Intermodal Shipping Agencies, Inc. vs. Intermodal Transport Forwarders, Inc.

[SEC-SICD * CASE NO. 1309. August 21, 1981.] INTERMODAL SHIPPING AGENCIES, INC. , complainant , vs .INTERMODAL TRANSPORT FORWARDERS, INC. , respondent . D E C I S I O N This is a complaint filed by Intermodal Shipping Agencies, Inc .thru counsel, dated January 13, 1976 against Intermodal Transport Forwarders, Inc .,for the latter to change its corporate name on the grounds that its adoption and use of the word "Intermodal" is misleading and confusing to the minds of the public and that the complainant has a prior legal right to the use of said name. LexLib Respondent corporation, in its answer dated May 8, 1976, denied the allegations of the complainant and claimed that the word "Intermodal" is derived from the concept "Intermodalism" which means the forwarding or the transporting of cargo via several modes of transport, such as by air, land and sea; that carrying or transporting of cargo by air is referred to as airfreight, by sea as shipping and by land as overland. Oftentimes, the transporting of cargo is done by a combination of any of the above modes of transport in which case it is referred to as intermodal transporting or forwarding of cargo. Respondent further alleged that the word "Intermodal" is a generic word of which no one can claim an exclusive right to use. From the oral and documentary evidence adduced by complainant, the following facts were established: Intermodal Shipping Agencies, Inc. is a domestic corporation duly organized and existing under the laws of the Philippines, registered with this Office on October 13, 1970 under Reg. No. 42447, the primary purpose of which is to transport persons, cargo, mail, materials and property of all kinds, by water within the Philippines and throughout the world, either as principals, agents or otherwise (Exhibit D),and also acts as ship agents of intermodal carriers, the activities of which are intimately related with movements of imports and exports, customs, insurance and shipping brokers and cargo claims filed by forwarders in accordance with its complaint (Exhibit G). It has been established by the complainant thru its witnesses that it had been receiving communications intended for the respondent. One witness, Mr. Edgardo J. Canoza, the Chief Accountant of Intermodal Shipping Agencies, Inc.,testified before this Commission that several letters intended for respondent Intermodal Transport Forwarders, Inc. were coursed to complainant Intermodal Shipping Agencies, Inc. and thus created confusion and inconveniences on their part. Moreover, complainant also presented the letter of undertaking (Exhibit E) signed by the president of the respondent corporation to change its name in the event that another person, firm, or entity has acquired a prior right to the use of the same name or one similar to it. When the respondent's turn to present evidence came, its counsel or any of its representatives failed to appear before this Commission despite due notices. From the records of this Commission, it appears that respondent was registered as a corporation on August 7, 1974 under Reg. No. 57278 and the primary purpose of which is to act as shipping brokers, forwarding agents, customs and insurance brokers, and generally to exercise full powers to perform any and all acts connected with, or arising therefrom or incidental thereto and all acts proper and necessary for the purpose of the business. The other purpose is to carry on, operate, engage in or conduct a general forwarding business in the Philippines and/or undertake any kind of business transaction commonly carried on or undertaken by forwarders and all other purposes incidental to or in the exercise of its business. LLpr The issues to be resolved before this Commission are: 1) whether the corporate name "Intermodal Transport Forwarders, Inc." is similar or identical to the corporate name of the complainant which is "Intermodal Shipping Agencies, Inc." as to cause confusion to the public; and 2) which of the parties acquired prior right to use the word "Intermodal" in its corporate name. Complainant maintains that the similarity of the corporate name of the respondent with its corporate name is such that the public is liable to be misled into believing that the two firms are one and the same or at least connected with or in some way related to each other. We agree with the complainant that both corporate names are confusingly similar. This is aggravated by the fact that both corporations are engaged in a similar line of business. "The nature and business of the corporations involved are also important factors bearing on the likelihood of deception from the use of similar names (Fletcher, Cycl. Corp Vol. 6, p. 103). While it is true that respondent corporation is mostly engaged in the brokerage business, the fact remains that it is dealing with intermodal shippers and consignees who are also complainant's market. In fact, confusion has already resulted from the use of respondent's name when the evidence shows that communications from their clients and creditors found their way to the complainant. "Generally, it is sufficient that if one name so nearly resembles the other as to deceive persons of ordinary caution and prudence, or even the thoughtless, into the belief that in dealing with the one concern, they are dealing with the other (Fletcher, Cycl. Corp. Vol. 6, pp. 96-97). As regards the second issue, complainant presented evidence showing that it had continuously used its corporate name, "Intermodal Shipping Agencies, Inc.," since the time it was incorporated on October 13, 1970 up to the present. Since respondent was registered only on August 7, 1974, or almost four years after complainant corporation was incorporated, it is undeniably clear that it has acquired prior legal right to use the word "Intermodal" in its corporate name. WHEREFORE, considering all the foregoing, the Commission hereby finds and so holds that respondent's corporate name, Intermodal Transport Forwarders, Inc. is confusingly similar to complainant's Intermodal Shipping Agencies, Inc. Accordingly, said respondent is hereby ordered to change its corporate name to another name not similar to any name already used by person, firm or entity registered with this Commission, by amending its articles of incorporation in accordance with the Corporation Code and to file the corresponding amended Articles with this Commission, upon payment of the corresponding filing fees thereof, within thirty (30) days from finality of this Order. SO ORDERED. (SGD.) JAMES K. ABUGAN Hearing Officer