Showing posts with label contempt. Show all posts
Showing posts with label contempt. Show all posts

Friday, August 10, 2012

The North Face Kicks Butt...Face

The North Face has asked a federal judge to hold the owners of "The South Butt" in contempt of court.

The North Face had sued James "Jimmy" Winkelmann and the South Butt LLC in 2009, alleging trademark infringement from the use of "THE SOUTH BUTT."  The defendants claimed it was merely a parody, but the Defendants consented to a Permanent Injunction in 2010 barring them from using any of the South Butt marks.

The North Face now claims that only two days later, the now-enjoined Defendants formed a new company called Why Climb Mountains LLC, and came out with a new clothing line -- THE BUTT FACE.

North Face Apparel cites a consumer survey that it conducted, showing that more than 1 out of 3 people perceive the North Face as being associated with the Butt Face mark.

North Face Apparel is seeking sanctions including damages and attorneys' fees.

The case raises several interesting legal issues.  First, when a defendant consents to be permanently enjoined after having been sued, he is under a legal duty to steer clearer of potential infringement than he otherwise would have in the first place.

Therefore, had the South Butt came out with "THE BUTT FACE" initially, it may or may not have been found liable (although given the results of the survey, they probably would have been sued anyway).  But the point is that Court Orders have to have meaning or else, where is the finality to litigation?

Further, the parody defense that could have potentially prevailed in the first case, becomes a tougher sell to the Court the second time around, as the defendant's conduct demonstrates its potential for treating the litigation process as a joke, and disrespecting the Court's authority.

Wednesday, August 1, 2012

Church Pastor Imprisoned in Trademark Case

Photograph of the Accused Church
We have previously discussed how religious symbols and church names can be trademarked under federal law.

These legal issues are not strictly academic.

Indeed, just ask a Church Pastor who is now in prison as a result of them.

Walter "Chick" McGill was apprehended and turned over to San Bernardino County law enforcement on the campus of church-run Loma Linda University in Loma Linda, California on July 13.
McGill had used the phrase “Creation Seventh-day Adventist” to name his small church congregation in Guys, Tennessee, seen left.
In 2005, the Adventist world church’s Office of General Counsel claims that it first demanded that McGill cease using the name “Seventh-day Adventist” on his church and on several websites.  One year later, the church filed a trademark infringement lawsuit against McGill, suing him for wrongful use of “Seventh-day Adventist.” 
Photograph of Walter McGill
In May of this year, the U.S. District Court made a finding that McGill was in contempt for not complying with court orders to remove the signs, and issuing a warrant for his arrest.
In April, McGill had told a Tennessee news team that "[w]e really would like to comply with the Court Orders.  We respect the Courts, we respect the law.  But in this case the law is violating our consciences and we must put our consciences before the law."  He also said he planned a hunger strike once imprisoned.
Responding to McGill’s recent arrest, Seventh-day Adventist Church officials have emphasized that McGill was imprisoned strictly for ignoring the court’s orders.  “Mr. McGill is free to engage in any ministry he wants, preach whatever he wants, say whatever he wants,” McFarland said. “What he simply cannot do is falsely associate himself with the work of the Seventh-day Adventist Church."
Garrett Caldwell, Adventist world church Public Relations director and church spokesman, added that in cases such as McGill’s, the church is fundamentally protecting its identity.
“People understand what identity theft means on a personal level and how devastating it can be to an individual or a family,” Caldwell said.
“When a congregation that has never had a connection with our denomination, and who does not wish to, because of differing beliefs, wants to simply co-opt our name, we should not overlook this or find this acceptable. To do so would be irresponsible on our part,” he added.
Video of an interview with an Assistant Pastor of the accused Church is below.  He accuses the official Seventh day Adventist Church of lying about the facts, and claims that his church prefers to not be confused with the established Seventh day Adventist church.

In any event, regardless of the merits, as we have previously noted, and as evidenced by the video below, the application of current commercial trademark laws in the context of religious liberty remains an uneasy fit.