- Can they really be “permanently incarcerated” for trademark infringement?
- Why petition the Seventh-day Adventist Church? Isn’t the problem disobeying a court order, and contempt of court?
- Isn’t this just an issue of fraud and impersonation? What does stealing a trademark have to do with religious liberty?
- Why don’t they just change their name? What does this have to do with religious liberty?
- What’s the problem with the Seventh-day Adventist church’s attempt to control tweets, social media posts, videos, etc. through trademark law?
Q. What do you mean by “permanent incarceration?” Are you saying they are being given life sentences for trademark infringement?
A. Rather than a “life sentence” per se, the issue involves the mechanics of contempt of court, and specifically civil contempt as opposed to criminal contempt. Criminal contempt is punitive and used to punish a violation of the court’s orders; as a result, it comes with a specific sentence of time to serve or fines to pay. Civil contempt, on the other hand, is coercive; it is used to force compliance with a court’s order, or prevent its continued violation. Civil contempt is what the Seventh-day Adventist church is seeking in this lawsuit.
Due to its nature, there is no sentencing involved in civil contempt; the prisoner is jailed indefinitely until they agree to comply with the court’s order. Also called “keys in your pocket,” civil contempt is a largely unregulated power with no limitations for time served. As a result, if the prisoner cannot or will not comply with the order, they will not be released and can feasibly spend the rest of their life in jail. Since the group’s religious convictions will not allow them to change their name, a civil contempt order will result in their permanent incarceration unless they renounce the practice of their beliefs. Currently the record for longest time served under civil contempt in the U.S. is 14 years.
Q. Why petition the Seventh-day Adventist Church? Isn’t this a question of the courts enforcing contempt for disobeying an order?
A. While it is indeed the court issuing the warrants, because this is a civil case the issuing of contempt and sanctions – including arrest – is at the discretion of the plaintiff to request or not to request. The Seventh-day Adventist Church’s attorneys have persisted in requesting the court to grant show cause hearings and submitting proposed orders of contempt and sanctions. For example, the Seventh-day Adventist church submitted the following proposed order in 2009:
“…the arrest of Defendant, wherever he may be found within the jurisdiction of the United States, and his incarceration in this District pending his full and complete compliance with the Injunction Order. This Court will release him upon his full and complete compliance with the Injunction Order. The United States Marshal of this District is directed to take all appropriate steps to ensure that this order of arrest and civil commitment is executed wherever Defendant may be found within the United States or its territories, including appropriate notification of the United States Customs Service.”
- Proposed Order of Contempt and Sanctions, p. 12
Since the courts have decided that the First Amendment is irrelevant in this lawsuit, the only way to stop the members of this church from spending life behind bars is to persuade the Seventh-day Adventist Church to drop the case. If you will tell them loud and clear that their church’s reputation is being harmed more by its own actions in this lawsuit than by the actions of this small group, there may be hope for the Free Exercise of their religion in America.
Q. You can’t call your new business ‘Xerox,’ either. Isn’t this just an issue of stealing the name of a larger church to confuse and profit from their reputation?
A. Far from a case of identity theft or impersonation, the church being sued has taken active steps to prevent any confusion and uses a different name with modifying terms. It is more similar to the “Southern Baptist” and “Missionary Baptist” difference than a case of impersonation. A better analogy than the one in the question would be “Xerox” suing “Creation Xer & Ox” for trademark infringement.
Despite being in existence for over twenty years at the time of this petition and fifteen years at the time of the lawsuit’s initiation, not one instance of actual confusion has ever been documented between the two churches. The court has noted this fact repeatedly, as well as the lack of impersonation or theft:
“While the use of the mark was certainly knowing, there is no evidence that the Defendant intended to confuse the public into believing that his church was one of the Plaintiffs’. Rather, the proof supports the conclusion that they chose the name based on a divine revelation.”
– Judge J. Daniel Breen, Order Adopting in Part and Modifying in Part Plaintiff’s Motion for Summary Judgment, p. 22
“The evidence supports the conclusion that the Defendant chose the name for his church based on a divine revelation, rather than a desire to profit from any already established good-will towards the Plaintiffs’ church.”
– Ibid., p. 24
“The Plaintiffs rely heavily on the fourth element, evidence of actual confusion, in their motion for summary judgment. . . The only evidence of actual confusion presented by the Plaintiffs are entries in the guest book of the Defendant’s website by visitors to the site. Several of these visitors identify themselves as Seventh Day Adventists and comment on the contents of the website or ask for information on McGill’s church. (Id. at 7.) For example, one visitor stated that he was a Seventh-Day Adventist looking for “internet friendships,” while another complimented the Defendant’s “description about the New Start Program,” and yet another asked that McGill pray for her. (D.E. No. 37, Pls.’ Mem. in Supp., at 7.) However, these somewhat ambiguous entries do not conclusively indicate that these visitors mistakenly believed that the Defendant’s church was part of the “mother” church. . . Thus, there is no persuasive evidence of actual confusion.“
– Ibid., p. 20-21
Q. Why don’t they just change their name? What does this have to do with religious liberty?
A. According to the group’s beliefs, the name “Creation Seventh Day Adventist” was given by God via “divine revelation.” As a result, its use is required in order to practice their religious belief that the name is God-given. In late 2006, the church altered their name to “The Creation 7th Day & Adventist Church” in an attempt to show good-will, but the gesture was not accepted. According to the courts:
“So far, no one has questioned the sincerity of McGill’s belief that God requires him to continue his infringing use of the plaintiffs’ marks. Being compelled to stop could substantially burden his religious practice.“
– Judge Karen Moore, Court of Appeals for the 6th Circuit Ruling, p. 10
A unique element in this case is that the Seventh-day Adventist religion involves a belief in the prophethood of church co-founder Ellen G. White. She penned the following in the late 1800s:
“We are Seventh-day Adventists. Are we ashamed of our name? We answer, No, no! We are not. It is the name the Lord has given us.“
– Ellen G. White
“In the name of the Lord we are to identify ourselves as Seventh-day Adventists.”
– Ellen G. White
“Our institutions have taken a name which sets forth the character of our faith, and of this name we are never to be ashamed. I have been shown that this name means much, and in adopting it we have followed the light given us from heaven. . . This distinctive banner is to be borne through the world to the close of probation.“
– Ellen G. White
By claiming to have followed further “divine revelation,” the group has taken a more unique name than other groups that have been sued in the past by the Seventh-day Adventist Church for trademark infringement. Despite this, their religion does not allow them to abandon it altogether, which is what the Seventh-day Adventist Church is requiring of them via court order. Because the name is a fundamental part of their religious beliefs, they cannot freely practice their religion without using it.
Q. Why should I be concerned about trademarks being used to control online speech?
A. Just as the Church of Scientology has famously used intellectual property laws to silence criticism and dissent, the 2015 motion is an attempt to control all use of the words “Seventh-day” or “Adventist” anywhere online. This would prevent anyone from using the word “Adventist” in a video, whether speaking of themselves or another; it would censor the mentioning of either the Adventist church or religion if the trademark holder should so request. The proposed motion further forbids any web service provider of any kind, from web servers to social media companies, to host or enable, passively or actively, the use of the words in question.
While the motion was eventually denied, it represents an alarming attempt on Free Speech under the cover of silence, coming three years after the last major action in the lawsuit. The ramifications go beyond the Creation 7th Day Adventists in this case, and reach to every internet user and service provider. If the litigation is not stopped, and attention brought to these efforts to curtail essential freedoms, the next effort may not be as successfully thwarted.