Chapter 28A Case of Linguistic Theft
Published in the New Yorker, August 24th, 1987
Hon. Gerry E. Studds of Massachusetts on the House floor. September 29, 1987.
Mr. Studds: Mr. Speaker, sometimes, legislation which seems routine turns out to have consequences that are anything but routine. I doubt very much, for example, that when we passed the Amateur Sports Act of 1978 we contemplated either a frontal assault on the first amendment or a highly personal assault against one of our citizens. Yet we seem to have been a party to both. The following essay from the New Yorker tells a story that ought to give us all pause. It is very hard for me to believe this is what we intended.
(New Yorker, Aug. 24, 1987)
Notes and Comment
Edited for Content
Peter Weiss is a trademark lawyer here in New York. He has defended, among many others, the appellations of Superman, Chanel, and Ultrasuede against those who would make free with them. We called him up last week to talk about the Supreme Court's decision in June that the United States Olympic Committee had the right, under the Amateur Sports Act of 1978, exclusive domain, for the purposes of public identification and promotion over the word "Olympics." The decision came in a case called San Francisco Arts & Athletics, Inc., and Thomas Waddell v. United States Olympic Committee in which the USOC sought to enjoin the defendants from using the name Gay Olympics in promoting an event ultimately called the Gay Games. (The games were held in San Francisco in 1982 and again last year.) Mr. Weiss became involved in the matter as an informal consultant on the side of the San Francisco group. We wanted to talk to him because of a lingering feeling we had that there was something extremely peculiar about removing a general, ancient, and, indeed, religious word from our language and "awarding" it, even if only for certain purposes, to some committee. The people on the side of the Gay Olympics claimed that their right to use the word was protected by the First Amendment. They also argued that the USOC had acted discriminatorily, having allowed the International Police Olympics, the Special Olympics, the K-9 Olympics, and the Senior Olympics (to say nothing of the Rat Olympics, the Armenian Olympics, and the Eskimo Olympics) to go unscathed while relentlessly pursuing the homosexuals who had gathered in San Francisco for a week of athletic and cultural activities. Mr. Weiss vastly strengthened our impression that the Amateur Sports Act of 1978 and the Supreme Court decision upholding its Constitutionality amounted to a linguistic theft, and that the decision was kind of crazy in its details.
"It's preposterous - a genuine howler of an error," he told us. "The USOC got its power over the word directly from Congress, so obviously the action the USOC takes with regard to this so-called trademark is the equivalent of state action. It's also pretty obvious that the USOC has acted in a discriminatory way in this case. Furthermore, the court upheld a statute that didn't even allow SFAA the traditional defense in such cases - that there was no likelihood of confusion, that no one would have associated the Gay Olympics with anything the USOC might sponsor. And it's not straining at all to think of the name Gay Olympics as political speech and therefore protected by the First Amendment: the group involved was trying to make a political point against stereotyping homosexuals as being un-athletic. And, by the way, there was a dissenting opinion that made the point very strongly when the case was denied by the full Ninth Circuit Court, and the Judge that wrote the dissent is generally regarded as an "ultraconservative."
We asked Mr. Weiss what sort of precedent this decision might set. "Terrible," he said. Say the association of International Marathons went to Congress and pointed out that many marathons were bringing in people from all over the world and a lot of money, and that the whole thing needed to be regulated, and so forth, and they asked for trademark rights to the word "marathon." It would be a very similar set of circumstances and a perfectly logical development. If Congress passed such a law, and the President signed it, that would mean that the association could dole out the word to whatever events it deemed worthy and withhold it from those it felt were undeserving.
In essence, Congress actually sold the word to the Olympic Committee, because back in 1978 the committee said that the government would end up losing money if they - the committee - couldn't regulate the term. And it's the only instance I know of where the government has given a private party exclusive rights over a single, "descriptive word."
After we hung up we realized what it was specifically, that had prompted us to call Mr. Weiss in the first place and what was adding immeasurably to our distress about the turning of a word into a commodity: an account we'd just come across in the San Francisco Examiner of a memorial service for Dr. Thomas Waddell, one of the defendant's in the USOC suit who had died of AIDS. (Dr. Waddell was the head of San Francisco Arts & Athletics, Inc.) The service was held in the rotunda of San Francisco's City Hall, and in the course of it Dr. Waddell's wife, Sara Lewinstein, announced that the USOC had officially removed a lien it had placed on Dr. Waddell's house to defray its legal cost in pursuing its case. Evidently the house, which Dr. Waddell has renovated himself, was his major asset, and he'd wanted to pass it on to his four year old daughter, Jessica. He died not knowing for certain whether he would be able to do so. The sad irony in all this is that Dr. Waddell was an Olympian. As a member of the decathlon team, he finished much more than respectable sixth, within shouting distance of the gold medalists, Bill Toomey. At the Mexico City Games Dr. Waddell supported the American sprinters John Carlos and Tommie Smith after they gave their clenched fists, Black Power salutes during the medal ceremony, and his conduct made the USOC angry. And as a physician in the Army, in the sixties, Dr. Waddell openly criticized this country's involvement in the Vietnam War; he came close to being court-martialed for his anti-war statements. Ultimately, Dr. Waddell became a tireless fighter for gay rights and gay pride. He was, it seems clear, a man with the courage of his convictions, and by all accounts he was a gentle, intelligent, and charming person. The one bright light among these gloomy events was Dr. Waddell's bravery in facing his illness. Everyone around him was awed and inspired by his will and humor and strength of character. His last words were "Well, this should be interesting."
[end of article]
Goodbye Dr. Waddell
Leo to Tom
Your courage of conviction was similar to mine. I believe we were brothers without so much as a 'how do you do.' I was reinforcements but too far back to help. You will go down in First Amendment history as an example that "Freedom for One is Freedom for All" and "Freedom for You was Freedom for Me."
Eulogy: July 12, 1987. Los Angeles Times, by Robert S. Weiss
Dr. Thomas Waddell, organizer of the Gay Olympics and a member of the U. S. decathlon team in 1968, died of complications related to AIDS on Saturday. He was 49. Waddell dies at his home in the company of his wife, Sara Lewinstein. Waddell and Lewinstein met at the first Gay Olympics in 1981. As president and founder of San Francisco Arts and Athletics, Waddell organized the sports competition for gays to help combat society's anxiety toward homosexuals. Waddell, a physician, once said he hoped the sporting event would be a visual antidote to the stereotypical images of "men with lisps who cross their legs like women, mince down the street and have wrist drop." Waddell, who came in sixth in the decathlon in the 1968 games in Mexico City, blamed bathhouses, pornography outlets, and sex boutiques for defining gay culture even though, in his view, they involved a minority of the gay community. A second Gay Olympics was held last year in San Francisco and was called the Gay Games II. Almost 3,500 athletes from around the world attended. The next Gay Games are scheduled to take place in 1990. Waddell's organization was forced to drop the word "Olympic" from the event's title after the U. S. Olympic Committee and the International Olympic Committee sued. "I've had an incredibly rich life. I don't feel like I've been cheated. I competed in the Olympics, I got my MD, traveled all over the world, pursued a couple of dreams, saw them come to fruition, not the least of which is my daughter," Waddell said last year in an interview with the Times. Eric Rofes, a friend, said Waddell was a driven, gentle man. "Thomas was committed to showing that gay people are a very diverse people. This is a tremendous loss, said Rofes, executive director of Hollywood's Gay and Lesbian Service Community Center. Waddell is survived by Sara Lewinstein, their 4-year-old daughter, Jessica, and his parents. [end of article] He passed away a few weeks after the Supreme Court decision in SFAA.
Chapter 29 Supreme Court Advocate and Counsel
Sometimes it is imperative that you buy and read the newspaper. The L.A. Times, Sunday, February 28, 1988, Part 1. I found this article - Lawyers at the Supreme Court (many columns). I found out about Michael H. Gottesman and soon retained him to be my Supreme Court counsel and/or advocate. His reported record at Supreme Court was thirteen (13) wins and one (1) loss. I contacted the firm of Bredoff & Kaiser and he responded. He agreed to be retained and after numerous letters between us he advises as follows:
Mike H. Gottesman of BREDHOFF & KAISER, Washington, D.C.
Transcript of telephone Conference
[Brackets are statements or questions by author]
Few brackets, you've heard enough of me. He is responsible for explaining things with sufficiency so I could decide to fold the legal tents and give it up. Thanks Mike, you made drowning feel like it was the thing to do.
[Ring]
Is this Leo LaBranche? [Yes (here it comes)]
Mr. Gottesman: I've spent a fair amount of time on this and feel deeply enough into it that I think can give you my views fairly clearly on it. Is this a good time to chat? [Yes]
Let me preface all this by saying I'm totally sympathetic to the situation you're in because it seems to me the decision in the gay olympics case was ridiculous, holding that protection extends to uses that are neither competing or conflicting, and in holding that the first amendment allows that, but, given that decision I think the chances of you getting cert. on the proposition that you're entitled to a trial on your equitable defenses here are very remote. I would put them in the one in fifty category. That is not surprising because the odds in any case of getting the S. Ct. to grant review are very small. They only hear roughly 150 cases a year and of that about thirty are appeals that they have no choice on, so their deciding to take about 120 cases a year and their criterion for selection is what are the 120 most important issues that America needs to have decided.
The one thing you have going for you in terms of their interest in this case is that statistically when you look at what they've done when they've decided a case in a particular area they've sort of got an interest in it. And so when another case comes along and you're able to say this case presents the issue that you didn't address in that prior case - it's a plus to be in an area that they've already exhibited an interest in. That you have. But what you have on the other side is what I think is very difficult. There are two or three things. Number 1: The surest road to get the S. Ct. to grant review is if you have a conflict among the circuits and most of the cases they grant each year out of those hundred and twenty or so, are cases where the issues come up a lot, and different courts of appeals have come up differently about it and your able to say, "Look you've got these courts of appeal in disagreement with each other you've got to step in here and resolve it." You don't have that here because yours is really the first case to come to a court of appeals involving the application of equitable defenses in the context of the Olympic committee.
The second problem you've got is that when you look at the equitable defenses laches is clearly a defense that any defendant can invoke in one of these cases. But laches requires that they know about you and that's the one [defense] the S. Ct. mentioned expressly in the footnote in the gay olympics case. Laches is, "they knew you were out there and they watched you do it and they didn't tell you about it and you relied heavily to your detriment on it." The court of appeals said they didn't know and the S. Ct. is not going to inquire behind that fact question. That's another thing about the S. Ct.. They're not at all interested in resolving factual questions. If the court of appeals said something they're just going to assume it's true. So laches is not available to you.
And the other two equitable defenses you're arguing, acquiescence and abandonment are in essence arguments, that if you won them, would totally undue what they held in the gay olympics case. Because what you're basically saying is that except as to the competing and conflicting uses they [USOC] have either or abandoned all other uses, by the fact that they haven't gone out and sued them. And so it is going to look to the Supreme Court like this issue is an effort to use equitable defenses is to totally undo what they worked so hard to do in the gay olympics case. Mind you that I think it was silly what they worked so hard to do - having done it they're not going to be, I think, sympathetic to entertaining an argument that there are equitable defenses that turn the thing completely around and will entitle every person who is using the name Olympic which is not conflicting or competing to get out.
And finally, wholly apart from the fact that it would undo what they decided in the gay olympics case, once you accept the logic of their decision in that case and you have to, how ever wrong it was, it is now the law of the land. The logic was one that would make these particular defenses not fit. Because the logic was the Olympic committee unlike everybody else who's got a trademark to protect, we're going to give them total possession of this trademark so that they can go out and sell it in the future in order to raise money to finance amateur athletics. So if they want to go and give somebody the right to put Olympic on underwear ten years from now, that's what Congress has chosen to give them. Their right to market this thing in the future. Once you understand that, it makes sense that in this context, but in no other trademark case that has ever come along before then, you wouldn't expect them to be running around suing people who are using the word Olympic on underwear now because it wouldn't be worth it to them to spend the money to do it. But if sometime down the road Fruit of the Loom said "we'll give you 30 million dollars if we can say this is the Official olympic underwear" at that point they would look up and say oh well now for the first time we have a real interest in this particular use. Now, nobody else in any other trademark context can make that kind of argument because nobody's given them the right to use the name to raise money, wholly apart from the product line. So the acq. & abandonment arguments, aside from the fact that there's no conflict in the circuit, and that it would undo what they ruled is the logic of their decision. And the logic of their decision suggests that these defenses unlike laches would be applicable here. All that's to say that it is always possible to write a cert. petition that sounds interesting and this is an interesting case. There is a petition to be written here that may peak their interest. But, I think, in the long run, my recommendation would be that you not undertake it. And I'll give you an idea what the costs would be entailed in doing that because ultimately this is not going to fly. Number 1 I think the chances of cert. being granted are small, no. 2, even if they were to grant it, because they're sort of interested in it, I think there's a heavy likelihood that you would lose in the Supreme Court. Because having granted it, and having thought about it -we already know where their biases lie on this issue, they made those clear in the gay olympics case. And if they sit there and think about these equitable defenses in the context of what their inevitable consequences would be, which is everybody using the word Olympic going to be able to invoke this defense . .
If they were to grant cert. they'll sit, they'll think, and they'll find a way to say yes you are entitled to the defenses of laches, of course that's personal to you, if they knew what you were doing (with their blessing) but when you proffer an equitable defense that applies to everybody in the world then your undoing what Congress tried to do with the statute. I think its a long shot for cert., and if cert. were granted you have to pour in a whole lot of more money, and, the odds, are heavier than they would normally be that your not going to win on the merits. So, I really think that ... Every choice like this is a cost-benefit analysis. Even if you win in the Supreme Court all you get is a trial in the district court. And you know that judge is proud to say he was on the panel that originally heard the gay olympics case. He regards himself as the great expert.
It's a three step process, first you go for cert.; then you've got to win it; then back to the trial court. Costs are 6-7k for printing. Then attorney's fees of 25k for Supreme Court counselor. You are a skilled writer so you could file a cert. petition pro-se but the chances of cert. being granted are substantially reduced. The quality of the lawyer you could pay to do this would vary and their fees would vary. Your chances are small at best but they get smaller if you're not paying somebody who's a Supreme Court expert. Our normal experience in what we charge, at the rates I quoted you before, about 25k range for writing a cert. petition. So you're looking 30-35k, roughly, and that's not an absolute, it could be less or more depending on how much time it would take to write it. That's your ballpark.
If cert. is granted the price goes up substantially, then you have to print the whole record; or at least all of it that's at all relevant, which is a much bigger printing cost. You're going to be paying a lawyer to brief on the merits. Lawyers tend to take a lot more time, cause now you've got to cover everything, (in a cert. petition you have to know enough of the law, tell them enough of the law to get them interested in, but you don’t have to persuade them that you're going to win). When you're on the merits, obviously, you have to cover the waterfront. Bigger lawyers fees, bigger printing fees and at that stage you're talking about paying the other sides printing expenses. They don't do this at the cert. petition but if cert's. granted the losing party in the Supreme Court has to pay the other sides printing costs. That means if you win they would pay your printing costs. So it's expensive stuff.
As I said, the fundamental problem that ultimately persuades me that this is not a venture worth pursuing is the bottom line that at two different levels the equitable defenses that are available here would totally undo the Gay Olympics case.
Number one, by definition if everybody can raise this defense then the decision in SFAA is overruled. The second problem I have with it which is it runs into the logic of the SFAA case because the logic, right or wrong, Congress made this very unusual choice, to give the Olympic committee the ownership of these words so that they could go out and sell it to whoever the wanted to raise money . .
Ordinarily we don't give anybody a trademark which says the word is yours, you can go out into totally unrelated fields and sell it just to raise money. But that Congress deliberately gave the Olympic Committee the trademark for that purpose. So they could raise money to finance amateur athletics. And that was indeed the principle rationale for why they (S.Ct) said it was alright under the first amendment. That this was such a nobel . .
[Oh, really! I didn't understand it that way. I thought that because the man was trying to have a competing amateur athletic competition called Olympics therefore it didn't violate his first amendment rights.]
No! They went further, - they could have decided that case without addressing your case at all. Except for the slight wrinkle that your name (Olympic Records) could be thought by some folks to not be totally disconnected to the Olympic games. I assume that was a certain whimsical irony in the original use of it. That incidentally is at a much smaller level (a little problem). If it were the Olympic chinese restaurant that would present the case more neatly.
[It is no problem. Olympic Records (Guinness) of athletes are copyrighted, published and owned by Bantam/Doubleday Books. Olympic Records and Tapes (retail) is in three states; Olympic Records Corp. is a business which stores business records for companies; the Olympic Record is the newsletter of the "Olympic Lobby," a/k/a National Association of Olympic Businesses." I have the only Olympic Records, in the class of recorded music.]
But in that case they didn't have to address the status of unconnected businesses at all because obviously the Gay Olympics was right in the mainstream of what was confusing and conflicting. So the Court went out of there way to do it. And not only did they go out of their way to do it when they construed the statute - because they said the statute is not limited to what the Lanham Act would do, when they got to the first amendment they then proceeded to give two rationales for why there was a governmental interest that justifies this: The first of those rationales is "who are you the gay olympics to be raising this." You're trying to profiteer off these people. "There is obviously the potential for confusion here in the (SFAA) case. But the second reason they gave was that there is a clear congressional interest in enabling them to market Olympic to raise money to support amateur athletics. And that interest is a special one. They're saying that in fact this was the intention of Congress. It's not clear from the opinion whether Congress said this or the court is inferring this. First they decided it reaches unrelated uses. Then they say 'well why would Congress want to reach unrelated uses.' It's obviously because Congress did say one of the purposes was to enable them to raise money. Given that rationale it isn't as though you overlooked something. Here we have a new argument that will cause you to re-think this. They've gone out of their way to assert this rationale which is, " it is a choice Congress logically could have made" - whether it did make it or not we don't know. They said Congress made it.
[Congress
did not have this in mind, I have over 100 statements from legislators that this is not so and I was embarrassed and often scolded for suggesting the above reasoning.]
Given that rationale any equitable defenses which is everybody's and not just an individual company which got misled or snookered by them. "They knew about us and didn't tell us to stop." Any rationale which says everybody's free because they've allowed everybody to do it doesn't fly in the teeth of that rationale. The Supreme Court looks back and says: Well of course they're (USOC) not going to go after you NOW . . . They're only going to go after you when they want to use Columbia Records for the Olympic thing. You're on notice; you know what the statute says and you take your chances because if they ever want to get in the record business and they want to sell Columbia Records the rights for 30 million to use of the Olympic theme at that point they're entitled to look you up and say. Get out of the way!
[SO THEY HAVE A LAW SUPERIOR TO ANYTHING THAT
HAS EVER EXISTED BEFORE IN THIS COUNTRY.]
YES, THERE'S NO QUESTION, THAT'S EXACTLY WHAT THEY DID.
That (SFAA) was an unfortunate test case. If you look for a case to take to the Supreme Court SFAA would not be the one. THE COURT CLEARLY WENT OUT OF ITS WAY TO CLOSE OFF THE WORLD and it is, unfortunately I think, if you watch the winter olympics this year, everybody left and right, up & down is talking about how can we raise more money to make America more competitive.
I think the Gay Olympics decision was wrong in construing what congress intended and even more wrong in the first amendment ruling. But I generally side with Brennan and Marshall of first amendment cases.
[They were the dissenters on the SFAA first amendment claim]
So the decision, it seems to me, is a debatable one in terms of its correctness. It was wrong. But they're not going to overturn it a year or two later. They clearly were committed, they went out of they're way to clear the landscape for the Olympic committee, far beyond the case they had before them, where they could have decided on the basis of conflicting use.
And they've staked out this ground and you're just sort of climbing a mountain with a bear standing on the top, waiting for you to get there. [silence]
My advice would be to fold the legal tents, at least. Obviously you may be able to convince Congress to change their minds. That's where I think the attention should be, and again I think you're running against the passion of the moment which is we got to find some way to raise more money. This has now become a respectable way to raise money for worthy causes. Easier to make the corporations give it to then than to tax the public.
[Yes, but corporations use million dollars in donations as deductions from their corporate tax, the people still pay for it, it's just not obvious. Thanks for everything Mike, let me call you . . .]
Transcript of telephone conference with Honorable Michael H. Gottesman.
PART VIIChapter 30Washington: On More Time Cafeteria highly recommended, otherwise . . . .
I have to go to Washington D.C. again. The Supreme Court will hand down its opinion on SFAA before the end of the session and there's a week left. Odd that I started here and it's about to end here. This is the stuff of Martians, and Mother Goose. A motel with railroad tracks behind, no wonder I got a good rate. Every ten minutes it was a 5 point earthquake occurring and this was 24/7 except for a break between 2 and 4 am.
The best thing about the Supreme Court was the cafeteria and those blueberry muffins. I got to sit with my back to Chief Justice Rhenquist (I certainly didn't want to face him). I had a reservation and got there early so it was allowed to eat muffins with the greats. One magic moment did however occur on this supreme court day and I was to meet and shake hands with a one of the American greats of all time.
SUPREME COURT OF THE UNITED STATES
(The Wallaby court)
SFAA v. USOC and IOC*
* [Why were they left off this caption?
They started this with my judge on appeal in IOC v. SFAA]
Argued March 24, 1987 - Decided June 25th, 1987
SYLLABUS-
Preface: The syllabus constitutes no part of the Opinion but has been prepared by the Reporter of Decisions for the convenience of the reader. He or she needs a new job.
Author declares what is 'prepared' herein is not even close with what was actually decided.
Supreme Court Opinion
HERE THEY GO: A one way ticket to Mars.
Supreme Court: Section 110 of the Amateur Sports Act of 1978 (Act) grants respondent USOC the right to prohibit certain commercial and promotional uses of the word Olympic and various other symbols. Petitioner, San Francisco Arts & Athletics, Inc. (SFAA), a non-profit California corporation, promoted the "Gay Olympic Games" to beheld in 1982 by using those words on its letterheads and mailings, in local newspapers, and on various merchandise sold to cover the costs of the Games. The USOC informed the SFAA of the existence of the Act and requested that it terminate use of the word "Olympic" in description of the planned Games. When the SFAA failed to do so, the USOC brought suit in Federal District Court for injunctive relief. The Court granted the USOC a summary judgment and a permanent injunction. The Court of Appeals affirmed, holding that the Act granted the USOC exclusive use of the word "Olympic" without requiring the USOC to prove that the unauthorized use was confusing and without regard to defenses available to an entity sued for a trademark violation under the Lanham Act. The court also found that the USOC'S property right in the word and its associated symbols and slogans can be protected without violating the first amendment. The court did not reach the SFAA's claim that the USOC's enforcement of its rights was discriminatory in violation of the equal protection component of the Due Process Clause of the Fifth Amendment because it held that the USOC is not a governmental actor to which the Constitution applies.
THE COURT Held: Italics are author's comments and appraisals and disgust.
S. Ct: 1. There is no merit to the SFAA'a contention that §110 grants the USOC nothing more than a trademark in the word "Olympic" and precludes its use by others only when it tends to cause confusion. Nor is there any merit to the argument that §110's reference to Lanham Act remedies should be read as incorporating traditional defenses as well.
* SFAA'S contention and argument has great merit. So far, five sentences, mistake #1. I know this from direct experience through Congressional communications over a time frame of two years. I was ridiculed on some occasions and sometimes admonished for stating what the Court just articulated in the first five sentences of this opinion. Congress never intended this interpretation and had no idea it was going to occur.S. Ct. Section 110's language and legislative history indicate that Congress intended to grant the USOC exclusive use of the word "Olympic" without regard to whether use of the word tends to cause confusion, and that §110 does not incorporate defenses available under the Lanham Act.
mistake 2 Same contention as above*S. Ct. 2. Also without merit is the SFAA'a argument that the word "Olympic" is a generic word that constitutionally cannot gain trademark protection under the Lanham Act,
(not true but not a mistake since the Court is blissfully ignorant of facts not before it. There were five (5) thousand businesses, corporations, and organizations in legal effect at that moment in time and SFAA is correct in their contention that Olympic is generic and property of the Public domain but has no proof in the record, so it's their word and it has no weight.)S. Ct. and that the First Amendment prohibits Congress from granting a trademark in a word. When a word acquires values the result of organization and the expenditure of labor, skill, and money by an entity, that entity constitutionally may obtain a limited property right in the word. Congress reasonably could conclude that the commercial and promotional value of the word Olympic was the product of the USOC's talents and energy, the end result of much time, effort, and expense.
This does not apply as the doctrine of "secondary meaning" and USOC has no more right to a secondary meaning appellation than do the five (5) thousand existing business using olympic in their name at this moment which have been doing so for over 35 years, since the inception of the Amateur Act. These businesses are present and accounted for every day of the year using their talent, energies, and capital to develop their businesses, services, and products with their good will attached.S. Ct. In view of the history of the origins and associations of the word "Olympic" Congress' decision to grant the USOC a limited property right in the word falls within the scope of the trademark law protections, and thus within Constitutional bounds.
Who wrote this (syllabus) opinion? There is a 'galaxy' of space between a limited property right and a blanket prohibition. This syllabus contradicts the decision within the same paragraph. This Court is granting exclusive right; a blanket prohibition that my dear 'gang of nine' is not limited but unlimited, which is forbidden at any and all junctures and junctions when it comes even slightly near the Constitution. And what's this trash about trademark law protections when you are not allowed trademark law defenses. Now we are deep in Martian Law. Congress cannot 'cut and paste' the Lanham Act and it did not; you get it all or you get none. Congress didn't do it - I know for a fact. It was as much a surprise to Congress as it was to me and I'm sure to SFAA. Now we're at mistake 3. Limited property right, my caboose. S. Ct. 3. The first amendment does not prohibit Congress from granting exclusive use of a word without requiring that the authorized user prove that an unauthorized use is likely to cause confusion. The SFAA claims that its use of the word Olympic was intended to convey a political statement about the status of homosexuals in society, and that §110 may not suppress such speech. However by prohibiting the use of one word for particular purposes, neither Congress or the USOC has prohibited the SFAA from conveying it's message. Section 110's restrictions on expressive speech are properly characterized as incidental to the primary Congressional purpose of encouraging and rewarding the USOC's activities. Congress has a broad public interest in promoting, through the USOC's activities, the participation of amateur athletics from the United States in the Olympic Games. Even though §110's protection may exceed traditional rights of a trademark in certain circumstances,
This makes me mad as hell. It is not in 'certain circumstances,' it is in 'all circumstances.' Here again the syllabus and Court trips over its own 'minced' words, hiding behind modest assertions that do not reflect what their opinion actually decided. So it's the syllabuses fault, right. I've given up on calling anything forthcoming a mistake, three are sufficient. S. Ct. the Act's application to commercial speech is not broader than necessary to protect legitimate Congressional interests and therefore does not violate the First Amendment.
Take a pole of the 2500 companies and corporations present in my federal case record and see if this "ridiculous" statement is true as to their pre-existing first amendment rights. And then pole the 2,500 or so that are not in my case record. Talk about a revolution. There could be 5,000 entities exercising their collective first amendment rights and exorcise the USOC out of our existence, federal charter and all. S. Ct. Congress reasonably could find that the use of the word by other entities to promote an athletic event would directly impinge on the USOC's legitimate right of exclusive use.
Again the Court couches its reasonable statements in relation to an athletic event such as SFAA but will determine an exclusive prohibition for all users of Olympic for the purpose of trade. If you're going to come out and prohibit everyone then why not have the guts to say it.S. Ct. The mere fact that the SFAA claims an expressive, as opposed to purely commercial use, does not give it First Amendment right to appropriate the value which the USOC's efforts have given the word.
No more than the 'value' the 2500 businesses in my court record puts upon their efforts to maintain their business or company name, and likely a lot less. S. Ct. 4. The SFAA's claim that the USOC has enforced its §110 rights in a discriminatory manner in violation of the Fifth Amendment fails, because the USOC is not governmental actor to whom the Fifth Amendment applies. The fact that Congress granted it a corporate charter does not render the USOC a government agent. Moreover, Congress' intent to help the USOC obtain government funding does not change the analysis. Nor does the USOC's perform functions that are traditionally the exclusive prerogative of the Federal Government. The USOC's choice of how to enforce its exclusive rights to use the word "Olympic" simply is not a governmental decision.
LUNACY: Stupid, stupid, stupid, as Andy Taylor would say. How can the U. S. government, any separated federal branch, not be concerned with how a federal law is implemented and enforced, especially as it affects their policies, their agency, and their liabilities. The Amateur Act is now the reformed and majestic super-sized law as created and re-invented by the Supreme Court. One eye blind and the other on historical perspective, "being up there with other saviors of olympism, Olympique, and the Amateur Sports Act." There is a place reserved for them in the "Mount Olympus Hall of Shame and Absurdity." This shameful and biased ruling had a direct effect upon me, my case, my present, my future, my family, and my belief in the federal judicial process. This 'decision' has affected me for over 22 years. And there is no way to appeal a Martian decision, since there's no one left to appeal to. That seems to 'work' rather well.End of Martian Law and Supreme Court Syllabus of Opinion.
I will not waste time, energy, heart, and soul even speaking to the 25 pages of gobbelygook which follows this syllabus. This opinion is not only wrong, it is ALL wrong. A couple of dissenters were correct on first amendment issues but matter not in the hodgepodge of rhetoric.
Weak, gutless, uninformed, dastardly biased, and patently unconstitutional. The court was duped and could only see the by the light of the olympic torch; and the deniable homophobia which resulted in a ruling that should be torn out of the reports. It's not even fit for tinder, and is more wrong now, 22 years later, than it ever was.
In closing: The opinion stinks of bias and special privilege with just a dash of historical perspective. Well, that about does it for me. What year is this? (1987)
Chapter 31 Peter W. Rodino, Jr., Chairman of the House Judiciary Committee
On the fateful day of the ruling by the Court I was there waiting pronouncement. I had reservation and had a seat. In the front row were two Congressmen, Senator John Danforth and Representative Peter W. Rodino, Jr., I did not know, until later when it was announced at session's end, that Peter Rodino, III [along with other attorneys] were to be inducted into the bar of the Supreme Court, a process necessary if you intend to practice before the Court. I would think it would be a great honor. Mr. Danforth and Mr. Rodino were his sponsors. It was a happy day for the senior Rodino. As the session ended he retired alone to aisle right and I went to congratulate him on this auspicious occasion. I did NOT identify myself to enable him to enjoy this moment without some litigant and lobbyist bothering him about an issue which he could not discuss anyway. I later contacted him about meeting him and he was gracious, as always, and sent me a File Copy of the Legislative Intent regarding the Amateur Sports Act of 1978. He was the only Congressman I had any face contact with though I had mail contact with all of them, an infinitum. I had several communications with him as Judiciary Chairman. I got something from my "day in court" after all. Like meeting George Washington or one of those guys.
Thank you Mr. Rodino, the honor was all mine.
I had this Legislative Intent document for several years but to get a File Copy from him was special. And, of course, there is no reference whatsoever to the Amateur Sports Act being enforced in any way, shape or form as the USOC and the martian court is now trying to pass off on us, and directly on to me.
Bio of Mr. Rodino (imported text)
Mr. Rodino was born Pelligrino Rodino, Jr. in Newark, New Jersey. His parents were immigrants from Italy. He attended Barringer High School. He went to college at the University of Newark and earned a law degree at the Newark Law School, both now part of Rutgers University. During World War II, he earned a Bronze Star for service in Italy and North Africa. After the war, he ran an unsuccessful campaign for Congress in 1946, losing to incumbent Fred Hartley Jr. Trying again in 1948, when Hartley had decided not to run, he won the seat. Outside of his Newark district, he was not prominent as a congressman until the Nixon impeachment hearings. As a congressman, he was generally known as a liberal, and a proponent of civil rights legislation and immigration reform. Representing a district that was heavily Italian-American when he was first elected, he was best known for his sponsorship of legislation that made Columbus Day a national holiday.
He became chairman of the House Judiciary Committee in January 1973. During the Nixon impeachment hearings from May to July 1974, he was generally considered to be a fair moderator of what at times were very partisan hearings. Key difficulties included ensuring that enough Republican committee members would vote for impeachment to defend against Nixon administration charges of Democratic partisanship. In the end, as further evidence emerged and Nixon admitted wrongdoing, several initially reluctant Republican members switched, making the committee vote for impeachment unanimous. During his political career, he also was one of the managers of the impeachment hearings of a pair of federal judges. In 1986, he was member of the committee that removed Nevada judge Harry Claiborne for tax evasion, and in 1988, he helped to remove future Congressman Alcee Hastings from a Florida court due to perjury charges. He continued as chair of the Judiciary Committee until his retirement from Congress in 1989, when he was replaced by Donald M. Payne, New Jersey's first African-American representative. After leaving Congress, he became professor emeritus at the Seton Hall University School of Law, where he taught and lectured until February 2005. He died May 7, 2005, of congestive heart failure at the age of 95 at his home in West Orange, New Jersey.
Chapter 32Dear O-w-impic Letter
National Association of Olympic Businesses
A Non-Profit Business Association
Lobby Registration #11271000 - IRS § 501(c)(6) - Tax Exempt - 33-0200292
This last utterance went out to the 2,500 +/- olympic businesses present in my court record. From these addresses I obtained my members who joined the lobby. These recipients received letters from me several times before and were on the Olympic list. I should not have been angry with these people, specifically, but the last screw was going in my coffin lid and I had to reach one more time to convince them the urgency of the issue, and, that the martyr will soon die for his beliefs, figuratively. Olympic Records is dead and its products are going to the shredder. National Association of Olympic Businesses is to be dissolved and Martian law has prevailed. The culmination of four years of sixty (60) hour weeks dedicated 101% to the cause (like the first judge said, quixotic quest) of obtaining the trademark with which I was going to make a stand for music "I" thought the Public should have access to. Four years in court, six years in all. My extremely valuable and costly court record now goes to storage to become a cold case file, or more likely, the dumpster. There are copies but it would require a legal anthropologist to locate the original. And for God's sake don't show it to the Supreme Court if you find it.
. . . cries carnivorous predator & scavenger one last time
Dear O-WIM-PIC:
Guess what? I went to the U.S. appeals court Monday (7th) and the Gay Olympics case disposes of LABRANCHE v. USOC and you are hereby notified that you will never be free unless you do something about it. Some of you may have made an effort and, if so, those efforts need to be redoubled. For those of you who ignored my letters or feel your company is not in jeopardy and don't feel threatened I wish you well. If any of you made a secret arrangement with the USOC you are dangerously close to a Sherman Act, §1 violation. Any of you who changed your name should move to France where this .... came from. I shall continue to the Supreme Court where I can further and finally be destroyed and insulted, and there is no chance they will change their mind with respect to overturning one of their most notorious mistakes. The mistake was that they (7 justices) said "section 380 of the Amateur Sports Act does not violate the First Amendment." This was stated in the broadest of terms and the statement is meant to, and does, apply to everyone. The Supreme Court of "Olympism" showed the Gays and the ACLU who's boss.
The National Association of Olympic Businesses [NAOB] will be disbanded and dissolved at the end of the quarter and thereafter the actions of Leo O. LaBranche Jr. will not reflect upon or include any of the members. I am taking out of court actions against the I.O.C. (which is responsible for this crap) and the games have begun. In fact, the Canadians (who have ten times the spine of most of you) took the matter into their own hands and made the government change the policy regarding 'no use' of olympic, but only because the Canadian olympic businesses stood up and fought (with special help from the Greek Canadians and the Greek Ambassador). I played a small part in that event. The Canadian media howled when the Canadian Olympic Association a/k/a the Olympic Trust tried to prevent publication of the country's major magazine (McLeans). The magazine was taken to Federal court and lost at every turn until the issue smelled so bad that the Olympic Trust dropped the injunction. It is interesting that I can be of assistance to help others free themselves from oppression but I can't do a damn thing about it in my own country. It would take at least five (5) hundred or more American olympic businesses joined together in a federal class action to be "EQUAL UNDER LAW TO THE USOC." Everybody bows to the USOC, including you and yours who tacitly bow by accepting the situation.
Good-bye and Good Luck. I am ashamed that my countrymen are such spineless wimps.
Truly O-WIM-PICS.
President, Olympic Records, Inc.
P.S. Courtesy, protocol, and procedure mean absolutely nothing in this situation. If you want something done by this government you must DEMAND IT! Do you pay taxes? What do you get for it? You are a tainted American business and through absolutely no fault of mine, and I thank God. End of Final Olympic Utterance
NEW YORK TIMES
Ten days after the Court's decision in SFAA the following statements were made by the
Executive director of the Olympic Committee, Mr. George Miller.
New York Times - July 5, 1987, section 3, pg. 1:5
Publicly stated position SELECTIVE ENFORCEMENT
With the Olympic Games approaching the Committee will be more aggressive about protecting its exclusive right to the word "Olympic." Any use of the name is illegal," said George Miller, executive director. [But] we can't go after them all. The main targets will be athletic contests and businesses that link themselves to the Olympic Games . . .
The statement in italics accurately reflects the intention of Congress with respect to interpretation of § 380 of the Amateur Sports Act. Further statements made by the USOC regarding legislative intent appear in the records of the 99th Congress. 100 video copies (and transcripts) of a network television broadcast were sent to members of Congress, accompanying petition 0274, in 1986. On this broadcast appeared Mr. Richard G. Kline, Esq., general counsel for USOC, holding a souvenier T-shirt up to view which included the five interlocked rings and the term 1984 Olympics and stated: This is the kind of marketing activity the statute was designed to prevent. This statement is also true and in harmony with Congressional Intent. Yet threats were made during the broadcast to sue all those who use the word "olympic" for the purposes of trade since 1950. The Amateur Sports Act states "olympic" is a word, not a name.
So the USOC has a federal law that cannot be used against all others, and used when it suits their purpose and design and they have a Supreme Court opinion (case law) to enable them to do what, where, and when they choose with no control or oversight according to the Martian court. The people in this organization need to get out of MY country. Nowhere in the history of our laws (show me otherwise) has any entity ever had this kind of power, implemented by self-serving men and women with no oversight necessary. The gods have finally arrived from Mount Olympus and they're as superlative as always and do what they want with no oversight.
This, in effect, ends the Olympic story. I obeyed the federal court order and shredded my products, canceled my licenses, closed the Corporation, and closed the Lobby. Below the written Order, of course written by the Olympic lawyers and signed by the judge.
JUDGMENT AND PERMANENT INJUNCTION
U. S. District Court, case no. CV 481 RG LABRANCHE v USOC
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:
1. This Court has jurisdiction of the subject matter and over the parties to this action;
2. Plaintiff (counterdefendant/LABRANCHE) shall take nothing by his claims.
3. The use by LABRANCHE of the term "Olympic Records" as a trademark and/or as a trade name on or in connection with his products infringes upon the rights in and to use the term "OLYMPIC" granted to the USOC by 36 U.S. Code section 380.
4. LABRANCHE, his successors, legal representatives, and assigns, and his agents, servants, employees, attorneys, and all persons in active concert or participation with LABRANCHE are perpetually enjoined and restrained:
A) from using the term "OLYMPIC" or "OLYMPIC RECORDS" or any other word or words, term or terms which is or are confusingly similar thereto, as a trademark, trade name, brand name, or indication of source or origin on or in connection with any product or any service and/or the advertising, offering for sale or the sale of any product or service;
B) from using the term "OLYMPIC" alone, and or as a part of any trademark containing other words or devices, and/or trade name, trade style, or designation which includes the word "OLYMPIC;" and
C) from committing any acts calculated or likely to cause others to believe that the products or services of LABRANCHE are the USOC's products or services, or are sponsored or approved by, or connected with or produced under the supervision of USOC.
5. LABRANCHE is further enjoined and ordered to:
A) destroy any and all of his labels, packaging, and other documents and material which include the Term "OLYMPIC" or "OLYMPIC RECORDS;"
B) destroy any and all of his advertising materials which include, refer, or relate to use of the term "OLYMPIC" or "OLYMPIC RECORDS" on or in connection with its product or services;
C) take such action as is necessary to cause removal from any and all directories or publications of any and all references to LABRANCHE or his product or services which include the term "OLYMPIC" or "OLYMPIC RECORDS;"
D) abandon his U. S. Trademark Application Serial No. S452,602 and abandon or otherwise cancel or revoke any other Federal, state or foreign trademark application or registrations which he may have for any mark which includes the term "OLYMPIC" or "OLYMPIC RECORDS;"
E) cancel or cause to be cancelled any and all trade name certificates, registrations, or fictitious name statements which include the term "OLYMPIC or "OLYMPIC RECORDS" and which have been issued or granted to LABRANCHE; and
F) cancel or cause to be cancelled any and all certificates of brand or label approval from any brand or label which include the term "OLYMPIC" or "OLYMPIC RECORDS," and which have been granted or issued to him.
6. LABRANCHE is further ordered to account to USOC, and to pay to USOC all gains, profits and advantages derived from his sale of goods or services in connection with which he has used the term "OLYMPIC" or "OLYMPIC RECORDS" as an identifying designation or otherwise.
7. This Court retains jurisdiction of the parties hereto with respect to compliance with this Permanent Judgement against LABRANCHE.
8. That the USOC recover of LABRANCHE its costs, including attorneys' fees.
Dated: 12/31/85 - mandated 4-4-88 s/s Richard A. Gadbois Jr.
United States District Judge
I located a company in Arizona which will shred my company products and other items as covered in the above ORDER. I get my friend Billy Milo, the country artist, to go with me to Arizona and get him to film it, as required, to show and prove the destruction. It was about a 5 x 8 U-haul full of records and tapes and whatever else required to go to the shredder. I go to Arizona because I will not spend any money in California ever again.
I left California shortly thereafter and moved to Arizona where I considered a future as Don Coyote chasing "The Impossible Curse." I could not consider a book as was suggested by Mr. Lewis M. Brown because I couldn't go through it again. I kept the 150 pounds of history for some reason but thought I was just dragging my past.
The foregoing began August 1982 and ended April 1988. It is highly not recommended that anyone do this unless you are steeped in, and expect to be ruled by, Martian law. Don't forget, I'm just a member of the Public and it could have been You.
Epilogue to follow
