Minnesota Session Laws - 1989, Regular Session

  

                         Laws of Minnesota 1989 

                        CHAPTER 292-S.F.No. 180 
           An act relating to commerce; regulating the use of 
          names for certain business entities; providing a 
          procedure for contesting the registration of a name; 
          amending Minnesota Statutes 1988, sections 300.025; 
          302A.115, subdivisions 1, 3, and by adding a 
          subdivision; 302A.117, subdivision 1; 303.05, by 
          adding a subdivision; 317.09, subdivision 2, and by 
          adding a subdivision; 322A.02; 322A.72; and 333.055, 
          subdivision 4; amending Laws 1989, chapter 144, 
          article 1, section 8, subdivision 1, and by adding a 
          subdivision; proposing coding for new law in Minnesota 
          Statutes, chapter 5. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
     Section 1.  [5.22] [CONTEST OF REGISTRATION OF NAME.] 
    Subdivision 1.  [NOTICE OF CONTEST; DEPOSIT.] A person 
doing business in this state may contest the subsequent 
registration of a name with the office of the secretary of state 
by filing an acknowledged notice of contest with the secretary 
of state and sending a copy of the notice of contest to the 
person who subsequently registered the contested name.  The 
notice to the secretary of state must be accompanied by a $100 
deposit, which the secretary of state shall award to the 
prevailing party in the contest. 
    Subd. 2.  [PROCEDURE.] (a) Upon receipt of a notice of 
contest, the secretary of state shall ask each party to the 
contest to submit within 30 days an affidavit setting forth the 
facts, opinions, and arguments for or against the retention of 
the contested name on the records of the secretary of state.  
The secretary of state shall review the affidavits and shall 
make a decision or order a hearing to be held within 30 days. 
    (b) If a hearing is ordered, the parties shall meet with 
the secretary of state before the hearing and attempt to settle 
the contest. 
    (c) If a settlement is not reached, the secretary of state 
shall hold a hearing.  At the hearing, the secretary of state 
may consider evidence presented by the parties relating to the 
factual or legal issues raised by the contest.  A record of the 
hearing is not required.  The hearing is not a contested case 
hearing under chapter 14. 
    Subd. 3.  [STANDARD OF REVIEW.] The secretary of state may 
order that the contested name be changed on the records of the 
secretary of state if it is likely that the use of the names 
will cause confusion, mistake, or deception among the public 
when applied to the goods or services provided by the 
businesses.  In determining whether confusion, mistake, or 
deception is likely, the secretary of state shall consider: 
    (1) the strength or unique nature of the names; 
    (2) the similarity of sound, appearance, or meaning of the 
names; 
    (3) the intent of the parties; 
    (4) the type of businesses engaged in or to be engaged in 
by the parties; 
    (5) the geographic market areas served by each party and 
the manner of distribution and marketing used in those areas; 
    (6) the nature and quality of goods or services provided by 
the parties; 
    (7) the level of sophistication of potential purchasers of 
goods or services offered by the parties; 
    (8) whether the party contesting the subsequent 
registration of a name failed to make a timely objection or 
acquiesced to the use of the name so that it would be 
inequitable to prohibit its registration; and 
    (9) whether the names in question are in fair use, have 
been abandoned, or are parodies of other names. 
    Subd. 4.  [DECISION; ENFORCEMENT.] The secretary of state 
shall make a decision for one of the parties within ten days of 
the hearing and may order that the contested name be changed on 
the records of the office of the secretary of state and the 
relevant documents be amended by the secretary of state in a 
manner that results in a new name that is not the same as or 
deceptively similar to another name registered with the office 
of the secretary of state. 
    Subd. 5.  [APPEAL.] A party may appeal the decision of the 
secretary of state to the district court within 20 days.  The 
district court shall consider the factual and legal issues 
without reference to the decision of the secretary of state. 
    Subd. 6.  [LIABILITY.] The office of the secretary of state 
is not liable for damages incurred as a result of the 
registration of a name found to be the same or deceptively 
similar to another name already registered with the office of 
the secretary of state.  The office of the secretary of state is 
not liable for damages that arise from the decision of the 
secretary of state in a contest under this section. 
    Sec. 2.  Minnesota Statutes 1988, section 300.025, is 
amended to read: 
    300.025 [ORGANIZATION OF FINANCIAL CORPORATIONS.] 
    (a) Three or more persons may form a corporation for any of 
the purposes specified in section 47.12 by applying to the 
department of commerce and complying with all applicable 
organizational requirements and the conditions set out in 
clauses (1) to (7).  However, no corporation may be formed under 
this section if it may be formed under the Minnesota business 
corporation act.  The incorporators must subscribe a certificate 
specifying: 
    (1) the corporation's name, which must distinguish it from 
all other corporations authorized to do business in this state, 
and must contain the word "company," "corporation," "bank," 
"association," or "incorporated"; 
    (2) the general nature of the corporation's business and 
its principal place of business; 
    (3) the period of its duration, if limited; 
    (4) the names and places of residence of the incorporators; 
    (5) the board in which the management of the corporation 
will be vested, the date of the annual meeting at which it will 
be elected, and the names and addresses of the board members 
until the first election, a majority of whom must always be 
residents of this state; 
    (6) the amount of capital stock, if any, how the capital 
stock is to be paid in, the number of shares into which it is to 
be divided, and the par value of each share; and, if there is to 
be more than one class, a description and the terms of issue of 
each class, and the method of voting on each class; and 
    (7) the highest amount of indebtedness or liability to 
which the corporation will at any time be subject. 
    The certificate may contain any other lawful provision 
defining and regulating the powers and business of the 
corporation, its officers, directors, trustees, members, and 
stockholders.  However, a corporation subject to sections 48.27 
and 51A.22, subdivision 2, may show its highest amount of 
indebtedness to be 30 times the amount of its capital and actual 
surplus.  
    (b) A person doing business in this state may contest the 
subsequent registration of a name with the office of the 
secretary of state as provided in section 1. 
    Sec. 3.  Minnesota Statutes 1988, section 302A.115, 
subdivision 1, is amended to read: 
    Subdivision 1.  [REQUIREMENTS; PROHIBITIONS.] The corporate 
name:  
    (a) Shall be in the English language or in any other 
language expressed in English letters or characters; 
    (b) Shall contain the word "corporation," "incorporated," 
or "limited," or shall contain an abbreviation of one or more of 
these words, or the word "company" or the abbreviation "Co." if 
that word or abbreviation is not immediately preceded by the 
word "and" or the character "&"; 
    (c) Shall not contain a word or phrase that indicates or 
implies that it is incorporated for a purpose other than a legal 
business purpose; 
    (d) Shall not be the same as, or deceptively similar to, 
distinguishable upon the records in the office of the secretary 
of state from the name of a domestic corporation or limited 
partnership, whether profit or nonprofit, or a foreign 
corporation or limited partnership authorized or registered to 
do business in this state, whether profit or nonprofit, or a 
name the right to which is, at the time of incorporation, 
reserved or provided for in sections 302A.117, 322A.03, or 
333.001 to 333.54, unless there is filed with the articles one 
of the following:  
    (1) The written consent of the domestic corporation or 
limited partnership or foreign corporation or limited 
partnership authorized or registered to do business in this 
state or the holder of a reserved name or a name filed by or 
registered with the secretary of state under sections 333.001 to 
333.54 having the same or a deceptively similar a name that is 
not distinguishable; 
    (2) A certified copy of a final decree of a court in this 
state establishing the prior right of the applicant to the use 
of the name in this state; or 
    (3) The applicant's affidavit that the corporation or 
limited partnership with the same or deceptively similar name 
that is not distinguishable has been incorporated or on file in 
this state for at least three years prior to the affidavit, if 
it is a domestic corporation or limited partnership, or has been 
authorized or registered to do business in this state for at 
least three years prior to the affidavit, if it is a foreign 
corporation or limited partnership, or that the holder of a name 
filed or registered with the secretary of state under sections 
333.001 to 333.54 filed or registered that name at least three 
years prior to the affidavit, and has not during the three-year 
period filed any document with the secretary of state; that the 
applicant has mailed written notice to the corporation or 
limited partnership or the holder of a name filed or registered 
with the secretary of state under sections 333.001 to 333.54 by 
certified mail, return receipt requested, properly addressed to 
the registered office of the corporation or in care of the agent 
of the limited partnership, or the address of the holder of a 
name filed or registered with the secretary of state under 
sections 333.001 to 333.54, shown in the records of the 
secretary of state, that the applicant intends to use the same 
or deceptively similar a name that is not distinguishable and 
the notice has been returned to the applicant as undeliverable 
to the addressee corporation or limited partnership or holder of 
a name filed or registered with the secretary of state under 
sections 333.001 to 333.54; that the applicant, after diligent 
inquiry, has been unable to find any telephone listing for the 
corporation or limited partnership with the same or deceptively 
similar name that is not distinguishable in the county in which 
is located the registered office of the corporation shown in the 
records of the secretary of state or has been unable to find any 
telephone listing for the holder of a name filed or registered 
with the secretary of state under sections 333.001 to 333.54 in 
the county in which is located the address of the holder shown 
in the records of the secretary of state; and that the applicant 
has no knowledge that the corporation or limited partnership or 
holder of a name filed or registered with the secretary of state 
under sections 333.001 to 333.54 is currently engaged in 
business in this state.  
    Sec. 4.  Minnesota Statutes 1988, section 302A.115, 
subdivision 3, is amended to read: 
    Subd. 3.  [DETERMINATION.] The secretary of state shall 
determine whether a name is "deceptively similar" 
to "distinguishable" from another name for purposes of this 
section and section 302A.117. 
    Sec. 5.  Minnesota Statutes 1988, section 302A.115, is 
amended by adding a subdivision to read: 
    Subd. 8.  [CONTEST OF REGISTRATION OF NAME.] A person doing 
business in this state may contest the subsequent registration 
of a name with the office of the secretary of state as provided 
in section 1. 
    Sec. 6.  Minnesota Statutes 1988, section 302A.117, 
subdivision 1, is amended to read: 
    Subdivision 1.  [WHO MAY RESERVE.] The exclusive right to 
the use of a corporate name otherwise permitted by section 
302A.115 may be reserved by:  
    (a) A person doing business in this state under that name 
or a name deceptively similar to that name; 
    (b) A person intending to incorporate under this chapter; 
    (c) A domestic corporation intending to change its name; 
    (d) A foreign corporation intending to make application for 
a certificate of authority to transact business in this state; 
    (e) A foreign corporation authorized to transact business 
in this state and intending to change its name; 
    (f) A person intending to incorporate a foreign corporation 
and intending to have the foreign corporation make application 
for a certificate of authority to transact business in this 
state; or 
    (g) A foreign corporation doing business under that name or 
a name deceptively similar to that name in one or more states 
other than this state and not described in clauses (d), (e), or 
(f).  
    Sec. 7.  Minnesota Statutes 1988, section 303.05, is 
amended by adding a subdivision to read: 
    Subd. 4.  [CONTEST OF REGISTRATION OF NAME.] A person doing 
business in this state may contest the subsequent registration 
of a name with the office of the secretary of state as provided 
in section 1. 
    Sec. 8.  Laws 1989, chapter 144, article 1, section 8, 
subdivision 1, is amended to read: 
    Subdivision 1.  [NAME.] The name of a cooperative must 
distinguish the cooperative from other entities doing business 
in the state as domestic or foreign corporations or limited 
partnerships, or under assumed names, trade or service marks, or 
reserved corporate or limited partnership names, as provided in 
section 302A.115 upon the records in the office of the secretary 
of state from the name of a domestic corporation, whether profit 
or nonprofit, or a limited partnership, or a foreign corporation 
or a limited partnership authorized or registered to do business 
in this state, whether profit or nonprofit, or a name the right 
to which is, at the time of incorporation, reserved or provided 
for in sections 302A.117, 317A.117, 322A.03, or 333.001 to 
333.54. 
    Sec. 9.  Laws 1989, chapter 144, article 1, section 8, is 
amended by adding a subdivision to read: 
    Subd. 3.  [CONTEST OF REGISTRATION OF NAME.] A person doing 
business in this state may contest the subsequent registration 
of a name with the office of the secretary of state as provided 
in section 1. 
    Sec. 10.  Minnesota Statutes 1988, section 317.09, 
subdivision 2, is amended to read: 
    Subd. 2.  [USE OF SIMILAR NAME FORBIDDEN.] The corporate 
name shall not be the same as, nor deceptively similar 
to, distinguishable from the name of any assumed name, trade or 
service mark, or limited partnership, or domestic corporation, 
whether profit or nonprofit, or of any foreign corporation or 
foreign limited partnership, whether profit or nonprofit, 
authorized or registered to do business in this state or to any 
name reserved under section 302A.117 or 322A.03, unless there is 
filed with the articles a written consent, court decree of prior 
right, or affidavit of nonuse of the kind required by section 
302A.115, subdivision 1, paragraph (d). 
    The secretary of state shall determine whether a name is 
"deceptively similar" "distinguishable" from to another name for 
purposes of this section.  This section does not abrogate or 
limit the law of unfair competition or unfair practices, nor 
sections 333.001 to 333.54, nor the laws of the United States 
with respect to the right to acquire and protect copyrights, 
trademarks, service names, service marks, or any other rights to 
the exclusive use of names or symbols, nor derogate the common 
law or principles of equity.  
    Sec. 11.  Minnesota Statutes 1988, section 317.09, is 
amended by adding a subdivision to read: 
    Subd. 4.  [CONTEST OF REGISTRATION OF NAME.] A person doing 
business in this state may contest the subsequent registration 
of a name with the office of the secretary of state as provided 
in section 1.  
    Sec. 12.  If H.F. No. 1203 is enacted in the 1989 
legislative session, Minnesota Statutes, section 317.09, 
subdivision 4, as added by section 11 of this act, is repealed 
and H.F. No. 1203, section 12, is amended by adding a 
subdivision to read: 
    Subd. 6.  [CONTEST OF REGISTRATION OF NAME.] A person doing 
business in this state may contest the subsequent registration 
of a name with the office of the secretary of state as provided 
in section 1.  
    Sec. 13.  If H.F. No. 1203 is enacted in the 1989 
legislative session, H.F. No. 1203, section 12, subdivision 2, 
is amended to read:  
    Subd. 2.  [USE OF DECEPTIVELY SIMILAR NAME.] (a) A 
corporate name may not be the same as, or deceptively similar 
to, must be distinguishable upon the records in the office of 
the secretary of state from the name of a domestic corporation 
or limited partnership, a foreign corporation or limited 
partnership authorized or registered to do business in this 
state, whether profit or nonprofit, or a name the right to which 
is, at the time of incorporation, reserved, registered, or 
provided for in section 13, 302A.117, 322A.03, or sections 
333.001 to 333.54, unless one of the following is filed with the 
articles:  
    (1) the written consent of the organization having the same 
or a deceptively similar name that is not distinguishable; 
    (2) a certified copy of a final decree of a court in this 
state establishing the prior right of the applicant to use its 
corporate name in this state; or 
    (3) an affidavit of nonuse of the kind required by section 
302A.115, subdivision 1, paragraph (d), clause (3). 
    (b) The secretary of state shall determine whether a name 
is deceptively similar distinguishable from another name for 
purposes of this section and section 13. 
    (c) This subdivision does not affect the right of a 
corporation existing on January 1, 1991, or a foreign 
corporation authorized to do business in this state on that 
date, to use its corporate name. 
    Sec. 14.  If H.F. No. 1203 is enacted in the 1989 
legislative session, H.F. No. 1203, section 13, subdivision 1, 
is amended to read:  
    Subdivision 1.  [WHO MAY RESERVE.] A corporate name 
permitted by section 12 may be reserved in the records of the 
secretary of state by:  
    (1) a person doing business in this state under that name 
or a name deceptively similar to that name; 
    (2) a person intending to incorporate under this chapter; 
    (3) a domestic corporation intending to change its name; 
    (4) a foreign corporation intending to make application for 
a certificate of authority to transact business in this state; 
    (5) a foreign corporation authorized to transact business 
in this state and intending to change its name; 
    (6) a person intending to incorporate a foreign corporation 
and intending to have the foreign corporation make application 
for a certificate of authority to transact business in this 
state; or 
    (7) a foreign corporation doing business under that name or 
a name deceptively similar to that name in a state other than 
this state and not described in clauses (4) to (6). 
    Sec. 15.  Minnesota Statutes 1988, section 322A.02, is 
amended to read: 
    322A.02 [NAME.] 
    (a) The name of each limited partnership as set forth in 
its certificate of limited partnership: 
    (1) shall contain without abbreviation the words "limited 
partnership"; 
    (2) may not contain the name of a limited partner unless 
(i) it is also the name of a general partner or the corporate 
name of a corporate general partner, or (ii) the business of the 
limited partnership had been carried on under that name before 
the admission of that limited partner; 
    (3) may not must be the same as, or deceptively similar to, 
distinguishable from the name of a domestic corporation or 
limited partnership, whether profit or nonprofit, or a foreign 
corporation or limited partnership authorized or registered to 
do business in this state, whether profit or nonprofit, or a 
name the right to which is reserved or provided for in the 
manner provided for in sections 302A.117, 322A.03, or 333.001 to 
333.54, unless there is filed with the certificate a written 
consent, court decree of prior right, or affidavit of nonuse, of 
the kind required by section 302A.115, subdivision 1, paragraph 
(d); and 
    (4) may not contain the following words:  corporation, 
incorporated. 
    The secretary of state shall determine whether a name is 
"deceptively similar" to "distinguishable" from another name for 
purposes of this section and section 322A.03.  This section does 
not abrogate or limit the law of unfair competition or unfair 
practices, nor sections 333.001 to 333.54, nor the laws of the 
United States with respect to the right to acquire and protect 
copyrights, trademarks, service names, service marks, or any 
other rights to the exclusive use of names or symbols, nor 
derogate the common law or principles of equity.  
    (b) A person doing business in this state may contest the 
subsequent registration of a name with the office of the 
secretary of state as provided in section 1. 
    Sec. 16.  Minnesota Statutes 1988, section 322A.72, is 
amended to read: 
    322A.72 [NAME.] 
    (a) A foreign limited partnership may register with the 
secretary of state under any name (whether or not it is the name 
under which it is registered in its state of organization) that 
includes without abbreviation the words "limited partnership" 
and that could be registered by a domestic limited partnership. 
    (b) A person doing business in this state may contest the 
subsequent registration of a name with the office of the 
secretary of state as provided in section 1. 
    Sec. 17.  Minnesota Statutes 1988, section 333.055, 
subdivision 4, is amended to read: 
    Subd. 4.  The secretary of state shall accept for filing 
all certificates and renewals thereof which comply with the 
provisions of sections 333.001 to 333.06 and which are 
accompanied by the prescribed fees, notwithstanding the fact 
that the assumed name disclosed therein may be the same as, or 
similar to, not be distinguishable from one or more other 
assumed names already filed with the secretary of state.  In the 
event of duplication or similarity, the secretary of state 
shall, within 20 days after the filing, notify in writing each 
previously filed business holding a certificate for the assumed 
name or a similar assumed name, of the duplication or 
similarity, including in the notice the name and last known 
address of the person so filing.  The secretary of state shall 
not accept for filing a certificate that discloses an assumed 
name that is the same as, or deceptively similar to, not 
distinguishable from a corporate, or limited partnership name in 
use or reserved in this state by another or a trade or service 
mark registered with the secretary of state, unless there is 
filed with the certificate a written consent, court decree of 
prior right, or affidavit of nonuser of the kind required by 
section 302A.115, subdivision 1, clause (d).  The secretary of 
state shall determine whether a name is "deceptively similar" to 
distinguishable from another name for purposes of this 
subdivision. 
     Sec. 18.  [EFFECTIVE DATE.] 
    Sections 3, 4, 6, 8, 10, 13 to 15, and 17 are effective 
January 1, 1990. 
    Presented to the governor May 26, 1989 
    Signed by the governor May 26, 1989, 5:41 p.m.