Talbot v. Independent Order of Owls

• Decision Date: 25 February 1915
• Docket Number: 4091.
• Citation: 220 F. 660
• Parties: TALBOT et al. v. INDEPENDENT ORDER OF OWLS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

220 F. 660

TALBOT et al. v. INDEPENDENT ORDER OF OWLS et al.

No. 4091.

United States Court of Appeals, Eighth Circuit.

February 25, 1915

Syllabus by the Court.

An established voluntary association for religious, fraternal benevolent, or social purposes is entitled to an injunction against the use by another person, association, or by any corporation, of its name or emblem, and of any name or emblem so similar to it as to be likely to create confusion, or to deceive, or induce persons to join or treat with the latter as the former, because such a use of such a name or emblem in effect perpetrates a fraud upon the former, and upon the persons confused or deceived.

The principle, 'He who comes into equity must do so with clean hands,' repels or defeats a complainant only when his iniquity consists of wrongful conduct in the very act or transaction which raises the equity he seeks to enforce.

W. J Roberts, of Keokuk, Iowa, for appellants.

Charles A. Houts, of St. Louis, Mo., amicus curiae.

F. M Ballinger, of Keokuk, Iowa, for appellees.

Before SANBORN, ADAMS, and SMITH, Circuit Judges.

SANBORN Circuit Judge.

In November, 1904, John W. Talbot, George D. Beroth, and five other persons signed a constitution by which they and those who subsequently became members agreed with each other to be bound, and organized a voluntary secret ritualistic degree association under the name the 'Order of Owls.' The constitution provided that the object of the order should be the advancement of its members socially, morally intellectually, and otherwise, that the governing body of the association should be the 'Home Nest,' which should consist of the organizers thereof and of their successors, elected by the unanimous vote of the survivors to fill any vacancy caused by the death, resignation, or removal of any member; that the legislative power of the order was vested in the Home Nest sitting in January of each year; that the sole executive power of the order was vested in the Home Nest when it was in session, and when it was not in session in the Supreme President, who should be elected by the Home Nest annually; that the subordinate or local bodies of the order should be called 'Nests,' and each of them should pay to the Home Nest 10 cents quarterly for each of its members. John W. Talbot became and has continued to be the Supreme President of the order, whose membership increased until it had about 200,000 members and about 1,500 nests scattered throughout the United States, Canada, and the Philippines. In 1907 this order adopted an emblem, consisting of a design of three owls, each bearing the letter 'O' on its breast and sitting side by side on the same rod facing the observer. In July, 1911, the Supreme President revoked the charter of subordinate nest No. 1227, stationed at Keokuk, Iowa. Thereupon F. M. Ballinger, one of the defendants, and others, who had been members of nest No. 1227, organized a corporation under the laws of Iowa under the name 'Independent Order of Owls' for the same purposes as those for which the Order of Owls was organized, adopted the same emblem as that of the original order, except that, instead of placing an 'O' on the breast of each of three owls, it placed the letters 'I.O.O.' above the owls and the word 'Honesty' below them. This new corporation then proceeded to conduct its operations-- to solicit and receive members in competition with the original Order of Owls. Talbot and Beroth, as the sole members of the Home Nest of the Order of Owls, in their own behalf and in behalf of all the members of that order, brought this suit in equity against the Independent Order of Owls and F. M. Ballinger, to prevent them from using the name 'Independent Order of Owls,' or any name which contains the word 'Owls,' or the emblem that the Independent Order of Owls had adopted. At the final hearing the court below rendered a decree of dismissal of the complaint, on the grounds that the words Independent Order of Owls so distinguished the defendant corporation from the Order of Owls, and the emblem of the former so distinguished it from the emblem of the latter, that the plaintiffs were entitled to no injunction against their use, and that the plaintiffs had not come into court with clean hands.

An established voluntary association for religious, fraternal benevolent, or social purposes is entitled to an injunction...