Loyal Order of Moose v. Paramount Prog. O. of M.

• Decision Date: 08 April 1930
• Docket Number: No. 20946.,20946.
• Citation: 26 S.W.2d 826
• Court: Missouri Court of Appeals
• Parties: SUPREME LODGE OF THE WORLD, LOYAL ORDER OF MOOSE, A CORPORATION, AND ST. LOUIS LODGE No. 1661, LOYAL ORDER OF MOOSE, A CORPORATION, APPELLANTS, v. PARAMOUNT PROGRESSIVE ORDER OF MOOSE ET AL., RESPONDENTS.<SMALL><SUP>*</SUP></SMALL>

26 S.W.2d 826

SUPREME LODGE OF THE WORLD, LOYAL ORDER OF MOOSE, A CORPORATION, AND ST. LOUIS LODGE No. 1661, LOYAL ORDER OF MOOSE, A CORPORATION, APPELLANTS, v. PARAMOUNT PROGRESSIVE ORDER OF MOOSE ET AL., RESPONDENTS.^*

No. 20946.

St. Louis Court of Appeals. Missouri.

Opinion filed April 8, 1930.

Appeal from the Circuit Court of the City of St. Louis. — Hon. H.A. Hamilton, Judge.

RERERSED AND REMANDED (with directions).

J.E. Turner for appellants.

(1) The plaintiffs having both been organized and using their names prior to the organization of defendant, Paramount Progressive Order of Moose, the defendants had no right to attempt to adopt or use a name resembling or a colorable imitation or a name calculated to deceive any person with respect to the plaintiffs' corporation. Sections 13272-3-4-5, 3675, and 9792, R.S. 1919. (2) Benevolent, charitable, fraternal and similar organizations have all of the rights and privileges to the use of their names and are afforded all the protection as manufacturing, banking and other business organizations. Knights of Maccabees v. Searle (Neb.), 106 N.W. 448; Cresswell v. Grand Lodge K.P., 113 Ga. 837, 67 S.E. 188; Grand Lodge A.O.U.W. v. Graham, 96 Iowa, 592, 31 L.R.A. 133; B.P.O.E. v. Improved B.P.O.E. (Tenn.), 118 S.W. 389; B.P.O.E. v. Improved B.P.O.E., 111 N.Y. Supp. 1067; Rudolph v. Southern Beneficial League, 7 N.Y. Supp. 135; Red Polled Cattle Club v. Red Polled Cattle Club, 108 Iowa, 105, 78 N.W. 803; Ottoman-Chavey Co. v. Dane, 95 Ill. 203; International Com. Y.W.C.A. v. Y.W.C.A., 194 Ill. 194, 56 L.R.A. 888. (3) A benevolent, charitable, fraternal or similar organization has the right to adopt a name by which it shall be known and anyone attempting to use a name similar or a colorable imitation or such as is calculated to deceive any person with respect to such corporation will be enjoined by the courts. Cresswell v. Grand Lodge K.P., supra; Grand Lodge A.O.U.W. v. Graham, supra; Rudolph v. S.B.L., supra; Ottoman-Chavey Co. v. Dane, supra; Christy v. Murphy (N.Y.), 12 How. Pr. 77; Pere Baglin et al. v. Cusinier Co., 221 U.S. 580, 55 L. Ed. 863; Aiello v. Montecallo, 21 R.I. 496, 44 Atl. Rep. 931. (4) The fact that the Secretary of State had granted defendants a franchise does not give them the right to use a name similar to, a colorable imitation of or calculated to confuse or deceive any person with relation to any prior name. Investor Publishing Co. v. Dobinson, 72 Fed. Rep. 603; Bissell Chilled Plow Works v. Bissell Plow Co., 121 Fed. Rep. 357; Hanique v. Cyclops Iron Works, 136 Calif. 354, 68 Pac. Rep. 1014. (5) Where a corporation in choosing its name deliberately attempts a colorable imitation, nearly resembling or calculated to confuse or deceive any person in taking advantage of the good standing, name or reputation of any former corporation or institution, it will be enjoined even though the former was chartered in another State. Peck Bros. & Company v. Peck Bros. Company, 113 Fed. Rep. 291; Modern Woodmen of America v. Hatfield, 199 Fed. Rep. 270; Blackwell's Durham Tobacco Co. v. Am. Tobacco Co., 59 S.E. 123. (6) Infringing upon a corporation by attempting to use its trade name, or colorable imitation thereof or one nearly resembling the same is sufficient grounds for injunctive relief. 2 Pomeroy's Equitable Remedies, 581; Grand Lodge A.O.U.W. v. Graham, supra. (7) It is not necessary to prove fraud, injury, intention or confusion in attempting to use a similar name to one already in use, the probability of confusion, or deception resulting therefrom and not the intention constitutes the test. However, fraudulent intent or conduct in that regard may have its influence. Nesne v. Sundet, supra; Am. Clay Mfg. Co. v. Am. Clay Mfg. Co., supra; International Silver Co. v. William Rogers Co., 57 Atl. 1037; Saxlehner v. Seigel-Cooper Co., 179 U.S. 42, 45 L. Ed. 77; Armington v. Palmer (R.I.), 43 L.R.A. 95. (8) The colorable imitation of emblems, labels, rituals, laws, literature and marks will be restrained by the courts. Bloate v. Simon (N.Y.), 19 Abb. N.C. 98; People v. Fisher, 3 N.Y.S. 786; Carson v. Ury, 39 Fed. Rep. 777; State v. Hagen, 6 Ind. App. 167. (9) Where fraud, confusion or deception is practiced, or a later organization attempts to take advantage of the good name, reputation and standing of an institution previously organized, courts of equity will intervene and grant relief. Banzhaf v. Chase, 150 Cal. 180; Dunston v. Los Angeles Van Co., 165 Cal. 89-94; Weinstock v. Marks, 109 Cal. 529-537, 42 Pac. Rep. 142. (10) Where a new corporation is organized or commences a new business and adopts or attempts to use a colorable imitation or nearly similar name to a previously organized institution or attempts to use similar by-laws, rituals, rules, emblems, mottoes, trade marks or literature to such an extent that it is liable to deceive, confuse or mislead any person, courts of equity will grant injunctive relief. Bates Mfg. Co. v. Bates Numbering Machine Co., 172 Fed. 892; Bates Numbering Machine Co. v. Bates Mfg. Co., 178 Fed. 681; Garrett et al. v. F.H. Garrett & Co., 78 Fed. 473; J. & P. Coates, Ltd., v. John Coates Thread Co., 135 Fed. 177; Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 Fed. 94; Chas. S. Higgins Company v. Higgins Soap Co., 144 N.Y. 468; National Circle of Daughters of Isabella v. National Order of Daughters of Isabella, 270 Fed. 723; Nims on Unfair Competition (2 Ed.), p. 162. (11) The mere use of prefixes or suffixes will not save the user of a similar name or colorable imitation from the charge of fraud or exempt it from injunction by the courts. Guth v. Guth, 224 Fed. 934; Reppetti v. Reppetti, 6 Trade Mark, Rep. 9; Romeike v. Romeike, 7 Trade Mark, Rep. 16. (12) The courts will protect a corporation in the lawful use of its name, trade mark, mottoes, emblems and literature from unfair treatment by others. Filley v. Fassett, 44 Mo. l.c. 178; Gaines & Co. v. Whyte Groc. Fruit & Wine Co., 107 Mo. App. 507; Hutchinson v. McGrath, 92 Mo. l.c. 357; Liggett & Meyer Tob. Co. v. Sam Reid Tob. Co., 104 Mo. l.c. 60. (13) The fundamental laws of the United States Government and the State of Missouri, in both language and spirit, seek to promote, stimulate and encourage harmonious cooperation, friendly and brotherly feeling and to eliminate everything of a discordant, irritating or disturbing nature among the people, regardless of race, color or creed and a court decision that gives one race, creed or color advantage over another because of such race, color or creed is in conflict therewith. Constitution of the United States of America; Preamble, Second Paragraph, Article VI of Amendments to the U.S. Constitution; Section 1, Article XIV of Amendments to the United States Constitution; Constitution of Missouri; Preamble, sections 1, 4 and 20, Article II. (14) The attempted use of the word "Moose," similarity of name, laws, ritual, emblems, literature, etc., by defendants is a continuing wrong and plaintiffs are not guilty of laches and are not estopped but may assert their rights at any time under the authorities herein cited, to which we add: Knights of the Ku Klux Klan v. Independent Ku Klux Klan, 11 Fed. (2d) 881. (15) It is not a principle of law or policy of the courts to encourage interlopers in their unfairness in trying to see how far they can go in trying to imitate trade names, emblems, laws, rituals, official titles, mode of procedure and literature of previously organized and honestly conducted institutions, but on the contrary to frown upon such and protect such institution in every reasonable way in the exercise of its property rights and interests therewith connected, and the very fact that defendants have adopted and are trying to use a colorable imitation of plaintiff's name, emblems, laws, ritual and literature is unfair competition regardless of race, color or creed and regardless of whether or not either organization ever engaged in commercial business or not. There can be unfair competition without commerce or mercantile business. Afro-American Order of Owls v. Talbot, 91 Atl. 570, 123 Md. 465; American Waltham Watch Co. v. United States Watch Co., 173 Mass. 85, 53 N.E. 141, 43 L.R.A. 826; Ammon & Person v. Narragansett Dairy Co., 252 Fed. 276.

Earl M. Pirkey for respondents.

SUTTON, C.

This is an action for an injunction. The plaintiff Supreme Lodge of the World, Loyal Order of Moose, is a corporation organized and existing under and by virtue of the laws of the State of Indiana, and having its principal place of business in the city of Anderson in that State. The plaintiff St. Louis Lodge No. 1661, Loyal Order of Moose, is a corporation organized and existing under and by virtue of the laws of the State of Missouri, having its principal office and place of business in the city of St. Louis, and is a subordinate lodge of the Supreme Lodge of the World, Loyal Order of Moose. The defendant Paramount Progressive Order of Moose is a corporation organized and existing under and by virtue of the laws of the State of Missouri, and having its principal office and place of business in the city of St. Louis. The other defendants are officers and members of said Paramount Progressive Order of Moose.

Plaintiffs' bill in substance prays that defendants be perpetually enjoined from using the name "Paramount Progressive Order of Moose" or any other name containing the word "Moose," and from using any articles of association or incorporation, by-laws, ritual, officer's title, emblem, literature or advertisement, patterned after, copied from, identical with, or similar to and in imitation of those used by the plaintiff Supreme Lodge, or plaintiff St. Louis Lodge, and from using any emblem circular in form with the head of a Moose protruding through the circular form, and with the letters "P.A.P." and "P.P.O.M." in the circular form or other part thereof, and from using any literature or advertisement containing the word "Mo...