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. (SD1)

 
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                                                        1142
THE SENATE                              S.B. NO.           S.D. 1
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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 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. 1
                                                        
                                                        

 
 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, professional corporation, partnership,
 
13 limited partnership, limited liability partnership, or limited
 
14 liability company existing under the laws of this State, or any
 
15 foreign corporation, partnership, limited partnership, limited
 
16 liability partnership, or limited liability company authorized to
 
17 transact business in this State is substantially identical to or
 
18 confusingly similar with its name may file a petition with the
 
19 director for an administrative order of abatement to address the
 
20 infringement of its name.  The petition shall set forth the facts
 
21 and authority which support the petitioner's claim that further
 
22 use of the name should be abated.  The petitioner, at its
 
23 expense, shall notify the registrant of the hearing in the manner
 

 
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                                     S.B. NO.           S.D. 1
                                                        
                                                        

 
 1 prescribed by chapter 91 and the registrant shall be given an
 
 2 opportunity to address the petition at a hearing held in
 
 3 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. 1
                                                        
                                                        

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

 
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                                     S.B. NO.           S.D. 1
                                                        
                                                        

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

 
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                                     S.B. NO.           S.D. 1
                                                        
                                                        

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

 
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                                     S.B. NO.           S.D. 1
                                                        
                                                        

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

 
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                                     S.B. NO.           S.D. 1
                                                        
                                                        

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

 
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                                     S.B. NO.           S.D. 1
                                                        
                                                        

 
 1 director for an administrative order of abatement to address the
 
 2 infringement of its name.  The petition shall set forth the facts
 
 3 and authority which support the petitioner's claim that further
 
 4 use of the name should be abated.  The petitioner, at its
 
 5 expense, shall notify the registrant of the hearing in the manner
 
 6 prescribed by chapter 91 and the registrant shall be given an
 
 7 opportunity to address the petition at a full hearing held in
 
 8 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 name with the director, and to conduct
 
17           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 file.  The
 
23 director shall mail notice of the dissolution, termination, or
 

 
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                                     S.B. NO.           S.D. 1
                                                        
                                                        

 
 1 cancellation to the entity at its last know mailing address.  The
 
 2 entity shall wind up its affairs in accordance with chapter 415,
 
 3 415A, 415B, 425, 425D, or 428, as applicable.
 
 4      (c)  Any person aggrieved by the director's order 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 de 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 6.  Chapter 428, Hawaii Revised Statutes, is amended
 
12 by adding a new section to be appropriately designated and to
 
13 read as follows:
 
14      "§428-     Administrative order of abatement for
 
15 infringement of limited liability company name.  (a)  Any
 
16 domestic limited liability company in good standing or foreign
 
17 limited liability company authorized to do business in this State
 
18 claiming that the name of another domestic corporation,
 
19 partnership, limited partnership, limited liability partnership,
 
20 or limited liability company existing under the laws of this
 
21 State, or any foreign corporation, partnership, limited
 
22 partnership, limited liability partnership, or foreign limited
 
23 liability company authorized to transact business in the State is
 

 
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                                     S.B. NO.           S.D. 1
                                                        
                                                        

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

 
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                                     S.B. NO.           S.D. 1
                                                        
                                                        

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

 
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