Independent Order of Good Samaritans & Daughters of Samaria v. Mack

Hill, J. (After stating the foregoing facts.) This case turns upon the question whether the plaintiffs, or either of them, have the right to the exclusive use of the distinctive name “Good Samaritans” as a part of their chartered name. The act of 1909 (Civil Code, § 1993) is as follows: “No person or organization shall assume, use, or adopt, or become incorporated under, or continue to use the name and style or embléms of any benevolent, fraternal, social, humane, or charitable organization previously existing. in this State, and which has been incorporated under the laws of this or any other State, or of the United States, or a name and style or emblem so nearly resembling the name and style of such incorporated organization as to be a colorable imitation thereof. In all cases where two or more- of such societies, associations, or corporations claim the right to the same name, or to names substantially similar, as above provided, the organization which was first organized and used the name, and first became incorporated under the laws of the United States or of any State of the Union, whether incorporated in this State or not, shall be entitled in this State to the prior and exclusive use of such name; and the rights of such societies, associations, or corporations, and of their individual members shall be fixed and determined accordingly.” And § 1994 declares: “Whenever there shall be an actual or threatened violation of the provisions of the preceding section of this Chapter, the organization entitled to the exclusive use of the name in question, under the terms of said section, shall have the right to apply to the proper courts for an injunction to restrain the infringement of its name and the use of its emblems; and if it shall be made to appear to the court that the defendants are in fact infringing or about to infringe the name and style of a previously existing benevolent, fraternal, social, humane, or charitable organization in the manner prohibited in said section, or that the defendant or defendants are wearing or using the badge, insignia, or emblems of said organization, without the authority thereof and in violation of said section, an injunction be issued by the court under the principles of equity, without requiring proof that any person has been in fact misled or deceived by the infringement of such name, or the use of such emblem.” No question is raised by any party to this case as to the validity of the ant of 1909, supra, but each apparently concedes its validity and bases its case upon — 841 — it. For is any question raised by the record as to the organizations which were chartered prior to those of the plaintiffs being estopped, on account of laches. Counsel for the plaintiffs, in their argument before this court, contend that “the question of discretion on the conflicting evidence is not involved in this case; but it is a question of law.” The question turns largely upon the construction of the act of 1909. The first section of that act provides that “In all cases where two or more of such societies, associations, or corporations claim the right to the same name, or to names substantially similar, as above provided, the organization which was first organized and used the name, and first became incorporated under the laws of the United States or of any State of the Union, whether incorporated in this State or not, shall be entitled in this State to the prior and exclusive use of such name.” From this it appears that the only organizations entitled to the exclusive use of the name in question are those which have been “incorporated.” (See the two sections quoted above.) It becomes material, therefore, to ascertain whether the plaintiffs or any of the organizations considered in this case were or were not incorporated at the commencement of this suit. Prior to the act of 1909 organizations of the kind under consideration, whether chartered or not chartered, were entitled to injunctive relief where there was an infringement upon the use of a trade name. Whitley Grocery Co. v. McCaw Mfg. Co., 105 Ga. 839 (32 S. E. 113); Creswill v. Grand Lodge, etc., 133 Ga. 837 (67 S. E. 188, 134 Am. St. R. 231, 18 Ann. Cas 53); Supreme Lodge &c. v. Improved Order Knights of Pythias, 113 Mich. 133 (71 N. W. 470, 38 L. R. A. 658); 38 Cyc. 694-696. This ease is based wholly on the act of 1909, and nothing herein said is to be understood as in any way affecting rights arising under the general law independently of that act. It will be seen from reading section 1994 of the Civil Code, above quoted, that before one organization can prevent another from becoming incorporated under a certain name and style, it must have the right to the exclusive use of the name in question. It is provided by that section that “Whenever there shall be an actual or threatened violation of the provisions of the preceding section of this Chapter, the organization entitled to the exclusive use of the name in question, under the terms of said section, shall have the right to apply — 842 — to the proper courts for an injunction to restrain the infringement of its name,” etc. It is insisted by the plaintiffs that this language has application to the relative rights of the parties litigant, and not to those organizations collaterally referred to by the defendants. But there is nothing in the act of 1909, as codified above, to so indicate. It would seem to place the burden upon the organization seeking the injunction to show that it has the right to the exclusive use of the name over all other incorporated organizations or persons. Unless, therefore, the plaintiffs have established that they are entitled to the exclusive use of the name or words “Good Samaritans,” they are not entitled to the equitable relief sought. To show that they have obtained a charter, or have organized and are using that name, is not sufficient. They must show not only that they have the right to use the name in question, but that they have the exclusive right to so use it. According to the statement of facts set out above, it appears that both of the plaintiffs use the distinctive name or words “Good Samaritans,” and the defendants likewise, in their proposed charter, use the same words. Have the plaintiffs, therefore, the exclusive right to use the name of “Good Samaritans”? The plaintiffs'rely upon a charter granted to “State Grand Lodge No. 7 Independent Order of Good Samaritans and Daughters of Samaria” by Clarke superior court in December, 1908. They also rely upon a charter granted to the “Independent Order of Good Samaritans and Daughters of Samaria, United States of America,” under the act of Congress of 1870, and the acts amendatory thereof. They also offered in evidence and rely upon certificates of incorporation granted in the District of Columbia in the years 1872, 1879, and 1892, incorporating the “Independent Order of Good Samaritans and Daughters of Samaria, United States of America,” for a period of twenty years. A certificate of reincorporation was granted in April, 1892. The general act of Congress passed on May 5, -1870 (16 U. S. Stat. 101, 102), authorized the incorporation of benevolent associations, etc., within the District of Columbia, for a period of twenty years. This act was amended on April 23, 1884 (22 U. S. Stat. 13), 'and the words “not exceeding twenty years” were stricken from the act. It is argued that by the very act of amendment the charter of one of the plaintiffs had perpetual existence, unless divested by direct proceedings for that purpose. But to — 843 — this contention we can not agree. This plaintiff asked to be incorporated for a term of twenty years from April 25, 1892. It is probable that if it had named a term of fifty or one hundred years, or an indefinite period, the life of the charter would have been for the term named. This plaintiff did not do that, but, instead, named a term of twenty years from the date of the renewal in 1892, and there was no renewal at the expiration of twenty years from that time, so far as the record discloses. The amendment to the original act offered the opportunity for a “perpetual charter,” or at least for a longer term than twenty years; but the plaintiff did not avail itself of this opportunity and renew its charter at or before the time it expired on April 25, 1912. And we do not think that the act amendatory of the 'act of Congress of 1870, by merely striking out the words “not exceeding twenty years,” operated of itself, without more, to give the plaintiff here dealt with a perpetual charter. There was something for the incorporators to do. They could have the charter renewed for an indefinite term, if they took the proper steps as provided for the renewal of charters; but without • such an effort and the renewing of the charter, we think it expired on April 25, 1912, and was legally dead at the time the application for injunction in this case was made. Another thing, the amending act provides how charters for benevolent corporations may be obtained, and one prerequisite is that a certificate in writing shall be filed by those who desire incorporation, in which shall be stated, among other things, “the term for which it is organized.” 23 U. S. Stat. 13. Later this seems to have been enlarged so as to read, “the term for which it is organized, which may be perpetual.” 31 IJ. S. Stat. 1283. But this plaintiff in 1892, when its charter was about to expire, had it renewed for a definite term of twenty years from April 25, 1892. It might have named a longer term, for the twenty-year limitation had been repealed. It might have named a “perpetual” term, and thus obtained a perpetual charter, as insisted by plaintiffs. But it did not name a term longer than twenty years, and there was no renewal of the charter at the expiration of the second twenty years. We do not think that the mere repeal of the twenty-year limitation to the life of a charter, or the right to have a perpetual charter if the proper steps are taken to secure it, is self-executing so ’as to extend the life of the charter beyond the term which is named in — 844 — it. For these reasons we think the charter lapsed on April 25, 1912. The defendants introduced evidence tending to show that there was organized in 1847 a voluntary association under the name of “ National Grand Lodge Independent Order of Good Samaritans and Daughters of Samaria,” which has been doing business under that name since the above date. And on October 14, 1891, the General Assembly of the State of Georgia passed an act granting .a charter to “The Grand Lodge of the Independent Order of Good Samaritans and Daughters of Samaria of Georgia,” for a term of thirty years. Acts 1890-91, vol. 1, p. 504. This order has been doing business under this last name continuously since the charter was granted. On January 31, 1908, the “National Grand Lodge of the’Independent Order of Good Samaritans and Daughters of Samaria of North America”'was incorporated under the laws of the District of Columbia, and has since been in operation continuously under that name. These three associations and corporations seem to be distinct and separate from the plaintiffs, and yet each has the distinctive words or name “Good Samaritans” identical with the distinctive words “Good Samaritans” as contained in the charters of the plaintiffs in error. The plaintiff which was chartered by the superior court of Clarke county in December, 1908, namely, “State Grand Lodge No. 7 Independent Order of Good Samaritans and Daughters of Samaria,” is, under the ruling •above made, the only one which remains to be dealt with, and its charter was antedated by the two other charters and organizations above referred to, namely, “The Grand Lodge of the Independent Order of Good Samaritans and Daughters of Samaria of Georgia,” which was incorporated, as above set forth, by the General Assembly of Georgia in 1891; and the other organization, chartered under the laws of the District of Columbia on January 31, 1908, namely, “The National Grand Lodge of the Independent Order •of Good Samaritans and Daughters of Samaria of North America.” In view of the entire record in this case, to which we have given very careful consideration, we hold that the plaintiffs, or either of them, have no right to the exclusive use of the name “Good Samaritans.” The evidence tends to show that at least two of the organizations above specified were chartered, organized, and are using the words “Good Samaritans,” and it can not be held, in — 845 — view of these facts, that the plaintiffs have the right to the exclusive use of the name in question. They do not come within the terms of the act of 1909. The case of Lane v. Evening Star Society, 120 Ga. 355 (47 S. E. 951), and the other cases cited by the plaintiffs in error, were decided before the approval of the act of 1909. Judgment affirmed. All the Justices concur.