APPENDIX D
LEGAL BRIEF IN SUPPORT OF AMENDED COMPLAINT
Jurisdiction:
This action arises under the Constitution of the United States: Article I, Section 8, Clause 3; Article IV, Section 1 and 2; the First Amendment; the Fifth Amendment; the Fourteenth Amendment; 15 U.S.C. §1051 et seq.; 17 U.S.C. §101 et seq.; and upon jurisdiction 28 U.S.C. 1138(b), and 15 U.S.C. Section 2 and 15.
Cause of Action:
They threatened to sue any users of Olympic which included me and also stopped me from getting a federal registered trademark for my company name and corporation. I took an affirmative position and sued them.
TABLE OF CONTENTS AND OFFENSES
I. Fifth Amendment: Due Process Non-enforcement/selective enforcement
II. Fifth Amendment: Due Process Right to Contract
III. Fifth Amendment: Due Process Pursue Chosen Profession
IV. First Amendment: Freedom from Prior Restraint.
V. 1st, 5th, 9th, and 14th Amends. Over breadth of Legislation
VI. Article IV, §1. Full Faith and Credit Denied
VII. Article IV, §2. Property rights in Stock, and trademark.
VIII. Fourteenth Amendment: Equal Protection
IX. Fourteenth Amendment: Privileges and Immunities
X. 17 U.S.C. §101 et. seq. Denial of valid Copyrights
XI. Tenth Amendment: Persons and States rights.
XII. Ninth Amendment: Privacy and Reputation
XIII. 15 U.S.C. §1051 et seq. Illegal Trademark registration
XIV. 15 U.S.C. §1051 et seq. Unfair Use of Trademark
XV. 15 U.S.C. §2, Sherman Act. Attempted Monopoly
XVI. Article I, §8, clause 3. Attempt to Regulate Int. Commerce.
XVII. 15 U.S.C. §15, Clayton Act Interference with right to trade or exist
Cases Argued and Cited
Fourteenth Amendment: Selective enforcement
Yick Wo v Hopkins, (1886) 118 US 356, 359; 30 L Ed 220, 227; 6 S. Ct. 1064, 1070 the court stated,"If a law is applied and administered by public authority with an evil eye and unequal hand, so as to practically make unjust and illegal discriminations between persons of similar circumstances, material to their rights, the denial of equal protection is within the prohibitions of the Constitution. Louisville Gas & Electric v Coleman, (1928) 277 US 32, 37; 48 S. CT. 423, the Court said, "The Equal Protection clause of the Fourteenth Amendment means that rights of all persons must rest on the same rule under similar circumstances, and applies to the exercise of all the powers of the state which can affect the individual or his property." Distinguished in Frost v Corp. Comm. of OK, (1929) 278 US 515, 522; 49 S. Ct. 235. In Frost, the Court stated that it has "several times decided that a corporation is as much entitled to the equal protection of laws as an individual. The converse is equally true. A classification which is bad because it arbitrarily favors the individual as against the corporation certainly cannot be good when it favors the corporation as against the individual. In either case, the classification, in order to be valid, must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all person similarly situated shall be treated alike."
The state of California acted upon the USOC's instructions to selectively enforce section 380 against their citizens, including this citizen, even when defendant cannot gain this enforcement assistance and support for section 380 in any other leading commercial state in the country nor in Colorado, the state of incorporation of the defendant.
In Shelly v Kraemer, (1948) 334 US 1; 22 S. Ct. 836, the Court stated, "The Constitution confers upon no individual person the right to demand action by the State which results in the denial of equal protection of he laws to other individuals.
The defendant USOC has no right or authority to request the state of California, or any other state or agency to deny equal protection of the law to the plaintiff or any other similarly situated person.
Fifth Amendment: Selective enforcement and Due Process
In Johnson v Robison, (1974) 415 US 316, 365; 94 S. Ct. 1160, the Court said, "If a classification would be valid under the equal protection clause of the Fourteenth Amendment, it is also inconsistent with the due process clause of the Fifth Amendment." In USDA v Moreno, (1973) 413 US 528; 93 S Ct. 2821, the Court stated, "Under the equal protection analysis a legislative classification must be sustained if the classification itself is rationally related to a legitimate governmental interest."
There can be no rational basis for the distinction drawn between natural and artificial persons in California nor any rational basis for the distinction drawn between California businesses and businesses using olympic in 46 other states.
First Amendment: Prior Restraint
In Freedman v Maryland, (1965) 380 US 51, 57; 85 S. CT. 734 It was stated by the Court, "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."
36 U.SC. §380 provides that the defendant has licensing control over use of the word olympic. There will have to be reasonable and definite standard by which the defendant could "rent" the word olympic without the accompanying olympic designations. There can be no reasonable and definite standard made out as to "rent" the word olympic, nor can the word be diluted as the defendant suggests because there must be exclusivity in order for there to be dilution and there is no exclusivity. Vagueness in the system of licensing is established by his "lack of reasonable and definite standard" to use olympic as a guide for renting the word olympic.
In Interstate Circuit v Dallas, (1968) 390 US 676; 88 S. Ct. 12 the Court concluded that "the absence narrowly drawn, reasonable and definite standards for officials to follow [in licensing] is fatal. In Huntley v Public Utilities Commission, (1968) 442 P 2d 685, 688, the California Supreme Court sitting en banc stated, " Improper restraints on communication may vary in form and degree, but all have effect of restricting the dissemination of ideas. The clearest abuse is an "outright prohibition" of a constitutionally protected form of speech. Regulation short of "absolute prohibition" is also invalid when expression is made dependent on state approval by the obtaining of a permit, or is conditioned upon obtaining approval of a board of censors."
The USOC states that permission must be granted to use olympic but it remains to be discovered whether the defendant has ever rented the word to anyone without an accompanying olympic designation. It also remains to be discovered what reasonable and definite standard the defendant uses to determine who can and who cannot use olympic, how much it would cost, restrictions and limitations upon its use, duration of use, as well as other considerations, separate from an olympic trademarked designation.
"No one has the constitutional right to interfere with, restrain or coerce another in the exercise of the same right . . ." NRLB v Continental Oil, distinguishing NRLB v Link Belt Co., (1940) 311 US 584, 598; 61 S. Ct. 358.
The plaintiff claims the right to use olympic under the First Amendment provision which provides that persons are to be free from a prior restraint on the use of a spoken word.
Delegation of Licensing Power to a Private Corporation
"In our view the delegation by the Legislature (NY) of its licensing power to the Jockey Club, a private corporation, is such an abdication as to be patently an unconstitutional relinquishment of legislative power in violation of section 1 of Article III of the constitution of this state (NY) which provides: The legislative power of this State shall be vested in the Senate and the Assembly." Fink v Cole, (1951) 97 NE 2d 873, 876; 302 NY 216.
This is analogous to the provisions of the Commerce Clause of the U.S. Constitution in that Congress may not delegate powers to any person which in effect, or in fact, create the illusion of Federally granted power to license [olympic] over the entire field of commercial enterprise or endeavor. The legislative history of 36 U.S.C. § 371 et seq. bears a recital. These games have 'only' to do with amateur athletics. The defendant assumes the position as proprietor of the word olympic over the entire filed of commercial endeavor. This is grossly incompatible with the legislative history as defined by Senate Report No. 2523 regarding the Amateur Act.
COMMERCE CLAUSE - Article I, Section 8, Clause 3
"Activities that are beyond the reach of Congress under the commerce power are those which are completely within the particular state, and with which it is not necessary to interfere for the purpose of executing some general powers of government." Katzenback v McClung, 379 US 294; 85 S. Ct. 377.
"Authority of Federal government over interstate commerce may not be pushed to such extremes as to destroy the distinction between commerce among the several states and internal concerns of [the] state." NLRB v Jones & Laughlin Steel, (1937) 301 US 1; 57 S. Ct. 615.
The statue under attack makes no distinction between intrastate and interstate commerce, and it may well be true that most olympic businesses throughout the U.S. may be small, locally owned, intrastate businesses. Congress has no grant of power over the states in regard to purely intrastate business unless it substantially effects interstate commerce.
Right of Olympic Records, Inc. to Interstate Commerce
"The state cannot exclude from its limits a corporation engaged in interstate or foreign commerce . . ." Horn Silver Mining v New York, (1892) 143 US 305; 12 S. Ct. 403. "A corporation from one state may go into another without leave of license of the latter for all legitimate purposes of interstate commerce, and any statute of the latter state which obstructs or lays burden on the exercise of this privilege is void under the commerce clause of the Federal Constitution." Western Union v Kansas, (1910) 216 US 1; 30 S. Ct. 190. Pullman Co. v Kansas, (1910) 216 US 56; 30 S. Ct. 232. "Right to engage in interstate commerce is not a gift of the state and it cannot be restrained or regulated by the state, nor cab the state exclude from its limits a corporation engaged in such commerce." "It follows that under the commerce clause [a] corporation authorized by the state of its creation to engage in interstate commerce may not be prevented by another state from coming into its limits for all legitimate purposes of such commerce . . ." Sioux Remedy v Cope, (1914) 235 US 197; 35 S. Ct. 57.
"State has authority to control doing business within the state by foreign corporations but it is without power to use its lawful authority to exclude foreign corporations by directly burdening interstate commerce, as a condition of permitting them to do business within the state, in violation of he Federal Constitution." Looney v Crane Co, (1917) 245 US 178; 38 S. Ct. 85.
The state of California burdens interstate commerce by refusing Olympic Records, Inc. the right and ability to do business in the state.
Invalid Trademark Registration No. 968,566
In the case of G. & C. Merriam v Saalfield, (1912) 198 F 369 a Public Right doctrine was stated by the court, "Primarily, it would seem that one might appropriate to himself for his goods any words or phrase that he chose; but this is not so, because the broader Public Right prevails, and one may not appropriate to his own exclusive use a word which already belongs to the Public and so may be used by any one of the Public."
In Delaware Canal v Clark, (1871) 13 Wall. 311, 323; 20 L Ed 581, 583, the court held, "No one can claim protection for the exclusive use of a trade name or trademark which would give him a monopoly in the sale of any goods other than those produced by himself. If he could the Public would be injured, for competition would be destroyed." Distinguished in Standard Paint v Trinidad Asphalt, (1911) 220 US 446, 453; 36 S. Ct. 456. Also stated in Delaware, "There is no moral or legal wrong in the adoption or imitation of what is claimed by another as a trademark if it is just as true in it's application to the goods of the second adopter as to those of the first."
In United Drug v Theodore Rectanus, (1918) 248 US 90, 98; 39 S. Ct. 90, the Court held, "The owner of a trademark may not, like the proprietor of a patented invention, make a negative and merely prohibitive use of it as a monopoly." Distinguished in American Steel v Robertson, (1925) 269 US 372, 380; 70 L Ed 317, 320, in American the Court further stated, "The mere fact that one person has adopted and used a trademark on his goods does not prevent the adoption and use of the same trademark by others on articles of different description."
"No damages shall be recovered by a party failing to give notice of registration exception proof that the plaintiff or defendant was duly notified of the infringement and continued the same after notice." Stark Bros. v Stark (1920) 255 US 50; 41 S. Ct. 221. 15 USC §1111 provides the same authority as Stark. The defendant was precluded from using the notice provision provided for by 15 USC §1111.
DISCRIMINATORY USE OF TRADEMARK - Registration no. 980, 734
This trademark was used by the defendant on a letter sent to all the 50 States during 1978 requesting the selective enforcement of section 380 of the Amateur Sports Act. [Exh. 231] Regarding the plaintiff's torch: In Corning v Pasmantier, 30 Supp 477,480 (1939), the court made a visual comparison of the torch trademarks and found the question of infringement rested on a visual comparison of the marks.
The plaintiff has no registration for a torch though one is pending. The defendant has a torch in registration no. 980,734 but this torch is not mentioned or described in any way, thus neither the plaintiff nor the defendant have a registration for a torch and a visual comparison of the torches is a good test for infringement. Plaintiff used a pre-existing torch as a model from which his torch was derived. The model was not the olympic torch.
ATTEMPTED MONOPOLY - Sherman Act §2
"A monopoly in the United States created by contract or agreement with foreign corporations is unlawful." U.S. v American Tobacco, (1911) 221 US 106; 31 S. Ct. 632. distinguished in Bausch Machine v Aluminum Co., (2nd Circuit, 1934).
In Peto v Howell 101 F 2d 353, 358 (7th Cir. 1938), a classic explanation of a monopoly was states by the court, Monopoly is the acquisition of something for one's own self, not necessarily the whole of a given commodity or the whole commerce therein but control, at least, of a part thereof sufficient to constitute withholding from the public the right to deal therein in an open market." The source for this authority lies in U.S. v Keystone Watch, (D.C. PA 1915; 218 F 502. This court distinguishing Standard Oil v U.S., 221 U.S. 1; 31 S. Ct. 502, 516, stated, "Congress, in speaking of monopolies of any part of interstate commerce, must have had in mind such restraints of such part of that commerce as bring about an extraordinary control of any part of the commodities in the stream of commerce . . . the court added, The words 'to monopolize,' and 'monopolize' as used in this section [§2] reach every act bringing about the prohibited results."
"It is not of importance whether the means used to accomplish the unlawful objective are in themselves lawful or unlawful . . . American Tobacco v U.S. (1945) 328 U.S. 781, 809; 66 S. Ct. 1125.
In U.S v Griffith (1948) 334 US 100, 105; 68 S. Ct. 941, the Court stated, "It is, however, not always necessary to find specific intent to restrain trade or to build a monopoly in order to find that the antitrust laws have been violated. It is sufficient that the restraint of trade or monopoly results as the consequences of a defendant's conduct or business arrangements." Id. L Ed at 1243, "So it is that monopoly power,whether lawfully or unlawfully acquired, may itself constitute an evil and stand condemned under section 2 . . . for section 2 of the Act is aimed at the acquisition or retention of effective market control." The court continued, "Hence the existence of power 'to exclude competition when it is desired to do so' is in itself a violation of section 2, provided it is coupled with the purpose or intent to exercise that power." See, American Tobacco v U.S., SUPRA. The antitrust laws are as much violated by the prevention of competition as by its destruction."
In U.S. v Grinnel Corp., (1966) 384 US 563, 570, 571; 86 S. Ct 1698, the Court said, "The offense of monopoly under section 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power . . . Id. at L Ed 2d 787, "we [the Court] see no barrier to combining in a single market a number of different products or services where that combination reflects commercial realities."
In regard to (1) defendant's control over commerce in the United states, pursuant to section 380, indicates that the relevant market [of the defendant] as being the entire field commercial products and services and (2) here is no question as to the willful maintenance of the power of section 380.
In Hiland Dairy v Kroger (8th Cir. 1968) 402 F 2d 968, 971, the court stated, "Under the section 2 [Sherman Act] the attempt to monopolize must be 'likely to accomplish' monopolization, Kansas City Star v U.S., 240 F 2D 643, 663 (8th Cir. 1957), or afford a 'dangerous probability of monopolization." Also stated, "The specific intent necessary to support an attempted monopolization under section 2 must be shown by the conduct or acts from which a wrongful intent can be inferred."
DAMAGES UNDER 15 U.S.C. § 15
In Clark Oil v Phillips Petro, 148 F2d 580, 582 (8th Cir. 1945), the court stated its explanation of damages under the antitrust statutes. "The Sherman Act and the Clayton Act afford a cause of action for those suffering damages. In their provisions for damages hey embody both punitive and compensatory damages but no recovery can be had unless a case for compensatory damages is made. In the event of compensatory damages, the automatically punitive damages follow." In Clark, supra F 2d at 583, "[A]n action to recover treble damages under the Clayton Act is based upon tort and is not fixed by statutory provisions, but the damages are unliquidated."
15 U.S.C. § 24
The purpose and intent of 15 U.S.C. § 24 was analyzed in the case of U.S v Wise, (1962) 370 US 405, 413, 414; 82 S. Ct. 1354, in which the Court discussed its analysis regarding eh definition f he word "persons" as used in the antitrust laws not meant to exclude corporate officers and directors by stating, "The reasons for section 14 [Clayton Act] are sufficiently revealed by the legislative history . . . The reports provide no assistance but the debates do . ."[§14] is merely a reenactment of the Sherman law, sections 1, 2, and 3. It has always been held that the officers of corporations violating the law wee punishable under these sections."
The plaintiff holds that the 'artificial person' of the defendant [Federally Chartered Corporation] is only capable of injuring another person through a natural person, e.g., an officer, director, or authorized agent.
THE LANHAM ACT APPLIES TO 36 U.S.C. §371 et. seq.
In the amending of 36 U.S.C. § 371 et. seq. (1950) into the Amateur Sports Act of 1978, a provision was added to apply the rights and remedies available under the Trademark Act of 1946 [Lanham Act] to all existing rights and privileges encompassed in the Amateur Sports Act of 1978. In the defendant's "Memorandum in Support of Summary Judgment, p.8 line 11, "As regards is constitutionality, section 380 presents no different issue that traditional trademarks and the right to exclusive use of the words comprising the mark that trademark law grants to the holder."
In the treatise on trademarks by Dubroff & Seidel, Trademark Law and Practice, §1:06 declaring the general principals regarding trademarks, "It must be of such a nature as to permit exclusive appropriation by one person . . . [U]nless the trademark performs its proper function, neither can the first adopter be injured by appropriation or imitation of it [TM] by others, nor can the public be deceived."
Olympic has not been exclusively appropriated by the defendant, whether rights exist to that effect, or not. It is important to note that olympic cannot be appropriated by any person, not even the defendant, and at this time the only way to exclusively appropriate olympic wold be to take it away from all other persons who have various rights and titles thereto, an impossible accomplishment.
WHEREFORE, the plaintiff prays that judgment be had against the defendant as demanded in his First Amended Complaint.
LEGAL BRIEF IN SUPPORT OF AMENDED COMPLAINT
Jurisdiction:
This action arises under the Constitution of the United States: Article I, Section 8, Clause 3; Article IV, Section 1 and 2; the First Amendment; the Fifth Amendment; the Fourteenth Amendment; 15 U.S.C. §1051 et seq.; 17 U.S.C. §101 et seq.; and upon jurisdiction 28 U.S.C. 1138(b), and 15 U.S.C. Section 2 and 15.
Cause of Action:
They threatened to sue any users of Olympic which included me and also stopped me from getting a federal registered trademark for my company name and corporation. I took an affirmative position and sued them.
TABLE OF CONTENTS AND OFFENSES
I. Fifth Amendment: Due Process Non-enforcement/selective enforcement
II. Fifth Amendment: Due Process Right to Contract
III. Fifth Amendment: Due Process Pursue Chosen Profession
IV. First Amendment: Freedom from Prior Restraint.
V. 1st, 5th, 9th, and 14th Amends. Over breadth of Legislation
VI. Article IV, §1. Full Faith and Credit Denied
VII. Article IV, §2. Property rights in Stock, and trademark.
VIII. Fourteenth Amendment: Equal Protection
IX. Fourteenth Amendment: Privileges and Immunities
X. 17 U.S.C. §101 et. seq. Denial of valid Copyrights
XI. Tenth Amendment: Persons and States rights.
XII. Ninth Amendment: Privacy and Reputation
XIII. 15 U.S.C. §1051 et seq. Illegal Trademark registration
XIV. 15 U.S.C. §1051 et seq. Unfair Use of Trademark
XV. 15 U.S.C. §2, Sherman Act. Attempted Monopoly
XVI. Article I, §8, clause 3. Attempt to Regulate Int. Commerce.
XVII. 15 U.S.C. §15, Clayton Act Interference with right to trade or exist
Cases Argued and Cited
Fourteenth Amendment: Selective enforcement
Yick Wo v Hopkins, (1886) 118 US 356, 359; 30 L Ed 220, 227; 6 S. Ct. 1064, 1070 the court stated,"If a law is applied and administered by public authority with an evil eye and unequal hand, so as to practically make unjust and illegal discriminations between persons of similar circumstances, material to their rights, the denial of equal protection is within the prohibitions of the Constitution. Louisville Gas & Electric v Coleman, (1928) 277 US 32, 37; 48 S. CT. 423, the Court said, "The Equal Protection clause of the Fourteenth Amendment means that rights of all persons must rest on the same rule under similar circumstances, and applies to the exercise of all the powers of the state which can affect the individual or his property." Distinguished in Frost v Corp. Comm. of OK, (1929) 278 US 515, 522; 49 S. Ct. 235. In Frost, the Court stated that it has "several times decided that a corporation is as much entitled to the equal protection of laws as an individual. The converse is equally true. A classification which is bad because it arbitrarily favors the individual as against the corporation certainly cannot be good when it favors the corporation as against the individual. In either case, the classification, in order to be valid, must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all person similarly situated shall be treated alike."
The state of California acted upon the USOC's instructions to selectively enforce section 380 against their citizens, including this citizen, even when defendant cannot gain this enforcement assistance and support for section 380 in any other leading commercial state in the country nor in Colorado, the state of incorporation of the defendant.
In Shelly v Kraemer, (1948) 334 US 1; 22 S. Ct. 836, the Court stated, "The Constitution confers upon no individual person the right to demand action by the State which results in the denial of equal protection of he laws to other individuals.
The defendant USOC has no right or authority to request the state of California, or any other state or agency to deny equal protection of the law to the plaintiff or any other similarly situated person.
Fifth Amendment: Selective enforcement and Due Process
In Johnson v Robison, (1974) 415 US 316, 365; 94 S. Ct. 1160, the Court said, "If a classification would be valid under the equal protection clause of the Fourteenth Amendment, it is also inconsistent with the due process clause of the Fifth Amendment." In USDA v Moreno, (1973) 413 US 528; 93 S Ct. 2821, the Court stated, "Under the equal protection analysis a legislative classification must be sustained if the classification itself is rationally related to a legitimate governmental interest."
There can be no rational basis for the distinction drawn between natural and artificial persons in California nor any rational basis for the distinction drawn between California businesses and businesses using olympic in 46 other states.
First Amendment: Prior Restraint
In Freedman v Maryland, (1965) 380 US 51, 57; 85 S. CT. 734 It was stated by the Court, "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."
36 U.SC. §380 provides that the defendant has licensing control over use of the word olympic. There will have to be reasonable and definite standard by which the defendant could "rent" the word olympic without the accompanying olympic designations. There can be no reasonable and definite standard made out as to "rent" the word olympic, nor can the word be diluted as the defendant suggests because there must be exclusivity in order for there to be dilution and there is no exclusivity. Vagueness in the system of licensing is established by his "lack of reasonable and definite standard" to use olympic as a guide for renting the word olympic.
In Interstate Circuit v Dallas, (1968) 390 US 676; 88 S. Ct. 12 the Court concluded that "the absence narrowly drawn, reasonable and definite standards for officials to follow [in licensing] is fatal. In Huntley v Public Utilities Commission, (1968) 442 P 2d 685, 688, the California Supreme Court sitting en banc stated, " Improper restraints on communication may vary in form and degree, but all have effect of restricting the dissemination of ideas. The clearest abuse is an "outright prohibition" of a constitutionally protected form of speech. Regulation short of "absolute prohibition" is also invalid when expression is made dependent on state approval by the obtaining of a permit, or is conditioned upon obtaining approval of a board of censors."
The USOC states that permission must be granted to use olympic but it remains to be discovered whether the defendant has ever rented the word to anyone without an accompanying olympic designation. It also remains to be discovered what reasonable and definite standard the defendant uses to determine who can and who cannot use olympic, how much it would cost, restrictions and limitations upon its use, duration of use, as well as other considerations, separate from an olympic trademarked designation.
"No one has the constitutional right to interfere with, restrain or coerce another in the exercise of the same right . . ." NRLB v Continental Oil, distinguishing NRLB v Link Belt Co., (1940) 311 US 584, 598; 61 S. Ct. 358.
The plaintiff claims the right to use olympic under the First Amendment provision which provides that persons are to be free from a prior restraint on the use of a spoken word.
Delegation of Licensing Power to a Private Corporation
"In our view the delegation by the Legislature (NY) of its licensing power to the Jockey Club, a private corporation, is such an abdication as to be patently an unconstitutional relinquishment of legislative power in violation of section 1 of Article III of the constitution of this state (NY) which provides: The legislative power of this State shall be vested in the Senate and the Assembly." Fink v Cole, (1951) 97 NE 2d 873, 876; 302 NY 216.
This is analogous to the provisions of the Commerce Clause of the U.S. Constitution in that Congress may not delegate powers to any person which in effect, or in fact, create the illusion of Federally granted power to license [olympic] over the entire field of commercial enterprise or endeavor. The legislative history of 36 U.S.C. § 371 et seq. bears a recital. These games have 'only' to do with amateur athletics. The defendant assumes the position as proprietor of the word olympic over the entire filed of commercial endeavor. This is grossly incompatible with the legislative history as defined by Senate Report No. 2523 regarding the Amateur Act.
COMMERCE CLAUSE - Article I, Section 8, Clause 3
"Activities that are beyond the reach of Congress under the commerce power are those which are completely within the particular state, and with which it is not necessary to interfere for the purpose of executing some general powers of government." Katzenback v McClung, 379 US 294; 85 S. Ct. 377.
"Authority of Federal government over interstate commerce may not be pushed to such extremes as to destroy the distinction between commerce among the several states and internal concerns of [the] state." NLRB v Jones & Laughlin Steel, (1937) 301 US 1; 57 S. Ct. 615.
The statue under attack makes no distinction between intrastate and interstate commerce, and it may well be true that most olympic businesses throughout the U.S. may be small, locally owned, intrastate businesses. Congress has no grant of power over the states in regard to purely intrastate business unless it substantially effects interstate commerce.
Right of Olympic Records, Inc. to Interstate Commerce
"The state cannot exclude from its limits a corporation engaged in interstate or foreign commerce . . ." Horn Silver Mining v New York, (1892) 143 US 305; 12 S. Ct. 403. "A corporation from one state may go into another without leave of license of the latter for all legitimate purposes of interstate commerce, and any statute of the latter state which obstructs or lays burden on the exercise of this privilege is void under the commerce clause of the Federal Constitution." Western Union v Kansas, (1910) 216 US 1; 30 S. Ct. 190. Pullman Co. v Kansas, (1910) 216 US 56; 30 S. Ct. 232. "Right to engage in interstate commerce is not a gift of the state and it cannot be restrained or regulated by the state, nor cab the state exclude from its limits a corporation engaged in such commerce." "It follows that under the commerce clause [a] corporation authorized by the state of its creation to engage in interstate commerce may not be prevented by another state from coming into its limits for all legitimate purposes of such commerce . . ." Sioux Remedy v Cope, (1914) 235 US 197; 35 S. Ct. 57.
"State has authority to control doing business within the state by foreign corporations but it is without power to use its lawful authority to exclude foreign corporations by directly burdening interstate commerce, as a condition of permitting them to do business within the state, in violation of he Federal Constitution." Looney v Crane Co, (1917) 245 US 178; 38 S. Ct. 85.
The state of California burdens interstate commerce by refusing Olympic Records, Inc. the right and ability to do business in the state.
Invalid Trademark Registration No. 968,566
In the case of G. & C. Merriam v Saalfield, (1912) 198 F 369 a Public Right doctrine was stated by the court, "Primarily, it would seem that one might appropriate to himself for his goods any words or phrase that he chose; but this is not so, because the broader Public Right prevails, and one may not appropriate to his own exclusive use a word which already belongs to the Public and so may be used by any one of the Public."
In Delaware Canal v Clark, (1871) 13 Wall. 311, 323; 20 L Ed 581, 583, the court held, "No one can claim protection for the exclusive use of a trade name or trademark which would give him a monopoly in the sale of any goods other than those produced by himself. If he could the Public would be injured, for competition would be destroyed." Distinguished in Standard Paint v Trinidad Asphalt, (1911) 220 US 446, 453; 36 S. Ct. 456. Also stated in Delaware, "There is no moral or legal wrong in the adoption or imitation of what is claimed by another as a trademark if it is just as true in it's application to the goods of the second adopter as to those of the first."
In United Drug v Theodore Rectanus, (1918) 248 US 90, 98; 39 S. Ct. 90, the Court held, "The owner of a trademark may not, like the proprietor of a patented invention, make a negative and merely prohibitive use of it as a monopoly." Distinguished in American Steel v Robertson, (1925) 269 US 372, 380; 70 L Ed 317, 320, in American the Court further stated, "The mere fact that one person has adopted and used a trademark on his goods does not prevent the adoption and use of the same trademark by others on articles of different description."
"No damages shall be recovered by a party failing to give notice of registration exception proof that the plaintiff or defendant was duly notified of the infringement and continued the same after notice." Stark Bros. v Stark (1920) 255 US 50; 41 S. Ct. 221. 15 USC §1111 provides the same authority as Stark. The defendant was precluded from using the notice provision provided for by 15 USC §1111.
DISCRIMINATORY USE OF TRADEMARK - Registration no. 980, 734
This trademark was used by the defendant on a letter sent to all the 50 States during 1978 requesting the selective enforcement of section 380 of the Amateur Sports Act. [Exh. 231] Regarding the plaintiff's torch: In Corning v Pasmantier, 30 Supp 477,480 (1939), the court made a visual comparison of the torch trademarks and found the question of infringement rested on a visual comparison of the marks.
The plaintiff has no registration for a torch though one is pending. The defendant has a torch in registration no. 980,734 but this torch is not mentioned or described in any way, thus neither the plaintiff nor the defendant have a registration for a torch and a visual comparison of the torches is a good test for infringement. Plaintiff used a pre-existing torch as a model from which his torch was derived. The model was not the olympic torch.
ATTEMPTED MONOPOLY - Sherman Act §2
"A monopoly in the United States created by contract or agreement with foreign corporations is unlawful." U.S. v American Tobacco, (1911) 221 US 106; 31 S. Ct. 632. distinguished in Bausch Machine v Aluminum Co., (2nd Circuit, 1934).
In Peto v Howell 101 F 2d 353, 358 (7th Cir. 1938), a classic explanation of a monopoly was states by the court, Monopoly is the acquisition of something for one's own self, not necessarily the whole of a given commodity or the whole commerce therein but control, at least, of a part thereof sufficient to constitute withholding from the public the right to deal therein in an open market." The source for this authority lies in U.S. v Keystone Watch, (D.C. PA 1915; 218 F 502. This court distinguishing Standard Oil v U.S., 221 U.S. 1; 31 S. Ct. 502, 516, stated, "Congress, in speaking of monopolies of any part of interstate commerce, must have had in mind such restraints of such part of that commerce as bring about an extraordinary control of any part of the commodities in the stream of commerce . . . the court added, The words 'to monopolize,' and 'monopolize' as used in this section [§2] reach every act bringing about the prohibited results."
"It is not of importance whether the means used to accomplish the unlawful objective are in themselves lawful or unlawful . . . American Tobacco v U.S. (1945) 328 U.S. 781, 809; 66 S. Ct. 1125.
In U.S v Griffith (1948) 334 US 100, 105; 68 S. Ct. 941, the Court stated, "It is, however, not always necessary to find specific intent to restrain trade or to build a monopoly in order to find that the antitrust laws have been violated. It is sufficient that the restraint of trade or monopoly results as the consequences of a defendant's conduct or business arrangements." Id. L Ed at 1243, "So it is that monopoly power,whether lawfully or unlawfully acquired, may itself constitute an evil and stand condemned under section 2 . . . for section 2 of the Act is aimed at the acquisition or retention of effective market control." The court continued, "Hence the existence of power 'to exclude competition when it is desired to do so' is in itself a violation of section 2, provided it is coupled with the purpose or intent to exercise that power." See, American Tobacco v U.S., SUPRA. The antitrust laws are as much violated by the prevention of competition as by its destruction."
In U.S. v Grinnel Corp., (1966) 384 US 563, 570, 571; 86 S. Ct 1698, the Court said, "The offense of monopoly under section 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power . . . Id. at L Ed 2d 787, "we [the Court] see no barrier to combining in a single market a number of different products or services where that combination reflects commercial realities."
In regard to (1) defendant's control over commerce in the United states, pursuant to section 380, indicates that the relevant market [of the defendant] as being the entire field commercial products and services and (2) here is no question as to the willful maintenance of the power of section 380.
In Hiland Dairy v Kroger (8th Cir. 1968) 402 F 2d 968, 971, the court stated, "Under the section 2 [Sherman Act] the attempt to monopolize must be 'likely to accomplish' monopolization, Kansas City Star v U.S., 240 F 2D 643, 663 (8th Cir. 1957), or afford a 'dangerous probability of monopolization." Also stated, "The specific intent necessary to support an attempted monopolization under section 2 must be shown by the conduct or acts from which a wrongful intent can be inferred."
DAMAGES UNDER 15 U.S.C. § 15
In Clark Oil v Phillips Petro, 148 F2d 580, 582 (8th Cir. 1945), the court stated its explanation of damages under the antitrust statutes. "The Sherman Act and the Clayton Act afford a cause of action for those suffering damages. In their provisions for damages hey embody both punitive and compensatory damages but no recovery can be had unless a case for compensatory damages is made. In the event of compensatory damages, the automatically punitive damages follow." In Clark, supra F 2d at 583, "[A]n action to recover treble damages under the Clayton Act is based upon tort and is not fixed by statutory provisions, but the damages are unliquidated."
15 U.S.C. § 24
The purpose and intent of 15 U.S.C. § 24 was analyzed in the case of U.S v Wise, (1962) 370 US 405, 413, 414; 82 S. Ct. 1354, in which the Court discussed its analysis regarding eh definition f he word "persons" as used in the antitrust laws not meant to exclude corporate officers and directors by stating, "The reasons for section 14 [Clayton Act] are sufficiently revealed by the legislative history . . . The reports provide no assistance but the debates do . ."[§14] is merely a reenactment of the Sherman law, sections 1, 2, and 3. It has always been held that the officers of corporations violating the law wee punishable under these sections."
The plaintiff holds that the 'artificial person' of the defendant [Federally Chartered Corporation] is only capable of injuring another person through a natural person, e.g., an officer, director, or authorized agent.
THE LANHAM ACT APPLIES TO 36 U.S.C. §371 et. seq.
In the amending of 36 U.S.C. § 371 et. seq. (1950) into the Amateur Sports Act of 1978, a provision was added to apply the rights and remedies available under the Trademark Act of 1946 [Lanham Act] to all existing rights and privileges encompassed in the Amateur Sports Act of 1978. In the defendant's "Memorandum in Support of Summary Judgment, p.8 line 11, "As regards is constitutionality, section 380 presents no different issue that traditional trademarks and the right to exclusive use of the words comprising the mark that trademark law grants to the holder."
In the treatise on trademarks by Dubroff & Seidel, Trademark Law and Practice, §1:06 declaring the general principals regarding trademarks, "It must be of such a nature as to permit exclusive appropriation by one person . . . [U]nless the trademark performs its proper function, neither can the first adopter be injured by appropriation or imitation of it [TM] by others, nor can the public be deceived."
Olympic has not been exclusively appropriated by the defendant, whether rights exist to that effect, or not. It is important to note that olympic cannot be appropriated by any person, not even the defendant, and at this time the only way to exclusively appropriate olympic wold be to take it away from all other persons who have various rights and titles thereto, an impossible accomplishment.
WHEREFORE, the plaintiff prays that judgment be had against the defendant as demanded in his First Amended Complaint.
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