{ "id": 5479212, "name": "NORTHWEST SUBURBAN CONGREGATION BETH JUDEA, INC., Plaintiff-Appellee, v. MORDECAI M. ROSEN etal., Defendants-Appellants", "name_abbreviation": "Northwest Suburban Congregation Beth Judea, Inc. v. Rosen", "decision_date": "1982-02-25", "docket_number": "No. 81-734", "first_page": "1137", "last_page": "1143", "citations": [ { "type": "official", "cite": "103 Ill. App. 3d 1137" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "420 N.E.2d 251", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 461", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3120785 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0461-01" ] }, { "cite": "335 N.E.2d 156", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 1017", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2712744 ], "pin_cites": [ { "page": "1020" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/1017-01" ] }, { "cite": "191 F.2d 488", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 479137 ], "pin_cites": [ { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/f2d/191/0488-01" ] }, { "cite": "252 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "115 Ill. App. 2d 448", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1588349 ], "weight": 3, "year": 1951, "pin_cites": [ { "page": "459" }, { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/115/0448-01" ] }, { "cite": "299 N.E.2d 548", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 526", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850674 ], "weight": 3, "pin_cites": [ { "page": "533" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0526-01" ] }, { "cite": "84 N.E.2d 336", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "336 Ill. App. 445", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2423810 ], "weight": 2, "pin_cites": [ { "page": "447" }, { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/ill-app/336/0445-01" ] }, { "cite": "46 N.E.2d 165", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "317 Ill. App. 451", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5648918 ], "weight": 2, "pin_cites": [ { "page": "459" }, { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/ill-app/317/0451-01" ] }, { "cite": "178 Ill. App. 203", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 8499622 ], "weight": 2, "pin_cites": [ { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/ill-app/178/0203-01" ] }, { "cite": "356 N.E.2d 389", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 563", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2640560 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0563-01" ] }, { "cite": "363 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 20", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5634535 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0020-01" ] } ], "analysis": { "cardinality": 720, "char_count": 14731, "ocr_confidence": 0.84, "pagerank": { "raw": 5.5559129540139086e-08, "percentile": 0.3495630440230299 }, "sha256": "24554fbf436c8a30c726f6901d6ce6139b6e48d05d4b8675b2aed0efb06a7aac", "simhash": "1:91afd17c3fcefcc1", "word_count": 2403 }, "last_updated": "2023-07-14T15:16:39.830915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NORTHWEST SUBURBAN CONGREGATION BETH JUDEA, INC., Plaintiff-Appellee, v. MORDECAI M. ROSEN etal., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE HOPF\ndelivered the opinion of the court:\nDefendants appeal the issuance of a temporary restraining order and preliminary injunction by the Lake County circuit court restraining them from using the name Congregation Beth Judea.\nPlaintiff Northwest Suburban Congregation Beth Judea, Inc., was formerly incorporated under the name Congregation Beth Judea, Inc. The congregation was formed in 1968 to serve the Jewish community in the northwest suburbs of the Chicago metropolitan area. The congregation was incorporated under the name Congregation Beth Judea, Inc., on December 17, 1968.\nIn May 1981 the corporation was involuntarily dissolved for its failure to timely file an annual report with the Secretary of State. It continued to use its original name, however.\nEarlier, in March 1981 defendant Mordecai Rosen, who had been the rabbi for plaintiff since 1969, organized a new congregation, Congregation Mishpaha (Our Family), with some members of the old congregation, including defendants Max and Adeline Feldman. Most of the area served by this new organization includes the community served by plaintiff.\nIn July 1981, having learned that plaintiff corporation had been involuntarily dissolved, Congregation Mishpaha sought incorporation under the name Congregation Beth Judea, Inc. It was incorporated under this name on July 10, 1981.\nPlaintiff, still using the name Congregation Beth Judea, sought reinstatement as a corporation. Because defendants had incorporated under the name Congregation Beth Judea, Inc., plaintiff congregation was reinstated as a corporation under the name Northwest Suburban Congregation Beth Judea on August 21, 1981. Plaintiff continued to use the name Congregation Beth Judea. It was listed under this name in the listing of area houses of worship in a local newspaper. It advertised for new members in local newspapers under this name.\nOn Saturday, August 29, 1981, there appeared in a local newspaper an advertisement regarding High Holy Day services on behalf of defendant Congregation Beth Judea and indicating the rabbi as defendant Mordecai Rosen. Monday, August 31, 1981, plaintiff filed a verified complaint for permanent injunction, preliminary injunction, and temporary restraining order to restrain defendants from using the name Congregation Beth Judea. On the same date plaintiff also filed a motion for a temporary restraining order (TRO) and preliminary restraining order. Notice was given by telephone to defendants\u2019 attorney at 12:05 p.m. At 4:03 p.m. the court granted the temporary restraining order. On September 16, 1981, following an extensive hearing, the court also granted a preliminary injunction and defendants appealed.\nThe issues on appeal are as follows:\n1. Whether the trial court abused its discretion in granting a temporary restraining order without notice and hearing to the defendants.\n2. Whether a dissolved corporation which is subsequently reinstated under a changed name can maintain an action to enjoin the defendants from using its former name.\n3. Whether the plaintiff could maintain this action under the corporate survival provision of the General Not for Profit Corporation Act. Ill. Rev. Stat. 1979, ch. 32, par. 163a etseq.\n4. Whether the trial court should have dismissed the individual defendants on their motion for a directed verdict and/or at the close of the hearing.\n5. Whether the order granting the preliminary injunction was against the manifest weight of the evidence.\nWith regard to the first issue defendants argue that the TRO was issued without notice and that therefore the provisions in section 3\u20141 of the Injunction Act (Ill. Rev. Stat. 1979, ch. 69, par. 3\u20141) pertaining to TROs issued without notice should be applied. That section provides that . a TRO granted without notice \u201cshall define the injury and shall state why it is irreparable and why the order was granted without notice.\u201d The order, however, states that notice was given at 12:05 p.m. by telephone to defendants\u2019 attorney. This was 3 hours 58 minutes before the TRO was granted. Informal notice has been recognized as sufficient notice. (Bettendorf-Stanford Bakery Equipment Co. v. UAW (1977), 49 Ill. App. 3d 20, 363 N.E.2d 867; Sangamo Electric Co. v. UAW (1976), 42 Ill. App. 3d 563, 356 N.E.2d 389.) The cited cases involved situations where no notice was given and the courts pointed out that \u201c \u2018a telephone call can produce an appearance within minutes. Some notice, however informal, is greatly to be preferred to none at all.\u2019 \u201d Bettendorf-Stanford Bakery Equipment Co. v. UAW (1977), 49 Ill. App. 3d 20, 24.\nDefendants argue, however, that plaintiff knew weeks before it sought the TRO it would seek to stop defendants from using the name. It is true, as defendants assert, that a few weeks earlier plaintiff had resolved to seek a way to recover its former name. The verified complaint of Monday morning, August 31, clearly shows, however, that what determined the need for injunctive relief was defendant\u2019s Saturday, August 29, advertisement. Plaintiff had not procrastinated. The Monday motion for TRO was made in quick response to the advertisement from which it perceived a need for immediate relief. Given that it perceived the advertisement to mislead people and harm its congregation plaintiff sought a TRO quickly and under these circumstances the telephone notice was permissible. Therefore, defendant is incorrect in stating that the TRO order was issued without notice. Defendant had over three hours to appear before the court to contest the matter.\nThe next two issues defendants raise concern the provisions in the General Not For Profit Corporation Act (Ill. Rev. Stat. 1979, ch. 32, par. 163a et seq.) regarding incorporation and corporate names. Defendants argue that the Act clearly recognizes that a corporation may take as its name any name not in use at the time by any other corporation, and that a dissolved corporation seeking reinstatement must take a new name if another corporation has incorporated under the old name. This is true, and needs no discussion. The question of the correctness of enjoining defendants\u2019 use of the corporate name cannot be answered merely with a resort to the statutes, however.\nAt common law it has long been recognized that a party may be enjoined from using a name under which it is incorporated if the name creates confusion and deceives the public. The rule was stated in Bender v. Bender Store & Office Supply Fixture Co. (1913), 178 Ill. App. 203, 207:\n\u201cIt is true, persons seeking to form a corporation may ordinarily choose any name their fancy dictates, subject, however, to the rule that they may not choose the name of a corporation already existing, or one that is to be used to deceive the public, or to be passed off for that of some other person or firm in business. [Citations.] When a corporation violates that rule, it does so at its peril. Neither does the fact that the state issues a charter to a corporation by a certain name give to such corporation a right to use it, if it was deliberately chosen, or is used for the purpose of deceiving the public and thereby appropriating the business of another. [Citations.] When such unfair name is selected by a corporation for the purpose of deceiving the public into the belief that its goods are the goods of another, the use of that name for that means will be enjoined.\u201d\nThe court in Bender developed the rule further, stating, \u201cWe think the rule goes even further in that when the use of the name results in the palming off of one\u2019s goods on the public as the goods of another, the use of such name will be enjoined.\u201d (178 Ill. App. 203, 207.) Thus, the intention of the party using the other\u2019s name has no bearing on the issue.\nIn Lady Esther, Ltd. v. Lady Esther Corset Shoppe (1943), 317 Ill. App. 451, 459, 46 N.E.2d 165, it was held that injunctive relief would be granted even when the parties do not compete where \u201cthe public might be deceived into thinking there was some connection between the defendant and the plaintiff companies. And the good-will of plaintiff, which it had built up at great expense over a period of years, would be whittled away. Courts of equity ought not to be so feeble as to be unable to prevent this.\u201d The court added that the fact defendant was incorporated under the name Lady Esther Corset Shoppe did not protect it from injunction.\nBaldassano v. Accettura (1949), 336 Ill. App. 445, 447, 84 N.E.2d 336, stated that equity will give relief \u201cwhere another has used the former\u2019s name or a name so clearly similar as to almost necessarily lead to complication and confusion in the business of the parties. * * * The trend is to place \u00b0 * * emphasis on confusion of the public. 0 0 6 [P]roof of actual confusion is not essential.\u201d\nIn Edgewater Beach Apartments v. Edgewater Beach Management (1973), 12 Ill. App. 3d 526, 299 N.E.2d 548, the reviewing court relied on the likelihood of confusion, not on statutory authority, to affirm a preliminary injunction of defendant\u2019s use of the name of Edgewater Beach. A prospective tenant may mistake defendant corporation for plaintiff or at least support an affiliation or connection between the two, \u201cand plaintiff\u2019s reputation will thus no longer be in its own hands.\u201d 12 Ill. App. 3d 526, 533.\nIt has been recognized that the rule applies to non-profit organizations, not just commercial establishments. (Pilgrim Holiness Church v. First Pilgrim Holiness Church (1969), 115 Ill. App. 2d 448, 252 N.E.2d 1.) For this proposition Pilgrim cited American Gold Star Mothers, Inc. v. National Gold Star Mothers, Inc. (D.C. Cir. 1951), 191 F.2d 488, 489, which stated:\n\u201cSource, reputation and good will are as important to eleemosynary institutions as they are to business organizations. \u2018Anything which tends to divert membership or gifts of members from them injures them with respect to their financial condition in the same way that a business corporation is injured by diversion of trade or custom.\u2019 \u2018Distinct identity is just as important to such an organization, oftentimes, as it is to a commercial company. Its financial credit\u2014its ability to raise funds, its general reputation, the reputation of those managing and supporting it, are all at stake if its name is used by some other organization and the two become confused in the minds of the public.\u2019 \u201d\nIn the case at bar the name in issue is not plaintiff\u2019s present name but one under which it was formerly incorporated. Pilgrim Holiness Church v. First Pilgrim Holiness Church concerned a defendant\u2019s use of a name that plaintiffs had \u201cabandoned.\u201d The appellate court held that defendant could not be restrained from using that name. Pilgrim differs from the case at bar in that the plaintiff church there merged with the Wesleyan church and after such merger plaintiff \u201cceased to exist as a viable entity,\u201d and had no longer an \u201cindependent existence.\u201d (115 Ill. App. 2d 448, 459.) This led the court to conclude there was \u201cno possibility that the corporate names will tend to confuse the public or mislead them in any way,\u201d and so there was \u201cno reason for protection.\u201d (115 Ill. App. 2d 448, 459.) Here, though, the old organization did not cease to exist as a viable entity; it still has independent existence. Further, it still presents itself to the public as Congregation Beth Judea. All the undesirable results that justify injunctive relief in the previously cited cases are likely to occur here. \u201c[T]he public might be deceived * * * [a]nd the good-will of plaintiff, which it had built up at great expense over a period of years [may] be whittled away.\u201d (Lady Esther, Ltd., v. Lady Esther Corset Shoppe (1943), 317 Ill. App. 451, 459.) \u201cComplication and confusion in the [parties\u2019] business\u201d is likely (Baldassano v. Accettura (1949), 336 Ill. App. 445, 447), defendant may be mistaken for plaintiff, and plaintiff\u2019s reputation may no longer be in its own hands. (Edgewater Beach Apartments v. Edgewater Beach Management (1973), 12 Ill. App. 3d 526, 533.) As in the above cited cases equity supersedes strict application of the statute here.\nDefendant argues, however, that the trial court\u2019s findings about the identification of the name with plaintiff congregation is against the manifest weight of the evidence.\nThe standard of review of the issuance of a preliminary injunction is as follows:\n\u201cThe issuance of a preliminary injunction is within the sound discretion of the trial court upon a prima facie demonstration of necessity and a court of review will not set aside the injunction order unless there is a manifest abuse of discretion or an error of law.\u201d K. F. K. Corp. v. American Continental Homes, Inc. (1975), 31 Ill. App. 3d 1017, 1020, 335 N.E.2d 156.\nWe had concluded above that as a matter of law a likelihood of confusion would justify restraining a congregation from using the name another congregation had formerly held as its corporate name. Therefore, the trial court did not make an error of law.\nWe conclude further that the court did not abuse its discretion in making its findings. The findings of the trial court indicate that confusion is indeed likely, if not certain, given that the new congregation carries plaintiff\u2019s old name and employs the rabbi formerly employed by plaintiff for 12 years. This is a quite obvious occasion for confusing the public. The evidence supports these findings. There was no abuse of discretion in ordering the preliminary injunction.\nDefendants argue that the individual defendants should have been dismissed as they should not have been liable for the acts of defendant corporation either as incorporators or as directors.\nPlaintiff argues, however, that defendants \u201cmade no efforts to select officers or otherwise undertake the operation of the entity as a corporation.\u201d Two of the three directors admitted at the preliminary hearing there had never been a meeting of the board of directors and no officers had been elected.\nIt is apparent that the defendant corporation has not yet begun to operate as a corporation. A \u201ccorporate veil\u201d may be pierced when the persons directing it do not comply with corporate formalities. (Macaluso v. Jenkins (1981), 95 Ill. App. 3d 461, 420 N.E.2d 251.) This is the case here; therefore, the injunction could properly be issued against the individual defendants.\nAffirmed.\nLINDBERG and NASH, JJ., concur.", "type": "majority", "author": "JUSTICE HOPF" } ], "attorneys": [ "Philip S. Aimen and Roger F. Maritote, both of Chicago, for appellants.", "Morton Denlow, of Sachnoff, Weaver & Rubenstein, of Chicago, for appellee." ], "corrections": "", "head_matter": "NORTHWEST SUBURBAN CONGREGATION BETH JUDEA, INC., Plaintiff-Appellee, v. MORDECAI M. ROSEN etal., Defendants-Appellants.\nSecond District\nNo. 81-734\nOpinion filed February 25, 1982.\nRehearing denied March 25, 1982.\nPhilip S. Aimen and Roger F. Maritote, both of Chicago, for appellants.\nMorton Denlow, of Sachnoff, Weaver & Rubenstein, of Chicago, for appellee." }, "file_name": "1137-01", "first_page_order": 1159, "last_page_order": 1165 }