Court Case Between PHGLofGa and Modern Free Accepted Masons of Georgia.
Below is a copy of the original court transcripts:
105 F. Supp. 315, *; 1951 U.S. Dist.;
92 U.S.P.Q. (BNA) 406
MOST WORSHIPFUL PRINCE HALL GRAND LODGE, FREE & ACCEPTED MASONS, OF GEORGIA v. SUPREME GRAND LODGE, MODERN FREE & ACCEPTED COLORED MASONS OF THE WORLD
Civ. A. 362
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT GEORGIA. COLUMBUS DIVISION
105 F. Supp. 315; 1951 U.S. Dist. LEXIS 3724; 92 U.S.P.Q. (BNA) 406
December 28, 1951
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff, masonic association, sought an injunction in its trademark infringement action against defendant, alleged masonic association, for trademark infringement.
OVERVIEW: Plaintiff, masonic association, sued defendant, alleged masonic association, for trademark infringement due to defendant's use of the words "Free and Accepted Masons" as part of its name. Plaintiff moved for an injunction. The court granted plaintiff's motion for an injunction, holding that defendant's use of the words "Free and Accepted" constituted an infringement on plaintiff's trade name and that use of such name was likely to cause confusion to the general public. The court found that plaintiff had the prior right to the use of the name and that defendant's use constituted an attempt to deceive and defraud the public and reap the benefits of plaintiff's good will. The court determined that defendant was largely a one-man institution primarily interested in insurance, rather than the fraternal and benevolent features of plaintiff’s organization, and that defendant were an illegitimate organization from a masonic point of view.
OUTCOME: The court entered judgment for plaintiff and issued an injunction, since defendant's conduct constituted an attempt to deceive the public and benefit from the use of plaintiff's mark.
CORE TERMS: masons, masonic, charter, fraternal, exclusive
right, burial, matter of fact, charitable, continuous, lodge, ninety-eight,
subordinate, predecessor, lawfully, ancient, symbol, competent jurisdiction,
immediately following, conclusions of law, right to use, new remedy,
paraphernalia, consolidation, illegitimate, satisfactory, innumerable,
negotiations, discontinue, membership, illegally
COUNSEL: [**1]
Foley, Chappell, Kelly & Champion, of Columbus, Ga., for plaintiff.
George B. Culpepper, Jr., of Fort Valley, Ga., and Swinson, Elliott &
Schloth, of Columbus, Ga., for defendant.
OPINIONBY: CONGER
OPINION: [*316]
In the original petition, The International Free and Accepted Masons, Inc.,
was made a party defendant. On written motion of the plaintiff, that
defendant was stricken, and the suit tried was that of 'Most Worshipful
Prince Hall, Free and Accepted Masons, Jurisdiction of Georgia, Plaintiff,
v. Supreme Grand Lodge, Modern Free and Accepted
Colored Masons of the World, Defendant.'
While there were only two parties to this case, a great deal of testimony,
historical data and background were introduced by both the plaintiff and the
defendant, with regard to York Free and Accepted Masons, Colored; the
plaintiff offering the evidence in an effort to show that not only the
defendant is spurious and existing illegally, but that the York Masons were
in the same category, asserting as one of its contentions that it had the
exclusive right to the use of the name 'Free and Accepted Masons'. The
defendant introduced much evidence with respect to the York Masons in an
effort to [**2] establish that that
organization had used the words [*317] 'Free
and Accepted Masons' over a very long period of time, and equally as long if
not longer than the plaintiff, and that, therefore, the plaintiff was not
entitled to the exclusive right to the use of that name. Because of the
abundance of the evidence introduced with reference to the York Masons, that
body will hereinafter be referred to.
For convenience and brevity, the plaintiff will hereinafter be referred to
as the 'Prince Hall' Masons, and the York Free and Accepted Masons as 'York'
Masons.
The plaintiff contended that it has had a very long, honorable, worthy
history, dating back to the early days of this country, and springing from
the Grand Lodge of England, and that its existence throughout the country
has been continuous. It further contended that it has operated in Georgia
since immediately following the War between the States, and that its
operations and existence have been continuous in Georgia since that date,
and that because of its fraternal and charitable activities it has built up
a large membership throughout Georgia and most of the United States, and
that it is entitled to enjoy the fruits of the [**3] organization
which it has built up unhampered by the defendant, which, it contends, is
seeking to appropriate to itself the name of the plaintiff and receive the
advantages appertaining thereto.
The plaintiff further contends that the defendant is an illegal body, is
illegally constituted, and that it is wholly devoid and without authority to
carry on or conduct the business of a Masonic organization, and that in so
doing it is injuring and damaging the plaintiff and handicapping its
services, disrupting its operations, leading to confusion and
misunderstanding in the public mind and to those who are interested in Negro
masonry. The plaintiff further contends that the defendant is using the
signs, symbols and regalia used by the plaintiff, and which by its long use
has the right of continued use, undisturbed by the defendant.
The plaintiff further contends that it has the right to maintain this action
under the provisions of the Act of the General Assembly of 1909, embodied in
Code Section 106-201, on the theory that it has the exclusive right to the
use of the words 'Free and Accepted' Masons, and the further right to bring
and maintain this action under its common law remedy of [**4]
protecting trade names. The plaintiff further contends that the defendant,
being unauthentic and illegitimate, has no right of existence, and that
holding itself out to its members and to the public that it is a lawfully
constituted masonic body is a fraud upon the public and the plaintiff, and
that as a matter of fact, defendant is largely a one man operation,
primarily interested in insurance rather than in the fraternal and
charitable aspect of its organization, and that its alleged unauthorized and
illegal activities inure to the detriment of the plaintiff.
The defendant contends that it has an honorable
existence, commencing back in 1917 at
Opelika, in the State of
Alabama, and that it has had a continuous honorable existence since that
date to the present time. That it is engaged in fraternal and charitable
activities, and while ninety-eight per cent of its members are enlisted in
the insurance and burial features, it is not primarily a fraternal or burial
organization.
The defendant further contends that it was given a charter by a court of
competent jurisdiction in 1921, and that it came into Georgia and commenced
to do business about the year 1924, has a large following [**5] in
Georgia, valuable assets and good will, as well as tangible assets for the
conduct of its business, and that its organization was entirely legitimate;
that its conduct has been proper, and that it has as much right to exist and
do business as a fraternal organization as the plaintiff or any other such
organization.
The defendant further contends that the Act of 1909, supra, is the exclusive
remedy for the plaintiff, and that the Supreme Court's construction of that
Act is to the effect that before the party can take advantage of 'abative'
privileges therein, it is required to show it has the 'exclusive' right to
the use of the name which it seeks to enjoin others from using. It further
contends that the evidence is sufficiently [*318] clear
and ample that the plaintiff did not have the exclusive right to the use of
the name, and that it has never had such right. It contends that the York
Masons are as ancient as the Prince Hall, and that York Masons have at all
times and for hundreds of years used the name 'Free and Accepted' as a part
of their masonic name, and that in addition to its long and honorable
history, it has a very large following, not only in Georgia, but throughout
[**6] the 'States of the Union.'
The defendant further contended that the plaintiff was barred by laches.
The defendant further contended that the plaintiff did not come into court
with clean hands.
The consideration of this case consumed the major part of seven days. There
were many well-versed, highly educated, recognized Negro historians used as
witnesses on both sides. A few of the major ones consisted of Davis,
Johnson, Dobbs, Turner and Baldwin. In addition to these historians, there
were many histories on Masonry and Negro Masonry quoted and read from and
considered, the principal ones being Johnson, Davis, Grimshaw, Upton,
Voorhis and Mitchell. In addition to these historical volumes, there were
innumerable pamphlets, theses and articles read, quoted from and considered.
Having waded through all the mass of evidence and listened to the argument,
I have arrived at a clear conclusion, sufficient and satisfactory to my
mind. I do not deem it necessary, nor do I believe it would serve any good
purpose, to enter into a lengthy dissertation of the innumerable by-problems
and questions raised and considered, or the historical facts of the case as
between the plaintiff and the defendant. [**7]
If this case were between the Prince Hall Masons and The York Masons, I
believe a careful and analytical survey and study would prove helpful and of
much assistance.
Notwithstanding the evident tremendous amount of labor and study put forth
in the preparation of this case for trial, the very broad field covered in
the trial, both directly and by implication, the energy, thoroughness and
persistence in the conduct of the trial, I shall do no more than simply set
out, briefly, but I hope sufficiently to cover the main points, the findings
of fact and conclusions of law arrived at.
Findings of Fact
1. I find that the plaintiff and its claimed legitimate predecessors,
although often has had a favorable and continuous existence in America
since about the year 1776.
2. I find that the plaintiff, or its legitimate predecessors, came into
Georgia immediately following the War between the States, and that it has
had continuous existence since that date.
3. I find that the plaintiff was granted a charter in Georgia by the
Superior Court of Chatham County on July 11, 1890, as 'Most Worshipful Union
Grand Lodge of the Most Ancient and Honorable Fraternity of Ancient Free and
Accepted Masons [**8] of the State of
Georgia'; that this charter was renewed and amended in 1936, by proper order
of the court, and that the name was changed to 'Most Worshipful Prince Hall
Grand Lodge, A. F. and A. M. of Georgia', and that the charter was again
amended in 1950, by proper court order, eliminating from the name of the
plaintiff the word 'Ancient'.
4. I find that the plaintiff carries on and conducts fraternal and
charitable affairs, that it now has in Georgia approximately 15,000 male
members, approximately 5,000 female, auxiliary or Eastern Star members, 190
lodges for men, and 150 for women.
5. I find that the plaintiff has at all times conducted itself and its
affairs in a high, honorable, legal manner, and that it has used the words
'Free and Accepted' as a descriptive part of its name at all times during
its existence in this country and in this State.
6. I find that in addition to the large membership, which the plaintiff has,
it has now accumulated and possesses in Georgia properties and monies of
large worth and value.
7. I find as a matter of fact that the plaintiff does not have the
'exclusive' right to the words 'Free and Accepted' as a part of its Masonic
name.
[*319] [**9]
8. I find that the words 'Prince Hall' as used by the plaintiff in its name
have not been so used for any considerable length of time and have no
particular significance because of use, but do have great and fundamental
significance because of origin and historical interest.
9. I find, according to Masonic history and jurisprudence, that subordinate
lodges can only come into existence, and cannot legally continue to exist
except, by warrant or charter from a Grand Lodge.
10. I find that the Plaintiff, or the Prince Hall Masons, has two
organizations, to-wit, a Grand Lodge, which is generally co-extensive with
the States, each of which is co-equal and supreme within its own
jurisdiction, and subordinate lodges.
11. I find that as a matter of practice the plaintiff and its members do not
recognize the defendant as being legally organized legally existing, or its
individual members as being masons, except and unless and until a member of
the defendant seeking to affiliate with the plaintiff is 'healed'.
12. I find that the defendant was organized or came into existence about the
year 1917, at or near Opelika, Alabama, when a group of from six to eight
persons, said to be Master Masons, [**10] met
and organized.
13. I find that the defendant, or its legal predecessor, was granted a
charter by a court of competent jurisdiction for the County of Jefferson and
State of Alabama on November 17, 1921, and it was named in the application
for and the order granting the order 'Free and Accepted Colored Masons of
America.'
14. I find that by an amendment to the charter of the defendant on February
27, 1945, the name of the defendant was changed to 'Supreme
Grand Lodge, Modern Free and Accepted Colored Masons of the World'.
15. I find as a matter of fact, and it was introduced in evidence, an
insurance certificate showing that the defendant had been doing business in
the State of Georgia since 1924; that they were authorized officially to do
business in the State of Georgia by the Secretary of State on October 18,
1950.
16. I find that in 1924 delegates from a few subordinate lodges in two
States (Alabama and Georgia) formed a Supreme Grand Lodge, and that J.B.
Baldwin was elected the Supreme Grand Master of the Supreme Grand Lodge,
which office he has held continuously and at all times since.
17. I find that the defendant uses the same ceremonies, rituals, insignia,
symbols, [**11] emblems, signs and
paraphernalia as use by the plaintiff and the York Masons.
18. I find that as a matter of practice the defendant recognized the
plaintiff as being legally constituted and lawfully existing, and its
individual members as being legitimate Masons. It also recognizes the
legality of the organization and the existence of the York Masons, and
recognizes its members as being legal Masons.
19. I find that neither the plaintiff nor the York Masons recognized the
defendant as being legally organized and constituted, because it has no
writ, warrant or charter from a superior legally existing body.
20. I find that the plaintiff is very antagonistic towards the defendant and
evidences an uncompromising attitude, but, on the other hand, I find that
the York Masons are friendly towards the defendant, and that conferences
between the high officials have been had and negotiations commenced looking
towards the consolidation of the two or the taking over of the defendant by
the 'York' Masonic group.
21. I find that the defendant has since about the year 1918 been almost if
not completely dominated and controlled by J. B. Baldwin, its Supreme Grand
Master of its Supreme [**12] Grand Lodge.
22. I find that the Supreme Grand Master appoints the Deputy Supreme Grand
Masters, and that they are under his direct control and supervision.
23. I find that the interest of the defendant is pretty largely that of
insurance or burial aid; that ninety-eight per cent of its members carry one
or the other; that the Supreme Grand Officials receive their compensation,
which is quite remunerative, [*320] from
that feature of the organization, and that they have recently increased the
amount of insurance permissible up to $500, effective September 1, 1951.
24. I find that during the regime of J. B. Baldwin as Supreme Grand Master
of the Supreme Grand Lodge he has dealt in the undertaking business, the
casket business, and other side enterprises in aid of the burial and
insurance features of the defendant, which inured to the enjoyment and
enrichment of the Supreme Grand Master.
25. I find that according to the evidence of the defendant it has
approximately 2,200 members in Georgia and approximately 10,000 in other
States, and that ninety-eight per cent of the members carry either burial
benefits up to $100 or endowment benefits up to $300. They only have on hand
[**13] the sum of approximately $7,000 in
cash, equity in buildings worth $6,000 or $7,000, and mortgages and security
deeds of approximately $8,000, some not signed, others improperly executed,
and in all of which J. B. Baldwin is the grantee.
26. I find that the defendant does not have or carry any bank account or any
bank deposit, but that the treasurer handles the funds in cash and keeps
them in currency in a box about the house, or elsewhere.
27. I find that the treasurer and all the officers handling money, except
the Supreme Grand Master, are under bond with the Maryland Casualty Company,
but the funds of the defendant have been lost on two or three occasions, and
some of its records have likewise been lost or misplaced.
28. I find that when a member of the defendant dies, entitled either to
endowment insurance or burial benefits, the beneficiary or party entitled
thereto is immediately paid by check drawn on the personal account of J. B.
Baldwin, and he is subsequently reimbursed in cash by the Supreme Grand
Treasurer.
29. I find that the defendant's use of the words 'Free and Accepted' is an
infringement on the real name or trade name of the plaintiff and is such a
colorable [**14] imitation thereof that the
general public, in the exercise of ordinary care, might think or be led to
believe that it is the name of the plaintiff, who had the first and prior
right to the use of the name.
30. I find as a matter of fact that the use of the words 'Free and Accepted'
by the defendant is a fraud against the plaintiff, who is entitled to the
use of those words, and that the dominant, controlling master mind of the
defendant, J. B. Baldwin, intended to create the impression in the minds of
the public that he and his group were the ancient and original 'Free and
Accepted' Masons, which they are not.
31. I find that the adoption by the defendant of the words 'Free and
Accepted', which are the distinctive features of the plaintiff, was done by
the defendant with the intent to deceive and defraud the public and reap the
benefits of plaintiff's good will, to the injury and damage of the
plaintiff, and to the confusion of the public.
32. I find, according to masonic jurisprudence, that the defendant was not
regularly and lawfully organized, since it never had any charter, writ, or
warrant of authority from any superior body.
33. I find that because of the manner of its organization, [**15] the
manner of its existence, the fact that it is largely a one-man institution,
the fact that it is apparently more interested in the insurance feature than
in the fraternal and benevolent features, because they were to give a
candidate three degrees in one night, that the defendant is not authentic,
that it is from a purely masonic point of view spurious and illegitimate,
and that it has no right to use the words 'Free and Accepted' in its masonic
name.
Conclusions of Law.
1. I conclude, if the plaintiff had relied solely on the provisions of the
Act of 1909, Code Section 106-201, it would have assumed the burden of
establishing that it had the exclusive right to the use of the words ' Free and Accepted'. Independent Order of Good
Samaritans and Daughters of Samaria, v. Mack, 139 Ga. 835, 78 S.E. 336; Graves v. District Grand [*321]
Lodge No. 18, Etc., 155 Ga. 147, 116 S.E. 613.
2. I conclude that the plaintiff relied upon its common law rights to
protect its name as against the defendant, although it may not have the
exclusive right to its use.
3. I conclude that the fraternal and charitable deeds of the plaintiff over
such a long period gave it an interest in and the right [**16] to
use the words 'Free and Accepted', and that it had a value therein to itself
and to the members it recruited and was entitled to enjoy it.
4. I conclude that under the evidence in this case the plaintiff is not
barred by laches.
5. I further conclude that when a statute such as the Act of 1909, supra, is
enacted which gives a new remedy for an existing right, that such statute
does not take away the pre-existing remedy, unless and without express
words, or necessary implication to that effect, and that ordinarily the new
remedy is simply accumulation, and that a person entitled may pursue either.
6. I conclude from what is said above that the plaintiff is entitled to the
injunction sought, and it will be so ordered in appropriate judgment hereto
affixed.
7. I conclude that the defendant should not immediately be required to
discontinue its operations because of the inevitable loss that would inure
to it and its members under such proceeding.
8. I conclude that the defendant should have a reasonable time within which
to wind up its affairs in Georgia, or either merge with the York Masons,
which appears to be a duly qualified and existing masonic body in Georgia
and regularly [**17] and legally operated.
9. I can neither find as a matter of fact nor conclude as a matter of law,
but I urgently recommend that the defendant begin further additional
conferences, and that negotiations be renewed and continued with the York
Masons, looking towards the fusion of the two, or the taking over of the
defendant by the York Masons, or working out some satisfactory agreement, so
that the defendant and the members thereof residing in Georgia will not
materially suffer or sustain loss.
Judgment.
Whereupon, it is considered, ordered and adjudged, That the defendant,
Supreme Grand Lodge, Modern Free and Accepted
Colored Masons of the World, be, and it is hereby, enjoined, collectively
and individually, including the agents, officers, associates and
representatives,
(a) From appropriating and employing the ritual ceremonies of the plaintiff
and using any insignia, name, emblem, badge, symbol or paraphernalia of the
plaintiff;
(b) From using the words 'Free and Accepted' in its orders, by-laws,
initiations, publications, letterheads, or otherwise.
It is further ordered that this decree and judgment shall not take effect
instanter, but that the same shall remain and be in abeyance [**18] for
a period of one year from this date, so that the defendant may either
orderly dissolve and discontinue its business as now carried on or merge
with the York Masons or some other legally constituted and legally existing
Masonic body.
If during the twelve months period above provided there should be a merger
or consolidation of the defendant with some other legally constituted
Masonic body, that fact shall be made known to the Court in a competent and
evidential manner; but if no such merger takes place within the twelve
months period, the full force and effect of this decree shall become binding
and effective twelve months from this date.
Because of the heavy court costs and the unequal ability of the parties to
pay, I am not assessing the whole cost against the defendant, which would
ordinarily be done, but I am assessing the cost two-thirds or 66 2/3 per
cent against the plaintiff, and one-third or 33 1/3 per cent against the
defendant.