Afro-American Order of Owls, Baltimore Nest No. 1, v. Talbot
| Decision Date | 24 June 1914 |
| Docket Number | 12. |
| Citation | 91 A. 570,123 Md. 465 |
| Parties | AFRO-AMERICAN ORDER OF OWLS, BALTIMORE NEST NO. 1, v. TALBOT et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court of Baltimore City; Henry Duffy, Judge.
"To be officially reported."
Injunction by John W. Talbot and others against the Afro-American Order of Owls, Baltimore Nest No. 1, a body corporate. From decree for plaintiffs, defendant appeals. Reversed and remanded with directions.
Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.
W Ashbie Hawkins, of Baltimore (Geo. W. F. McMechen, of Baltimore, on the brief), for appellant. Carlyle Barton, of Baltimore (Randolph Barton, of Baltimore, on the brief), for appellees.
On the 20th November, 1904, there was organized in the city of South Bend, Ind., a beneficial secret society, which adopted the name of "Order of Owls." A form of organization or government was then agreed upon under which the organization has continued to the present time, but the order has never been incorporated. It established in various states and places subordinate bodies, to which were given the name "Nests," prefixed with the number of the Nest, while the parent organization was known as the Home Nest. Several of these subordinate Nests were established in the state of Maryland. By the terms of its Constitution the qualifications for membership were:
The membership of the organization has grown from the time of its foundation until at the latest date for which definite figures appear in the record the order contained 78,861 members.
On the 14th March, 1911, there was formed under the general laws of this state a corporation under the name of the "Afro-American Order of Owls, Baltimore Nest No. 1." The purpose of the organization was declared in the certificate to be "the paying exclusively sick and funeral or death benefits or dependents."
On November 11, 1912, the Afro-American Owls gave a ball at the New Good Hope Hall on Lexington street, in the city of Baltimore, and a month and a day later the bill of complaint in this case was filed to enjoin the defendant corporation from using the name "Afro-American Order of Owls" as a name of a fraternal, benevolent order, and from using any name of which the name "Order of Owls" forms a part, or using the words "Order of Owls" for any purpose, whether alone or in conjunction with any other words, and for such other and further relief as their case or the case of any of them might require.
Testimony was taken to prove the allegations of the bill as to the organization of the order, its objects and the size of its membership, and also that it was not until about the time of the giving of the ball before mentioned that the Indiana Order of Owls, or their members in the city of Baltimore, had any knowledge whatever of the existence of the Afro-American body using in part the same name. This last evidence was, of course, given to avoid the possibility of a successful defense on the ground of laches, and, as the evidence in this respect is entirely uncontradicted, it must be taken as true, and, since it is so to be regarded, the plaintiffs cannot be accused of laches when their suit was instituted less than 60 days after the knowledge of the supposed imitation of their name was first brought to their attention. The evidence on behalf of the defendants was directed to two points: First, that at the time of the incorporation and down to or shortly before the filing of the bill of complaint they were in ignorance of the existence of the other Order of Owls. The purpose of this was manifestly to prove their good faith in the formation and conduct of their organization; nor is any evidence offered to contradict this, except such as may result inferentially from the symbol or emblem of the two bodies. This symbol is not identical. In the case of the voluntary association it consists of three owls in a sitting posture upon the limb of a tree which runs horizontally and contains a few twigs at one end, and upon the breast of each owl appears what is described by the witnesses as the letter "0." In the case of the Afro-American body three owls seated on a horizontal bar are also used, with the letters A. A. above, and beneath the letters OOO. The chief point of similarity in the symbol is the identity in the number of birds and their general position. Under such a condition of facts and proof, the case must necessarily be determined by the rule of law, and the briefs of counsel abound with citations from, and references to, adjudicated cases of unfair competition.
In all cases where unfair competition is alleged, the test of whether the party applying for the injunction is entitled to the relief sought is whether the public has been misled by a similarity of name, style, of package or representations so that an ordinarily careful person desiring to procure an article of given make or manufacture would, by such similarity, be deceived into taking the competing article or preparation, or firm or corporation producing the same.
How far the cases relating to unfair competition are necessarily controlling of a case like the present may be a doubtful question, for different courts seem to have regarded it differently; but there are a sufficient number of cases which have arisen growing out of a supposed imitation of name in organizations similar to those litigant here that it is possible from them to deduce something in the nature of a guide for the present case, and reference will be made, therefore, chiefly to cases of this character.
In some states statutes have been passed under which it is forbidden to the state authorities to grant incorporation to those applying for it, in cases where the name proposed is so similar to one in use by an existing corporation, or even voluntary association, as to tend to mislead the public. So in the case of Society of the War of 1812 v. Society of the War of 1812 of New York, 46 A.D. 568, 62 N.Y.S. 355, the injunction was granted because of the liability that the public might be misled by the similarity of the name, and the fact of the statute under which the court seemed to be of opinion that the incorporation should never have been granted. And this same principle was further emphasized in the Benevolent & Protective Order of Elks v. Improved Benevolent & Protective Order of Elks, 60 Misc. 223, 111 N.Y.S. 1067. The direct question which is here presented was before the Supreme Court of Tennessee in Benevolent & Protective Order of Elks v. Improved Benevolent & Protective Order of Elks, 122 Tenn. 141, 118 S.W. 389, in which case the most noticeable improvement was that the Improved Order was for persons of African descent, when the original order excluded that class. In deciding it, the court said:
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