In Texas, ECUSA Es Muy Loco

from Anglican Curmudgeon by A. S. Haley

The official "piling on" strategy of the Episcopal Church (USA), to which I referred inthis earlier post, has now been carried to an extreme in Texas. Late last night, from the official blogs, came word of a new lawsuit filed by the Potemkin diocese of Fort Worth against Bishop Jack L. Iker. (They already have two other lawsuits pending against him.)

This new lawsuit is simply crazy, if you will pardon the expression. It is filed in federal district court, because it asserts trademark claims under the Lanham Act, a federal statute (15 U.S.C. § 1127, for the lawyers). But given The Jefferts Schori Strategy^TM, it is safe to say that the suit is a non-starter. First download the complaint for yourself, then let me explain.

Notice first that the lawsuit has just two parties: the plaintiff is "the Episcopal Diocese of Fort Worth", while the defendant is none other than Bishop Jack L. Iker,personally. The plaintiff alleges that the defendant is making "unauthorized use" of its "service marks" in order "to identify religious services and works." Paragraph 2 specifically asserts:

The purpose of service marks under 15 U.S.C. § 1127 is to identify and distinguish the services of one person or organization, including a unique service, from the services of others and to indicate the source of the services.

Do you notice the 800-lb. canary that is missing in this picture sketched by the complaint? Ask yourself: just who is the "source" of the "religious services and works" which the plaintiff claims are being infringed? Who puts on religious services in Fort Worth -- is it just Bishop Iker? And who performs "religious works" -- again, is it just Bishop Iker?

To take the complaint at its word, Bishop Jack L. Iker is the sole source of all religious services and works being performed in the name of the "Episcopal Diocese of Fort Worth." And therein lies the plaintiff's dilemma.

For if the plaintiff is an "Episcopal Diocese" in Fort Worth, then what, pray tell, are the majority who voted to realign with the Province of the Southern Cone? Are they not a diocese -- an Episcopal diocese -- as well? And is it not the diocese, rather than the bishop personally, which is the source of the "religious services and works" performed by its clergy and laity -- including its bishop? In short: what does a bishop amount to without a diocese?

The plaintiff Potemkin diocese, however, cannot legally admit the existence of another -- and hence older -- diocese, because to do so would be to concede thatit, the plaintiff, is a newer "diocese", formed out of the remnant of those who dissented from the vote to realign. The failure to acknowledge what I am calling the "800-lb. canary" does not, however, mean that it is not there. It should be easy for Bishop Iker's attorneys to demonstrate to the court that not only has the plaintiff named the wrong party defendant, but that the plaintiff itself lacks standing to sue.

After all, there is already an opinion from the Texas Court of Appeal holding that there is only one Episcopal Diocese of Fort Worth, "which both a minority and a majority faction claim to control." The same court went on to note:

We are aware of no statute or common law rule allowing attorneys to prosecute a suit in the name of a corporation or other entity on behalf of only one faction or part of that corporation or entity against another part or faction.

But that is just what is going on here. The minority faction of the diocese is suing the majority (via their bishop) for using its signs and trademarks -- which the majority by definition should be able to do, since it is the majority. In order to avoid this rather obvious conclusion, the plaintiff has to pretend that it is the wholediocesan entity, and so it has to ignore the real diocese in its pleading. Look at these allegations on page 4 of the complaint:

Defendant and His Use of Plaintiff's Service Mark

12. Defendant withdrew from The Episcopal Church and pledged his allegiance to a different denomination. He is still providing religious services and works in the North~Central Texas area.

13. Defendant has been and 18 currently providing, advertising, and marketing his religious services and works using the Plaintiffs Service Marks.

14. Plaintiff does not provide, sponsor, authorize, or control the content of the religious services and works of Defendant.

15. Defendant's use of the Service Marks is without the express or implied consent of Plaintiff.

Public Confusion and Harm

16. Defendanf s unauthorized use of the Service Marks in his provision, advertising, and marketing of religious service and works is likely to cause confusion among the public seeking to participate in, benefit from, or support Plaintiff's religious services and works.

17. Members of the public seeking religious services or works of the Plaintiff may attend or support services provided by Defendant under the mistaken belief that Defendant's services are being provided by, sponsored by, or affiliated with Plaintiff.

18. Members of the public may also associate the quality andlor content of the religious services and works offered by Defendant with those offered by Plaintiff, although, as explained above, Plaintiff does not provide, sponsor, authorize. or control the content of Defendant's religious services and works.

According to the plaintiff, it -- an alleged diocese -- is in competition with a single individual, a bishop, in the business of providing "religious services and works" in the Fort Worth area. But if an individual can do what a whole group does, then why is not Bishop Ohl the plaintiff in this Lanham Act lawsuit?

The answer is simple: it is the diocese, not the bishop, which owns the rights to the name. The Episcopal Diocese of Fort Worth has been doing business under that name openly and continuously since January, 1983. And thus we come to the main reason why the plaintiff cannot bring itself to acknowledge the existence of such an organization, except to claim that it is that organization, when it clearly cannot be -- the plaintiff began its existence as a Texas unincorporated association only in February 2009.

Once the plaintiff is forced to acknowledge the existence of the diocese from which it sprang, its rights to the trademarks of that diocese will be shown as the bogus claims which they are. Indeed, look for a countersuit to be filed by the realEpiscopal Diocese of Fort Worth against the upstart group. That countersuit will make plain to the court just which group is the majority, and which is the minority. The minority will then be reduced to the same task that it has in the underlying suit in Tarrant County District Court: to convince the court that as a matter of law and covenant, a diocese which once joins the Church may never again withdraw, and not because of anything in writing stating as much, but because of other certain provisions from which such a rule may be implied.

If the Potemkin group loses that argument, as it should, it will then lose all right to make a claim against the majority under the Lanham Act. The majority has been using the mark "Episcopal Diocese of Fort Worth" daily since the group's founding, in early 1983. This is not, after all, a case like Church of Scientology International v. Elmira Mission of the Church of Scientology (2d Cir. 1986) 794 F.2d 38. In that case, the plaintiff had actually licensed the defendant mission to use the name "Church of Scientology" in its title, and in exchange for that license, the mission handed over fifteen percent of its revenue to the mother church. When the mission stopped paying money for the license, the mother church sued it in court, and successfully prevented the mission from continuing to use the name without a license.

How, then, can the Potemkin diocese even claim to be the holder of a trademark in the name "Episcopal Diocese of Fort Worth"? Why, look at the exhibits to the complaint! It makes that claim because earlier this year, it applied for and then was granted a registration of that mark on the Principal Register of the U.S. Patent and Trademarks Office. (It was also granted a registration for the characteristic shield of the real Diocese, which appears on its initial Web page.)

But to apply for and receive those registrations, the Potemkin diocese had to impersonate the real Diocese. Look at the registrations again: they both say that the applicant claims to have made "first use" of the marks in January 1983.

This is typical of the headlong strategy applied by the Episcopal Church (USA) in each of its diocesan lawsuits to date. It sets up a remnant minority, furnishes it with a puppet figurehead, and then tells it to act as though it were the actual diocese, by filing papers with the secretary of state -- and in this instance, by filing papers with the USPTO.

Those agencies make no inquiry into the legitimacy of the person behind the application, because they are not equipped to do so. They simply assume that the applicant would have no reason to try to falsify the application. Because under the rules of the USPTO, if another person (e.g., the real Episcopal Diocese of Fort Worth) believes it will be harmed by a registration, it files with that office a Petition for Cancellation. The matter is then referred to the Trademark Trial and Appeal Board, which is quite used to looking into pre-emptive attempts at registration to get the jump on the competition. If it finds that the applicant was dishonest, or less than forthcoming, in any aspect of its application, it can cancel the registration forthwith.

This short-term strategy seems destined to backfire, because the USPTO is not governed by any "hierarchical deference" doctrine -- and moreover, ECUSA itself is not asserting any rights in the mark. Faced with a claim by one entity which began its existence in February 2009, and by a second entity which has existed continuously since January 1983, the Trademark Trial and Appeal Board should have no difficulty in sorting out the priorities.

One has to ask: just who is funding these legal maneuvers? Is this how the Potemkin diocese is spending the money it has been given or loaned from the DFMS, through the Executive Council? If so, then because there is zero oversight of any legal maneuverings, this will be yet one more instance of ECUSA litigation run amok.