140 Ga. 423 | Ga. | 1913
(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
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
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.