First let me make clear up front that my opinions are not endorsed or sponsored by the branch or it's pastor David McLean. (My father)
The court order in favor of the Community of Christ today was expected and I believe (Not based on any official statement!!) that we will appeal. Knowing that this is the same judge who issued the preliminary injunction a year ago, it's of course very unlikely that he would have reversed course and ruled in our favor on the permanent one. What this really means is that we can go directly to an appeal without having an expensive trial that would probably have wasted everybody's time because Judge Finner probably had his mind made up last year. (My opinion)
At this point, my understanding is that we have lost the case, but are going to appeal the decision. The irritating thing about this is Finner's extreme position that our small church of 30 members who can barely afford to pay our own lawyers for our defense (We're still trying to raise funds for that!) should also have to pay for the Community of Christ's fancy expensive lawyers, despite the fact that they can't prove that the Community of Christ has ever lost even a single dollar from our use of the name of the church we've always belonged to. Clearly, if we're still struggling to raise the funds for our own defense, there's no way we could have been harming them enough to pay their attorney's fees at any point.
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Hi Ben. I think you misunderstand the rule of law on this point. The judge isn't supposed to consider whether the defendant can "afford" the damages. They are set by statute. If the judge here had denied the attorneys fees order, that would have been extreme. Judges generally aren't allowed to do anything other than follow the law.
ReplyDeleteBased on my review of initial Devon Park communications, it seems they were aware of this risk at the outset.
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ReplyDeleteHe need not have ruled that we have to pay the CoC's attorney's fees. The law doesn't require that. If defending their trademark is so important to them, despite the fact that they cannot show how even one single person has ever donated to us thinking they were donating to the CoC, they should have to pay for it themselves. The reason they press for damages - indeed, the reason they chose to sue our little branch in the first place instead of several other big ones they could have chosen - is because they want to shut us down and frighten everybody else into compliance.
ReplyDeleteIf we really were deceiving people into thinking they were donating to the CoC when they donated to us, then if I were the judge, it would only make sense to award damages. But it makes no sense to award damages when there has been no demonstrable damage! (and the law doesn't require it - merely allows it)
You are arguing against the ruling that there was a trademark infringment. You may be correct. All I'm saying is that, once the judge found that there was a trademark infringement, the CofC was entitled to their fees. (http://www4.law.cornell.edu/uscode/15/1117.html)
ReplyDeleteWithout that, then any little company could just use trademarks at will and the only penalty would be to stop using it. The law makes good sense to discourage people from abusing trademarks.
I was just pointing out that the judge shouldn't have considered whether Devon Park could "afford" it or not.
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ReplyDeleteEven assuming you are correct, the attorney's fees themselves should be proportional to the harm and the harm is near zero. (the proven harm actually is zero) The whole case shouldn't have been able to exist. There is a fundamental systemic corruption in our legal system itself.
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