(concurring in part and dissenting in part).
I concur in the majority opinion remanding the action to the trial court to determine as a matter of fact whether there are existing corporations, other than the Southern Arizona Bank & Trust Company, whose names are deceptively similar to the *203proposed name “The Arizona Bank”. I respectfully dissent with the majority opinion which arbitrarily concludes as a matter of law that the name “The Arizona Bank” is not deceptively similar to “Southern Arizona Bank & Trust Co.”
I agree with the majority that the same test must be applied in the case at bar as was applied in Bank of Arizona v. Arizona Central Bk., 40 Ariz. 320, 11 P.2d 953. There the suit was based on unfair competition, and on appeal this court reviewed the evidence disclosed in the record, considering especially the nature and extent of the business of each bank, the extent of competition between them and the possibility of confusion to the public. This jurisdiction is therefore definitely in accord with the universal rule that whether there is unfair competition is a question of fact. In Boice v. Stevenson, 66 Ariz. 308, 187 P.2d 648, 653, we quoted with approval Grant v. California Bench Co., 76 Cal.App.2d 706, 173 P.2d 817, as follows: “Unfair competition is a question of fact and no inflexible rule can be stated as to what conduct will constitute unfair competition. The universal test is whether the public is likely to be deceived. * * * ” Vermont Motor Co. v. Monk, 116 Vt. 309, 75 A.2d 671; Winfield v. Charles, 77 Cal.App.2d 64, 175 P.2d 69; 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 70. The question to be determined in each particular case is whether, as a matter of fact, the name is such as to cause confusion in the public mind as between the competing businesses ; and as was stated in Middletown Trust Co. v. Middletown Nat. Bank, 110 Conn. 13, 147 A. 22, 25, “ * * * Whether the court will interfere in a particular case must depend upon circumstances; the identity or similarity of the names; the identity of the business of the respective corporations; * * * the extent of the confusion which may be created or apprehended, and other circumstances which might justly influence the judgment of the judge in granting or withholding the remedy.”
With these established principles of law in mind it is difficult to understand how the trial court could come to the conclusion that as a matter of law the name “The Arizona Bank” is not deceptively similar to “Southern Arizona Bank & Trust Co.” (which conclusion is sustained by the majority opinion) without permitting the appellants to present evidence to sustain their allegations in their responsive pleading to the effect that the proposed change of name to the Arizona Bank would be similarly deceptive to other banks doing business in the state, which are directly in competition with the Bank of Douglas and would have a tendency to funnel off business that would have come to the other banking institutions except for a similarity of names; and that such is particularly so in view of the fact that the Bank of Douglas and the Southern *204Arizona Bank & Trust Co., are situated next door to each other in Tucson, Arizona.
While the majority has correctly stated the test to be applied in the determination of an action of this nature as decided by this court in Bank of Arizona v. Arizona Central Bk., supra, it then completely fails to give any consideration to the test so established. Upon what facts did the majority base its conclusion that the proposed name change was not deceptively similar? What evidence was before the court to determine the extent of the competition between the two banks or the possibility of confusion to the public? Of course, the answer is obvious there were no facts presented upon which a determination of these matters could be made.
The majority opinion cites In re Bank of Attica, 59 Hun. 615, 12 N.Y.S. 648; Detroit Sav. Bank v. Highland Park State Bank of Detroit, 201 Mich. 601, 167 N.W. 895; Michigan Savings Bank v. Dime Savings Bank, 162 Mich. 297, 127 N.W. 364; Industrial Mutual Deposit Co. v. Central Mutual Deposit Co., 112 Ky. 937, 66 S.W. 1032; In re Los Angeles Trust Co., 158 Cal. 603, 112 P. 56; People’s Trust Co. of Pittsburgh v. Safe Deposit & Trust Co. of Pittsburgh, 259 Pa. 62, 102 A. 412; International Trust Co. v. International Loan & Trust Co., 153 Mass. 271, 26 N.E. 693, 10 L.R.A. 758; Central Mut. Auto Ins. Co. v. Central Mut. Ins. Co., 275 Mich. 554, 267 N.W. 733 and National Bank in North Kansas City v. Bank of North Kansas City, 238 Mo.App. 19, 172 S.W.2d 967, stating that these cases held “virtually” as a matter of law not to be deceptively similar in their names. A reading of these decisions will reveal that in each instance the determination was made only after evidence and proof had been presented and in none of the cases did the court come to a conclusion as a matter of law without proper proof. Furthermore, not one of the cases cited and relied upon by the majority denies the right of a party to present evidence if it can, to substantiate the allegations in support of its position. It appears to be clearly decided that it is the duty of the court to look at the circumstances to determine the issue. Obviously each case must be determined upon the particular facts at bar. No bare holding as to names in one case can possibly support a decision as a matter of law in another case because the circumstances of each must govern.
Whether the appellants in the case at bar can establish, by their proof, the matters alleged in their responsive pleading, is .not before the court at this time. However, I am firmly of the opinion that such pleading does raise a question of fact and that the appellants are entitled to their day in court. I would reverse the judgment of the lower court and remand the entire case for trial.