161 Ga. 110 | Ga. | 1925
Lead Opinion
The plaintiffs in error filed this petition to enjoin the defendants in error from using the name “District Grand Lodge Number 18, Grand United Order of Odd Fellows in America, Jurisdiction of Georgia.” The prayers of the petition were, that the Georgia corporation known as District Grand Lodge No. 18, Grand United Order of Odd Fellows of America, Jurisdiction of Georgia, be enjoined from in any manner using in Georgia the name of District Grand Lodge No. 18, Grand United Order of Odd Fellows in America, Jurisdiction of Georgia, or from using the distinctive name of said national order in any form, and from using any of the emblems of said national order, or any rituals of said order, or doing any of the work peculiar to the order; that like injunction issue against any interference by said corporation with the use on the part of the petitioners and its members of said name and said emblems and said rituals, and like injunction issue against said corporation restraining it from representing, by itself, its agents, officers, or employees, that it is the representative in Georgia authorized to use the name of said national order. Upon the interlocutory hearing on May 3, 1924, his honor Judge Bell passed the following order: “that the defendant be and it is hereby enjoined, either by itself, its agents, officers, or employees from representing that it is the representative of the national order or that it represents or is a part or subordinate branch of the national Order, to wit, the Grand United Order of Odd Fellows in America. The defendant is further enjoined from interfering with the use on the part of the voluntary association and the petitioners and its members of the name, emblems, and ritual of the national order and its subordinate lodges. The defendant is further enjoined from so using its name, in connection with its business and operation, in such a manner as to deceive the public and pass itself off as the national organization or any branch thereof. Nothing in this order shall be construed as to enjoin the defendant from using its corporate name, provided in so using it it does not violate the terms of this order. The terms of this order as to the use of 'defendant’s name may be complied with by adding as a suffix thereto the word 'Incorporated.’” The plaintiffs in error excepted to the grant of this order, upon two grounds: “ 1. The said interlocutory decree, in refusing and failing to grant the injunction prayed against the use of the name 'District Grand Lodge No. 18,
We are of the opinion that the exceptions are well taken. The questions raised by this- bill of exceptions have heretofore been adjudicated by this court in Graves v. District Grand Lodge No. 18, etc., 155 Ga. 147 (116 S. E. 613), in which we held that “As a general rule appertaining to fraternal, charitable, and beneficial associations, the right to use a particular name for the association is dependent upon the prior use of the name in question, or one so similar thereto as to lead to confusion, regardless of whether such association is incorporated or not. A fraternal order by adopting the same name which was previously used by a fraternal association acquires no additional right to the use of the name by incorporation.55 The holding quoted was an adjudication which made it the law of the case. As to the question of the right to use the name in the particular petition then pending before us, the writer of the opinion in the Graves case, said: “In the present case the plaintiff claims the exclusive right to the use of the name District Grand Lodge No. 18, Grand United Order of Odd Bellows of America, Jurisdiction of Georgia. The defendants, plaintiffs in error here, only ask for a joint use of the name, stating that they have no objection to the plaintiff also using the name, provided they are not themselves deprived of a use which they enjoyed even before the organization of the plaintiff corporation; and it is not necessary to decide in the present case that these defendants
Under the ruling when this question was here before, and as set forth in the extract we have quoted from the syllabus, which under our law is the opinion of the court, regardless of the personal expressions used by the particular Justice who may deliver the opinion, the name Grand United Order of Odd Fellows in America belongs, as appears from the evidence in the case now before us, to the national order of colored Odd Fellows, incorporated as the subcommittee of management of the Grand United Order of Odd Fellows in America in the year 1886. As the evidence in the present record shows, without question, that the petitioners, now .plaintiffs in error in this case, are the duly authorized representatives in Georgia of the national body, they alone are entitled to the use of the designation Grand United Order of Odd Fellows, and the court should have enjoined the Georgia corporation from the use of that designation. It is useless to review the record or to refer to various phases of the long-continued litigation between the two factions of colored Odd Fellows which are still represented in the pending case, or to determine whether the District Grand Lodge No. 18, Grand United Order of Odd Fellows in America,
Judgment reversed.
Dissenting Opinion
This case is not a continuation of the case decided by this court and reported in Graves v. District Grand Lodge, 155 Ga. 147 (supra). Since we