"Of course, there is this limitation: Defendants should not use a name so much like the name of the order from which they have withdrawn as to work a damage to that order. The only way that the order can be damaged, as the least reflection will prove, is by depriving it of members who would otherwise join it. Let us apply to this case the principles by which courts determine similar controversies of trading concerns. The decisive principle is this: 'No man has a right to sell or advertise his own business or goods as those of another.' Williams v. Farrand, 88 Mich. 478, 50 N. W. 448. 'One must not, therefore, adopt a name so similar to that of another as to draw to himself business intended for that other.' Higgins Co. v. Higgins Soap Co., 144 N. Y. 462, 39 N. E. 490; Tallcot v. Moore, 6 Hun, 106; Potter v. McPherson, 21 Hun, 559; Holmes v. Holmes, 37 Conn. 296. The correct principle is stated in complainant's brief (page 71) as a quotation from the opinion of Judge Foster, of the Superior Court of Vanderburgh County, Indiana, rendered in the suit of St. George Lodge, K. of P. v. Rosenthal et al. 'Where a corporation has appropriated and used a name for such length of time as to become identified by the name, and had established a character and reputation under it, it is a fraud upon the corporation and the public if this name be assumed by others under such circumstances as would lead the public to believe that they constitute the original corporation, and, where injury will result to the corporation on account thereof, courts of equity will, at the suit of the injured parties, by injunction restrain the further perpetration of the wrong. It is the special injury to the party aggrieved and the imposition upon the public that constitute the wrong which the courts will redress. It is not necessary that the wrong should be intentionally committed. It is enough that the name should be used under such circumstances as would lead the public to believe that the latter organization was the former, and thereby cause injury to the former corporation.' "Where one uses the name of another for the fraudulent purpose of attracting to himself business which belongs to that other, no injustice will be done if the Court assumes that the name chosen accomplishes this purpose, even though the resemblance be not great. If one intends that the name he has chosen shall be believed to be that of another, it is fair to infer that he will so use that name as to promote the desired belief. Accordingly we find that the motives with which a name is chosen, and the circumstances attending its use, as well as the similarity of names, have a bearing in determining whether business is liable to be diverted, and, consequently, whether the Courts shall interfere. Compare Myers v. Buggy Co., 54 Mich. 215, 19 N. W. 961, and 20 N. W. 545, and Williams v. Farrand, 88 Mich. 479, 50 N. W. 446. See, also, Higgins Co. v. Higgins Soap Co., 144 N. Y. 471, 39 N. E. 490. Where the name was not chosen for the purpose of deception, and has not been used under circumstances intended or calculated to deceive, the similarity of names must be such as to deceive ordinary persons proceeding with ordinary care, to justify the interference of a court. High, Inj. § 1888; Seixo v. Provezende, 1 Ch. App. 192; McLean v. Fleming, 96 U. S. 251. There is not a particle of evidence in the case that defendants chose the name 'Improved Order Knights of Pythias' with the intention that their order should be supposed to be the Order Knights of Pythias, nor that they have done anything since the order was founded to lead the public to believe that the others were the same. On the contrary, the official communications issued by defendants, some of which are set up in complainant's bill, inform all who read them that their order is not the Knights of Pythias, but is a separate, and, they claim, an improved, order. Defendants seem quite as anxious as complainant to have it understood that their order is not the Knights of Pythias. "This, then, is the test: Is the name 'Improved Order Knights of Pythias' so nearly like the name 'Knights of Pythias' that ordinary persons using ordinary care would think them identical, would think them two names for the same order, or for branches of the same order, so that they would become members of the defendant's society when they really wanted to join complainant's society? In considering this question, it should be borne in mind that no complaint is or can be made on account of any damage resulting from the fact that the defendant society is a rival and a competing organization, and that the founders of an order have the right to claim that their order is superior to any and every other order. It is fatal, therefore, to complainant's case, if the difference of names indicates that defendants' society is a different society (even though it is claimed to be better) from complainant's. The law does not protect the name from any consideration for the feelings of those who bear it. Day v. Brownrigg, 10 Ch. Div. 294. The sole question is, as already stated, the effect, or probable effect, of the similarity of names, in diverting business. In determining this question, Courts do not receive much, if any, aid from adjudicated cases. In the communications of defendants set up in complainant's bill, the name of their society appears as follows: 'Improved Order K. of P.’ The name of the complainant is set forth as follows: 'Supreme Lodge Knights of Pythias.' It is the head of the 'Order Knights of Pythias.' To me it is self-evident that no careful person could think that these two orders were identical, and, as has been said, in cases of this class the question is whether the similarity is calculated to mislead the ordinary run of mankind. There certainly is just as much distinction between these names as there is between that of the Episcopal Church and the Reformed Episcopal Church, or that of the Presbyterian Church and the United Presbyterian Church. "But we referred to the case of Cement Co. v. Le Page, 147 Mass. 206, 17 N. E. 304, holding that the introduction of the word 'improved' into the name of the article manufactured by defendant will not justify its use if, in other respects, its use is unjustifiable. Another case very similar is that of Hohner v. Gratz, 52 Fed. 871. In the former case it was held an invasion of the rights of the owner of the name 'Le Page's Liquid Glue' to use the name 'Le Page's Improved Liquid Glue.' In the latter case it was held an invasion of the rights of Mr. Hohner, who made and sold harmonicas under his own name, to use the name on harmonicas, 'Improved Hohner.' The distinction between these cases and the case at bar is obvious. In those cases the word 'improved' indicated, not a different glue, but an improved quality of the same glue. One wishing to buy 'Le Page's Liquid Glue' would naturally wish to buy 'Le Page's Improved Liquid Glue.' In the Hohner case the Court said, 'The words "Improved Hohner" would signify his (Hohner's) make of a better quality,' and upon this ground an injunction was granted. Now, the name 'Improved Order Knights of Pythias does not mean, and no one can think for a moment that it does mean, that it is the same order as the Knights of Pythias. Every one who knows enough about secret societies to be qualified to join them knows that a different name of a society means a different society. He would know that the Improved Order Knights of Pythias was not a variety of the Order Knights of Pythias. The difference of names would indicate to him possibly a claim on the part of defendants that theirs was the better order, of which he must for himself determine; but certainly that it was a different order. If, in the Le Page or Hohner case, the names had only indicated that a different article was claimed to be superior to one of similar name, it is obvious that the Court would not have interfered. 'Improved' has a different signification when prefixed to the name of an order from what it has when prefixed to the name of an article. . . The best possible evidence that names are sufficiently similar to mislead the public is the fact that the public, or some portion thereof, has been misled. The defendant order was in existence more than a year before the testimony in this case was taken, and yet not a particle of evidence was introduced showing or tending to show that the similarity of names ever misled or deceived any one. This case must be decided, not by citation of authorities, but by answering the question: Would an ordinary person, using ordinary care, wishing to join the Knights of Pythias, join the Improved Order Knights of Pythias? For the reasons above stated, I must answer this question, No. A decree will be accordingly entered dismissing complainant's bill.” The decree will be affirmed. LONG, C. J., did not sit. The other justices concurred. 172. FLAGG MANUFACTURING COMPANY v. HOLWAY SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1901 178 Mass. 83, 59 N. E. 667 BILL in equity brought to restrain the defendant from selling zithers made in imitation of the plaintiff's, filed December 14, 1899. In the Superior Court the case was referred to William A. Copeland, Esq., as special master, from whose report the following extracts are taken: The bill of complaint alleges that since May, 1897, the plaintiff has been engaged in the manufacture and sale of a certain kind of musical instrument known to the trade and public as the Regent zither, and has built up a lucrative trade in the same; that one of the distinguishing features of the Regent zithers is that the strings are arranged in groups and are supported by bridges arranged diagonally on a foursided sounding board, with a straight lower edge and peculiarly curved sides and top; that with the zithers of the plaintiff are used certain patented sheets of music, the patent on which is numbered 614,775, dated November 22, 1898, and is owned by the plaintiff; that the strings of the zithers made by the plaintiff are arranged at distances one from the other, in correspondence to the distance between certain columns of characters on the patented music, and the music so patented is sold by the plaintiff for use only on zithers of its own manufacture, and is incapable of use on any other instruments except the zithers of the defendant complained of; that as a means of holding the music in proper position on its zithers the plaintiff has inserted in the sounding board two pins, and has punched two holes in the sheets of music made under its patents, which holes fit over the pins and hold the music in proper position with relation to the strings, and the fact that the zithers of the plaintiff are capable of use with its patented music has become and is one of the most valuable features of the zithers made by the plaintiff. The bill charges that since November 1, 1899, the defendant has been selling, without the license of the plaintiff, zithers, under the name of Germania Zither No. 5, not of the plaintiff's manufacture and inferior in quality to the plaintiff's zithers, but constructed and arranged with all of the peculiarities of the plaintiff's zithers, so as to be practically a facsimile thereof, and that the defendant thereby deceives the public and causes it to believe that the zithers sold by the defendant are the zithers manufactured and sold by the plaintiff. The prayer is for an injunction restraining the defendant from selling zithers which imitate and simulate the zithers made and sold by the plaintiff, and zithers whose strings are arranged and spaced as are the strings made by the plaintiff, and specifically from selling zithers like defendant's Germania Zither No. 5; that the defendant be ordered to deliver to the plaintiff, or to destroy, all such zithers and advertising matter now in his possession, and to pay to the plaintiff compensation for all damages. The defendant in his answer alleges that substantially the same kind of instruments, under the name of zither, and other names, have been manufactured and sold by various persons for many years, and the name and style are public property; that the distinguishing mark of the plaintiff's instrument is a peculiar design upon the upper surface around the opening, with the name "Regent Zither" and the company's name and place of manufacture; . . . and that he distinguishes his zithers from the zithers of the plaintiff by plain distinguishing marks, and that he has never used the name "Regent" nor the plaintiff's peculiar figure on the sounding board above mentioned. . . . There was no contention that the plaintiff had a patent for the mechanical construction, or for the method of stringing his zither Exhibit B, nor that he had a patent for the shape of the body of the instrument. The master ruled: "I rule that the principle is 'that no one shall, by imitation or any unfair device, induce the public to believe that the goods he offers for sale are the goods of another, and thereby appropriate to himself the value of the reputation which the other has acquired for his own products or merchandise. The question here is whether the zithers like Exhibit A, sold by the defendant, deceive or are calculated to deceive or 'to mislead and deceive the ordinary purchaser in the exercise of ordinary care and caution in such matters,' and cause him to believe that he is purchasing the plaintiff's zither. . . . Apparently, the plaintiff's contention is that, as the plaintiff was the first to put on the market zithers strung like Exhibit B, the public have come to believe that all zithers so strung and capable of use with the St. John music are necessarily from the same source of manufacture, and therefore the plaintiff is entitled to continue such monopoly. In the absence of direct evidence of such fact, I am unable to find that they would be likely to be so misled, or that the defendant would be accountable for such erroneous understanding on the part of the public if the defendant's goods are otherwise clearly distinguishable from the plaintiff's. . . . I find no evidence of actual deceit of any purchaser, nor any evidence of actual attempt to deceive, except so far as it may be inferred from the resemblance of the two exhibits. . . "I am of the opinion that an injunction should be granted against the selling or offering for sale by the defendant of zithers like exhibit A, unless they are so clearly and unmistakably marked as to indicate in some way that they are the product of the defendant, and not the product of the Flagg Manufacturing Company." . . . The following exceptions to the master's report were filed by the plaintiff : 1. The master erred in not finding that the defendant had no right to imitate the plaintiff's arrangement and spacing of the strings, including bridges and tuning pins. 2. The master erred in not finding that the defendant has no right to imitate the peculiar style of the body |