Tuesday, March 3, 2009

For Reasons Unrelated to the Merits of This Proceeding

A friend of mine on The Wittenberg Trail asked me the following question:
Scott - I'm interested in your understanding of the meaning to the stated reason for the withdrawal of the lawsuit: "Opposer The Lutheran Church–Missouri Synod withdraws the above-captioned Opposition with prejudice, for reasons unrelated to the merits of this proceeding."
The above quote comes from the LCMS attorneys on their formal Withdrawal of Opposition to the Trademark Trial and Appeal Board of the United States Patent and Trademark Office (USPTO), which can be viewed here (scroll down to the second and third pages). (By the way, the LCMS did not file a lawsuit, but rather was opposing the trademark application for the Issues, Etc. name filed by Mr. Madsen.)

Rather than speculate on the legal meaning of the phrase, I emailed Mr. Harvey Madsen. He was kind enough to provide me with the following response, which is reproduced in its entirety, for your reading enjoyment and legal edification. Thanks to Mr. Madsen for sating our curiosity:


1. You asked for a layman-speak translation. To be accurate, brevity is impossible.

As to what the language, “Opposer The Lutheran Church-Missouri Synod withdraws the above-captioned Opposition with prejudice, for reasons unrelated to the merits of this proceeding” means, I note:

1A. LCMS counsel in their pleadings used the term “on information and belief” as a basis of making statements, some of which were false, and some of those which officials of LCMS knew to be false. However, they did not make the statements under oath so they had the technical escape hatch of saying they believed it but did not swear to it. In my response and challenge to the LCMS allegations I also used the “on information and belief” formula, however, I am prepared to stand by it under oath at two levels: (1) that I the asserted facts recited were true, and (2) that what I stated as my belief was truly my belief and that I was prepared to document the basis for that belief, and (3) I was prepared to accept the court’s order of punishment (like being forced to pay the opponent’s legal fees) if my stated facts were not true or my
beliefs unreasonable.

1B. Thus statements “on information and belief” are less than unconditional testimony. They are strengthen by being under oath, but even that is less than unconditional testimony. Below, except where I do not preface with “I believe” it is jury sufficient fact. Where I do so preface, I have a strong basis for the belief.

1C. One of my strongest objections to the filings of LCMS counsel was that, while they represented an inanimate corporation they couched much of their case in terms of “belief” and “believing.” That is impossible. A corporation can speak only through its president or another with the delegated authority of the president. Moreover, while a lawyer can “speak” on behalf of his client both in court and filings as long as he confines himself to factual statements, but it does not follow that he can also say what a corporate client “believes.” That is a defect at two levels: (1) the corporation is incapable of “belief”, and (2) when corporate “belief” is put in writing it has to be by the affidavit of the corporate president. In my response I used the statement: However, counsel is a “mouthpiece” not a “brainpiece.”

2. AS TO WHAT WAS SAID The “with prejudice” means that LCMS cannot come back and say, “we changed our mind and want to oppose Madsen’s use of the trademark.” The next step after a decision in the USPTO is an appeal by the losing party to a federal court supported by law and arguments as to why the USPTO decision was wrong. That is also foreclosed by the “with prejudice” language because it is a basic principle that a litigant must exhaust his remedies at the lower level before going on to the higher levels.

3. AS TO WHETHER IT IS FINAL It must be acknowledged that this is not final until the LCMS motion is ruled upon by the USPTO. Since the USPTO had previously made the independent determination that the Madsen application should be published in the Official Register (subject to objection within 30 days) it is difficult to imagine a scenario where USPTO would not accept the LCMS motion and follow through with an order conforming thereto and certifying the trademark ownership, but that has not yet been done.

4. AS TO WHY IT WAS VOLUNTEERED I believe the LCMS president wanted to put this to bed completely and never hear about the controversy again and therefore did not go half way in their withdrawal. I believe they sensed correctly that had they just “withdrawn” I would have responded with my objection to the withdrawal unless it was “with prejudice.” That would have ushered in a brief battle of words where more would come out concerning internal LCMS inconsistencies and the difficulty of LCMS counsel in recovering from the three-way defective instrument with which the opposition was filed.

5. AS TO THE TIME IT WAS VOLUNTEERED I believe the four lawyers working on the case for LCMS anticipated they were facing an adverse ruling because there was no way to recover from the many imperfections in their objection filing, including but not limited to:

A. Starting off like amateurs by not sending a copy to Madsen as required by the rules.
B. Trying to finesse their error by phone calls and electronic filing only to generate an order that voided their second try.
C. Not filing a timely motion to vacate the order canceling their second try.
D. Attributing “belief” to a corporation.
E. Using the affidavit language of “information and belief” but failing to use an affidavit.
F. Trying to pretend that counsel could express the “belief” of a client, whether natural or corporate.
G. Totally obscuring from USPTO that LCMS had previously applied for and held the trademark.
H. Totally obscuring from USPTO that LCMS had allowed that trademark certificate to lapse.
I. While trying to animate a corporation, rendering Madsen inanimate, twice calling him “it.”
J. The pretense of pretending to advance the Issues, Etc. they were doing their best to kill.
K. Claiming goodwill on the heals of an arbitrary campaign to destroy kill every vestige of goodwill.
L. Simultaneously attempting to ensnare former LCMS employees into a restraint of free speech.

6. FALSE CLAIM OF COMMON LAW RIGHT Counsel was totally aware that the 1994 LCMS application and grant of the USPTO certification for the trademark forever extinguished the LCMS claim to a common law right. The false efficacy of that claim was masked by obscurantism of failing to document the prior LCMS filing, trademark certification and abandonment.

7. AS TO HOW IT WAS SAID “for reasons unrelated to the merits of this proceeding.” Those reasons are the massive support Issues, Etc. has had from you and others for which I am very grateful.

8. AS TO WHAT WAS NOT SAID The words, “for reasons unrelated to the merits of this proceeding” does not say
A. That those unrelated reasons were the only reasons.
B. That there was any lack of merit in Madsen’s claim.
C. That there was merit in the LCMS claim.

9. AS TO WHY THE LCMS PRESIDENT CAPITULATED Totally aware that there would be an attack on the use of the trademark, Madsen made application in his name alone as a sole proprietor. Madsen is a layman. I believe the LCMS president looked, as in other disputes, for pastoral arms to twist, but there were none. That’s the real reason he quit. From his point of view, it really wasn’t a fair fight.

Harry B. Madsen

photo credit: Brymo

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