11 F.2d 881 | D. Ind. | 1926
Plaintiff brings this action to enjoin defendant from operating as a fraternal, ritualistic, secret order under the name of the “Independent Klan of America,” the “Knights of the Ku Klux Elan,” the “Invisible Empire, Knights of the Kn Klux Klan,” the “Ku Klux Klan,” or the “Elan,” or any similar or like name, and alleges that defendant is engaging in unfair competition, in that its operations tend to confuse the public.
Defendant replies that it is a corporation organized under the laws of the state of Indiana, and has a charter issued by the secretary of state of the state of Indiana; that the word “Klan” is one of general use in the United States, and that the organization known as the Ku Klux Klau came into being in 1865, and was disbanded in 1876, and has never been revived.
Defendant also claims that plaintiff knew as early as March 7,1924, that defendant had been authorized by the state of Indiana to assume this corporate name, and never did anything or took any steps to stop defend
Defendant further alleges in its answer that plaintiff organization is based upon opposition to Catholicism and Judaism, and is devoted to the promotion of the Protestant white American native-born citizen, and that these principles are different from those of the original Eu Elux Elan organization, which was active during the reconstruction period following the Civil War, and different from the defendant herein, and that the principles of the plaintiff are more nearly parallel to the principles of the Society of Native-Born Americans, also called the 1776 Association, but usually known as the EnowNothing Party, and that plaintiff organization is more nearly like the American Protective Association of 1876, usually referred to as the A. P. A., and that defendant has always stressed to the public the difference between its principles and those of the plaintiff, and has therefore enlightened or attempted to enlighten the public at large, instead of seeking to make fraudulent representations as claimed by plaintiff.
In addition to its answer, defendant filed a motion to dismiss, and the answer and motion were submitted together. Trial was had on the 22d day of January, 1926, and the cause was submitted without argument; counsel on both sides to file briefs within a reasonable time.
The evidence in this case is very simple and on most important points there is very little conflict. A brief statement of the salient features may not be amiss:
Plaintiff was organized as a corporation under the laws of the state of Georgia in 1916, and gradually extended its operations through the South, and in 1922 was operating in 48 different states, the Canal Zone, and the territory of Alaska. At its inception it was known as “The Elan,” and it is generally known throughout the entire United States as “The Elan.” . Its local units are known as “Hans,” and its members are known as ■“klansmen.” States are known as “realms,” parts of states are known as “provinces,” and the smallest unit -in a state is known as a “Han.’’ At the time of the trial it had propagated 200,000 male persons in the state of Indiana, and approximately 5,000,000 in the United States; the dues-paying members in Indiana of plaintiff organization at this time were approximately 50,000.
Defendant, according to the testimony of Samuel H. Bemenderfer, its chief officer in the United States, was organized to “admit Christian men. and women,” and to “cleanse the plaintiff organization of its unscrupulous men,” “to promote race purity rather than white supremacy,” “and to protect its members in their Protestant heritage.” Defendant has some 30 to 50 organizations in the state of Indiana, and possibly 300 organizations outside of Indiana. It has 65 to 70 organizations in Illinois, and is authorized to do business in 38 different states. Its constitution designates its local lodges as “Hans” and its membership as “Elansmen.” Letters written to its members addressed them as “fellow Elansmen,” and “loyal Elansmen.”
Many of the original members of defendant belonged to Delaware Elan No. 4, a local organization of plaintiff at Muneie, Ind., who became dissatisfied and unruly, and either withdrew or were banished from plaintiff organization, and immediately thereafter they formed an organization, which they called “the Elan of the North,” and later changed the name to the present name of defendant. They caused a letter to be written to many of the members of plaintiff * organization, saying, among other things: “We wish to impress upon your mind that this is not a new movement, but is a reorganization or regeneration of the old movement of Elankraft.”'
Defendant charged an initiation fee of $10, but where a member of plaintiff organization joined defendant organization no initiation fee was charged. This initiation fee was called a “Electoken” by both plaintiff and defendant organizations. At the time the members of Delaware Elan No. 4 were expelled or withdrew, practically the entire membership joined the organization called “the Elan of the North,” which later was changed to the Independent Elan of America, and at that time Delaware Elan No. 4 had on hand between $5,000 and $6,000. The undisputed testimony shows that this money was used to pay up bills.
There have been various Hans in Eentucky, Tennessee, West Virginia, and other states. They were originally organized for pleasure, and the name “Eu Elux” was invented in imitation of the noise made in cocking a gun. Afterwards the word “Elan” was added. Four thousand Elansmen of Muneie, according to the defendant’s testimony, were back of the Elan of the North. They rebelled and formed the Elan of the North.
Mr. Orion Noreross, National Secretary for the Independent Klan of America, testified that there is-no similarity in the names of the officers or members of the plaintiff and defendant organizations, except the names “Klansmen” and “Klanswomen.” There was evidence that confusion existed among members of plaintiff' and defendant organizations; that on several occasions members of defendant attempted to attend meetings of plaintiff, evidently thinking membership in one entitled them to all the privileges of the other.
It is not necessary, however, to justify injunctive relief, that confusion be shown. ■It is sufficient if confusion will probably follow the use of similar names. It was pertinently said, in a case cited in defendant’s brief: “The best possible evidence that names are sufficiently similar to mislead the public is the fact that the public, or some portion thereof, has been misled.”
In the'ease quoted, evidence that the public had been misled was entirely lacking. In the present case, there is undisputed evidence that in at least 12 different instances members of defendant attempted to attend meetings of plaintiff and stated they were Klansmen.
The evidence further shows that, in some instances, these very men surrendered their membership in defendant, when the deception was pointed out and explained to them. This evidence, standing uneontradicted, tends strongly to support plaintiff’s claim that there was, in fact, confusion.
Neither is it necessary to injunctive relief that the plaintiff be engaged in business or trading, as this relief has often been extended to charitable, benevolent, fraternal, patriotic, and religious organizations.
The exclusive right to the use of a name is based upon priority of use, and if it be shown that the names of two organizations, whether they be incorporated or not, are so similar as to likely result in confusion, then the courts will enjoin at the request of the one who first adopted and used the name.
Nor does the fact that defendant- has been chartered by the state of Indiana afford it any defense or immunity. Incorporators of a company choose its name. They are presumed to know the names previously adopted and used by organizations likely to be competitors, 'and, if they choose a name colorably similar to that of a competitor, this has been held to be evidence of fraud, especially if the new organisation is likely to profit hy the confusion that results from a similarity of the names. A trade-name is very like a trade-mark, and he who first adopts a name is entitled to all the benefits which flow from the use of such name. The name of plaintiff is “Knights of the Ku Klux Klan.” The name of the defendant is “the Independent Klan of America.”
The word “Klan” was heard very little of in the United States prior to 1916, and was a very uncommon word in the state of Indiana prior to 1921 or 1922. Now it is very well known and has a very distinctive meaning. The press uses it continuously; the people have given to it a secondary meaning, which is the result of associating it with a certain definite organization, to wit, the Ku Klux Klan.
Every one knows what organization is meant when he sees or hears the word “Klan.” It is a well-established rule that courts will take judicial notice of what is common knowledge among mankind. In other words, what every one knows, the court is presumed- to know. The court in this case is bound to know that the word “Klan” has come to have a secondary meaning, and designates the plaintiff, the Ku Klux Klan, and the word “Klansmen” is a name applied to the members of plaintiff organization. The officers of the defendant organization had this common knowledge when they organized their company, and it is difficult to escape the conclusion that they designedly used the word “Klan,” and that they have taken advantage of the publicity given this word and of the advertising effect of plaintiff’s long use thereof.
There have been no laches in this case. On the other hand, it would seem that plaintiff was prompt in bringing its suit. In the ease of National Circle, Daughters of Isabella, v. National Order, Daughters of Isabella, reported in 270 F. at 723, the Circuit Court of Appeals quoted approvingly from Nims on Unfair Competition as follows: “The doctrine of laches as to stale claims in matters of trust does not apply in full force to unfair competition cases, where acquiescence will not usually be inferred, and, even if at one time the facts would justify a presumption of such acquiescence, there still exists in the first user a right of revocation of such acquiescence.”
There could be no laches without acquiescence. There could be -no acquiescence without knowledge. A party may be deemed to be estopped if, with full knowledge, he re
Cases are numerous holding injunctive relief proper to stop unfair competition resulting from the use of a name eolorably similar to that of a complainant. A few of these cases, together with the volumes where they will be found, are given below: International Committee of Young Women’s Christian Association v. Young Women’s Christian Association of Chicago, 62 N. E. 551, 194 Ill. 194, 56 L. R. A. 888; Benevolent & Protective Order of Elks v. Improved-Benevolent & Protective Order of Elks of the World, 98 N. F. 756, 205 N. Y. 459, L. R. A. 1915B, 1074, Ann. Cas. 1913E, 639; Philadelphia Trust, Safe-Deposit & Insurance Company v. Philadelphia Trust Co. (C. C.) 123 F. 534; National Circle, Daughters of Isabella, v. National Order, Daughters of Isabella (C. C. A.) 270 F. 723; Modern Woodmen of America v. Hatfield (D. C.) 199 F. 270; Order of Owls v. Independent Order of Owls, title of the ease being “Talbot v. Independent Order of Owls,” 220 F. 660, 136 C. C. A. 268; Salvation Army in United States v. American Salvation Army. 120 N. Y. S. 471, 135 App. Div. 268; Supreme Lodge of the World, Loyal Order of Moose, v. Improved Benevolent Protective Order of Moose of the World (N. J. Ch.) 123 A. 532. Other citations could be given, but the above list seems sufficient.
There can be no reasonable doubt that the use of the word “Klan” has gained a secondary meaning, and defendant is an infringer. The fact that it wiE suffer damages if it is enjoined, and wiE be compelled to change its name if it desires to continue, is not of controlling moment. If it is compelled now to change its name, the loss arises out of its own foEy in deliberately choosing a name so simüar to plaintiff’s 'that in aE reason it must have known it was doing wrong. A wrongdoer cannot complain if it is caEed to account.
A permanent injunction should be and is hereby granted against defendant, and it is hereby enjoined from using the names “the Knights of the Ku Klux Klan,” “the Invisible Empire, Knights of the Ku Klux Klan,” ■“the Ku Klux Klan,” or the “Klan,” and it is further enjoined permanently from operating in any manner under any of said names, -or any similar or like name or names.