 the petitioner's claim that further use of the name should be
 
23 abated.  The petitioner, at its expense, shall notify the
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 registrant of the hearing in the manner prescribed by chapter 91
 
 2 and the registrant shall be given an opportunity to address the
 
 3 petition at a hearing held in accordance with chapter 91.
 
 4      (b)  In addition to any other remedy or sanction allowed by
 
 5 law, the order of abatement may:
 
 6      (1)  Allow an entity to retain its registered name, require
 
 7           the entity to register a new trade name with the
 
 8           director, and require the entity to conduct business in
 
 9           this State under its new trade name; or
 
10      (2)  Require an entity to change its registered name, to
 
11           register the new name with the director, and to conduct
 
12           business in this State under its new name.
 
13      If an entity fails to comply with the order of abatement
 
14 within sixty days, the director may involuntarily dissolve or
 
15 terminate the entity, or cancel or revoke the entity's
 
16 registration or certificate of authority, after the time to
 
17 appeal has lapsed and no appeal has been timely filed.  The
 
18 director shall mail notice of the dissolution, termination, or
 
19 cancellation to the entity at its last known mailing address.
 
20 The entity shall wind up its affairs in accordance with chapter
 
21 415, 415A, 415B, 425, 425D, or 428, as applicable.
 
22      (c)  Any person aggrieved by the director's order under this
 
23 section may obtain judicial review in accordance with chapter 91
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 by filing in the court a notice of appeal in circuit court within
 
 2 thirty days after the issuance of the director's order.  The
 
 3 trial by the circuit court of any such proceeding shall be de
 
 4 novo.  Proceedings for review by the supreme court may be had and
 
 5 taken in the same manner as is provided for a review of a
 
 6 judgment of a circuit court."
 
 7      SECTION 4.  Chapter 425, Hawaii Revised Statutes, is amended
 
 8 by adding to Part VI a new section to be appropriately designated
 
 9 and to read as follows:
 
10      "425-     Administrative order of abatement for
 
11 infringement of partnership name.  (a)  Any domestic partnership
 
12 in good standing formed under this chapter or foreign partnership
 
13 authorized to do business in this State under this chapter
 
14 claiming that the name of another domestic corporation,
 
15 partnership, limited partnership, limited liability partnership,
 
16 or limited liability company existing under the laws of this
 
17 State, or any foreign corporation, partnership, limited
 
18 partnership, limited liability partnership, or limited liability
 
19 company authorized to transact business in this State is
 
20 substantially identical to or confusingly similar with its name
 
21 may file a petition with the director for an administrative order
 
22 of abatement to address the infringement of its name.  The
 
23 petition shall set forth the facts and authority which support
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 the petitioner's claim that further use of the name should be
 
 2 abated.  The petitioner, at its expense, shall notify the
 
 3 registrant of the hearing in the manner prescribed by chapter 91
 
 4 and the registrant shall be given an opportunity to address the
 
 5 petition at a full hearing held accordance with chapter 91.
 
 6      (b)  In addition to any other remedy or sanction allowed by
 
 7 law, the order of abatement may:
 
 8      (1)  Allow an entity to retain its registered name, require
 
 9           the entity to register a new trade name with the
 
10           director, and require the entity to conduct business in
 
11           this State under its new trade name; or
 
12      (2)  Require an entity to change its registered name, to
 
13           register the new name with the director, and to conduct
 
14           business in this State under its new name.
 
15      If an entity fails to comply with the order of abatement
 
16 within sixty days, the director may involuntarily dissolve or
 
17 terminate the entity, or cancel or revoke the entity's
 
18 registration or certificate of authority, after the time to
 
19 appeal has lapsed and no appeal has been timely filed.  The
 
20 director shall mail notice of the dissolution, termination, or
 
21 cancellation to the entity at its last known mailing address.
 
22 The entity shall wind up its affairs in accordance with chapter
 
23 415, 415A, 415B, 425, 425D, or 428, as applicable.
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1      (c)  Any person aggrieved by the director's order under this
 
 2 section may obtain judicial review in accordance with chapter 91
 
 3 by filing a notice of appeal in circuit court within thirty days
 
 4 after the issuance of the director's order.  The trial by the
 
 5 circuit court of any such proceeding shall be de novo.
 
 6 Proceedings for review by the supreme court may be had and taken
 
 7 in the same manner as is provided for a review of a judgment of a
 
 8 circuit court."
 
 9      SECTION 5.  Chapter 425D, Hawaii Revised Statutes, is
 
10 amended by adding a new section to be appropriately designated
 
11 and to read as follows:
 
12      "425D-     Administrative order of abatement for
 
13 infringement of limited partnership name.  (a)  Any domestic
 
14 limited partnership in good standing or foreign limited
 
15 partnership authorized to do business in this State claiming that
 
16 the name of another domestic corporation, partnership, limited
 
17 partnership, limited liability partnership, or limited liability
 
18 company existing under the laws of this State, or any foreign
 
19 corporation, partnership, limited partnership, limited liability
 
20 partnership, or limited liability company authorized to transact
 
21 business in this State is substantially identical to or
 
22 confusingly similar with its name may file a petition with the
 
23 director for an administrative order of abatement to address the
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 infringement of its name.  The petition shall set forth the facts
 
 2 and authority which support the petitioner's claim that further
 
 3 use of the name should be abated.  The petitioner, at its
 
 4 expense, shall notify the registrant of the hearing in the manner
 
 5 prescribed by chapter 91 and the registrant shall be given an
 
 6 opportunity to address the petition at a full hearing held in
 
 7 accordance with chapter 91.
 
 8      (b)  In addition to any other remedy or sanction allowed by
 
 9 law, the order of abatement may:
 
10      (1)  Allow an entity to retain its registered name, require
 
11           the entity to register a new trade name with the
 
12           director, and require the entity to conduct business in
 
13           this State under its new trade name; or
 
14      (2)  Require an entity to change its registered name, to
 
15           register the new name with the director, and to conduct
 
16           business in this State under its new name.
 
17      If an entity fails to comply with the order of abatement
 
18 within sixty days, the director may involuntarily dissolve or
 
19 terminate the entity, or cancel or revoke the entity's
 
20 registration or certificate of authority, after the time to
 
21 appeal has lapsed and no appeal has been timely file.  The
 
22 director shall mail notice of the dissolution, termination, or
 
23 cancellation to the entity at its last know mailing address.  The
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 entity shall wind up its affairs in accordance with chapter 415,
 
 2 415A, 415B, 425, 425D, or 428, as applicable.
 
 3      (c)  Any person aggrieved by the director's order under this
 
 4 section may obtain judicial review in accordance with chapter 91
 
 5 by filing a notice of appeal within thirty days after the
 
 6 issuance of the director's order.  The trial by the circuit court
 
 7 of any such proceeding shall be de novo.  Proceedings for review
 
 8 by the supreme court may be had and taken in the same manner as
 
 9 is provided for a review of a judgment of a circuit court."
 
10      SECTION 6.  Chapter 428, Hawaii Revised Statutes, is amended
 
11 by adding a new section to be appropriately designated and to
 
12 read as follows:
 
13      "428-     Administrative order of abatement for
 
14 infringement of limited liability company name.  (a)  Any
 
15 domestic limited liability company in good standing or foreign
 
16 limited liability company authorized to do business in this State
 
17 claiming that the name of another domestic corporation,
 
18 partnership, limited partnership, limited liability partnership,
 
19 or limited liability company existing under the laws of this
 
20 State, or any foreign corporation, partnership, limited
 
21 partnership, limited liability partnership, or foreign limited
 
22 liability company authorized to transact business in the State is
 
23 substantially identical to or confusingly similar with its name
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 may file a petition with the director for an administrative order
 
 2 of abatement to address the infringement of its name.  The
 
 3 petition shall set forth the facts and authority which support
 
 4 the petitioner's claim that further use of the name should be
 
 5 abated.  The petitioner, at its expense, shall notify the
 
 6 registrant of the hearing in the manner prescribed by chapter 91
 
 7 and the registrant shall be given an opportunity to address the
 
 8 petition at a full hearing held in accordance with chapter 91.
 
 9      (b)  In addition to any other remedy or sanction allowed by
 
10 law, the order of abatement may:
 
11      (1)  Allow an entity to retain its registered name, require
 
12           the entity to register a new trade name with the
 
13           director, and require the entity to conduct business in
 
14           this State under its new trade name; or
 
15      (2)  Require an entity to change its registered name, to
 
16           register the new trade name with the director, and to
 
17           conduct business in this State under its new name.
 
18      If an entity fails to comply with the order of abatement
 
19 within sixty days, the director may involuntarily dissolve or
 
20 terminate the entity, or cancel or revoke the entity's
 
21 registration or certificate of authority, after the time to
 
22 appeal has lapsed and no appeal has been timely filed.  The
 
23 director shall mail notice of the dissolution, termination, or
 

 
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                                     S.B. NO.           S.D. 2
                                                        
                                                        

 
 1 cancellation to the entity at its last known mailing address.
 
 2 The entity shall wind up its affairs in accordance with chapter
 
 3 415, 415A, 415B, 425, 425D, or 428, as applicable.
 
 4      (c)  Any person aggrieved by the director's under this
 
 5 section may obtain judicial review in accordance with chapter 91
 
 6 by filing a notice of appeal within thirty days after the
 
 7 issuance of the director's order.  The trial by the circuit court
 
 8 of any such proceeding shall be do novo.  Proceedings for review
 
 9 by the supreme court may be had and taken in the same manner as
 
10 is provided for a review of a judgment of a circuit court."
 
11      SECTION 7.  New statutory material is underscored.
 
12      SECTION 8.  This Act shall take effect upon its approval.
 

 
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