O.C.G.A. § 10-1-470 (2019)

Annotations

JUDICIAL DECISIONS Constitutionality. - Part is not violative of Fourteenth Amendment of the Constitution of the United States. Emory v. Grand United Order of Odd Fellows, 140 Ga. 423, 78 S.E. 922, 1913 Ga. LEXIS 149 (1913). Part creates new remedy without abrogating existing one. - Enactment of this part for the protection of such organizations as are named therein against the infringement and unauthorized use of their names and emblems merely created a new remedy for an existing right and did not expressly, or by necessary implication, abrogate the preexisting remedy. Supreme Grand Lodge v. Most Worshipful Prince Hall Grand Lodge, 209 F.2d 156, 1954 U.S. App. LEXIS 4713 (5th Cir.), cert. denied, 347 U.S. 953, 74 S. Ct. 679, 98 L. Ed. 1099, 1954 U.S. LEXIS 2737 (1954). Voluntary associations. - Former Civil Code 1910, §§ 1933 and 1934 were for the protection of any benevolent or other organization which was incorporated, against others using or adopting its name, style, or emblems, and the statutes cannot be invoked by voluntary associations. Faisan v. Adair, 144 Ga. 797, 87 S.E. 1080, 1915 Ga. LEXIS 254 (1915); Methodist Episcopal Church S., Inc. v. Decell, 60 Ga. App. 843, 5 S.E.2d 66, 1939 Ga. App. LEXIS 188 (1939). Exclusive right to use name must be shown. - Under this part, unless the plaintiffs have established that the plaintiffs are entitled to the exclusive use of the name or words in question, the plaintiffs are not entitled to the equitable relief sought. To show that the plaintiffs have obtained a charter, or have organized and are using that name, is not sufficient. Plaintiffs must not only show that the

plaintiffs have the right to use the name in question, but that the plaintiffs have the exclusive right to so use the name. Independent Order of Good Samaritans & Daughters v. Mack, 139 Ga. 835, 78 S.E. 336, 1913 Ga. LEXIS 622 (1913). Right to use name depends upon priority of incorporation. - Right to the exclusive use of a particular name as between incorporated associations organized for beneficial and charitable purposes, etc., depends upon priority of the Act of incorporation, whether the charter is derived from this state, the United States, or any other state in the Union. 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. Incorporation in this state does not give the fraternal corporation an exclusive right to use the corporate name as against prior use of the same name by a fraternal association incorporated under the laws of a sister state. Graves v. District Grand Lodge No. 18, 155 Ga. 147, 116 S.E. 613, 1923 Ga. LEXIS 28 (1923). Name held colorable imitation. - Name “Ancient Order of Odd Fellows Leeds Unity” is substantially similar to and a colorable imitation of the name “The Grand United Order of Odd Fellows in America.” Emory v. Grand United Order of Odd Fellows, 140 Ga. 423, 78 S.E. 922, 1913 Ga. LEXIS 149 (1913). Subsequent use of appropriated name presumed fraudulent. - If the association or corporation first appropriating and using the name has a clear right to the name’s use, the name’s subsequent use by another corporation knowing of the right is presumed to be fraudulent. Graves v. District Grand Lodge No. 18, 161 Ga. 110, 129 S.E. 783, 1925 Ga. LEXIS 310 (1925).

SELLING/OTHER TRADE PRACTICES

Burden of proving right to exclusive use of the distinctive name and words in question is upon the organization asserting the right. Independent Order of Good Samaritans & Daughters v. Mack, 139 Ga. 835, 78 S.E. 336, 1913 Ga. LEXIS 622 (1913) (injunction denied). Sufficiency of evidence. - Since the court was authorized to find from the evidence that the plaintiffs’ order existed in this state and had been incorporated under the laws of this state prior to the date upon which the defendants’ order sought to organize and become incorporated, and that so far as the record disclosed there was no other order of a similar name having a prior existence and incorporation to that of the plaintiffs in this state, under former Code 1933, § 106-202, the plaintiffs were entitled to injunctive relief. Emory v. Grand United Order of Odd Fellows, 140 Ga. 423, 78 S.E. 922, 1913 Ga. LEXIS 149 (1913). When it is charged that one beneficial

incorporated association is using a name which by prior use appertains to another fraternal organization, mere proof by the plaintiff that the defendant was using the name which the plaintiff had adopted to distinguish the plaintiff from similar organizations would not entitle the plaintiff to relief. Graves v. District Grand Lodge No. 18, 161 Ga. 110, 129 S.E. 783, 1925 Ga. LEXIS 310 (1925). In order for a plaintiff to obtain the aid of this section, it must appear that such plaintiff is: (1) an incorporated association; (2) that it is a benevolent, etc., organization previously existing in this state; and (3) that the defendants propose to use, or are using, the name and style or emblems of such incorporated organization, as so nearly resemble the same as to be a colorable imitation. Methodist Episcopal Church S., Inc. v. Decell, 60 Ga. App. 843, 5 S.E.2d 66, 1939 Ga. App. LEXIS 188 (1939).

RESEARCH REFERENCES Am. Jur. 2d. 36 Am. Jur. 2d, Fraternal Orders and Benefit Societies, §§ 24, 25. Am. Jur. Pleading and Practice Forms. 23A Am. Jur. Pleading and Practice Forms, Trademarks and Tradenames, § 73 et seq. C.J.S. 87 C.J.S., Trade-Marks, Trade-Names, and Unfair Competition, § 80 et seq. ALR. Application of principles of unfair competition to artistic or literary property, 19 A.L.R. 949. Right to enjoin use of name of defunct corporation, 27 A.L.R. 1024. Right, in absence of self-imposed restraint, to use one’s own name for busi-

ness purposes to detriment of another using the same or a similar name, 47 A.L.R. 1189; 44 A.L.R.2d 1156. Right of automobile association to exclusive use of name or insignia, 83 A.L.R. 712. Right of benevolent or fraternal society or organization to protection against use of same or similar name, insignia, or ritual by another organization, 76 A.L.R.2d 1396. Right to protection of corporate name, as between domestic corporation and foreign corporation not qualified to do business in state, 26 A.L.R.3d 994. Right of charitable or religious association or corporation to protection against use of same or similar name by another, 37 A.L.R.3d 277.