Questions have been asked regarding efforts by the General Conference to protect the name of our church through the use of the trademark laws. Unfortunately, much disturbing misinformation has been circulated among our membership, and this is causing considerable confusion and misapprehension. In order to correct any erroneous impressions, the General Conference Trademark Committee has prepared the following responses to many of the general questions that have been raised.
Q: Is it true that the General Conference has federally registered trademarks for the name "Seventh-day Adventist" and various programs of our church?
A: Yes. The General Conference Corporation of Seventh-day Adventists, on behalf of the entire denomination, has registered under the United States trademark laws the name "Seventh-day Adventist" and a variety of the church's programs and services such as "Adventist Health System," "Christian Lifestyle Magazine," "Breathe-Free" and "Path finder, " to name just a few. Such registrations reserve to our denomination the exclusive right to use those names to identify our organizations, institutions, churches, programs, services, and publications.
Q: Why is it necessary for the church to register its name for federal trademark protection?
A: The name of any organization is one of its most valuable assets. It is by the name "Seventh-day Adventist" that the public identifies the church's goodwill, reputation, and integrity and the quality of its mission, programs, and services. The name of our church, to an even greater extent than other organizations, has special significance. The pen of inspiration tells us that when our church was organized as a denomination in 1863, the name chosen to identify our denomination was ordained by God and is intended to serve as a unique identification of this church, united as a single body to proclaim the gospel to the world.
The master counterfeiter is diligently seeking to create disunity and fragmentation, and to dilute the special significance of God's message to His people and to this world. A deliberate misappropriation and misrepresentation of the church's good name is a contribution to his effort. However burdensome it may be to our church leadership, as faithful stewards of the church and the Lord's work we have no choice but to act responsibly in order to protect the good name of the church.
An additional reason for the church's protection of its name is the legal consequences to the church of ignoring unauthorized use of its name by organizations that are not part of the denomination. An organization that uses the name of the church implies to the public that it is a part of and accountable to the denomination, and is subject to its control and direction. If in fact there is no connection, the use of the name is a misrepresentation or a fraud upon the public. If such an organization does not meet its business obligations to a third party, the law may allow that third party to collect on those debts directly from the denomination.
Q: Is it true that the trademark laws are for the protection only of commercial and business enterprises?
A: No. While the trademark laws, as is the case with most laws, are phrased in terms generally familiar to the business world, their application is not restricted to the realm of commercial and business matters. It is well recognized that any noncommercial, nonprofit organization, including a church, is equally entitled to the benefit and protection of the trade mark laws. Many other churches have registered their names Unified Free Will Baptist, Presbyterian Church (USA), and the Evangelical Methodist, to name just a few.
Q: Who may use the registered trademarks of the church?
A: Any entity with recognized denominational status, as listed in the current issue of the Seventh-day Adventist Year book, and local churches or companies that are recognized by and accepted into the fellowship of Seventh-day Adventist believers by the local conference or mission are allowed to use the name "Seventh-day Adventist" to identify their organizations and ministries.
Q: May organisations or institutions that are independently operated and organized by Seventh-day Adventist laypeople utilize the church's registered trademarks to identify their organization or entity?
A: Only if they have met the requirements of the General Conference trade mark policy and have been granted ex press written approval from the General Conference Trademark Committee may such a group use a registered trademark of the church.
Q: When a possible unauthorized use of the church's name or other trademark is brought to the attention of the General Conference, how is it handled and what actions are taken?
A: Trademark matters are first referred to the secretary of the Trademark Committee, who is an attorney with the Office of General Counsel for the General Conference. He initially reviews and investigates possible unauthorized trademark use to determine if there is or ever has been a connection between the organization in question and any recognized denominational entity. If there is no such connection, a determination is made whether the usage of the church's trademark is in fact subject to trademark protection. After review by the General Conference Trademark Committee to determine what action would be appropriate, an initial letter is sent to the organization requesting it to voluntarily cease using the trademarked name. The local conference may be requested to assist with counseling the individuals. If a satisfactory response is not received, the General Conference's special trademark counsel is requested to send a more firmly worded official notice to the organization to advise them to discontinue the use of the registered trademark.
If no satisfactory response to the trademark counsel's letter is received after a reasonable period of time, the matter is again brought before the Trademark Committee for further consideration. Only as a last resort will the Trademark Committee recommend that intervention by a court be sought to correct the
problem. If this is deemed necessary, the matter is then referred to the General Conference officers for authorization. Approximately 90 percent of the church's trademark problems are resolved without seeking the intervention of a court.
Q: What is the nature of relief that the church will request of a court?
A: The church's primary objective is to protect its good name by correcting any misrepresentation and unauthorized use of the name tending to confuse the public. The primary means by which this is done is for a court to issue an injunction ordering the organization to discontinue using the name as a means of identification on its signs, advertisements, or any other written materials produced by the organization. Quite incidental to the re quest for injunctive relief and as a standard component of any petition filed in court, it is routine procedure to request all the relief to which one could be entitled for the particular claim, including monetary damages and/or attorney's fees. As it is the church's primary purpose to persuade the infringing party simply to cease using the church's name, the church will always reserve the right to waive its rights to any monetary relief.
Q: Isn't there a risk that this may violate someone's freedom of religion or freedom of speech?
A: No. The Seventh-day Adventist Church actively supports the biblical principle of freedom of religion. One of our most treasured rights in this country is the right to believe and practice our religion according to the dictates of conscience. The freedom to believe is absolute. However, the practice of religion cannot be done at the expense of or in violation of the rights of another. Speech that is false and misleading is never protected by the First Amendment of the Constitution of the United States. It is well established that there is no violation of the freedom of religion in preventing anyone no longer connected with a church from appropriating the name and goodwill of that church.
Q: How do you reconcile this practice with Paul's counsel in 1 Corinthians 6:6-8, in which he admonished the people of Corinth against taking disputes among the brethren before the unjust for resolution?
A: Paul's counsel is based on the assumption that both sides, as fellow believers, ought to be willing to lay their disputes before another believer for resolution. Obviously the counsel is frustrated if one of the parties to the dispute is either disinterested in considering a resolution of the matter or is simply not a part of the community of believers. To relieve this frustration it is necessary to rely on Christ's counsel in Matthew 18:15-17, in which He advises if a brother who has wronged you continues to ignore repeated and progressively firm requests to resolve a dispute, he be considered a "heathen man and a publican."
Paul counseled the Corinthians not to take a dispute before the "unjust." While the American judicial system may not be perfect, it cannot be characterized as being unjust, non-Christian, or pagan. Would it be sufficient to find a Christian judge? The courts will not get involved in church ecclesiastical disputes; they will decide only questions that can be re solved using recognized neutral principles of law, such as the trademark laws.
Q: Would it not be better for the church to simply suffer the loss rather than to seek a legal remedy from the civil authorities?
A: At times the leaders of our church are forced to make agonizingly difficult decisions over issues that are not easily reconciled in this modern world, using counsel given in a different time and cultural climate. Surely one would not criticize the church if it took swift and appropriate legal action to prevent the church's real property from being taken by fraudulent means, even by a member. Why then should any less responsible stewardship be required or expected in protecting a far more valuable asset of the church its very identity and goodwill?
In addition to the more general questions that have been raised regarding the church's general trademark policies and practice, many individuals, as a result of misinformation, have focused specifically on the church's trademark litigation against John Marik and his group in Hawaii. Unfortunately, much opinion has been based on erroneous assumptions regarding the law and the legal process, and on blatant misrepresentations and distortions of the facts of this case. The following highlights some of the most significant errors and distortions regarding this case.
John Marik, a former pastor and Seventh-day Adventist, and a small group of former Seventh-day Adventists established a corporation in Hawaii called the "Seventh-day Adventist Congregational Church." For several years the leadership in the Hawaii Conference patiently endeavored to bring this group back into the fellowship of the Seventh-day Adventist Church. After their efforts proved futile, they sought the assistance of the General Conference, and the matter was referred to the General Conference Trademark Committee. After fruitless efforts to persuade John Marik to change the name of his church, it was deemed necessary to seek the intervention of a court to resolve the matter. An injunction was issued by the U.S. district court in Hawaii requiring John Marik and his group to discontinue the misleading use of the name "Seventh-day Adventist" to identify their independent church. John Marik refused to com ply with the order of the court. Consequently, he and his congregation were held and remain in contempt of court. The matter is presently on appeal before the U.S. Court of Appeals for the Ninth Circuit.
Q: Why is the General Conference taking these Seventh-day Adventists, our fellow believers, to court?
A: To begin with, these people are no longer Seventh-day Adventists. They left the church of their own free will and consequently have been disfellowshipped by their former local church. John Marik, their pastor, was a ministerial intern for a short time in the Hawaii Conference. He was originally assigned to the local church in the town of Captain Cook. It was felt that a more experienced pastor would better serve that church, and in order to broaden John Marik's experience, he was reassigned to a larger church under the tutelage of a senior pastor. John Marik refused to move, stating that he had not been specifically shown in vision to move. After much prayerful yet unsuccessful effort to gain his cooperation, the conference was forced to terminate his employment as a pastor. He subsequently left the Seventh-day Adventist Church and decided to start his own church. Repeated efforts to bring him and his group back into fellowship were without success.
Q: Why has the church used the trademark laws against an organization that is not involved in any commercial activity?
A: Some may not be aware, but the trademark laws are not intended for the protection only of commercial activities. It is well established that nonprofit charitable and religious organizations are en titled to trademark/service mark protection.
Q: Why is the General Conference Corporation the only plaintiff in this action?
A: The General Conference Corporation, as the nonprofit property-holding corporation of the General Conference, is the sole registered owner of the trade mark and therefore under trademark law is the only party that needs to be named as a plaintiff in requesting this injunction on behalf of the entire Seventh-day Adventist Church.
Q: Is it true that the General Conference has sought to deprive the group in Hawaii of any or all of the following: personal letters, research papers, Spirit of Prophecy compilations, books, magazines, out-of-print rare books, Spirit of Prophecy books, Bible commentaries, three-volume indexes, correspondence with friends about the lawsuit, H.M.S. Richards' Helps Bibles, any other books, Bibles, etc.?
A: No. This is the most blatant distortion of the facts of this case and is simply not true. It is not the intent of the General Conference, nor has it ever been its intent and purpose, to deprive anyone of his personal property, nor would the law even allow it. The sole objective has been to prevent the unauthorized use of the church's name on any sign, advertisement, or other material that may have been specifically produced by John Marik and his group as a means of misidentifying their church as being a Seventh-day Adventist church. In fact, the General Conference would encourage this group to keep and diligently use the Spirit of Prophecy writings. A reading of all the court documents as well as a correct understanding of trademark law will bear this out.
Q: Is it true that counsel for the church attempted to conceal certain motions from or to take advantage of the ignorance of the defendant, John Marik, when he had no attorney?
A: No. In addition to receiving (contrary to his assertion) the motion for the judgment on the pleadings, John Marik was notified separately on two other occasions of the existence of the motion and of the hearing on the motion. The court as well as counsel for the General Conference Corporation bent over back ward in attempting to assist and accommodate John Marik because of his lack of knowledge of trademark law and court procedure. He was repeatedly encouraged to obtain counsel, directed to specific portions of the court's rules; and granted several extensions of time to respond and prepare his defense or to obtain counsel. John Marik and his group are now represented by Max Corbett, a lawyer from Texas.
Q: What is a "judgment on the pleadings"?
A: A judgment on the pleadings is a means of summarily resolving a matter in which there are no factual issues in dispute. Both sides are given full opportunity before and during a hearing to present and argue the case.
Q: Did the attorneys for the General Conference write the order signed by the judge?
A: It is routine procedure for both sides in court to submit a proposed order. De pending on the discretion of the judge, either version may be used or modified as the order of the court. In this case the judge considered the proposed order of the attorneys for the General Conference to be appropriate and therefore signed it.
Q: What has John Marik and his congregation done to deserve arrest and imprisonment and an extensive fine?
A: The U.S. district court has found John Marik and his congregation in con tempt of court for willful violation of a specific court order. It is the opinion of the church's attorneys that John Marik and his congregation knowingly brought this upon themselves, possibly to draw attention to themselves as alleged "victims." This unseemly result could have been easily prevented by any one of several simple steps that could have been taken by John Marik or his attorney.
At the time of the contempt hearing John Marik's attorney had already appealed the case to the U.S. Court of Appeals for the Ninth Circuit. However, the court was never requested to stay (refrain from enforcing) the order and injunction while that appeal was pending, as is routinely done when such a matter is appealed to a higher court. A court will enforce its judgment if a stay has not been expressly requested. On several occasions during the course of the contempt hearing the court re minded counsel for John Marik and his congregation that such a stay had never been requested, and the judge even delayed signing the order for three days in order to allow John Marik's counsel to rectify the situation. Nonetheless, nothing further was done, and the court was bound to enforce its judgment by issuing the contempt order.
In addition to requesting a stay of the court's judgment, John Marik could have complied with the court's order to cease misrepresenting his group as being part of the Seventh-day Adventist denomination. Furthermore, during the three-day waiting period, counsel for the General Conference, in an effort to resolve the contempt issue, made an offer of an interim resolution, which was completely ignored by the defendants. Because the authorities do not know John Marik's whereabouts, he has not been arrested or imprisoned.
Q: Is it accurate to interpret Judge Smith's comments in court as sympathetic to the position of John Marik and his group?
A: No. Judge Smith's comments in their entirety, including his comments off the record, indicate considerable frustration with the intractable and uncompromising position taken by John Marik and his group.
Q: In what other trademark actions is the church presently involved?
A: The only other trademark case pending is the General Conference's complaint against the homosexual support group Seventh-day Adventist Kinship International (see the February 4, 1988, issue of the Adventist Review). This matter is currently in the pretrial discovery phase.
Q: I have also heard of other trademark actions in Texas, Alabama, and Indiana. Whatever happened to these actions?
A: There has been no trademark action initiated by the General Conference in Texas. There was a dispute over church real property within the Southwest Region Conference that may have been misconstrued as being a trademark matter. The trademark action in Huntsville, Alabama, was settled by mutual consent of the parties after the defendant voluntarily agreed to discontinue using the name "Seventh-day Adventist" as part of the name of his church.
A question was initially brought to the General Conference Trademark Committee regarding a possible unauthorized use of the name "Seventh-day Adventist" by a group in Newburgh, Indiana. However, after an initial con tact and investigation of the matter, it was found that this group had become a part of and is now officially recognized as a member church by the Lake Region Conference.
The only other trademark matter that has been taken before a court by the General Conference involved a Samoan group in southern California. That matter was resolved after the Samoan group voluntarily changed the name of its church.
