The opinion of the court was delivered by: MARSH
The plaintiff, Order of Owls, by Ferdinand D'Esopo, trustee ad litem, seeks to enjoin the Owls Club of McKees Rocks, Pennsylvania, the Great Horned Owls Association, and certain individual defendants from using names which it alleges are deceptively similar to that of the plaintiff. The cases having come on for hearing and the parties having stipulated that the evidence should be taken as if upon final hearing, the court enters the following
1. The Order of Owls is a voluntary, unincorporated and nonprofit fraternal association which was founded on November 20, 1940, in the State of Indiana, and since January 31, 1929, has maintained its principal office and place of business in Hartford, Connecticut.
2. Ferdinand D'Esopo, Trustee of Litem, the Supreme President of the Order of Owls, is a citizen of the State of Connecticut, resides in Hartford, and is authorized to institute this suit. D'Esopo has been Supreme President since January 1, 1929.
3. The Order of Owls chartered subordinate bodies in various states and places which are known as 'Nests' while the parent association at Hartford is known as the 'Home Nest.' Several subordinate nests were established in the State of Pennsylvania and at the time this suit was instituted they were still in existence.
4. The Home Nest is the governing body of the Order of Owls.
5. The Order of Owls has a form of government known as the degree promotion system whereby promotion of members is made from one degree to another. There are four degrees. Promotion into the various degrees is dependent upon the will of the Home Nest. The members of the fourth degree annually elect the supreme officers who serve without pay; however, it appears that the supreme officers are entitled to receive initiation fees at the rate of $ 1 per member.
6. The subordinate nests are autonomous. The members of the subordinate nests have no voice in the election of the supreme officers or advancement of members to higher degrees. The order has approximately 1,500 subordinate lodges and approximately 100,000 members.
7. The dues of the members of the Order of Owls payable to the Home Nest are 40 cents annually, plus a few cents to the widows' and orphans' fund. All monies are kept in one account at Hartford. When members become delinquent in the payment of dues, generally they are not expelled but continue to be members not in good standing.
8. The members of the Order of Owls are known collectively as ' oWls'; an individual member is known as an 'Owl.' Club houses, clubs, lodges or nests of the members of the Order of Owls are known as 'Owls Clubs.'
9. The Order of Owls has expended funds in promoting its organization and in soliciting and securing its present membership by meeting of agents, printed matter, cuts, advertising and general publicity. To arouse interest in the order, the Home Nest occasionally sends out to subordinate nests literature, cuts, postcards and other advertising matter.
10. Members of the Order of Owls, at the time they become members, are required to take an oath that they will not join or organize any order of this name unless recognized by or under control of the Home Nest.
11. In 1911, the Home Nest of the Order of Owls granted a charter to Nest 1203 McKees Rocks, Pennsylvania, an unincorporated association. In the same year, pursuant to the laws of the Commonwealth of Pennsylvania, the members formed a nonprofit corporation under the name of 'Nest 1203, Order of Owls.' Its place of business is 350 Island Avenue, McKees Rocks, Pa.
12. Nest 1203, Order of Owls as a corporation had two classes of members. Those in the first class were known as beneficial members and were members of the national association (Order of Owls. They were obligated to pay dues to the Home Nest and had the right to vote at meetings of Nest 1203. Those in the second class were known as social members and were not members of the national association (Order of Owls). They were entitled to enjoy the social privileges of the club but were not entitled to vote at meetings of Nest 1203.
14. The beneficial members of Nest 1203, Order of Owls were dissatisfied with the organization, allegedly because of the following: lack of fraternal spirit and action; it did not hold a national convention during the past 42 years; it did not submit annual reports of per capita dues paid by the subordinate nests or reports of the widows' and orphans' funds contributed by the subordinate nests; it never submitted results of its annual elections of national officers who are elected by the members of the Fourth Degree; upon request, the national office refused to forward the names and locations of other subordinate nests; for many years it failed to publish a magazine. These alleged causes of dissent were in the main supported by the evidence.
15. In November, 1949, Nest 1203 named Duerr and Lemesh and four other members as its delegates to attend a meeting on November 27, 1949, at Lewistown, Pennsylvania, of a group of Owls' Nests known as the Four-State Association of Owls.
16. The nests composing the Four-State Association of Owls met for the purpose of promoting the welfare of the Order of Owls by bringing pressure upon the Home Nest to hold annual conventions, and otherwise change its policies generally from the degree system of governing the order to the representative system of governing the order and otherwise remedy the causes of dissatisfaction set forth in paragraph 14, supra.
17. Representatives of 14 nests attended the November 27, 1949, meeting of the Four-State Association of Owls, and officers were elected. Lemesh was elected trustee of the Association.
18. On January 22, 1950, the representatives of the subordinate nests composing the Four-State Association of Owls changed the name of that organization to 'Fraternal Organization of Owls.' Its purpose was the same as that of the Four-State Association of Owls. Duerr was elected vice president and Lemesh was elected trustee of the organization.
19. At no time was it the express purpose of the Fraternal Organization of Owls or its predecessor, the Four-State Association of Owls, to secede from the Order of Owls. The intention of its membership was to maintain an organization within the national order having for its purposes those stated in paragraph 16 supra. The organization was not authorized or sanctioned by the Home Nest.
20. The Fraternal Organization of Owls named and accepted the magazine 'Owls' published by the defendants Duerr and Lemesh as its official magazine. The magazine 'Owls' was not authorized or sanctioned by the Home Nest.
21. On April 20, 1950, the Supreme President, pursuant to authority contained in the constitution of the Order of Owls, revoked the charter of Nest 1203, Order of Owls on the grounds of insubordination, which he alleged consisted of: (1) membership in the Four-State Association of Owls; (2) membership in the Fraternal Organization of Owls; (3) its individual members Raymond Duerr and Nicholas Lemesh, acting respectively as editor and business manager of the 'Owls' magazine which was unauthorized by the parent association; and (4) other alleged subversive and disloyal acts on the part of members of the nest by attending meetings of Four-State Association of Owls and the Fraternal Organization of Owls.
22. In his letter of revocation, the Supreme President gave Nest 1203, Order of Owls fifteen days from April 20, 1950, to apply for reinstatement. Instead, on May 5, 1950, Nest 1203 unanimously voted to disaffiliate from the Order of Owls because of the 'arbitrary action of the Supreme President in revoking its charter.'
23. On May 12, 1950, this corporation changed its name from 'Nest 1203, Order of Owls' to 'Owls Club of McKees Rocks, Pennsylvania,' one of the defendant herein. The place of business remained at 350 Island Avenue, McKees Rocks, Pa.
24. At the time the nest changed its name to 'Owls Club of McKees Rocks, Pennsylvania,' it had approximately 45 beneficial members and between 250 and 300 social members.
26. Nest 1203, Order of Owls, never made application to the Home Nest for reinstatement of its charter, and the charter has never been reinstated and the members thereof have never made application for membership in another nest.
27. The Owls Club of McKees Rocks, Pennsylvania, has never made application to the Order of Owls for a charter and is ...