7ASR3d161

Series: 7ASR3d | Year: () | 7ASR3d161
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AMERICAN SAMOA

RUGBY FOOTBALL ASSOCIATION (ASRFA), SENATOR TE`O J. FUAVAI, PRESIDENT,

LEROY LUTU,

VICE-PRESIDENT, FALEFATA LEMANA,

EXECUTIVE

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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