Emory v. Grand United Order of Odd Fellows

Beck, J. (After stating the facts.) We are of the opinion that the court below correctly held that the distinctive name of the plaintiffs’ order is “Order of Odd Fellows,” and that this is also the essential and distinctive part of the name in and by which the defendants' are seeking to establish their order, and that the other words in the formal designation of the defendants’ order do not make such a difference of designation 'as would prevent its being “a colorable imitation” of the name of the plaintiffs’ order. Considering the character and purpose of the two organizations, the names are “substantially similar.” From the report of the case of Creswill v. Knights of Pythias, 133 Ga. 837 (67 S. E. 188, 134 Am. St. R. 231, 18 Ann. Cas. 453), it appears that the Grand Lodge of Knights of Pythias of Georgia and others filed a petition to enjoin Creswill and others from prosecuting an application to be incorporated under the name “Grand Lodge Knights of Pythias of North America, South America, Europe, Asia, Africa, and Australia, jurisdiction of Georgia,” one of the grounds of the application for injunction being that the name of the defendants was a colorable imitation of the name of the plaintiff in that case. In the opinion rendered by this court, reviewing the judgment of the court below granting the injunction prayed for, it was said: “Counsel for defendants contend that the name they are seeking to [427] appropriate by • incorporation is not substantially the same or a colorable imitation of the’ plaintiffs’ name. They say they make the name essentially different by adding the names of the continents, North America, South America, Europe, Asia, Africa and Australia. We could not agree with this contention of the defendants if the names of the continents thus used as suffixes were employed in every instance where the order is designated; for it is well established by the proof that the distinctive words in both orders are the words, 'Knights of Pythias.’ At one time in the history of the plaintiffs’ order, from the time of its incorporation under the act of 1870 to the time of its incorporation by the special act of Congress of 1894, the supreme order was known as the 'Supreme Order Knights of Pythias of the World.’ The defendants, in specifying their field of operation, do not specify the entire earth, but the main continents thereof. These words denoting latitude of operation are not distinctive, and they are not always added in the use of the name. It is the use and colorable or imitative character of the name that controls, and the use made of the name by the association alleged to have infringed is a question of fact for the jury. Foster, Milburn & Co. v. Blood Balm Co., 77 Ga. 216 (3 S. E. 284); Lies v. Daniel, 82 Ga. 272 (8 S. E. 432); Whitley Grocery Co. v. McCaw Mfg. Co., 105 Ga. 839 (32 S. E. 113). The addition of the word 'Artificial’ by suffix to the name 'Carlsbad Sprudel’ does not prevent infringement, 'Carlsbad’ being the distinguishing word. The name 'National Folding Box and Paper Company’ is infringed by the name 'National Folding Box Company Limited.’ 'The imitation need only be slight, if it attaches to what is most salient.’ Johnson v. Bauer, 27 C. C. A. 374, 82 Fed. 662; McCann v. Anthony, 21 Mo. App. 83; Saxlehner v. Eisner & Mendelson Company, 179 U. S. 19, 31 (21 Sup. Ct. 7, 45 L. ed. 60); Paul on Trade-Marks, §§ 59, 168, 170, 188. The plaintiffs in error rely upon the case of Supreme Lodge Knights of Pythias v. Improved Order Knights of Pythias, 113 Mich. 133 (71 N. W. 470, 38 L. R. A. 658), in which it was held that these names are not so similar as to cause one to be taken for the other. We do not believe that this ease is in line with the trend of authorities on the subject of similarity of names.” We think that what is said in the Crestvill case from which the above quotation is taken, and in the cases cited, is decisive of the question in hand, and renders any [428] more elaborate discussion unnecessary here. The decision in the Greswill ease relative to this question. supports the ruling of the court below, holding that the name of the defendants’ order is substantially similar to the name of the plaintiffs’ order, and is a colorable imitation thereof. 2. Section 1993 of the Civil Code reads as follows: “No person or organization shall assume, use, or adopt, or become incorporated under, or continue to use the name and style or emblems 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 tlie 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.” The court was authorized to find from the evidence that the plaintiffs’ order existed in this State and had been incorporated under the laws of this State prior to the date upon which the defendants’ order sought to organize and become incorporated, and that so far as the record discloses there was no other order of ■a similar name having a prior existence and incorporation to that of the plaintiffs in this State; and it followed that, under the provisions of section 1994 of the Civil Code, the plaintiffs were entitled to injunctive relief. 3. The court below evidently based its decision upon the provisions of sections 1993 and 1994 of the Civil Code, and did not pass upon the question which, but for that act, it might have been necessary to decide, 'to wit, whether, under the general law as to the infringement of trade-names and trade-marks and the laws relating to unfair competition in trade, the plaintiffs were entitled to injunction; and it is unnecessary for us to consider that question, in view of the express provisions of the two sections of the [429] Code referred to. But it is recited in the bill of exceptions, that plaintiffs in error “except to so much of the opinion as holds that the act of 1909 therein referred to was a legal and valid law and apJ plicable and controlling in the present case, and that the same was error, for the reason that said law, as contended in the argument of defendants [plaintiffs in error] before the chancellor was void for the following reasons: (a) That said act was violative of par. 8, sec. 7, art. 3 of the Constitution of Georgia, to wit: 'No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof.’ ” Whatever force such an objection might have had in' case it had been urged to the cohstitutionality of the act prior to the adoption of the Civil Code of 1910, the objection lost its force completely upon the adoption of the code, as the provisions of the act of 1909 are embodied in the two sections of the Civil Code above referred to and in section 258 of the Penal Code. Central of Georgia Ry. Co. v. State, 104 Ga. 831 (31 S. E. 531, 42 L. R. A. 518); McFarland v. Donalson, 115 Ga. 567 (41 S. E. 1000). 4. The act in question is not violative of those parts of the constitution of the United States contained in the 14th amendment, which prohibit any State from making or enforcing any law which abridges the privileges or immunities of citizens of the United States, or which has the effect of denying to any person within the jurisdiction the equal protection of the laws. Judgment affirmed. All the Justices concur.