I concur in the judgment of my brothers but I believe that a brief word of explanation is appropriate.
The word "Cincinnatus" has a generally recognized historical meaning that has an obvious geographical connection with our community. It is not a unique name like Xerox, Xomox, Xtek, and others of similar ilk having a distinctness that by itself would entitle the first user to exclusive use. "Cincinnatus" is similar to "Southern Ohio" because it has no inherent claim to exclusivity.
As to the claim of secondary meaning, the record fails to establish that the Cincinnatus Association has endowed "Cincinnatus" with such prominence in the community that the Association is entitled to preclude its use by any other organization that enters the political field. We are not concerned with an industrial product, a commercial enterprise or a financial institution. We are in the political arena, the public sector, the market place of ideas and issues, where freedom of speech and assembly outweigh all other considerations except the most basic demands of public safety and decency. Any persons who assert that their prior use of a general term entitles them to exclusive rights therein have two major burdens to carry: they must demonstrate, first, that their use of the term has created a meaning of primary political importance that overrides the term's ordinary or common meaning, and second, that it is proper and fair to prohibit the use to all other organizations that enter *Page 190 the political field, whether to take positions on community issues or to sponsor and promote candidates with a particular bias. These burdens must be met by an extraordinary degree of proof for a civil case: by clear and convincing evidence. Plaintiff did not meet those burdens in this case. As much as the Cincinnatus Association may stand out as a nonpartisan and bipartisan civic action group that wrestles with public issues and takes forthright stands favoring good government, the evidence did not establish a secondary meaning that would support exclusive use.
At the same time, the evidence of past use of "Cincinnatus" in plaintiff's special way, when combined with our judgment that conflict with defendants' intended future use might possibly cause confusion, is sufficient to require that defendants publish a disclaimer so that the voting public will not be misled about the origin of the Cincinnatus Party or about its non-affiliation with the Cincinnatus Association.