dissenting:
The prayer of the bill in this case is, in effect, that the defendant be restrained from using its corporate name, and the Appellate Court, in remanding the cause, directed the superior court “to grant a perpetual injunction against it, in accordance with the prayer of the bill and supplemental bill.” The effect, therefore, of the affirmance of the judgment of that court will be to perpetually enjoin the defendant from using the name under which it was regularly incorporated. The corporate name of the complainant, as stated in the bill and admitted by the answer, is, “The Young Women’s Christian Association of Chicago,” and that of the defendant, “International Committee of Young Women’s Christian Associations.” The defendant has not, therefore, as stated in the foregoing opinion, adopted as a name for its managing board “a name which contains substantially the entire corporate name of the complainant, preceded by the words ‘International Committee of.’ ” The defendant’s name is not “International Committee of the Young Women’s Christian Associations of Chicago.” It was, in fact, only the four descriptive words,“Young Women’s Christian Associations.” It does not purport to be the committee of any association, but of associations generally. The names are not, therefore, the same, or so similar as to be mistaken for each other. As we said in Elgin Butter Co. v. Elgin Creamery Co. 155 Ill. 127: “Ordinary attention will enable any one to distinguish between them.” Section 2 of the act concerning corporations (Hurd’s Stat. 1899, p. 434,) was not, therefore, violated by the Secretary of State in granting the license to the defendant to organize its society under its corporate name.
The complainant had no exclusive right to the use of the generic name “Young Women’s Christian Association.” (Employers’ Liability Assurance Co. v. Employers' Liability Ins. Co. 16 N.Y. Sup. 396; Farmers' Loan and Trust Co. v. Farmers' Loan and Trust Co. of Kansas, 2 id. 296; Goodyear India Rubber Glove Manf. Co.v. Goodyear Rubber Co. 128 U. S. 598; Bolander v. Peterson, 136 Ill. 215.) The cases do not always distinguish between trade-marks and trade names, but there is no exception to the rule that no individual or corporation can appropriate a name composed of ordinary descriptive words, which may with equal truth be used by any other individual or corporation to designate its business, its character or its purposes.
That a generic name or words cannot be appropriated by a later corporation for the purpose of defrauding an earlier one is conceded, and the cases cited in the foregoing opinion go to that extent, and no farther. Croft v. Day, 7 Beav. 84, is a leading case on that doctrine, and is referred to in both Goodyear India Rubber Glove Manf. Co. v. Goodyear Rubber Co. and Elgin Butter Co. v. Elgin Creamery Co. supra. In the former, after holding that the name “Goodyear Rubber Company” was not one capable of exclusive appropriation, etc., it was said: “The case at bar cannot be sustained as one to restrain unfair trade. Relief in such cases is granted only where the defendant, by his marks, signs, labels or any other-way, represents to the public that the goods sold by him are those manufactured or produced by the plaintiff, thus palming off his goods for those of a different manufacturer, to the injury of plaintiff,” — citing, among other cases, that of Croft v. Day, supra; also, McLean v. Fleming, 96 U. S. 245. In the Elgin Butter Co. case, after holding that the Elgin Butter Company could not acquire such property in the words “Elgin Butter and Creamery” as to prevent a subsequently formed corporation from using its corporate title, in the absence of fraudulent conduct calculated to lead the public to understand that the corporations were one and the same, and after saying: “The gist of the complaint seems to be that the use by the Elgin Creamery Company of its corporate name in its business of manufacturing, dealing in and selling butter has a tendency to, and does, confuse and mislead dealers in the market and the public at large, and lead them into the false belief that the corporation incorporated as ‘Elgin Creamery Company’ is one and the same with the corporation incorporated as ‘The Elgin Butter Company.’ The bill proceeds upon the theory that the name ‘The Elgin Butter Company,’ and the claimed addition thereto of the words ‘Proprietor of the Elgin Creamery Company, ’ are the trade name and trademark of complainant, and that it has the exclusive right and property in both said corporate name and said addition, and that no other person or corporation has a legal right to combine the word ‘Elgin’ with either the word ‘butter’ or the word ‘creamery’ in conducting his or its business,” — we used the following language: “Even if the corporate names of the two corporations are somewhat similar, yet, in the absence of any intent, act or artifice to mislead dealers in the market or the public at large as to the identity of the corporations, the Elgin Creamery Company has the same right to use its corporate name in the transaction of its business that the Elgin Butter Company has to use its corporate name. It would seem that the same rule should apply to corporations in this regard that obtains in respect to natural persons, and in the absence of any fraudulent or wrongful intention or act, or any contract to prohibit it, every natural person has the absolute right to use his owu name in his own business.” (Meneely v. Meneely, 62 N.Y. 427.) Certain cases are then referred to, among others, Croft v. Day, supra, which are distinguished upon the ground that “in each of those cases there was present the element of fraudulent acts and intent.”
The distinguishing feature of the Croft case, as well as each of the other cases cited in the majority opinion, is, in the language of Lord Langdale, “the fact of the defendant’s using those names in connection with certain circumstances and in a manner calculated to mislead the public, and to enable the defendant to obtain, at the expense of Day’s estate, a benefit for himself to which he is not, in fair and honest dealing, entitled.” The bill in this case does not charge that the defendant has at any time, by words or conduct, represented itself as being the complainant or in any way connected with it, nor does the proof tend to establish any such state of case. It is no longer contended that the complainant has the right to appropriate to its own exclusive use the words “Young Women’s Christian Association,” and yet the defendant is to be perpetually enjoined from using those words in its name without proof of its having done anything except to carry on the charitable work for which it was incorporated.
In my opinion there is nothing in this case calling for the interference of a court of equity, and the chancellor properly dismissed the bill.