It is the opinion of this office that in a case wherein the Secretary of State determines that the requested name of a Not For Profit Corporation is one so similar to a name previously on file in his office so as to mislead or deceive the general public or persons he may refuse to file such name.

NOT 1• 1 PROFIT f'ORP·- RATIONS : <.,;()l'{POI"V\TION.J : SECRh~ARY OF STATE : NAME~ : DISCITh'TION : It ls the opinion or chis office that in a caoc wherein the Secretary of State determines that the requested name or a Not For Profit Corporation is one so similar to a name previously on file in his o:fice so as to mislead or deceive tne ~eneral public or persons dealing uith the corporation, he may refuse to 'ile such name . February 28, 1963 .. Opinion No . 22 Uonorable Warren 1 . Hcarnes socretary or state State of M1eeouri Jcrreraon City, Mieaouri Dear Mr. Hearne& : F\LE -~ This Will acknowledge receipt or your recent letter roquestill6 an opiru.on ot this office. Your request reads aa follows: "This department baa recently been requested to determine whether or not ono, or aJl7 of the following namea, are avail- able for use as the name or a Not For Profit Corporation under Chapter 355. The names presented are aa follows: 1 . St. Ferdinand 'l'ownahip Democratic Club . 2. St. Ferdinand Town8h1p Independent Democratic Club t 3. Independent Democratic Club or st. Ferdinand Townahip. "We currently have on file with this ortice, and in good standing, a corporation formed tmder Chapter 355. under the name St. Ferdinand 'fownsh1p Regular Democratic Club. "Section 355. 035., paragraph (2) states that a corporate name- ' shall not be the •- aa the name or any corporation, whether f or Pro£it or HOt For Protit, existi.ns under aDT law or the state--. • \ Honorable Warren E. Hearnes "'l'he problem involved, es tb1e department eees 1t i&, whether or not the name or a corporation presently on file with this oi'fice precludes use or the names, or one Of them, presented ~0 this Office, Which in turn hinges upon the interpretation of the word •same' in 355.035. 11We would appreciate your opinion in this matter so that the problem might be re. solved 1n this case, and f uture cases to come betoN this office." In reply to your question we agree with your observation that the solution to the ~ueat1on presented depends upon the meaning or the word "same as used in Section 355.035, RS . ., 1959. The pertinent part of' Section 355.035, RSib 1959, reads as follows: "The corporate name • * • " (2) Shall not be the same as the Dame of any corporation, whether for prof it or not t or profit, exist ing under any law o£ this state, or any foreign c~r­ poration, whether for prof it or not for profit, authori_zed to transact its busi- ness or conduct its af.fairs in this state, and * * *" l~ will be noted that the above statute uses the term "shall not be the same as the name of an.y corporation • • • 11 while our General irid BUsiness Corpor~t1ons Act, Chapter 351, RSMb 1959, in Section 351.110 ~gulat1ns names of corporations uaes entirely different language aa follows: "'lhe corporate name * • * . " (3) Shall not be the same as, or deoept1velJ similar to~ the name of any domestic cor- poration exist!nB under any law of this state or en, toreiaa eorporat1on author- ized to transact business 1n this state, or a name the exclusive right to which is, at the time, reserved in the manner pro- vided in this chapter. " Honorable Warren B. Hearnes As ~ be oeen there is a SI~at difference between the two statut es, the older 5eot1on 351. 110, RS~ 1959. using the term "or deceptively similar to" while our newer Section 355. 035, RS!tb 1959, usee the language u ehall not be the aame as • • • 11 There are tn.anJ cases conetru~ the meaning of the older Section 351.110, RS!tJ 1959, among them tbe f ollowing: BDI)1re Trust Co. v . BIJI)1re Finance Co. , 41 S.W.2<1 847 . These cases all turn upon the nor deceptively s1m1larn portion or 351.110, RS)t) 1959. It may be pointed out that there are no cases construing the meaning or Paragraph 2 or Section 355.035, RS~b 1959. lfllile it may have been better had our legislature in enacting Section 355. 035, RSMo 1959, used the same tel'm1n- ology as Section 351. 110, RSMo 1959, it chose, either by design or othe~se, to use different langu$ge and by so doing has given general Not Por Profit corporations greater leewq 1n choosing a name . While, as stated supra, there are no cases construing Paragraph 2, Section 355. 035, RSMo 1959, 1t 1s substantially the same statute as previo~sly enacted bf the State of Illinois 1n 1943, which statute was taken substantially f rom an earlier Illinois lta1:ute. There are only t ·10 casea noted in connection with this Illinois s.tatute which must be stven conaicleration 1n this matter. They are: Peop:.e ex rel. Felter v. Rose, (1907) 225 Ill. 496. SO NE 293. '- 294; and International Committee or the Young Women•a Christian Asso- ciation v. toung Women' s Christian Ae&Oo1ation of Chicago, (1902) 194 Ill. 194, 62 NE 551. It should be noted that in ne1 ther or the above cases did the court rule directly upon the statute involved, but it is belleved that they applJ to the question under consideration. The Y~ung women 1 s Christian Association oaae, supra, involved an inJunction filed by the Young Women•s Christian Asaocut1on or Ch1eago [the older asaoo1at1on] against the International Committee or the Young Women•s C~1st1an Aseoci_ation. The court • ruling tor the Young \iomen • s Christian Association or Chicago, stated that the defendant would be enjoined from usj,ng the name International Committee of the Young Women•s Christian Association bec~use or 1ts similarity to the plaintiff • s name. That 1.t would contuse the general public and cause them to direct donations to it which were Mant for the plaintiff organi-zation. That it \'las a name -3- HonoPable Warren E. Hearnen calculated to deceive and mislead. Therefore~ they would not be allowed to profit from it. The Rose case, supra, was a mandamus action brought aga1net the Secretary or State or n11no1s in an atteJ~~>t to f orce h1ln to 1'1le a corporate name which he had ref'Used to tile because o£ its s1Ddlar1ty to a name ot a corpora- tion alrea11y authorized to do business in Illinois. The Supreme Court of Illinois, ruling tor the Secretary or state, stated they would not compel lam to perfol"m what might well be a v&J.n act. That the names 1n qu$8t1on were ao similar t~t 1n a proper oaee they [the co\lrt} might be compe1led to enjoin the use or the request&d name. The essence of the opinion is stated as follows, 1. c. 294: "U this mandamus is awarded this court might be put 1n the absurd position ot being required to sustain en injunction against the use of tha name wh1.oh 1t has colllpelled the Secretary of State. by mandamus~ to authorize. The SecNtary or state wil?l not be .NAuired.. by mandamus issuing oUti or thli cou , to issue a certifi- cate o£ incorporation When it 1s plainly apparent that the effect will be to IIIia• lead the l!\lbl1c de&l1ng Wi~h such cor- poration. • (Emphaais euppl:ted) So; wnile the court did not construe the statute spec1f1oallf, they intimate trom the above language that the Secretary of state tna¥ have some portion or meuure or discretion in the fil~ of names or Nbt For Profit Corporations, Thus; 1n the question befor-e us, it does not seem con- cei Vkble that our legislature [even 1n the face or the d1tfeJtenoe in language or Sections 351.110 and 355.035, RSr-t> 1959] would have intended to pet"ID1t the organization of a NOt Por Profit Corporation with a name deceptively similar to that of another ex1st1ng corporation or one that could be so calculated to deceive and mislead the genera! public or persons dealing with the corporat1Qn. -4- Honorable Warren E. Hearnea CONCLUSION n is the opinion of th:ts office that 1b a caso wherein the Secretary o£ State determines that tho requested name of a Not Por Profit Oorporati<>n is one so aJ.adlar to a name previously on N.le 1n his off'ioe ao ae to mislead or deceive the general publio or pe~sons dealing with the corporation# he may refuee to file euoh name. The tot-..go.1ns opinion, which I hereby approve, wae pre- p&l'ed b7 1fT AB&Siatant, Bobert R. Northcutt. Yours ·t~ery tr1.1ly, THOMls P. ltlaartON Attorney Ge~