ARTICLE I
NAME
The name of the corporation is: Bennington Park West Association (the “Corporation”).
DURATION
The period of the Corporation’s existence is perpetual.
ARTICLE III
PURPOSES
The Corporation is organized exclusively for the following purposes:
- To promote, undertake and advance any and all lawful activities and objectives for the general benefit, well-being, advancement, improvement and enjoyment of the Corporation and its members;
- To enforce the covenants, conditions and restrictions applicable to Lots 1 through 80, inclusive, and Outlets A, B and C, of Bennington Park West, City of Bennington, Douglas County, Nebraska (including but not limited to, the Declaration of Covenants, Conditions, Restrictions and Easements for Bennington Park West, a subdivision in Douglas County, Nebraska, dated May 10, 2018, and recorded May 10, 2018, in the office of the Register of Deeds of Douglas County, Nebraska, as amended from time to time (the “Declaration”), for the benefit of the owners and residents thereof, and to perform, on a nonprofit basis, the duties required to be performed by the Corporation as set forth in such covenants, conditions and restrictions, for the benefit of the owners and residents of said subdivision;
- To transact any and all lawful business for which nonprofit corporations may be incorporated under the laws of the State of Nebraska, to the extent that such business may be conducted by organizations organized and operated exclusively for nonprofit purposes as set forth in the Internal Revenue Code of 1986, as amended, or the corresponding provision of any future federal revenue and/or taxation law, (hereinafter referred to as the “Code”); and
- To do everything necessary, proper, advisable and convenient for the accomplishment of the purposes set forth above, and to do all other things incidental thereto or connected therewith which are not forbidden by the laws of the State of Nebraska or by these Articles of Incorporation.
ARTICLE IV
BYLAWS TO REGULATE INTERNAL AFFAIRS
The Bylaws of the Corporation shall regulate the internal affairs of the Corporation, except any provisions hereinafter set forth for the distribution of assets on dissolution or final liquidation.
ARTICLE V
DIVIDENDS
The Corporation shall neither have nor issue shares of stock. No dividend shall be paid and no part of the income of the Corporation shall insure to the benefit of or be distributed to its members, directors or officers.
DISTRIBUTION OF ASSETS ON
DISSOLUTION OR FINAL LIQUIDATION
The Corporation is irrevocably dedicated to and operated exclusively for the purposes above stated, and no part of the net income of the Corporation shall be distributed or inure to the benefit of any private individual; provided, however, that the Corporation may pay reasonable compensation for services rendered and make payments and distributions which further the purposes set forth in Article III. Upon dissolution of the Corporation, the Board of Directors shall, after paying or making provisions for the payment of all liabilities of the Corporation, dispose of all of the assets of the Corporation and distribute the proceeds thereof equally among the members of the Corporation.
MEMBERS
Each person or entity who is the record owner of the fee title or any undivided interest in the fee title in any lot which is subject to the Declaration shall be a member except (i) those having such interest merely as security for the performance of an obligation and (ii) the purchaser under a recorded contract for the sale and purchase of any such lot, under which the seller retains title solely as security for the performance of the purchaser’s obligation under the contract.
TYPE OF CORPORATION
The Corporation is a mutual benefit corporation pursuant to Neb. Rev. Stat. Section 21- 19,177.
REGISTERED AGENT
The street address of the initial registered office of the Corporation is 1125 South 103rd Street, Suite 800, Omaha, Nebraska 68124, and the name of its registered agent at such address is Koley Jessen P.C., L.L.O.
NAME AND ADDRESS OF INCORPORATOR
The name and address of the Incorporator is: Daniel S. Murow, 1125 South lO3rd
Street, Suite 800, Omaha, Nebraska 68124.
DATED this 19th day of June, 2018.
Daniel S. Murow, Incorporator
NEBRASKA SECRETARY OF STATE ♦ JOHN A. GALE
1201 N STREET, SUITE 120 • LINCOLN , NE • 68508
BUSINESS SERVICES DIVISION
PO Box 94608
Phone: (402) 471-4079
Fax: (402) 471-3666
PO Box 95104
Phone: (402) 471-4080
Fax: (402) 471-4429
PO Box 95104
Phone: (402) 471-2558
Fax: (402) 471-4429
Secretary of State
June 5, 2018
via email
Koley Jessen
1125 S. 103rd Street, Suite 800
Omaha, NE 68124
Daniel.Murrow@koleyjessen.com
re: Name Review for Bennington Park West Association
Dear Mr. Murrow,
This letter is in response to your request for additional review of the name Bennington Park West Association.
Nebraska statutes provide that a business entity name shall not be registered if it is the same as or deceptively similar to a business entity name or trade name already on record with the Secretary of State’s Office. In this case, staff members determined that the name “Bennington Park West Association” (hereinafter “Applicant”) was unavailable because it was deceptively similar to name for the following previously registered entity name: Bennington Park Commercial Property Owners Association (hereinafter “Registrant”).
When considering your request this office looks to the Nebraska Courts and the five (5) factors they have given to determine if confusion exists or is likely to exist in comparing registered names: (1) degree of similarity in the products offered for sale; (2) geographic separation of the two enterprises and the extent to which their trade areas overlap; (3) extent to which the businesses are in actual competition; (4) duration of use without actual confusion; and (5) the actual similarity, visually and phonetically, between the two names. Dahms .v Jacobs, 201 Neb. 745, 272 N.W.2d 43 (1978); Nebraska Irrigation, Inc. v. Koch, 246 Neb. 856, 523 N.W.2d 676 (1994). Courts often place the greatest weight on the last factor—the actual degree of similarity between the names. However, consideration of each factor is necessary to determine if confusion exists or is likely to exist in each case. Nebraska Irrigation, 246 Neb. at 861, 523 N.W.2d at 680.
First, Registrant is a commercial property owners association. Applicant is a residential home owners association.
Second, both entities are located in the Bennington Park neighborhood in Omaha, Nebraska.
Third, based upon the first two factors, actual competition is unlikely. While both entities are in the same neighborhood, they will serve two mutually exclusive “consumer” bases considering the nature of their business. Applicant will only serve the residents in the neighborhood association. Registrant will only serve the commercial properties in its commercial development.
Fourth, as Applicant is a new entity there has been no time for any actual confusion to arise.
The fifth, final, and most-heavily weighted factor is the similarity between the names. The only difference between the two names is the inclusion of “Commercial” in Registrant’s name. While this does add some phonetic and visual distinction, the most important function this additional word provides is the distinction for the consumer that this is a “commercial” association and not a residential association.
In light of the totality of the circumstances and looking at the factors provided by the Nebraska courts, it is the opinion of this office that the likelihood of consumer confusion based upon the similarity of the names is negligible. Therefore we are approving your request.
Due to the number of daily name requests our office handles we ask that you submit the appropriate filing as soon as possible. Please submit this letter with your filing to ensure that the name will not be rejected a second time.
If you have any further questions or concerns, please feel free to contact the undersigned at david.wilson@nebraska.gov.
Sincerely,
David L. Wilson Jr.
Associate General Counsel