2020 Georgia Code
Title 10 - Commerce and Trade
Chapter 1 - Selling and Other Trade Practices
Article 16 - Trademarks, Service Marks, and Trade Names
Part 2 - Names and Emblems of Fraternal, Charitable, and Other Organizations
§ 10-1-472. Unauthorized Use of Emblem or Name or False Claim of Membership a Misdemeanor
Any person who shall wear a badge, button, or other emblem or shall use the name or claim to be a member of any benevolent, fraternal, social, humane, or charitable organization which is entitled to the exclusive use of such name and emblems under Code Section 10-1-470, either in the identical form or in such near resemblance thereto as to be a colorable imitation of such emblem or name, unless entitled to do so under the laws, rules, and regulations of such organization, shall be guilty of a misdemeanor.
(Ga. L. 1909, p. 139, § 3; Penal Code 1910, § 258; Code 1933, § 106-9905.)
RESEARCH REFERENCES
Am. Jur. 2d.
- 36 Am. Jur. 2d, Fraternal Orders and Benefit Societies, §§ 24, 25.
C.J.S.- 87 C.J.S., Trade-Marks, Trade-Names, and Unfair Competition, § 24 et seq.
PART 3 REGISTRATION OF BUSINESSES USING TRADE NAMES
Cross references.
- Selection and reservation of corporate names, § 14-2-401 et seq.
Law reviews.- For article, "Acquisition of Trademark Rights Under United States and Georgia Law," see 7 Ga. St. B. J. 14 (2001).
JUDICIAL DECISIONSANALYSIS
- General Consideration
- Effect of Noncompliance
General Assembly repealed the Trade Name Act of 1929 (Ga. L. 1929, p. 233) by the passage of Ga. L. 1937, p. 804. Bullard v. Holman, 184 Ga. 788, 193 S.E. 586 (1937); Bowers v. Keller, 185 Ga. 435, 195 S.E. 447, answer conformed to, 57 Ga. App. 554, 196 S.E. 241 (1938).
Purpose.
- Evident purpose of this part is to enable persons making contracts with those trading under a fictitious trade name to know with whom they are dealing. Maxwell v. Pierce, 183 Ga. 856, 189 S.E. 847 (1937).
Part strictly construed.
- Since this part imposes a hitherto unrecognized restriction upon the right to contract, the part's terms will be strictly construed. Maxwell v. Pierce, 183 Ga. 856, 189 S.E. 847 (1937).
Applicability to corporation using trade name.
- If a corporation transacts business in a trade name or a name or style other than its true corporate name, it is amenable to the requirements and prohibitions of this part the same as others. Constitution Publishing Co. v. Lyon, 52 Ga. App. 434, 183 S.E. 653 (1936).
"Company" may be used in individual's trade name.
- Under this part, the appellation, "company" may be used by an individual and is as appropriate to unincorporated associations as to corporations. An individual may use the word "company" as a part of the individual's trade name. Dixie Queen Produce Co. v. Brown, 100 Ga. App. 150, 110 S.E.2d 421 (1959).
Allegation of partnership as evidenced by registration must be denied.
- Admissions in the answer of allegations in the petition are taken as true, and accordingly, if two or more individuals are sued jointly in connection with the operation of a business under a trade name, and such individuals file an answer admitting that the individuals jointly operate such business, file no denial of partnership, but on the contrary file a joint answer as partners, and the petition is later amended alleging such partnership as evidenced by trade name registration under this part, the defendants by the defendant's pleadings have admitted the existence of such partnership and are estopped to produce evidence to the contrary. Petkas v. Wright Co., 87 Ga. App. 189, 73 S.E.2d 224 (1952).
Effect of Noncompliance
Noncompliance does not prohibit property ownership.
- This part does not prohibit ownership of property by persons who may have acquired title under a trade name that has not been registered. Maxwell v. Pierce, 183 Ga. 856, 189 S.E. 847 (1937).
Liability under contract.
- Defendant corporation doing business under a trade name which has not registered as required by this part cannot avoid liability under its contract which is the subject matter of the suit upon the ground of the defendant's not having registered as required by this part. Atlanta Butchers Abattoir & Stock Yard Co. v. Reaves, 54 Ga. App. 138, 187 S.E. 162 (1936).
Forfeiture of lease.
- If lease was made to plaintiff and plaintiff's partner in their individual names, the failure of the plaintiff to register plaintiff's trade name in compliance with this part, although plaintiff ran a business on the premises rented from the defendant under the trade name, would not entitle the defendant to declare the lease forfeited, and to evict the plaintiff for that reason alone. Hudgens v. Douglas, 56 Ga. App. 877, 194 S.E. 398 (1937).
Action for conversion of property.
- Partners doing business under a trade name that has not been registered as required by law, who have bought and paid for personal property and have taken from the owner a bill of sale therefor in such trade name, may maintain an action in the trade name against a tort-feasor who has seized and converted the property to the tort-feasor's own use. Maxwell v. Pierce, 183 Ga. 856, 189 S.E. 847, answer conformed to, 55 Ga. App. 422, 190 S.E. 367 (1937).
Suit by lessee for trespass.
- If lease was made to the plaintiff and the plaintiff's partner in their individual names, the failure of the plaintiff to register the plaintiff's trade name in compliance with this part, although plaintiff ran a business on the premises rented from defendant under the trade name, would not prevent the plaintiff from bringing a tort suit against the defendant for damages growing out of certain alleged acts of trespass committed by defendant if the plaintiff was otherwise entitled to bring such a suit. The failure to register has no causal relation to the injury. Hudgens v. Douglas, 56 Ga. App. 877, 194 S.E. 398 (1937).
Enforcement of note and conditional sale contract.
- Fact that a promissory note and conditional sale contract are taken by the payee in a trade name which the payee has failed to register as required by law will not prevent the enforcement of such note and contract in the hands of a holder in due course. Southern Sec. Co. v. American Disct., 184 Ga. 82, 190 S.E. 350, answer conformed to, 55 Ga. App. 736, 191 S.E. 258 (1937).
Registration essential to acquiring interest in trade name.
- Compliance with the provisions of this part as to registration in the office of the clerk of the superior court is essential to the right of a person to conduct business under another or assumed name, and to acquire such interest in the name as will be protected by a court of equity. National Brands Stores, Inc. v. Muse & Assocs., 183 Ga. 88, 187 S.E. 84 (1936).
Costs cast on plaintiff not registering.
- Since the evidence showed conclusively that the plaintiff had not registered the plaintiff's trade name at the time of filing suit with the clerk of the superior court of the county of the plaintiff's residence, the costs of court included within the judgment must be cast against the plaintiff. Bancroft v. Conyers Realty Co., 63 Ga. App. 106, 10 S.E.2d 286 (1940).
