Waterbury evening Democrat., 1908-07-28
Judge Morschauser Holds That the Colored Order Must Find New Name and Emblem Race Is- sue is not inyoIved-Law is Plain Tbat Parent FrsternaI Organization of Elks is Entitled to tbe Exclusive Use of That Title.

the Unlted states was nandeu doWH the other day by Supreme Court Jus { tice Joseph Morschauser of New York state. The court holds that the Be- nevolent and Protective Order of | Elks is entitled to the exclusive use of that title and the badge of the or der-the Elk head. The colored or ! der similar to the Elks, which was a defendant in the case under consider ation, will, therefore, be compelled to seek another title.
 The effect of the decision is to ex- tend to fraternal orders. the rule ap- 1 piled to the use of corporate name ] in cases of commercial or trading , character. It is not necessary that actual deception should be shown in 1 initiating a title; the liability to de- i ception is sufficient.
 1 The final judgment of the court is ! that In furtherance of justice the i plaintiff is entitled to the relief ask ed for in the complaint with costs. | The action to which this opinion i applies was argued at length several : weeks ago before Judge Morschauser. i The plaintiff was the Benevolent and 1 Protective Order of Elks, of which l there is lodge in Poughkeepsie with nearly four hundred members. The defendant is colored order, styled The Improved Benevolent and Protec- l tive Order of Elks of the World and 1 the Grand Lodge of the Improved Benevolent and Protective Order of ] Elks of the World. 1 The following points are taken from Judge Morschauser's opinion: "The plaintiff and defendants are secret and fraternal organizations, the purpose and objects of each being In many respects similar to those of others. The plaintiff existed and was incorporated prior to the exist ence and incorporation of the de- | fendants.
 'The defendants order has no limi- tation as to the color of the individ- ual seeking membership. but 1t is formed mostly of colored persons, while to become member of the plain tiff order one must be a white, male citizen of legal age of the United States of America.
 This provision as to color was mentioned and discussed upon the l trial, but l do not understand what | part of 1t has in this case to deter mine the legal rights or privileges of the plaintiff and defendants corpora | tions.
 It Is further shown in the opinion that the defendants corporation adopted and used as an emblem the Elk head, also a seal similar to the plaintiffs. the titles of the officers were the same, as we'll as the mem- bership card. colors. constitution and bylaws; 1t used similar sign of recognition and the alleged secret grip of the plaintiff
 Defendants seem to have practI- cally appropriated the name. title, seal, card, emblem and colors and nearly everything else used by the plaintiff in conducting its corporate affairs.
 "0n different occasions heretofore there have been instances when mem bers of the defendants order would approach members of the plaintiffs order wearing an emblem similar to that adopted by the plaintiff and at- tempting to give to some of the plain- tins members the secret sign of rec ognition and pretending to be mem- bers of the plaintiffs order. ''lt was not necessary that actual deception should be shown. The lla- bility to deception is sufficient. "The plaintiffs' existence and af. fairs were and are threatened and there is imminent danger that the ob- iects and purposes for which 1t was incorporated will be interfered with ! The plaintiff had the prior right In the premises and the defendants have assumed the name and tItIs which Is substantially that of tn, plaintiff and to permit the defend. ants to continue the use of the name and title of the piaintih would in. juriousIy affect the plaintiff corpora ton
 The defendants well knew of tn. plaintiff incorporation al the time oI the application for their incorp0ra ton.
 The right to iniunetive relic from the improper use of a corporat, name Is not limited to cases in whicE the business alleged to be affected Il of commercial or trading character
 The court here cites an opinion bl Judge Patterson and adds.
 The defendants should uos hzv, become incorporated under the nam and title set forth in the certificate Q Incorporation It came within tn prohibition Of Section {. of Chaptel ss5. laws of 1ss6. which Is ss fol lows.
 No certificate of a proposed cor porstfon shall be filed or recorded having the sane name as an exfsfinl domestic corporation. or a name q nearly resembling t ss to De calcu lated 10 decsive
 The purposes and objects fo which plaintiff was incnrroratsl could he materially affected or ger kaRs destroyed if sny set of indivis uzIs could form a corporatioz. sppru ! srtAzs h& name and t1tle cr u<s