Recent Case Notes
![handle is hein.journals/ylr35 and id is 778 raw text is: RECENT CASE NOTES
ASSOCIATIONS-FRATERNAL SOCIETIES-INJUNCTION RESTRAINING UNAU-
THORIZED USE OF NADIE.-The plaintiff, a society known as the Supreme
Lodge of the World, Loyal Order of Moose, having the advantage of prior
organization, sought to enjoin the defendant from calling itself the In-
dependent, Benevolent and Protective Order of Moose. Held, although not
organized for profit, the plaintiff may have the unfair use of its name
enjoined, to protect its property rights. Supreme Lodge of the World,
Loyal Order of Moose v. Independent, Benevolent and Protective Order of
Moose (1925, N.J. Eq.) 131 Atl. 219.
It is now well settled that equity will enjoin the unauthorized use of
trade names because, it is said, a business or pecuniary interest is in-
volved. Marshall Engine Co. v. New Marshall Engine Co. (1909) 203
Mass. 410, 89 N. E. 548. In contrast is the unsuccessful attempt of an
individual to enjoin the use of his surname, which did not get beyond the
court of first instance. Cabot v. Kabotchnik, reported in the New York
Times for Aug. 16, 1923, p. 14, col. 5. To clubs and purely social organiza-
tions, however, the courts have been ready to extend the same protection
in the use of their names as is accorded to business associations. Grand
Lodge K. P. v. Grand Lodge (1911) 174 Ala. 395, 56 So. 963; Benevolent
and Protective Order of Elks v. Improved Benevolent and Protective Order
of Elks of the World (1912) 205 N. Y. 459, 98 N. E. 756. It is said that
the reasons for such relief are the same as those for protecting trade
names. State ex rel. Great Am. Home Say. Inst. v. Lee (1921) 288 Mo.
679, 233 S. W. 20. Thus it is said that the relief is given to prevent a
fraud on the public. Knights of Maccabees of the World v. Searle (1905)
75 Neb. 285, 106 N. W. 448; see Supreme Lodge Knights of Pythias v.
Improved Order Knights of Pythias (1897) 113 Mich. 133, 137, 71 N. W.
470, 471. Or, as in the instant case, to protect some property right.
Grand Lodge K. P. v. Grand Lodge, supra. Insistence on these grounds
for relief is probably explained by the traditional idea that equity acts only
to prevent fraud or to protect a property right. Cf. Chappell v. Stewart
(1896) 82 Md. 323, 33 Atl. 542. But in these cases the notion of fraud
on the public seems somewhat fanciful, for the public would ordinarily
suffer no damage, if the unauthorized use of the club name were not
restrained. The only effect would be that the public would erroneously
regard the defendant organization as a part of the plaintiff organization.
Cf. Schechter, Historical Foundations of Trade Mark Law (1925) 5. The
annoyance of the plaintiff is generally the only result. While these or-
ganizations ordinarily have physical property the value of which may be
remotely threatened, it is submitted that the protection of such property
is only incidental and that to rest relief on such a ground is to stress the
non-essential. It is the delectus personarum, on which depend its repute
and standing in the community, that the plaintiff is interested in having
protected. The privilege of choice of membership is well settled. Mayer
v. Journeymen Stone Cutters (1890) 47 N. J. Eq. 519, 20 At. 492. But
this privilege would be practically nugatory if the rejected persons were
privileged to masquerade before the public as members of the rejecting
organization. Thus to accord such organizations rights in rem against
the unauthorized use of their names is a natural development. If, how-
ever, what the court is really protecting is the repute and standing of the
organization and not some property right, it would seem better frankly
to put these cases on that ground.
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