Chapter 14 President Carter Appeal to the Carter Center
Dear President Carter:
My name is Leo LaBranche and I, and others similarly situated, have a problem. We have not met though I performed with musical groups at the mansion during your tenure as Governor. I registered to vote in 1980 to cast a ballot for you from Burbank, my first interest in politics since 1963. I'll take a chance and use Mr. Peter Rodino Jr. as a reference to this topic and to my activities.
SUMMARY
When you were President a law was enacted titled the AMATEUR SPORTS ACT of 1978. What follows pertains to this law which was recently interpreted by the U. S. Supreme Court. The Court decided (5/4) sub nom. S.F.A.A. vs USOC/IOC (Gay Olympics case) that no person since 1950 could use the word olympic(s) for any commercial purpose and those doing so were in violation of federal law and Supreme Court authority. The court ruled litigants could not use trademark defenses in a court action and went on to say there were no constitutional restraints on the Olympic Committee with respect to Olympic Committee enforcement of the Act. The Court has again shown an interesting view of the gays and the A.C.L.U.. I have the sad distinction of following this case since my filing in 1984 (D.D.C. 84 3099) through the U. S. 9th Circuit Court of Appeals, LABRANCHE vs USOC - 85 6484.
Yesterday the 9th Circuit Court affirmed a district court ruling of 1985 which said LABRANCHE could not use the word olympic for a phonograph record company (Olympic Records, Inc.) nor use the word for Olympic Records (retail stores), or for any reason. I am embarrassed at being one who studied, believed, paid dearly, fought, lost, and set another bad example with which others may be diminished, tainted, and humiliated. The following questions illustrate the problem, they are by no means an interrogatory but I believe serve to identify the problem, constitutionally speaking.
a). Were you informed section 380 of the Act was to be construed as prohibiting every person from using the word olympic since 1950 regardless of trademark law provisions which allow for defenses such as confusion as to source or abandonment?
b). When the Act was made law were you informed of the thousands of current users of Olympic by business enterprises (small & large) around the country from 1950 - 1978?
c). Did you understand that there were to be no constitutional restraints on the Olympic Committee's enforcement of the Act?
d). Are you aware that a "Kennedy Foundation" can use Olympics for their charitable cause [Special Olympics] but the "March Of Dimes Foundation" was prevented from using Olympics for their charitable cause [Reading Olympics]? - Not to mention old people, young people and anyone the USOC could intimidate and obtain history.
e). The Olympic Committee is brave and threatening (especially since my action produced 1000's of infringers) as against tiny and helpless micro-opponents but has yet to take on one Olympic company or corporation its own size. There are several Olympic Businesses formed since 1950 which gross in excess of 100 million in revenue per year. Are these big companies exempt because this law can only spear the weak?
In closing, Mr. President, I ask that you take notice of this. While it is unlikely you can respond at least you will know what has been going on relative to this law. I shall continue to bear this and I realize my future is but an empty vessel. Perhaps the Congress will revise the act after my destruction. Should there be required any additional material or facts please indicate so and I will comply. Thank you Mr. President.
With Highest Respect,
Leo O. LaBranche Jr.
President, "National Association of Olympic Businesses"
SENATE JUDICIARY COMMITTEE Staff Attorney - Steve Best
Before the end of the 99th Congress I was contacted by Steve Best, a staff attorney of the Senate Judiciary Committee. I was not a home when he phoned but retrieved my messages and returned his call from Santa Monica where I had been seeing my doctor. This is the only phone call of the long cycle that was not recorded. I was not calling from home and the automated recording system was not available. Undoubtedly, meant to be. He was calling to give me assurances from the Committee and informed me that five (5) (remaining anonymous) Senators on that body wanted me to know that Section 380 of the Amateur Sports Act of 1978 was going to be addressed and corrected and not to expect it this (99th) Congress. [30 days left in the legislative session.] He also indicated I could publicize this information. It's June and seemingly my efforts over the nine months and the "squeaky wheel syndrome" is on track. I hardly felt the pavement on my way back home to Idyllwild. Relief is a funny thing; it doesn't last long. I am proud, gratified, and humbled by this recent event. A day or so later I conclude the next Congress may indeed do as I have been informed, but what if something happens.
With this new positive information and anonymous Senatorial support it's now time to get others to join this effort to keep the issue in focus and in front of the Congress. Supposedly, or, arguably, I have accomplished my initial purpose and have succeeded in getting the issue to be addressed by the proper committee in both Houses. Hurray, now what. After all, it's me here doing this and what if the tide should turn? Meanwhile, this event has absolutely no bearing on my court case, none, except in my heart of hearts.
UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY SD-224
WASHINGTON, D.C. 20510
Attention: Steve Best July 17, 1986
Dear Mr. Best:
I enjoyed talking with you. Please find the enclosed material that may be relevant to the issues. The Honorable Senators from Washington, California, New York, Ohio, Illinois, Massachusetts, and Texas may be interested in light of material which relates to the "Olympic Businesses, Corporations, and Organizations" in their respective states.
I would like to provide my views which may be relevant to an issue, should one arise, of the use of a torch, flame, rings (other than five), or generic terms or symbols other than a) the 5 interlocked rings; b) the initials USA with the 5 rings; c) the initials U.S.O.C.; d) the Stars in Motion; e) the Stars and Motion with the 5 rings; f) the Stars in Motion with the initials USA and the 5 rings.
A concern I have regarding a torch is not that I use one. It is the fact that hundreds of "Olympic Businesses, Corporations, and Organizations" use generic terms and combinations of generic terms and symbols as a part of the identification of their business or product. I am in the process of contacting them for the purpose of compiling a comprehensive collection of their respective combinations and logos. [Any one could use the symbol of the Statute of Liberty for the purpose of trade during the recent events but they were prohibited by law from using the specific logo which signified the event.] The Olympic Committee, as abstract as it may sound, has no protected torch. It has no copyright for a torch and the torch hidden by the shield upon trademark registration no. 980,734 is hardly considered the olympic torch, and, the torch the runners use to open the games is probably not a copyrightable object, though a picture of it may be. And it changes from Olympiad to Olympiad.
The concern with regard to use of my particular torch is that (a) I own a copyright for my trademark design which includes a torch; (b) I have a pending trademark application which includes a torch and the Patent & Trademark Office made no mention whatsoever of the torch in my several communications with the office; (c) the Olympic Committee stopped arguing the torch in the court papers; and (d) this torch was "engraved for hire" and is my family's personal industrial and intellectual property.
The Olympic Committee states the controlling law with respect to the Amateur Sports Act of 1978 to be Trademark law. I believe strongly that "confusion as to the source and/or origin of the goods or services" is the substantial and controlling provision of trademark law as it applies to the Amateur Act. I can attest to the fact that 2500 hundred radio stations across the country were not confused by a 3/4 inch logo on a phonograph record or audio tape or the use of the logo as the record label where the torch is practically hidden by the data required to be on the label. The Olympic Committee has seldom, if ever, distributed phonograph records and tapes to record stores, and should it, it would be by licensing agreement and not be under the name Olympic Records. I really enjoyed our conversation we had recently, it was a long overdue feeling of relief and I thank you and the Judiciary Committee.
Sincerely _________________
Chapter 15
(OH CANADA, MY CANADA)
My ancestors walked on over to New Hampshire from Quebec in the late 1600's.
Blunder Ahead
NAOB sends letter to Canadian Olympic (Olympique) Businesses
August 20, 1987 - Letter to Canada Businesses
Dear Olympic - Olympique:
The enclosed article by the Prime Minister was published in the Washington Post. I believe your commercial business will be interested in what follows. With all respect to your privacy our association provides information which is important to your future use of the word "olympic." This letter is not soliciting funds and the controversy has nothing to do with the upcoming Olympic Games in Calgary or Canada's honorable olympic team.
Background: In 1896 the congress of Paris, France, "awarded" the words "olympic, olympiad," and a symbol of five interlocked rings to the International Olympic Committee (I.O.C.). Since that time the I.O.C. has attempted to pass on this "award" to other national olympic committees. (Our investigation found the United Kingdom does not prevent use of the word olympic.) In 1950 the United States Congress gave the U. S. olympic committee exclusive right to the word "olympic." In 1978 this law was amended providing additional protection for the word "olympic" and retitled the law the "Amateur Sports Act of 1978." This amended law was enacted even though there were and are thousands of commercial businesses in the United States using the word "olympic" since 1950, including 500 in the state of Washington, 400 in California, and 400 in New York. Our association was formed to cause a revision or repeal of the law which threatens our commercial survival. Similar restrictions exist upon your use of the word "olympic."
Enclosed are copies of letters in support of our claims. We believe the I.O.C. would like you and and everyone to believe that - it - holds exclusive title and trademark to the word "olympic" all over the world. This is not true. The I.O.C. (an international group) has questionable authority to dictate the rights and privileges of Americans or Canadians.
The controversy in the United States will reach larger proportions in the coming months. Included is a list of Canadian businesses in your area to which this correspondence is being sent. Perhaps you might contact each other. A list of our members is printed on the back of this page and a Wall Street Journal article is included reporting on the situation.
With respect, Leo O. LaBranche, Jr., President, N.A.O.B.
Telephone 714 658 0359 or from U.S. 1 800 826 3324
Welcome to my Olympic Blunder
I had been associated with two olympic banking institutions. One had joined the NAOB lobby, Olympic Savings and Loan of Seattle, and I had a commercial account with Olympic National Bank in Los Angeles and used a check drawn on that bank to pay the Patent & Trademark Office application fee for registration. [They cashed the check.] So . . . when I saw a Canadian business called the Olympic Trust I assumed (wrongly) that they were a financial institution, not knowing until later that they were the Olympic Committee of Canada. They received the same letter as the others listed below and set the stage for what occurred. I actually gave them an exhaustive list of all the Olympic businesses in Canada. Mortification is what I felt for weeks. I had inadvertently provided the Olympic Committee of Canada with the names, addresses, and whereabouts of every potential violator of the Olympic rights, whatever those rights were in Canada. Had this event not occurred it would not have been so immediately and decisively acted upon. Evidently the Olympic Trust sent letters to all the below listed threatening and this put the ball in motion and things went pretty fast.
Canada news media (C.B.C.) calls me relative to letters I sent to Canadians. Three major Canadian newspapers call my 800 # and two national sources on the same day and I am not at home. When I call back the following day the stories have run and I have not participated in any way in the stories because of my absence when the media called.
Report and Transcript from Producer of the C.B.C. Journal
Transcript of conversation with Christine Nielsen of the C.B.C. Journal (Canada equivalent of ABC Nightline) She is the Producer of the weekly program.
She phoned, I returned the call. What follows is her speaking.
She answered: "Christine Nielsen, (C.B.C.) Journal."
Ms. Neilson:
Actually we were going to do a story on the Canadian Olympic Asso. picking on all the little guys but yesterday the Canadian government announced "that's going to change," so our story sort of died. Edited, next she said: The government has no real control over the Olympic association but what they did [was] "They met with the Canadian Olympic Asso. heads this weekend (Nov. 21-22) and basically . . I can read you what the article says," (from news report) "The Minister of Fitness and Amateur Sport yesterday spoke in the House (Parliament) and what he said is, " The Olympic Trust has agreed to stop harassing small businesses using the olympic name who are not in conflict with trademark laws or competing against sponsors of the games." As well, "nobody who was using the name olympic before 1980 will be getting any threatening letters or be subject to (what Mr. Jelnick called) a "crackdown" by olympic organizations unless there is a direct conflict with the Olympics."
She went on to explain: "What happened (up here) was there were a couple of high powered Greeks, in the Greek community, who got really upset and got in touch with the Ambassador (this is inside info. which doesn't appear in the paper, she said) and all their head honchos and then the Ambassador got on the Canadian Olympic Committee. So, steps have been taken and I don't think the little guys are going to be seeing any more letters. If the Olympic Association doesn't heed what the government has said I'll call and let you know.
[THANKS, BYE]. End of transcript
(format problem below)
OLYMPIC AUTO BODY LTD. OLYMPIC DESIGN
11903 73 ST. 13308 58 ST.
EDMONTON, ALBERTA EDMONTON, ALBERTA
OLYMPIC GRILL RESTAURANT OLYMPIC GYM EQUIPMENT
10450 82ND. AVE. 36 AIRPORT RD.
EDMONTON, ALBERTA EDMONTON, ALBERTA
OLYMPIC MUSICAL CO., LTD. OLYMPIC POOL SERVICE
10129 101 ST. 13603 137 ST.
EDMONTON, ALBERTA EDMONTON, ALBERTA
OLYMPIC REALTY LIMITED OLYMPIC BILLIARDS
10303 124 ST. 1312 17 AVE. S.W.
EDMONTON, ALBERTA CALGARY, ALBERTA
OLYMPIC CARPET CLEANERS OLYMPIC ELECTRIC, LTD.
104 4908 17 AVE. S.E. SKYWALK Lvl., 222 5 Ave. S.W.
CALGARY, ALBERTA CALGARY, MANITOBA
OLYMPIC FLAME FAMILY REST. OLYMPIC GLASS, LTD.
11440 BRAESIDE DR., S.W. 3911d BRANDON ST. S.E.
CALGARY, ALBERTA CALGARY, ALBERTA
OLYMPIC HEATING OLYMPIC IMPORT COMPANY
1216a 36 AVE. N.E. 111 14TH ST. N.W.
CALGARY, ALBERTA CALGARY, ALBERTA
OLYMPIC IRONWORKS OLYMPIC MECHANICAL, LTD.
420 EASTLAKE RD. 112 TEMPLESON RD. N.E.
CALGARY, ALBERTA CALGARY, ALBERTA
OLYMPIC PIZZA OLYMPIC RESOURCES, LTD.
3919 RICHMOND RD. S.W. 340 717 7 AVE. S.E.
CALGARY, ALBERTA CALGARY, ALBERTA
OLYMPIC BLDG. MAINTENANCE, LTD OLYMPIC CONCRETE, LTD.
254 E. GEORGIA 6921 STRIDE
VANCOUVER, BRITISH COL. BURNABY, BRITISH COL.
OLYMPIC DISTRIBUTORS OLYMPIC FOREST PRODUCTS
1020 MALKIN 837 W. HASTINGS
VANCOUVER, BRITISH COL. VANCOUVER, BRITISH COL.
OLYMPIC GYM OLYMPIC HEATING
1363 W. BROADWAY 11700 PLOVER
VANCOUVER, BRITISH COL. RICHMOND, BRITISH COL.
OLYMPIC HOTEL OLYMPIC INDUSTRIES, IN CAN.
140 E. 2ND 100 So. PARK ROYAL
N. VANCOUVER, BRITISH COL. W. VANCOUVER, BRITISH COL.
OLYMPIC INTRNTL. AGENCIES, LTD. OLYMPIC LEASING, LTD.
1591 BOWSER 1927 E. HASTINGS
N. VANCOUVER, BRITISH COL. VANCOUVER, BRITISH COL.
OLYMPIC LIGHTING FIXTURES, LTD. OLYMPIC PEST CONTROL, LTD.
1355 KINGSWAY 1139 LONSDALE
VANCOUVER, BRITISH COL. N. VANCOUVER, BRITISH COL.
OLYMPIC PROPERTIES, LTD. OLYMPIC SIGNS, LTD.
10-825 McBride Blvd., 1927 E. HASTINGS
N. WESTMINSTER, BRITISH COL. VANCOUVER, BRITISH COL.
OLYMPIC STEAM BATHS OLYMPIC TRAILOR & CAMPER
404 E. HASTINGS 5679C IMPERIAL
VANCOUVER, BRITISH COL. BURNABY, BRITISH COL.
OLYMPIC COIN CENTRE OLYMPIC COIN & STAMP EXC.
807 BANK 1355 BANK
OTTAWA, ONTARIO OTTAWA, ONTARIO
OLYMPIC CONFECTIONARY OLYMPIC DRILLING CO., LTD.
30 MARIER HIGHWAY 31 (NO #)
VANIER, ONTARIO OTTAWA, ONTARIO
OLYMPIC DRYWALL & ACOUSTICS OLYMPIC JANITOR SERVICE
2205 TAWNEY 73304 140TH AVE.
OTTAWA, ONTARIO EDMONTON, ALBERTA
OLYMPIC PAINTER OLYMPIC RESTAURANT
38 CLEOPATRA DR. 1054 OGILVIE RD.
NEPEAN, ONTARIO OTTAWA, ONTARIO
OLYMPIC SKI SHOP OLYMPIC TRAVEL
680 BANK 118 HOLLAND AVE.
OTTAWA, ONTARIO OTTAWA, ONTARIO
OLYMPIAD MOTOR, IN CANADA OLYMPIADES RESTAURANT
9166 LAJEUNESSE 1196 ST. DENIS
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC ALUMINUM MFG., LTD. OLYMPIC BAKERIES
7800 Cote de Liesse (St. Laur.) 547 ST. ROCH
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC BOOTS OLYMPIC BOWLING ENRG.
1621 ST. LAWRENCE 2510 CENTRE
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC BOX & PAPER MFG. OLYMPIC BOXING CLUB
CORP., LTD. - 228 PITT 5711 DU PARC
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC BUSINESS CENTERS, LTD. OLYMPIC CASH REGISTER
7333 PIDES ROSERAIES 550 GEORGE V Ave.
MONTREAL, QUEBEC Mtl E., QUEBEC
OLYMPIC CLOTHING CO. OLYMPIC COFFEE SERVICE
3575 ST. LAWRENCE 2379 ROSEMONT
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC DELICATESSEN & PASTRY OLYMPIC DRY CLEANING
440 ST. ROCH 218 BEAUBIEN E.
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC DRY GOOD OLYMPIC ELECTRONICS CO.
9600 ST. LAWRENCE 2325 GUY
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC ELEVATORS, IN CANADA OLYMPIC GEN. AUTO REPS.
1525 DENONVILLE CR. 4369 CLARK
DUVERNAY-MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC HELICOPTERS OLYMPIC LINEN SERVICE, LTD.
1850 LAURENTIEN 2440 Des Carrieres
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC TUCK SHOP OLYMPIC MONTREAL SPORTS
1170 FISHER 4067 ST. LAWRENCE
OTTAWA, ONTARIO MONTREAL, QUEBEC
OLYMPIC PANT & SPORTSWEAR OLYMPIC PANTS CO.
WINNEPEG) 333 CHABANEL W. 209 STE. CATHERINE E.
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC PRECISION WORKS OLYMPIC RADIONICS
5865 BESSETTE (St. Laur.) 5658 PARK
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC REPAIR CO. OLYMPIC SOAP, IN CANADA
5454 WESTMINSTER N. (CANADA St. Luc) 8080 LAFRENAIE
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC SPORTS CO., LTD. OLYMPIC TRAILLEUR VALET
5454 WESTMINSTER N. (CANADA St. Luc) 2327 JEAN TALON E.
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC TILE CO., LTD. OLYMPIC TRANSPORT REGD.
1575 HENRI BOURASSA O. 8695 TELLIER
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC VALET SERVICE OLYMPIC WELDING & METAL
2900 SPRINGLAND 11415 5 AVE. (Riv. a Pierre)
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIQUE CAFE SERVICE OLYMPIQUES PARKING
2379 ROSEMONT 1221 DRUMMOND
MONTREAL, QUEBEC MONTREAL, QUEBEC
OLYMPIC BILLIARDS OLYMPIC HOMES, LTD.
627 PORTAGE 1785 DUGALD (ST. BON)
WINNEPEG, MANITOBA WINNEPEG, MANITOBA
OLYMPIC JANITORIAL SERVICES OLYMPIC NAT'L TAE KWON
27 CROPO BAY 344 CUMBERLAND AVE.
WINNEPEG, MANITOBA WINNEPEG, MANITOBA
OLYMPIC PANT & SPORTSWEAR CO. OLYMPIC PRINTING CO.
1500 NOTRE DAME 1835 MAIN (W.Kld)
WINNIPEG, MANITOBA WINNEPEG, MANITOBA
OLYMPIC RESTAURANT OLYMPIC UPHOLSTERERS
LOT 270, HWY 59 (ST. And) 34 KENVILLE (O.Kld)
WINNEPEG, MANITOBA WINNEPEG, MANITOBA
OLY TOOL & DIE CO., LTD. OLYMPIC ACRYLIC TEETH
643 PETROLIA 36 DENMARK CIRCLE
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC ATHLETE CAREER CNTR OLYMPIC AUTO BODY
160 BLOOR E. 20 GLADSTONE AVE.
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC BAR & BILLIARDS OLYMPIC BOWL
415 ROYAL OAK 1735 KIPLING
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC BUILDING MAINTENANCE OLYMPIC DENTAL LAB.
1415 LAWRENCE AVE. - W. 25 YARMOUTH RD.
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC DRY CLEANERS OLYMPIC FLAME ALUMINUM
955 PAPE 231 BELLAMY N.
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC FLOOR SANDING OLYMPIC FOOD & CHEESE
143 LINSMORE CIRCLE 93 FRONT E.
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC FORWARDERS, LTD. OLYMPIC GIFT SHOP
5955 AIRPORT RD. 73 DANFORTH AVE.
MALTON, ONTARIO TORONTO, ONTARIO
OLYMPIC GLASS OLYMPIC GROCERY & VAR.
89 BURNDALE 108 KING
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC HOLIDAYS CANADA, LTD. OLYMPIC KITCHEN CORP.
505 DANFORTH AVE. 1 PARNELL
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC LEATHER FASHIONS, LTD. OLYMPIC MAINTENANCE SVC
360 ADELAIDE WEST 742-A EUCLID AVE.
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC MAT SERVICES (1983) OLYMPIC MATERIAL HAND.
1179 FINCH WEST 300 BRADWICK
TORONTO, ONTARIO CONCORD, ONTARIO
OLYMPIC METAL PRODUCTS OLYMPIC MILK & VARIETY
66 LePAGE Court 662 VAUGHAN RD.
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC MOVERS OLYMPIC SPORT (1984) LTD.
1050 OSSINGTON 866 DANFORTH
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC OIL, INC. OLYMPIC PANT & SPORTS
83 SIX POINT RD. 490 A DELAIDE WEST
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC PICTURE FRAMES OLYMPIC PLASTIC BAGS LTD.
877 PAPE 152 SHORTING
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC PLASTICS LTD. OLYMPIC REAL ESTATE
36 SHELLEY 1269 DANFORTH RD.
RCHMND HILL, ONTARIO TORONTO, ONTARIO
OLYMPIC ROASTED COFFEE CO. OLYMPIC SCANNING, INC.
4063 CHESSWOOD DR. 27 ESTATE DR.
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC SERVICE CENTER LTD. OLYMPIC 76 PIZZA
2563 EGLINTON E. #3 GLOUCESTER
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC SPORTS OLYMPIC STEAK & LOBSTER
860 BLOOR WEST 2025 DUNDAS E.
TORONTO, ONTARIO COOKSVILLE, ONTARIO
OLYMPIC TV & APPLIANCES OLYMPIC TOOL & DIE LTD.
1009 PAPE 52 CHAUNCEY
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC TORCH OLYMPIC TROPHIES & NOV.
93 FRONT E. 183 DOVERCOURT
TORONTO, ONTARIO TORONTO, ONTARIO
OLYMPIC TRUST of CANADA OLYMPIC VARIETY
#2 ST. CLAIR W. 607 PAPE
TORONTO, ONTARIO TORONTO, ONTARIO
Chapter 16
NAOB SOLICITATION
After the Olympic Record was mailed I constructed a solicitation to send to Olympic Businesses in an effort to have them join the National Association of Olympic Businesses. Same mail list from the "court record." The solicitation may have been beneficial to all who did not join but took it on themselves to lobby on their own. Hard to say . . Ruth edited and wouldn't let me say what I wanted to. She's old school and I was no school.
TO
All BUSINESSES THAT USE THE WORD OLYMPIC IN THEIR TITLE
There is a possibility that you may have to change your business name and all your business permits may cancelled because of your use of the word "Olympic." We invite you to join, in fact or in effect, the "NATIONAL ASSOCIATION OF OLYMPIC BUSINESSES" to protect your good names.
You pay federal, state, local, and other taxes, and yet you may still be an illegal business. Current law "prohibits use of the word Olympic for the purpose of trade without permission of the U. S. Olympic Committee." Did you get that permission? Did you know your business licenses are at risk? Did you know that your contracts may become unenforceable and your goodwill worthless? The U.S. Olympic Committee seeks to stamp out free use of the word Olympic. [Section 380, title 36, enclosed]
My name is Leo O. LaBranche Jr. and I am a Californian and president of Olympic Records, Inc., a New York Corporation formed for the production of phonograph records and tapes. It is forbidden to incorporate in California using the word Olympic though every conceivable license and permit was obtained by my company including state and federal tax identification numbers. Some 46 states have never enforced this law against their citizens. We sued the U.S. Olympic Committee in the federal court and the case is now on appeal to the 9th U.S. Circuit Court of Appeals. We have also been lobbying the Congress for relief from section 380 of the Amateur Sports Act of 1978 [title 36 U.S.C. §§ 371-396] We have received response from various members of Congress. Our filed Petition [0274] has been noted in the Congressional Record. It says in part, "All existing 'Olympic businesses and Corporations' pay taxes and are still denied equal protection of the law and one may not obtain a federally registered trademark." A federally registered mark may mean little to some but to others it means freedom from the Amateur Sports Act and freedom from intrusion into our business affairs by the International Olympic Committee, an international entity whose Olympic Charter originates in France. Sure we will no longer tolerate this. Congressional Record, pet. no. 373, June 4, 1986.
In addition, we have been in contact with 1400 Members of the U.S. Chamber of Commerce, members of the Better Business Bureau, the A.F.L. C.I.O., and Mayors and City Managers where Olympic Businesses and Corporations were found. A list of as many Olympic Businesses and Corporations as possible was compiled in support of our claims. Most states were helpful in providing documents from various departments and agencies. Nine federal agencies were able to provide similar lists and computer printouts through our use of the "Freedom of Information and Privacy Act." This was a good faith effort to provide the court with a comprehensive record of the facts.
If you want to protect your good name there is a legislative means. You may feel you are not in jeopardy because your business is too small, too large, or for some other reason. If I may say, “quite the contrary.” You may eventually be required to change your company name. We must unite to stop this possibility. Now is not the time to be quiet.
We suggest you do one or more of the following:
a). Call us at 800 826 3324 and we will provide you with further information. Data is available in the form of petitions, arguments, material, and evidence of all types for a small fee for copying, handling, and mailing.
b). Call and write your Senators and Representatives who represent the states in which you do business. Should you be engaged in business in the 50 states, so much the better. We have contacted all 535 members of Congress in the past year.
c). Should your company be engaged solely in intrastate commerce, make your concerns known to your Congressman as well as your State Officials, particularly the Governor, Secretary of State, Attorney General, and Tax Officials.
d). Support this "Olympic Lobby" by joining the "National Association of Olympic Businesses." A registration fee/membership fee is $20. We are not a money-making organization and believe you can do the job if we supply the facts.
e). Call and write your municipal, state, and federal agencies and register your opposition to section 380 of the Amateur Sports Act of 1978.
f). Inform your consumers of your products or services of this law. I suspect the number of consumers of Olympic Businesses and Corporations products and services to be in the tens of millions. They may also participate in this movement if you and they are so inclined. There are only 30 legislative days left in this 99th Congress which begins September 9 and ends Oct. 4 and there is hope that section 380 of the Amateur Sports Act will be revised. The revision will have little effect on our case in the appeals court but the outcome of the appeal affects all Olympic Businesses and Corporations. I will provide the names and numbers of the general counsel for the Association [NAOB] and the appellate attorney if your counsel wishes to speak with them.
Very Truly Yours Leo LaBranche
Founder & President of the National Association of Olympic Businesses
Lobby reg. no 11271000 800 826 3324 714 658 0359
Businesses and enterprises that joined after this letter of solicitation.
GROUP CREATIVITY, INC. OLYMPIC CASCADE CORP
BOX 70, # 2 WASH. SQUARE VILLAGE PO BOX 1351
NEW YORK, NY EUGENE, OR
OLYMPIC PACKAGING, INC. OLYMPIC CAMERA
225 E. HAWLEY ST. 828 WEST OLYMPIC BLVD.
MUNDELEIN, IL LOS ANGELES, CA
OLYMPIC HOMES, INC. OLYMPIC LAUNDRY
7150 S. W. HAMPTON, STE 216 418 S. LINCOLN ST.
TIGARD, OR PORT ANGELES, WA
OLYMPIC RESTAURANT OLYMPIC LIMOUSINE Svc,
240 FISHERMAN'S WHARF 5005 RT. 33 & 34
REDONDO BEACH, CA FARMINGDALE, NJ
OLYMPIC MOUNTAIN OLYMPIC CAMERA COSTA M.
& MARINE PRODUCTS, INC. 1835B NEWPORT BLVD, Suite 125
22627 85TH PLACE S., KENT, WA COSTA MESA, CA
OLYMPIC PIPE & TUBE CORP. OLYMPIC PACKAGING CO.
1390 KINGLAND 569 W. MERCURY LANE
ST. LOUIS, MO BREA, CALIFORNIA
THE OLYMPIC HOT TUB COMPANY OLYMPIC MEDICAL CORP.
1101 N. NORTHLAKE WAY 4400 SEVENTH SOUTH
SEATTLE, WA SEATTLE, WA
OLYMPIC RECORDS, INC. OLYMPIC FLOORING DISTRIB.
PO BOX 7549 1000 KIELEY PLACE
BURBANK, CA CINCINNATI, OHIO
OLYMPIC HOUSEWARES, INC. OLYMPIC DELIVERY SERVICE
1436 BURLINGTON #6 CLAFLIN ST.
NORTH KANSAS CITY, MO BOSTON, MA
OLYMPIC INDUSTRIES, INC. OLYMPIC COMPUTER SOL.
514 S. ILLINOIS AVE. P.O. BOX 769
CARBONDALE, IL TROY, OHIO
OLYMPIC SEED COMPANY, INC. BRIAN P. COUGHENOUR, ESQ.
HWY 248 SOUTH, BOX 752 117 1/2 EAST FIRST ST.
INDEPENDENCE, IA PORT ANGELES, WA
OLYMPIC GENERAL CONTRACTORS OLYMPIC MANUFACTURING
2062 MAPLE VIEW COURT PO BOX 298
SCOTCH PLAINS, NJ WILKESBORO, NC
OLYMPIC CHEMICAL CORP. OLYMPIC MACHINERY CO.
4 LANTERN HILL RD. 2916 SANTA FE AVE.
GLENS FALLS, NY VERNON, CA
OLYMPIC REFRIGERATION & HEATING OLYMPIC BEVERAGE CO.
69370 ROMEO PLANK PO BOX 18507
ROMEO, MI OKLAHOMA CITY, OK
OLYMPIC RECREATION, INC. OLYMPIC MAPPING SYSTEM
5811 E. DUNES HWY PO BOX 1840
GARY, IN ONTARIO, CA
OLYMPIC AVIATION OLYMPIC OF SANTA ROSA
827 W. OLIVE STREET PO BOX 2314
INGLEWOOD, CALIFORNIA 90301 SANTA ROSA, CALIFORNIA
OLYMPIC AMBULANCE OLYMPIC DISTRIBUTORS, INC.
PO BOX 1628 PO BOX 667
SEQUIM, WA CAGUAS, PUERTO RICO
OLYMPIC IMPORTS OLYMPIC JEWELRY, LTD.
75 N. SAN TOMAS AQUINO RD. 1632 WESTLAKE AVE.
CAMPBELL, CA SEATTLE, WA
OLYMPIC AUTO SALES, INC. OLYMPIC BUILDERS
4000 CORNHUSKER HWY 333 BUCHNER PLACE
LINCOLN, NE LA CROSSE, WI
OLYMPIC COFFEE SHOP OLYMPIC INTER. FREIGHT F.
115 DELANCY ST. PO BOX 522018
NEW YORK, NY MIAMI, FL
OLYMPIC BOAT CENTERS OLYMPIC SALES CLUB, INC.
PO BOX 7130 215 MOODY RD.
SEATTLE, WA ENFIELD, CT
OLYMPIC GRAPHIC SYSTEMS OLYMPIC ENTERPRISE
1027 SO. GRAND AVE. PO BOX 550
LOS ANGELES, CA MEADOW LANDS, PA
OLYMPIC TROPHY COMPANY OLYMPIC FACTORS
701 PARK LANE 737 WILSON ST.
HAGERSTOWN, MD NO. WOODMERE, NY
OLYMPIC SAVINGS BANK OLYMPIC DEN, INC.
PO BOX 1950 500 ELMONT RD. -
SEATTLE, WA ELMONT, NEW YORK
PART IV
Chapter 17
A Dissent from a Denial to Rehear the SFFA case by the full court (en banc).
The below is advocating the First Amendment and Trademark Act of 1946
The three judges' dissent said that the motion to rehear the case by the full nine judge court should be granted. Judge Alex Kozinski came to the Ninth Circuit by way of the Federal Claims Court, Washington D.C. where he was Chief Judge. His opinion was joined by two esteemed jurists. His words are precise and he utters the famous words that warm my heart, "[I]t's unlike anything we have seen in our law before." A similar statement made by my Supreme Court counselor, Michael H. Gottesman. "A law superior to anything that has ever existed in our country."
My statement affirmed by him.
For the purposes of clarity, flow, and understanding many legal citations are omitted in the opinion. It need be understandable to the reader or it has no value. Any person or scholar can order a complete copy from the proper repository. I would also add, "His opinion as articulated should have been the U.S. Supreme Court 'opinion' in the SFAA case." It involves the first amendment as well as trademark law.
Circuit Judge ALEX KOZINSKI Opinion May 28th 1986
with Circuit Judges Harry Pregerson and Joseph Sneed, joining dissent.
Bio: [Judge Alex Kozinski (born July 23, 1950) is a judge on the United States Court of Appeals for the Ninth Circuit. Appointed by President Ronald Reagan on November 7, 1985, Kozinski has won supporters from the left and the right with his common-sense decisions and libertarian instinct. His writing is clear and often humorous, and has been featured in mainstream publications such as Forbes and Slate. He was born in Bucharest, Romania but his parents, both Holocaust survivors, brought him to America in 1962 (he was only 12). They settled in Los Feliz, California and his father, Moses, ran a small grocery store there. Kozinski attended John Marshall High School and UCLA. He received his J.D. from UCLA Law School in 1975 (he was one of the top students) and went on to clerk for then-Ninth Circuit Judge Anthony Kennedy and Chief Justice Warren Burger. Then he spent a few years in private practice before going to work in the White House counsel's office for then-President Ronald Reagan. Kozinski received a job as chief judge at the newly-formed Federal Claims Court. Then, at the age of 35, Reagan appointed him to the Ninth Circuit, making him the youngest federal appeals court judge in the country.] Thank you President Reagan. He is now Chief Judge of the 9th Circuit Court of Appeals
The Dissent
This case was brought by the United States Olympic Committee, and others, under the Amateur Sports Act of 1978 (the Amateur Act), 36 U.S.C. §§ 371-396 (1982), to enjoin the use of the word "Olympic" by appellants, San Francisco Arts & Athletics (SFAA) in connection with an event to be known as the Gay Olympic Games. USOC is a private non-profit corporation chartered by Congress, 36 U.S.C. §§ 371, 377 (1982); SFAA is a non-profit corporation. The Gay Olympic Games SFAA intended to sponsor in 1982 (and again in 1986) were designed to combat homophobia and to work for the health and tolerance of gay and lesbian persons. Pet. Reh. 2.
A panel of this court upheld a permanent injunction issued after summary judgement had been granted USOC. International Olympic Committee v. San Francisco Arts & Athletics, 781 F.2d 733 (9th Circuit 1986). For the reasons stated below, I find the panel's reasoning squarely at odds with controlling Supreme Court authority. Moreover, the result reached threatens a potentially serious and widespread infringement of personal liberties. I therefore would vacate the panel's opinion and set the case for re-hearing en banc.
A.
As the panel interprets the Amateur Act, the USOC is given the exclusive right to use the word Olympic "for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition," 36 U.S.C § 380, whether undertaken for a profit or non-profit purpose. The USOC may obtain in injunction against use of this term without showing a likelihood of confusion and without overcoming the defenses normally available in trademark infringement actions under the Lanham Act. 781 F.2d at 736. Interpreted in this fashion the Amateur Act represents a sweeping exercise of sovereign power, implicating principles of individual liberty protected by our Constitution. By passing the act, Congress extracted a word from the English language and gave it to a private party to use in connection with any commercial endeavor or event. This raises serious first amendment concerns that the panel failed to address or acknowledge.
The word olympic has a meaning unique within our language. It connotes open and intense competition among non-professionals athletes, usually involving the best and most accomplished contestants. Thus, we have Special Olympics, Junior Olympics, Police Olympics, even Canine Olympics, normally involving competition among best friends within the denoted category. I have great difficulty with the idea that Congress can deny all of us that word, and the ideas, it embodies, in connection with all public endeavors. As noted by Justice Harlan in Cohen v. California, 403 U.S. 15, 26 (1971), "we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." The ideas embodied in the word Olympic can, or course, be expressed by other means, but only in a much clumsier fashion, with out the same nuance of meaning. Justice Harlan wrote in Cohen,
much linguistic expression serves a dual communicative
function: it conveys not only ideas capable of relatively precise,
detached explication, but otherwise inexpressible emotions as
well. In fact, words are often chosen as much for their emotive as
their cognitive force. We cannot sanction the view that the Constitution,
while solicitous of the cognitive content of individual speech, has little or
no regard for that emotive function which, practically speaking,
may often be the more important element of the overall message sought to be communicated.
Id. at 26
In organizing the Gay Olympic Games, the SFAA sought to "create a more realistic image of homosexual men and women to move into the mainstreams in all societies and to provide more alternatives for homosexual men and women to move into the mainstreams of their respective societies." International Olympic Committee v. San Francisco Arts & Athletics, 291 U.S.P.Q. 982, 985 (N.D. Cal. 1982) aff'd. mem., 707 F.2d 517 (9th Circuit 1983). The word Olympic was no doubt chosen to foster a wholesome, normal, image of homosexuals. Denying SFAA the use of the word thwarts that purpose. To say that the SFAA could have named it's event "The Best and Most Accomplished Amateur Gay Athletes Competition" no more answers the first amendment concerns here than to suggest that Paul Robert Cohen could have worn a jacket saying "I strongly Resent the Draft."
The Supreme Court has been extremely reluctant to approve restrictions against the use of particular words. See, Cohn v. California, 403 U.S. 15 (1971). In the rare case when the court has done so, it was after the closest scrutiny and subject to the most careful restrictions. By contrast, the panel here dismisses SFAA's constitutional argument, simply by noting that the word "Olympic" and it's associated symbols and slogans are essentially property. Such property rights can be protected without violating the first amendment. 781 F.2d at 7373 (citing Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 573-577 (1977). To say that the word Olympic is property begs the question. What appellants challenge is the power of Congress to privatize the word Olympic, rendering it unutterable by anyone else in connection with any product or public event, whether for profit or, as in this case, to promote a cause. The rights conferred on the USOC by the Amateur Act are materially different than traditional intellectual property rights where a careful balance is struck between the interests of the property owner and those of the public.
Trademarks/1, copyrights/2, and patents/3, are subject to a variety of statutory and common law defenses, and they reserve only those rights necessary to protect the owners economic interest.
/1 (case attributions limited)
Trademarks are recognized only upon a showing that the mark has been adopted and used in commerce, 15 U.S.C. § 1051 (1982). Subsequent users may raise a series of defenses under section 33(b) of the Lanham Act, such as fraud on the PTO, abandonment, fair use, misrepresentation of source, or violation of the antitrust laws, 15 U.S.C. § 1115 (1982). There are also equitable defenses such as estoppel by laches; acquiescence; and unclean hands. Most importantly, trademark rights can only exist in distinctive terms and devices. Similarly, there cannot be a trademark in a purely functional device. Distinctiveness is central to the status of the mark. A legitimate trademark will lose it's status if it becomes generic. Thus, trademark owners have an exclusive right to use the mark only to the extent necessary to safeguard the integrity of the product source.
/2 (case attributions omitted)
Copyrights are of limited duration, U.S. Const....., Art I, § 8; 17 U.S.C. § 302 (1982), and are subject to a number of defenses, most notably the defense of fair use. Copyright protection will not extend to the idea itself or to purely utilitarian objects.
/3 (case attributions omitted)
Patents are granted only for subject matter that is novel, useful, or non-obvious. 35 U.S.C. §§ 101-103 (1982). They are limited in time, U.S. Const....., Art I, § 8. They also are subject to a variety of legal and equitable defenses, including patent misuse, expiration of the statute of limitations, and inequitable conduct before the PTO. Zacchini, upon which the panel relied, is instructive. The Court there was careful to limit the relief afforded petitioner (the human cannonball) to assuring that he "reap(s) the reward of his endeavors." The Court twice noted that "petitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it. By and large rights in intellectual property are limited to uses that have been invented, created or developed by the owner. They are not a wholesale prohibition against all public uses but provide limited protection for that which "is the product (the owner's) own talent's and energy, the end result of much time, effort, and expense." So, limited rights in intellectual property are easily harmonized with the first amendment. However, when cut loose from their conceptual moorings, intellectual property rights can raise serious constitutional concerns. Here the Amateur Act's ironclad prohibition against every commercial or theatrical use of the word Olympic (unrestrained by need to show likelihood of confusion or to overcome Lanham Act defenses) stakes out an intellectual property right fiefdom quite unlike anything we have seen in our law before. By giving the USOC exclusive possession of the word, Congress has diminished the rights of everyone else, withdrawing from the public domain a term used by many and useful to more. If Congress has the power to grant a crown monopoly in the word Olympic, one wonders how many other words or concepts can be similarly enclosed, and the extent to which our public discourse can thereby be impoverished.
B.
My first amendment concerns are heightened by the way the USOC allegedly exercises it's stewardship over the word Olympic. According to the petition for rehearing "the facts submitted below establish that the USOC has openly permitted use of "Olympic" both by groups it directly supports, e.g. the Special Olympics, the Explorer Olympics, and the Junior Olympics, and by groups it has known to be using 'Olympic' that it has elected not to sue, such as the 'Int'l Police Olympics.' " Pet. Reh. 10.
Accepting SFAA's allegation, as we must, it seems that the USOC is using it's control over the term Olympic to promote the very image of homosexuals that SFAA seeks to combat: handicapped, juniors, police, Explorers, even dogs are allowed to carry the Olympic torch, but homosexuals are not. Troublesome as would be a total withdrawal of the term from public discourse, an exclusion that is invoked pursuant to a subjective assessment of the wholesomeness of the proposed speaker or the propriety of the proposed message is more troublesome still. Where the entity making the decision is private, unconstrained by principals of equal protection and due process, and entirely free of the discipline imposed by our political system, there are no safeguards whatsoever against the arbitrary exclusion of certain groups because they wish to communicate ideas some may find offensive. Under the panel's rationale, the result would have been the same if appellants were blacks rather than homosexuals, and their claim were based on racism rather than homophobia.
II
A. Once it is concluded that the first amendment is implicated by giving the USOC the word Olympic, the next inquiry must be whether doing so directly advances a governmental interest. If the Amateur Act prohibited only those uses likely to cause confusion or otherwise mislead the public, it would in all likely survive first amendment challenge. Friedman v. Rogers, 440 U.S. 1, 13-15 (1979). However, the panel reads the act as proscribing all unauthorized uses of the word Olympic, regardless of whether they would mislead the public, undermine USOC sponsored events or cause anyone harm whatsoever. The first amendment requires, at minimum, close scrutiny of the governmental interest served by such a broad prohibition. Because the case was dismissed short of trial, we can only speculate as to what governmental interest is advanced by giving USOC such sweeping rights in the word Olympic. As the panel, noted, "other courts have remarked on the need to insure the market value of licenses for the use Olympic symbols." Stop The Olympic Prison v. USOC; IOC v. SFAA; USOC v. International Body Builders. Apparently the Amateur Act serves as a type of subsidy to the USOC in lieu of direct financial support:
The fundamental purpose of the [Amateur] Act was to safeguard
the USOC's ability to raise the financial resources which are a
critical component of America's capacity to send world-class
amateur athletes into international competition without the
massive government subsidies enjoyed by competitors from other nations.
If this is the only interest supporting the USOC's monopoly, I seriously doubt whether it would justify even a minor restriction on free speech. In words that seem to address this very issue, Justice Marshall noted earlier this term:
While the interference with appellant's speech is, concededly,
very slight, the State's justification -- the subsidization of another
speaker chosen by the State -- is insufficient to sustain even that
that minImum or burden. We have held that the State may use its
own resources for subsidization but that interest standing alone
cannot justify interference with the speech of others.
B. Even if the government's interest in subsidizing the USOC were deemed sufficient to abridge some of appellants' first amendment rights, we would still have to determine whether the broad monopoly granted by the Amateur Act "is not more extensive than is necessary to serve that interest." Again the scant record here makes that determination difficult, but the question is amenable to no simple answer. At the very least, it is necessary to consider whether USOC's commercial licenses could not be adequately protected by giving the USOC rights coextensive with those in the Lanham Act or by restricting it's control over use of the word Olympic in some other fashion. Or so, at least, do I read Supreme Court's uniform pronouncements in this area.
III
While I hesitate to second-guess the panel's interpretation of the Amateur Act, I respectfully suggest that its conclusion that the USOC need not prove confusion or overcome Lanham Act defenses is not inevitable. If, as I suggest, the interpretation the panel adopts raises serious constitutional concerns, it may be appropriate to resort to a narrowing construction of the statute. Because the panel failed to address what I see as the clear first amendment implications of its decision, it did not consider the possibility of giving the Amateur Act a less sweeping interpretation.
IV
By raising these concerns I do not necessarily conclude that the Amateur Act is irreconcilably at odds with the first amendment. Indeed, on this barren record I find it difficult to reach any, but the most tentative conclusions about this highly unusual statute and it's effect on personal liberties. What I find most troubling, however, is the haste with which appellants are being ushered out of court. The panel appears to have overlooked that where first amendment defenses are raised "judgment as to whether the facts justify the use of the drastic power of injunction necessarily turns on subtle and controversial considerations and upon a delicate assessment of the particular situation in light of legal standards which are inescapably imprecise," Carroll v. Princess Anne, 393 U.S. 175, 183.
What appellants propose to do, after all, lies at the very heart of the first amendment: They wish to hold a public event to promote sociopolitical views some may find offensive. They claim that calling their event Gay Olympics is essential to the message the wish to convey. A long and unbroken line of Supreme Court cases stands for the proposition that "any prior restraint on expression comes to [court] with a heavy presumption against it's constitutional validity." Under this standard, prior restraints have been struck down even where adopted to protect important public or private interests. By contrast, the panel here approves a permanent injunction that significantly blunts rights to public expression without the slightest showing that the enjoined use would harm anyone.
Moreover, "[a]n order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-point objective permitted by constitutional mandate and the essential needs of the public order." Carroll, 393 U.S. at 183. I have much difficulty reconciling the blunderbuss injunction entered against SFAA with this admonition. With all due respect, the panel's offhand approval of this injunction, obtained as it was by summary judgment, simply does not measure up to the close appellate scrutiny due first amendment claims and defenses. Bose Corp. v. Consumers Union; Standard Oil v. California.
In sum, I believe that the petition for rehearing raised very serious arguments that deserve consideration and resolution by the court en banc. The panel fails to acknowledge the difficult first amendment issues presented, regrettably bypassing what I consider to be clear and applicable guidance from the Supreme Court. The opinion will therefore prove a troublesome precedent, undermining not only the right to free speech but also the laws protecting intellectual property, to the ultimate detriment of both. While not every error by a panel can be addressed by the full court, the important and novel constitutional issues raised by this case, the panel's failure to adequately address them and the likely adverse effect the opinion will have on personal liberties, all strongly mitigate in favor of rehearing the case en banc. I therefore respectfully dissent from the court's refusal to do so.
Alex Kozinski, Circuit Judge, 9th Circuit Court of Appeals joined by Harry Pregerson and Joseph T. Sneed III (Judge Kozinski is now Chief Judge of the 9th Circuit)
Chapter 18 NOAB and HR 1988
100th Congress, First Session
The United States Olympic Check-Off Act
Introduced April 8, 1987
It is a daily ritual to receive and read the Congressional Record, at minimum the contents table to see what may be forthcoming re the Amateur Sports Act and its revision, if any, and for any reason that may be pertinent to the lobby and/or my personal situation. This was like religion. It was a must do, or go to hell, kind of thing. Why it was so important I was to soon know. After months of finding nothing unusual, interesting or relevant I see mention of proposed measure re the USOC and it has to do with a "check off" box on the I.R.S. 1040 tax form that we all know and love so much. This new law is designated HR-1988, "The United States Olympic Check-Off Act." At the time of its introduction there are 37 co-sponsors; I believe there were eventually 170 co-sponsors in the House.
I called the Clerk of the House inquiring about the new proposed law. The Clerk's Office told me about it and said it was considered "non-controversial" (legislation), which means "no notice", "no hearings", no nothing about it and it will become law automatically when the larger bill it is included in - passes. He said "it is non-controversial" and I said, "not anymore," and thanked him. Someone later suggested this idea was the brain child of William E. Simon, the new president of the USOC who's last job was Treasury Secretary of the United States. The Congress has long asserted that the USOC is not supposed to be a part of the federal government but that was yesterday when the turnip truck passed by, and today no one's looking, turnips are on sale, and who remembers. Blinded by the olympic light again. If no one knows, except a select few, then I must find a way to make it Public. A "registered lobbyist" sounds like a job important or at least someone to be suspicious about or ignored. So let's see if they hear a lobbyist rather than a lone litigant. I could obviously inform the lobby members as well as the thousands in my record as I have done before. That's just spreading bad news (the next edition of the "Olympic Record)," all the bad news that's fit to print. I'll wait on them. I need to figure who to tell. This is great; now you can give money to the USOC on your tax form so they can use the money to put you out of business using the word Olympic. And now raise money from your customers to help put you out of business. I am angry at these co-sponsors and fit to be tied down, again. It took two days for the "olympic vision" to appear. I have another IDEA. It's funny what happens when you "sleep" on something. Unconscious debriefing and collective results.
A lobbyist (seemingly) has rights that an individual person cannot assume. He has a license to lobby, he is required to report cash contributions, and report who she/he contacted in Congress the prior, quarterly, reporting period. It's almost a "license to speak." The word, "lobbyist" is maligned way more than it should be. Yes, special interest have lobbyist for their points, positions, and financial concerns but without my being registered and heading a group I would have NOT been taken seriously and simply dismissed as a crank.
The USOC is a non-profit federally chartered corporation. It seems to me that other non-profit associations and groups would benefit by knowing about this "uncontroversial bill" soon to become law with no one knowing about it until it's passed. You all "Remember the Alamo" well we "Remember the March of Dimes." What was the end result of the March of Dimes incident I know not but I was reporting what had been published and now to remind all non-profit associations, businesses, and organizations of it whether they heard the story or not.
I went to UC Riverside Library and located source books on the major non-profit groups. I sent a cover letter saying they should lobby for their own check-off box for many of their causes were far superior than a bunch of folks running around a track. I told them it was law unless they did something about it. All below have millions of times the resources I, or my lobby, could muster so it was up to them. I also assumed that they had lobbyist of their own. We contacted:
NATIONAL EDUCATION ASSO., COMMON CAUSE
AMERICAN KIDNEY FUND, AMERICAN RED CROSS
US COMMITTEE FOR UNICEF, AMERICAN CIVIL LIBERTIES UNION
PEOPLE FOR THE AMERICAN WAY, UNITED WAY OF AMERICA
AMERICAN HEART ASSO., AMERICAN CANCER SOCIETYAMERICAN CANCER SOCIETY, M.D. FOUND. - NAT'L HEADQUARTERS
M.D. FOUNDATION -NYC Office, MARCH of DIMES FOUND.
NAT'L BUSINESS LEAGUE, BOY SCOUTS OF AMERICA
AMERICAN BUSINESS CONF., COMMERCIAL LAW LEAGUE
NATIONAL RETAIL MERCHANTS, AMERICAN ADVERTISING FED.
AMERICAN HELLENIC INSTITUTE, AMERICAN HOTEL & MOTEL
AMERICAN INSURANCE ASSO., AMERICAN LAND TITLE ASSO.
AMERICAN LIBRARY ASSO., AMERICAN MEDICAL ASSO.
AMERICAN NEWSPAPER PUBL. ASSO., NAT'L ASSO. OF MANU.
NATIONAL ASSO. OF REALTORS, ASSO. OF AMERICAN PUBLS.
NATIONAL NEWSPAPER ASSO., U.S. LEAGUE OF SAVINGS INST.
NAT'L COUNCIL OF SAVINGS INSTS., NAT'L RESTAURANT ASSO.
NATIONAL SMALL BZ ASSO., AMERICAN OPTOMETRIC
WASHINGTON ST PUBLIC LANDS, AMERICAN LIBRARY ASSO.
NAT'L. FED. OF INDEPENDENT BZS., AMERICAN RETAIL FED.
NATIONAL PUBLIC RADIO, AMERICAN FED. OF TEACHERS
CONSUMERS UNION OF THE US, NAT'L ORG. FOR WOMEN
NAT'L. TOUR ASSOCIATION, AMERICAN Bz FOR INT'L.
ASSN. FOR REGULATORY REFORM NAT'L., ASSN. OF INS BROKERNAT'L. TAX LIMITATION COMM., NATL. ASSN. OF PUBLIC TV
NATL. CABLE TV ASSOCIATION, AMERICAN BANKERS ASSO
NATL. FEDERATION OF FED. EMPS., NATL. MARINE MANUF.
JOURNAL OF COMMERCE, AMERICAN FAIR TRADE COUNASSO. GENERAL CONTRACTORS, CONCERNED WOMEN FOR A.
NATL. BUSINESS AIRCRAFT ASSN., MECHANICAL CONTRACTORS
NATL. BICYCLE DEALERS, ASSN. OF RETAIL DRUGGISTS NATL. SO. OF PUBLIC ACCNTS, RUBBER MANU ASSN.
NATL. TOUR ASSOCIATION, INC., AMERICANS FOR TAX REFORM
Thank God again for Libraries. Some said the GAO estimated $25-30 million a year from this check-off box financing device. That's over $500,000,000 in lost revenue since the bill died and counting. I never saw that check-off box on my 1040 return and have no idea who did what. I later contacted each co-sponsor that signed on to that legislation. That's not a letter I can locate and I'm sure it was censored. As far as I was concerned the co-sponsors of this legislation needed to be replaced.
Chapter 19
San Francisco Arts & Athletics v. IOC/ USOC
Certiorari accepted by Supreme Court
Martian Rules of Law & Procedure
The Wallaby Court
Why did they take the case? Were they bored with everyday life and death issues; were they enamored by Olympism?; did they not like Circuit Judge Kozinski's (w/2 other Judges) dissenting opinions in the same circuit; were they here to strike a blow for foreign entities usurping the U.S. Constitution and American rights (no that wasn't it); but that's exactly what they did. Now the high court will hear oral arguments about why there should not be allowed a "Gay Olympic Games." Dr. Waddell is now dying of complications from Aids. Truly the case of champions. Here's where the Martians take over. We can't speak or understand Martian but the Supreme Court can. And it can make new law, never before seen or heard of, in the history of our country, if they feel like it or when they are steered into it. Enamored by the Olympic light and there was no homophobia present.
I tried to "join" SFAA and Mr. Waddell and spent no small sum. Mr. Perkins, my appellate attorney, petitioned the high court for certiorari to join SFAA before judgement (in my case) in the Ninth Circuit. I tried to go up there and stand beside Dr. Waddell to expose my evidence and record SHOWING THE THOUSANDS of Olympic uses; proving the word Olympic already belongs to everyone (the Public) in this country and not to the USOC and especially not to the IOC who borrowed it from Greek history. But the Court denied two petitions for cert. as premature, which they were, and the Court went about disposing of Dr. Waddell, kind of makes you proud. Martian law says you need no facts, no evidence, no argument, no precedent, no nothing because we, the High Martian court, already are smart enough, like Solomon I suspect, to figure this one out. Well my dear old Cast of Nine - you are were duped. Being duped has far reaching implications. By virtue of this decision, my action will not survive the lower appeals court, making certain that all evidence and facts which might make your opinion seem a little biased, uninformed, and ridiculous be forever buried in a federal repository somewhere, or dumpster. A perfect example of the Martian System of justice. See no facts, hear no truth, and follow no precedent. We were in a small way able join the SFAA case by submitting a 'Friend of the Court' brief with the A.A.U., known as an Amicus Curiae in support of the SFAA case.
AMICUS CURIAE BRIEF
Briefed and Submitted
By Randall G. Wick, Counsel of Record
The National Association of Olympic Businesses [NAOB] agrees to join the Amateur Athletic Association [AAU], the Center for Constitutional Rights, and others on a Friend of the Court brief known as an AMICUS submission to the Supreme Court in support of the SFAA case and their first amendment and trademark positions. A separate group will submit and argue the Fifth Amendment concerns.
In spite of my case being denied access to the Supreme Court (one to expedite consideration and the other to "Join" SFAA) there is a way to get limited arguments and issues before the Court. The ACLU pulled this one together and it was a fine accomplishment, notwithstanding it being ignored.
Here are the Headings for the points argued by Mr. Randall G. Wick, counsel of record.
Each Heading tells it like it is.
1. IN ENACTING THE AMATEUR SPORTS ACT OF 1978 CONGRESS INTENDED TO PROVIDE PROTECTION FOR THE MARK "OLYMPIC" COMMENSURATE WITH THE PROTECTION PROVIDED TO OTHER FEDERALLY CHARTERED ORGANIZATIONS WITHIN THE PARAMETERS OF THE LANHAM ACT.
A. IN PASSING THE INITIAL UNITED STATES OLYMPIC ASSOCIATION INCORPORATION ACT OF 1950, CONGRESS INTENDED TO PREVENT ONLY FALSE DESIGNATIONS AND FRAUD IN THE USE OF USOC DESIGNATIONS.
B. THE SUI GENERIS PROTECTION WITH RELATED REMEDIES IN EARLY VERSIONS OF THE AMATEUR SPORTS ACT OF 1978 WERE DELETED FROM THE FINAL VERSION OF THE ACT.
C. THE COMMITTEE REPORTS, AND LETTERS DEMONSTRATE THE SPECIFIC INTENT OF CONGRESS TO PROHIBIT THE USE OF THE USOC DESIGNATIONS ONLY WHERE THEY WERE "TENDING TO CAUSE CONFUSION" AS PROSCRIBED BY THE LANHAM ACT.
D. COMMENTS MADE BY MEMBERS OF CONGRESS MADE CONTEMPORANEOUSLY WITH THE PASSAGE OF THE AMATEUR SPORTS ACT OF 1978 EVIDENCE A CONGRESSIONAL UNDERSTANDING THAT THE ACT'S AMBIGUOUS LANGUAGE BE CONSTRUCTED PURSUANT TO THE BOUNDARIES OF OTHER FEDERALLY CHARTED ORGANIZATIONS AND THE LANHAM ACT.
Mr. Wick gets an A+ for this filing. These headings are absolutely correct in every detail. My Congressional contacts made these same statements, over, and over, and over again. "Don't worry, Mr. LaBranche." Below is an additional group in support of SFAA contentions of a State Action violation under the Equal Protection clause Fifth Amendment. A separate claim and position than the above headings. Only the Summary is re-printed.
AMICUS CURIAE BRIEF
Written and Submitted
By Robert H. Rotstein, Counsel of record
Bonnie I. Bogin, James Y. Leong, Kelly W. Kay
Summary of Argument
The USOC, an entity created by Federal Charter, takes the position that, pursuant to 36 U.S.C. § 380 Congress has granted the USOC an absolute monopoly over the word "olympic," including the right to discriminate among groups at will in connection with the use of the word -- even if the discrimination is based solely on a group's exercise of its First Amendment rights. In prohibiting SFAA from using the word "olympic" in connection with the SFAA's amateur athletic competition (which was to be entitled, "The Gay Olympic Games") while at the same time allowing other groups to use the word, the USOC has discriminated against SFAA in connection with petitioner's exercise of their fundamental First Amendment right to freedom of expression. This brief will show that; assuming arguendo that Congress did intend to grant the USOC the exclusive and blanket right to use the "word" "olympic" (and that the Constitution permitted Congress to do so), the USOC's discriminatory conduct in allowing some groups, but not petitioner's, to use the word "olympic" constitutes "state action" for the purposes of the Fifth Amendment.
This brief submitted is sixty-four (64) pages in length. No matter what anyone will submit, argue, prove or disprove, the SFAA case is lost. Another perfectly argued point will be pushed aside in support of the light of Olympism. The high court should have worn their sunglasses so the light from the gods of olympus would not have blinded them.
After the Ruling
If you can believe this, I can appeal my case after the appeals court applies Supreme Court case law precedent against me. My last chance for the justice train is to file a Petition for Certiorari (again) with the Supreme Court to rule on one issue only and that is they were wrong in their prior decision in SFAA. My evidence record down in the district court is not relevant because the case is now so skewed that it pitches me against the Supreme Court's decision in SFAA. What to hell has that got to do with my case? Not a thing. See how well the Martians do it.
One last IDEA: September 1988, my last act in this perfect play I produced. I buy 200 paperback editions of Bantam Books copyrighted paperback product, Guinness Book of "OLYMPIC RECORDS" and I send it to Congress with a complaining letter.
Honorable House Member:
This week the Seoul Summer Games are scheduled. If you're a sports fan you want want to consult the "Guinness Book of Olympic Records" should you be interested in a copyrighted compilation of the data on past performance records of Olympic athletes.
As you can see from the attached the Olympic records of athletes are the copyrighted property of Bantam/Dell/Doubleday publishing group. This commercial enterprise has published the data every four years since at least 1964, coinciding with the Olympics.
As a Legislator do you find it fair that I cannot own or operate my corporation, Olympic Records, Inc. engaged in record (music) business, while all others use the word olympic and the name Olympic Records? I have expended in excess of $250,000 and six years to secure my rights when all others pay nothing for the exercise of the identical rights and privileges I am denied.
I always believed Congress was bigger than the Olympics or the International Olympic Committee and I will always believe the U.S. Constitution is superior to the Amateur Sports Act of 1978. With Respect for the Constitution.
End communications with courts or Congress
Chapter 20
A Case of Linguistic Theft
Published in the New Yorker, August 24th, 1987
Hon. Gerry E. Studds of Massachusetts on the House floor. September 29, 1987.
Mr. Studds: Mr. Speaker, sometimes, legislation which seems routine turns out to have consequences that are anything but routine. I doubt very much, for example, that when we passed the Amateur Sports Act of 1978 we contemplated either a frontal assault on the first amendment or a highly personal assault against one of our citizens. Yet we seem to have been a party to both. The following essay from the New Yorker tells a story that ought to give us all pause. It is very hard for me to believe this is what we intended.
(New Yorker, Aug. 24, 1987)
Notes and Comment
Edited for Content
Peter Weiss is a trademark lawyer here in New York. He has defended, among many others, the appellations of Superman, Chanel, and Ultrasuede against those who would make free with them. We called him up last week to talk about the Supreme Court's decision in June that the United States Olympic Committee had the right, under the Amateur Sports Act of 1978, exclusive domain, for the purposes of public identification and promotion over the word "Olympics." The decision came in a case called San Francisco Arts & Athletics, Inc., and Thomas Waddell v. United States Olympic Committee in which the USOC sought to enjoin the defendants from using the name Gay Olympics in promoting an event ultimately called the Gay Games. (The games were held in San Francisco in 1982 and again last year.) Mr. Weiss became involved in the matter as an informal consultant on the side of the San Francisco group. We wanted to talk to him because of a lingering feeling we had that there was something extremely peculiar about removing a general, ancient, and, indeed, religious word from our language and "awarding" it, even if only for certain purposes, to some committee. The people on the side of the Gay Olympics claimed that their right to use the word was protected by the First Amendment. They also argued that the USOC had acted discriminatorily, having allowed the International Police Olympics, the Special Olympics, the K-9 Olympics, and the Senior Olympics (to say nothing of the Rat Olympics, the Armenian Olympics, and the Eskimo Olympics) to go unscathed while relentlessly pursuing the homosexuals who had gathered in San Francisco for a week of athletic and cultural activities. Mr. Weiss vastly strengthened our impression that the Amateur Sports Act of 1978 and the Supreme Court decision upholding its Constitutionality amounted to a linguistic theft, and that the decision was kind of crazy in its details.
"It's preposterous - a genuine howler of an error," he told us. "The USOC got its power over the word directly from Congress, so obviously the action the USOC takes with regard to this so-called trademark is the equivalent of state action. It's also pretty obvious that the USOC has acted in a discriminatory way in this case. Furthermore, the court upheld a statute that didn't even allow SFAA the traditional defense in such cases - that there was no likelihood of confusion, that no one would have associated the Gay Olympics with anything the USOC might sponsor. And it's not straining at all to think of the name Gay Olympics as political speech and therefore protected by the First Amendment: the group involved was trying to make a political point against stereotyping homosexuals as being un-athletic. And, by the way, there was a dissenting opinion that made the point very strongly when the case was denied by the full Ninth Circuit Court, and the Judge that wrote the dissent is generally regarded as an "ultraconservative."
We asked Mr. Weiss what sort of precedent this decision might set. "Terrible," he said. Say the association of International Marathons went to Congress and pointed out that many marathons were bringing in people from all over the world and a lot of money, and that the whole thing needed to be regulated, and so forth, and they asked for trademark rights to the word "marathon." It would be a very similar set of circumstances and a perfectly logical development. If Congress passed such a law, and the President signed it, that would mean that the association could dole out the word to whatever events it deemed worthy and withhold it from those it felt were underserving.
In essence, Congress actually sold the word to the Olympic Committee, because back in 1978 the committee said that the government would end up losing money if they - the committee - couldn't regulate the term. And it's the only instance I know of where the government has given a private party exclusive rights over a single, "descriptive word."
After we hung up we realized what it was specifically, that had prompted us to call Mr. Weiss in the first place and what was adding immeasurably to our distress about the turning of a word into a commodity: an account we'd just come across in the San Francisco Examiner of a memorial service for Dr. Thomas Waddell, one of the defendant's in the USOC suit who had died of AIDS. (Dr. Waddell was the head of San Francisco Arts & Athletics, Inc.) The service was held in the rotunda of San Francisco's City Hall, and in the course of it Dr. Waddell's wife, Sara Lewinstein, announced that the USOC had officially removed a lien it had placed on Dr. Waddell's house to defray its legal cost in pursuing its case. Evidently the house, which Dr. Waddell has renovated himself, was his major asset, and he'd wanted to pass it on to his four year old daughter, Jessica. He died not knowing for certain whether he would be able to do so. The sad irony in all this is that Dr. Waddell was an Olympian. As a member of the decathlon team, he finished much more than respectable sixth, within shouting distance of the gold medalists, Bill Toomey. At the Mexico City Games Dr. Waddell supported the American sprinters John Carlos and Tommie Smith after they gave their clenched fists, Black Power salutes during the medal ceremony, and his conduct made the USOC angry. And as a physician in the Army, in the sixties, Dr. Waddell openly criticized this country's involvement in the Vietnam War; he came close to being court-martialed for his anti-war statements. Ultimately, Dr. Waddell became a tireless fighter for gay rights and gay pride. He was, it seems clear, a man with the courage of his convictions, and by all accounts he was a gentle, intelligent, and charming person. The one bright light among these gloomy events was Dr. Waddell's bravery in facing his illness. Everyone around him was awed and inspired by his will and humor and strength of character. His last words were "Well, this should be interesting."
[end of article]
Goodbye Dr. Waddell
Leo to Tom
Your courage of conviction was similar to mine. I believe we were brothers without so much as a 'how do you do.' I was reinforcements but too far back to help. You will go down in First Amendment history as an example that "Freedom for One is Freedom for All" and "Freedom for You is Freedom for Me."
Eulogy: July 12, 1987. Los Angeles Times, by Robert S. Weiss
Dr. Thomas Waddell, organizer of the Gay Olympics and a member of the U. S. decathlon team in 1968, died of complications related to AIDS on Saturday. He was 49. Waddell dies at his home in the company of his wife, Sara Lewinstein. Waddell and Lewinstein met at the first Gay Olympics in 1981. As president and founder of San Francisco Arts and Athletics, Waddell organized the sports competition for gays to help combat society's anxiety toward homosexuals. Waddell, a physician, once said he hoped the sporting event would be a visual antidote to the stereotypical images of "men with lisps who cross their legs like women, mince down the street and have wrist drop." Waddell, who came in sixth in the decathlon in the 1968 games in Mexico City, blamed bathhouses, pornography outlets, and sex boutiques for defining gay culture even though, in his view, they involved a minority of the gay community. A second Gay Olympics was held last year in San Francisco and was called the Gay Games II. Almost 3,500 athletes from around the world attended. The next Gay Games are scheduled to take place in 1990. Waddell's organization was forced to drop the word "Olympic" from the event's title after the U. S. Olympic Committee and the International Olympic Committee sued. "I've had an incredibly rich life. I don't feel like I've been cheated. I competed in the Olympics, I got my MD, traveled all over the world, pursued a couple of dreams, saw them come to fruition, not the least of which is my daughter," Waddell said last year in an interview with the Times. Eric Rofes, a friend, said Waddell was a driven, gentle man. "Thomas was committed to showing that gay people are a very diverse people. This is a tremendous loss, said Rofes, executive director of Hollywood's Gay and Lesbian Service Community Center. Dr. Waddell is survived by Sara Lewinstein and their 4-year-old daughter Jessica, and his parents. [End of article] He passed away a few weeks after the Supreme Court decision in SFAA.
Chapter 21 Supreme Court Advocate and Counsel
Sometimes it is imperative that you buy and read the newspaper. The L.A. Times, Sunday, February 28, 1988, Part 1. I found this article - Lawyers at the Supreme Court (many columns). I found out about Michael H. Gottesman and soon retained him to be my Supreme Court counsel and/or advocate. His reported record at Supreme Court was thirteen (13) wins and one (1) loss. I contacted the firm of Bredoff & Kaiser and he responded. He agreed to be retained and after numerous letters between us he advises as follows:
Mike H. Gottesman of BREDHOFF & KAISER
Transcript of telephone Conference
[Brackets are statements or questions by author]
Few brackets, you've heard enough of me. He is responsible for explaining things with sufficiency so I could decide to fold the legal tents and give it up. Thanks Mike, you made drowning feel like it was the thing to do.
[Ring]
Is this Leo LaBranche? [Yes (here it comes)]
Mr. Gottesman: I've spent a fair amount of time on this and feel deeply enough into it that I think can give you my views fairly clearly on it. Is this a good time to chat? [Yes]
Let me preface all this by saying I'm totally sympathetic to the situation you're in because it seems to me the decision in the gay olympics case was ridiculous, holding that protection extends to uses that are neither competing or conflicting, and in holding that the first amendment allows that, but, given that decision I think the chances of you getting cert. on the proposition that you're entitled to a trial on your equitable defenses here are very remote. I would put them in the one in fifty category. That is not surprising because the odds in any case of getting the S. Ct. to grant review are very small. They only hear roughly 150 cases a year and of that about thirty are appeals that they have no choice on, so their deciding to take about 120 cases a year and their criterion for selection is what are the 120 most important issues that America needs to have decided.
The one thing you have going for you in terms of their interest in this case is that statistically when you look at what they've done when they've decided a case in a particular area they've sort of got an interest in it. And so when another case comes along and you're able to say this case presents the issue that you didn't address in that prior case - it's a plus to be in an area that they've already exhibited an interest in. That you have. But what you have on the other side is what I think is very difficult. There are two or three things. Number 1: The surest road to get the S. Ct. to grant review is if you have a conflict among the circuits and most of the cases they grant each year out of those hundred and twenty or so, are cases where the issues come up a lot, and different courts of appeals have come up differently about it and your able to say, "Look you've got these courts of appeal in disagreement with each other you've got to step in here and resolve it." You don't have that here because yours is really the first case to come to a court of appeals involving the application of equitable defenses in the context of the Olympic committee.
The second problem you've got is that when you look at the equitable defenses laches is clearly a defense that any defendant can invoke in one of these cases. But laches requires that they know about you and that's the one [defense] the S. Ct. mentioned expressly in the footnote in the gay olympics case. Laches is, "they knew you were out there and they watched you do it and they didn't tell you about it and you relied heavily to your detriment on it." The court of appeals said they didn't know and the S. Ct. is not going to inquire behind that fact question. That's another thing about the S. Ct.. They're not at all interested in resolving factual questions. If the court of appeals said something they're just going to assume it's true. So laches is not available to you.
And the other two equitable defenses you're arguing, acquiescence and abandonment are in essence arguments, that if you won them, would totally undue what they held in the gay olympics case. Because what you're basically saying is that except as to the competing and conflicting uses they [USOC] have either or abandoned all other uses, by the fact that they haven't gone out and sued them. And so it is going to look to the Supreme Court like this issue is an effort to use equitable defenses is to totally undo what they worked so hard to do in the gay olympics case. Mind you that I think it was silly what they worked so hard to do - having done it they're not going to be, I think, sympathetic to entertaining an argument that there are equitable defenses that turn the thing completely around and will entitle every person who is using the name Olympic which is not conflicting or competing to get out.
And finally, wholly apart from the fact that it would undo what they decided in the gay olympics case, once you accept the logic of their decision in that case and you have to, how ever wrong it was, it is now the law of the land. The logic was one that would make these particular defenses not fit. Because the logic was the Olympic committee unlike everybody else who's got a trademark to protect, we're going to give them total possession of this trademark so that they can go out and sell it in the future in order to raise money to finance amateur athletics. So if they want to go and give somebody the right to put Olympic on underwear ten years from now, that's what Congress has chosen to give them. Their right to market this thing in the future. Once you understand that, it makes sense that in this context, but in no other trademark case that has ever come along before then, you wouldn't expect them to be running around suing people who are using the word Olympic on underwear now because it wouldn't be worth it to them to spend the money to do it. But if sometime down the road Fruit of the Loom said "we'll give you 30 million dollars if we can say this is the Official olympic underwear" at that point they would look up and say oh well now for the first time we have a real interest in this particular use. Now, nobody else in any other trademark context can make that kind of argument because nobody's given them the right to use the name to raise money, wholly apart from the product line. So the acq. & abandonment arguments, aside from the fact that there's no conflict in the circuit, and that it would undo what they ruled is the logic of their decision. And the logic of their decision suggests that these defenses unlike laches would be applicable here. All that's to say that it is always possible to write a cert. petition that sounds interesting and this is an interesting case. There is a petition to be written here that may peak their interest. But, I think, in the long run, my recommendation would be that you not undertake it. And I'll give you an idea what the costs would be entailed in doing that because ultimately this is not going to fly. Number 1 I think the chances of cert. being granted are small, no. 2, even if they were to grant it, because they're sort of interested in it, I think there's a heavy likelihood that you would lose in the Supreme Court. Because having granted it, and having thought about it -we already know where their biases lie on this issue, they made those clear in the gay olympics case. And if they sit there and think about these equitable defenses in the context of what their inevitable consequences would be, which is everybody using the word Olympic going to be able to invoke this defense . .
If they were to grant cert. they'll sit, they'll think, and they'll find a way to say yes you are entitled to the defenses of laches, of course that's personal to you, if they knew what you were doing (with their blessing) but when you proffer an equitable defense that applies to everybody in the world then your undoing what Congress tried to do with the statute. I think its a long shot for cert., and if cert. were granted you have to pour in a whole lot of more money, and, the odds, are heavier than they would normally be that your not going to win on the merits. So, I really think that ... Every choice like this is a cost-benefit analysis. Even if you win in the Supreme Court all you get is a trial in the district court. And you know that judge is proud to say he was on the panel that originally heard the gay olympics case. He regards himself as the great expert.
It's a three-step process, first you go for cert.; then you've got to win it; then back to the trial court. Costs are 6-7k for printing. Then add attorney's fees of 25k for Supreme Court counselor. You are a skilled writer so you could file a cert. petition pro-se but the chances of cert. being granted are substantially reduced. The quality of the lawyer you could pay to do this would vary and their fees would vary. Your chances are small at best but they get smaller if you're not paying somebody who's a Supreme Court expert. Our normal experience in what we charge, at the rates I quoted you before, about 25k range for writing a cert. petition. So you're looking 30-35k, roughly, and that's not an absolute, it could be less or more depending on how much time it would take to write it. That's your ballpark.
If cert. is granted the price goes up substantially, then you have to print the whole record; or at least all of it that's at all relevant, which is a much bigger printing cost. You're going to be paying a lawyer to brief on the merits. Lawyers tend to take a lot more time, cause now you've got to cover everything, (in a cert. petition you have to know enough of the law, tell them enough of the law to get them interested in, but you don’t have to persuade them that you're going to win). When you're on the merits, obviously, you have to cover the waterfront. Bigger lawyers fees, bigger printing fees and at that stage you're talking about paying the other sides printing expenses. They don't do this at the cert. petition but if cert's granted the losing party in the Supreme Court has to pay the other sides printing costs. That means if you win they would pay your printing costs. So it's expensive stuff.
As I said, the fundamental problem that ultimately persuades me that this is not a venture worth pursuing is the bottom line that at two different levels the equitable defenses that are available here would totally undo the Gay Olympics case.
Number one, by definition if everybody can raise this defense then the decision in SFAA is overruled. The second problem I have with it which is it runs into the logic of the SFAA case because the logic, right or wrong, Congress made this very unusual choice, to give the Olympic committee the ownership of these words so that they could go out and sell it to whoever the wanted to raise money.
Ordinarily we don't give anybody a trademark which says the word is yours, you can go out into totally unrelated fields and sell it just to raise money. But that Congress deliberately gave the Olympic Committee the trademark for that purpose. So they could raise money to finance amateur athletics. And that was indeed the principle rationale for why they (S.Ct) said it was alright under the first amendment. That this was such a nobel . . .
[Oh, really! I didn't understand it that way. I thought that because the man was trying to have a competing amateur athletic competition called Olympics therefore it didn't violate his first amendment rights.]
No! They went further, - they could have decided that case without addressing your case at all. Except for the slight wrinkle that your name (Olympic Records) could be thought by some folks to not be totally disconnected to the Olympic games. I assume that was a certain whimsical irony in the original use of it. That incidentally is at a much smaller level (a little problem). If it were the Olympic chinese restaurant that would present the case more neatly.
[It is no problem. Olympic Records (Guinness) of athletes are copyrighted, published, and owned by Bantam/Dell/Doubleday Books. Olympic Records and Tapes (retail) is in three states; Olympic Records Corp. is a business which stores business records for companies; the Olympic Record is the newsletter of the "Olympic Lobby," a/k/a National Association of Olympic Businesses." I have the only Olympic Records, in the class of recorded music.]
But in that case they didn't have to address the status of unconnected businesses at all because obviously the Gay Olympics was right in the mainstream of what was confusing and conflicting. So the Court went out of their way to do it. And not only did they go out of their way to do it when they construed the statute - because they said the statute is not limited to what the Lanham Act would do, when they got to the first amendment they then proceeded to give two rationales for why there was a governmental interest that justifies this: The first of those rationales is "who are you the gay olympics to be raising this." You're trying to profiteer off these people. "There is obviously the potential for confusion here in the (SFAA) case. But the second reason they gave was that there is a clear congressional interest in enabling them to market Olympic to raise money to support amateur athletics. And that interest is a special one. They're saying that in fact this was the intention of Congress. It's not clear from the opinion whether Congress said this or the court is inferring this. First they decided it reaches unrelated uses. Then they say 'well why would Congress want to reach unrelated uses.' It's obviously because Congress did say one of the purposes was to enable them to raise money. Given that rationale it isn't as though you overlooked something. Here we have a new argument that will cause you to re-think this. They've gone out of their way to assert this rationale which is, " it is a choice Congress logically could have made" - whether it did make it or not we don't know. They said Congress made it.
[Congress did not have this in mind, I have over 100 statements from legislators that this is not so and I was embarrassed and often scolded for suggesting the above reasoning.]
Given that rationale any equitable defenses which are everyones and not just an individual company which got misled or snookered by them. "They knew about us and didn't tell us to stop." Any rationale which says everyone's free because they allowed everybody to do it doesn't fly in the teeth of that rationale. The Supreme Court looks back and says: Well of course they're (USOC) not going to go after you NOW . . . They're only going to go after you when they want to use Columbia Records for the Olympic thing. You're on notice; you know what the statute says and you take your chances because if they ever want to get in the record business and they want to sell Columbia Records the rights for 30 million to use of the Olympic theme at that point they're entitled to look you up and say. Get out of the way!
[SO THEY HAVE A LAW SUPERIOR TO ANYTHING THAT
HAS EVER EXISTED BEFORE IN THIS COUNTRY.]
YES, THERE'S NO QUESTION, THAT'S EXACTLY WHAT THEY DID.
That (SFAA) was an unfortunate test case. If you look for a case to take to the Supreme Court SFAA would not be the one. THE COURT CLEARLY WENT OUT OF ITS WAY TO CLOSE OFF THE WORLD and it is, unfortunately I think, if you watch the winter olympics this year, everybody left and right, up & down is talking about how can we raise more money to make America more competitive.
I think the Gay Olympics decision was wrong in construing what congress intended and even more wrong in the first amendment ruling. But I generally side with Brennan and Marshall of first amendment cases.
[They were the dissenters on the SFAA first amendment claim]
So the decision, it seems to me, is a debatable one in terms of its correctness. It was wrong. But they're not going to overturn it a year or two later. They clearly were committed, they went out of they're way to clear the landscape for the Olympic committee, far beyond the case they had before them, where they could have decided on the basis of conflicting use. And they've staked out this ground and you're just sort of climbing a mountain with a bear standing on the top, waiting for you to get there.
[silence]
My advice would be to fold the legal tents, at least. Obviously you may be able to convince Congress to change their minds. That's where I think the attention should be, and again I think you're running against the passion of the moment which is we got to find some way to raise more money. This has now become a respectable way to raise money for worthy causes. Easier to make the corporations give it to then than to tax the public.
[Yes, but corporations use million dollars in donations as deductions from their corporate tax, the people still pay for it, it's just not obvious.
Thanks for everything Mike, let me call you . . .]
Transcript of telephone conference with the Honorable Michael H. Gottesman.
PART V
Chapter 22
Washington: On More Time Cafeteria highly recommended, otherwise . . . .
I have to go to Washington D.C. again. The Supreme Court will hand down its opinion on SFAA before the end of the session and there's a week left. Odd that I started here and it's about to end here. This is the stuff of Martians, and Mother Goose. A motel with railroad tracks behind, no wonder I got a good rate. Every ten minutes it was a 5 point earthquake occurring and this was 24/7 except for a break between 2 and 4 am.
The best thing about the Supreme Court was the cafeteria and those blueberry muffins. I got to sit with my back to Chief Justice Rhenquist (I certainly didn't want to face him). I had a reservation and got there early so it was allowed to eat muffins with the greats. One magic moment did however occur on this Supreme Court day and I was to meet and shake hands with a one of the American greats of all time.
SUPREME COURT OF THE UNITED STATES
(The Wallaby court)
SFAA v. USOC and IOC*
* [Why were they left off this caption. They started this with my judge on appeal in IOC v. SFAA] Argued March 24, 1987 - Decided June 25th, 1987
SYLLABUS-
Preface: The syllabus constitutes no part of the Opinion but has been prepared by the Reporter of Decisions for the convenience of the reader. He or she needs a new job.
Author dissents and declares what is 'prepared' herein is not even close with what was actually decided.
Supreme Court Opinion
HERE THEY GO: A one way ticket to Mars.
Supreme Court: Section 110 of the Amateur Sports Act of 1978 (Act) grants respondent USOC the right to prohibit certain commercial and promotional uses of the word Olympic and various other symbols. Petitioner, San Francisco Arts & Athletics, Inc. (SFAA), a non-profit California corporation, promoted the "Gay Olympic Games" to beheld in 1982 by using those words on its letterheads and mailings, in local newspapers, and on various merchandise sold to cover the costs of the Games. The USOC informed the SFAA of the existence of the Act and requested that it terminate use of the word "Olympic" in description of the planned Games. When the SFAA failed to do so, the USOC brought suit in Federal District Court for injunctive relief. The Court granted the USOC a summary judgment and a permanent injunction. The Court of Appeals affirmed, holding that the Act granted the USOC exclusive use of the word "Olympic" without requiring the USOC to prove that the unauthorized use was confusing and without regard to defenses available to an entity sued for a trademark violation under the Lanham Act. The court also found that the USOC'S property right in the word and its associated symbols and slogans can be protected without violating the first amendment. The court did not reach the SFAA's claim that the USOC's enforcement of its rights was discriminatory in violation of the equal protection component of the Due Process Clause of the Fifth Amendment because it held that the USOC is not a governmental actor to which the Constitution applies.
THE COURT Held: Italics are author's comments and appraisals and disgust.
S. Ct: 1. There is no merit to the SFAA'a contention that §110 grants the USOC nothing more than a trademark in the word "Olympic" and precludes its use by others only when it tends to cause confusion. Nor is there any merit to the argument that §110's reference to Lanham Act remedies should be read as incorporating traditional defenses as well.
* SFAA'S contention and argument has great merit. So far, five sentences, mistake #1. I know this from direct experience through Congressional communications over a time frame of two years. I was ridiculed on some occasions and sometimes admonished for stating what the Court just articulated in the first five sentences of this opinion. Congress never intended this and had no idea it was going to occur.
S. Ct. Section 110's language and legislative history indicate that Congress intended to grant the USOC exclusive use of the word "Olympic" without regard to whether use of the word tends to cause confusion, and that §110 does not incorporate defenses available under the Lanham Act. mistake 2 Same contention as above*
S. Ct. 2. Also without merit is the SFAA'a argument that the word "Olympic" is a generic word that constitutionally cannot gain trademark protection under the Lanham Act,
not true but not a mistake since the Court is blissfully ignorant of facts not before it. There were five (5) thousand businesses, corporations, and organizations in legal effect at that moment in time and SFAA is correct in their contention that Olympic is generic and property of the Public domain but has no proof in the record, so it's their word and it has no weight.)
S. Ct. and that the First Amendment prohibits Congress from granting a trademark in a word. When a word acquires values the result of organization and the expenditure of labor, skill, and money by an entity, that entity constitutionally may obtain a limited property right in the word. Congress reasonably could conclude that the commercial and promotional value of the word Olympic was the product of the USOC's talents and energy, the end result of much time, effort, and expense.
This does not apply as the doctrine of "secondary meaning" and USOC has no more right to a secondary meaning appellation than do the five (5) thousand existing business using olympic in their name at this moment which have been doing so for over 35 years, since the inception of the Amateur Act. These businesses are present and accounted for every day of the year using their talent, energies, and capital to develop their businesses, services, and products with their good will attached.
S. Ct. In view of the history of the origins and associations of the word "Olympic" Congress' decision to grant the USOC a limited property right in the word falls within the scope of the trademark law protections, and thus within Constitutional bounds.
Who wrote this (syllabus) opinion? There is a 'galaxy' of space between a limited property right and a blanket prohibition. This syllabus contradicts the decision within the same paragraph. This Court is granting exclusive right; a blanket prohibition that my dear 'gang of nine' is not limited but unlimited, which is forbidden at any and all junctures and junctions when it comes even slightly near the Constitution. And what's this trash about trademark law protections when you are not allowed trademark law defenses. Now we are deep in Martian Law. Congress cannot 'cut and paste' the Lanham Act and it did not; you get it all or you get none. Congress didn't do it - I know for a fact. It was as much a surprise to Congress as it was to me and I'm sure to SFAA. Now we're at mistake 3. Limited property right, my caboose.
S. Ct. 3. The first amendment does not prohibit Congress from granting exclusive use of a word without requiring that the authorized user prove that an unauthorized use is likely to cause confusion. The SFAA claims that its use of the word Olympic was intended to convey a political statement about the status of homosexuals in society, and that §110 may not suppress such speech. However by prohibiting the use of one word for particular purposes, neither Congress or the USOC has prohibited the SFAA from conveying it's message. Section 110's restrictions on expressive speech are properly characterized as incidental to the primary Congressional purpose of encouraging and rewarding the USOC's activities. Congress has a broad public interest in promoting, through the USOC's activities, the participation of amateur athletics from the United States in the Olympic Games. Even though §110's protection may exceed traditional rights of a trademark in certain circumstances,
This makes me mad as hell. It is not in 'certain circumstances,' it is in 'all circumstances.' Here again the syllabus and Court trips over its own 'minced' words, hiding behind modest assertions that do not reflect what their opinion actually decided. So it's the syllabuses fault, right. I've given up on calling anything forthcoming a mistake, three are sufficient.
S. Ct. the Act's application to commercial speech is not broader than necessary to protect legitimate Congressional interests and therefore does not violate the First Amendment.
Take a pole of the 2500 companies and corporations present in my federal case record and see if this "ridiculous" statement is true as to their pre-existing first amendment rights. And then pole the 2,500 or so that are not in my case record. Talk about a revolution. There could be 5,000 entities exercising their collective first amendment rights and exorcise the USOC out of our existence, federal charter and all.
S. Ct. Congress reasonably could find that the use of the word by other entities to promote an athletic event would directly impinge on the USOC's legitimate right of exclusive use.
Again the Court couches its reasonable statements in relation to an athletic event such as SFAA but will determine an exclusive prohibition for all users of Olympic for the purpose of trade. If you're going to come out and prohibit everyone then why not have the guts to say it.
S. Ct. The mere fact that the SFAA claims an expressive, as opposed to purely commercial use, does not give it First Amendment right to appropriate the value which the USOC's efforts have given the word.
No more than the 'value' the 2500 businesses in my court record puts upon their efforts to maintain their business or company name, and likely a lot less.
S. Ct. 4. The SFAA's claim that the USOC has enforced its §110 rights in a discriminatory manner in violation of the Fifth Amendment fails, because the USOC is not governmental actor to whom the Fifth Amendment applies. The fact that Congress granted it a corporate charter does not render the USOC a government agent. Moreover, Congress' intent to help the USOC obtain government funding does not change the analysis. Nor does the USOC's perform functions that are traditionally the exclusive prerogative of the Federal Government. The USOC's choice of how to enforce its exclusive rights to use the word "Olympic" simply is not a governmental decision.
LUNACY: Stupid, stupid, stupid, as Andy Taylor would say. How can the U. S. government, any separated federal branch, not be concerned with how a federal law is implemented and enforced, especially as it affects their policies, their agency, and their liabilities. The Amateur Act is now the reformed and majestic super-sized law as created and re-invented by the Supreme Court. One eye blind and the other on historical perspective, "being up there with other saviors of olympism, Olympique, and the Amateur Sports Act." There is a place reserved for them in the "Mount Olympus Hall of Shame and Absurdity." This shameful and biased ruling had a direct effect on me, my case, my present, my future, my family, and my belief in the federal judicial process. This 'decision' has affected me for over 22 years. And there is no way to appeal a Martian decision, since there's no one left to appeal to. That seems to 'work' rather well.
End of Martian Law and Supreme Court Syllabus of Opinion.
I will not waste time, energy, heart, and soul even speaking to the 25 pages of gobblygook which follows this syllabus. This opinion is not only wrong, it’s ALL wrong. A couple of dissenters were correct on first amendment issues but matter not in the hodgepodge of rhetoric.
Weak, gutless, uninformed, dastardly biased, and patently unconstitutional. The court was duped and could only see the by the light of the olympic torch; and the deniable homophobia which resulted in a ruling that should be torn out of the reports. Nothing like some really old “olympic groupies.” The opinion not even fit for tinder, and is more wrong now, 22 years later, than it ever was.
In closing: The opinion stinks of bias and special privilege with just a dash of historical perspective. Well, that about does it for me. What year is this? (1987)
Chapter 23 Peter W. Rodino, Jr., Chairman of the House Judiciary Committee
On the fateful day of the ruling by the Court I was there waiting pronouncement. I had reservation and had a seat. In the front row were two Congressmen, Senator John Danforth and Representative Peter W. Rodino, Jr., I did not know, until later when it was announced at session's end, that Peter Rodino, III [along with other attorneys] were to be inducted into the bar of the Supreme Court, a process necessary if you intend to practice before the Court. I would think it would be a great honor. Mr. Danforth and Mr. Rodino were his sponsors. It was a happy day for the senior Rodino. As the session ended he retired alone to aisle right and I went to congratulate him on this auspicious occasion. I did NOT identify myself to enable him to enjoy this moment without some litigant and lobbyist bothering him about an issue which he could not discuss anyway. I later contacted him about meeting him and he was gracious, as always, and sent me a File Copy of the Legislative Intent regarding the Amateur Sports Act of 1978. He was the only Congressman I had any face contact with though I had mail contact with all of them, an infinitum. I had several communications with him as Judiciary Chairman. I got something from my "day in court" after all. Like meeting George Washington or one of those guys.
Thank you Mr. Rodino, the honor was all mine.
I had this Legislative Intent document for several years but to get a File Copy from him was special. And, of course, there is no reference whatsoever to the Amateur Sports Act being enforced in any way, shape or form as the USOC and the Martian court is now trying to pass off on us, and directly on to me.
Bio of Mr. Rodino (imported text)
Mr. Rodino was born Pelligrino Rodino, Jr. in Newark, New Jersey. His parents were immigrants from Italy. He attended Barringer High School. He went to college at the University of Newark and earned a law degree at the Newark Law School, both now part of Rutgers University. During World War II, he earned a Bronze Star for service in Italy and North Africa. After the war, he ran an unsuccessful campaign for Congress in 1946, losing to incumbent Fred Hartley Jr. Trying again in 1948, when Hartley had decided not to run, he won the seat. Outside of his Newark district, he was not prominent as a congressman until the Nixon impeachment hearings. As a congressman, he was generally known as a liberal, and a proponent of civil rights legislation and immigration reform. Representing a district that was heavily Italian-American when he was first elected, he was best known for his sponsorship of legislation that made Columbus Day a national holiday.
He became chairman of the House Judiciary Committee in January 1973. During the Nixon impeachment hearings from May to July 1974, he was generally considered to be a fair moderator of what at times were very partisan hearings. Key difficulties included ensuring that enough Republican committee members would vote for impeachment to defend against Nixon administration charges of Democratic partisanship. In the end, as further evidence emerged and Nixon admitted wrongdoing, several initially reluctant Republican members switched, making the committee vote for impeachment unanimous. During his political career, he also was one of the managers of the impeachment hearings of a pair of federal judges. In 1986, he was member of the committee that removed Nevada judge Harry Claiborne for tax evasion, and in 1988, he helped to remove future Congressman Alcee Hastings from a Florida court due to perjury charges. He continued as chair of the Judiciary Committee until his retirement from Congress in 1989, when he was replaced by Donald M. Payne, New Jersey's first African-American representative. After leaving Congress, he became professor emeritus at the Seton Hall University School of Law, where he taught and lectured until February 2005. He died May 7, 2005, of congestive heart failure at the age of 95 at his home in West Orange, New Jersey.
Chapter 24
Dear O-w-impic Letter
National Association of Olympic Businesses
A Non-Profit Business Association
Lobby Registration #11271000 - IRS § 501(c)(6) - Tax Exempt - 33-0200292
This last utterance went out to the 2,500 +/- olympic businesses present in my court record. From these addresses I obtained my members who joined the lobby. These recipients received letters from me several times before and were on the Olympic list. I should not have been angry with these people, specifically, but the last screw was going in my coffin lid and I had to reach one more time to convince them the urgency of the issue, and, that the martyr will soon die for his beliefs, figuratively. Olympic Records is dead and its products are going to the shredder. National Association of Olympic Businesses is to be dissolved and Martian law has prevailed. The culmination of four years of sixty (60) hour weeks dedicated 101% to the cause (like the first judge said, quixotic quest) of obtaining the trademark with which I was going to make a stand for music "I" thought the Public should have access to. Four years in court, six years in all. My extremely valuable and costly court record now goes to storage to become a cold case file, or more likely, the dumpster. There are copies but it would require a legal anthropologist to locate the original. And for God's sake don't show it to the Supreme Court if you find it.
Don Coyote cries carnivorous predator & scavenger one last time
Dear O-WIM-PIC:
Guess what? I went to the U.S. appeals court Monday (7th) and the Gay Olympics case disposes of LABRANCHE v. USOC and you are hereby notified that you will never be free unless you do something about it. Some of you may have made an effort and, if so, those efforts need to be redoubled. For those of you who ignored my letters or feel your company is not in jeopardy and don't feel threatened I wish you well. If any of you made a secret arrangement with the USOC you are dangerously close to a Sherman Act, §1 violation. Any of you who changed your name should move to France where this .... came from. I shall continue to the Supreme Court where I can further and finally be destroyed and insulted, and there is no chance they will change their mind with respect to overturning one of their most notorious mistakes. The mistake was that they (7 justices) said "section 380 of the Amateur Sports Act does not violate the First Amendment." This was stated in the broadest of terms and the statement is meant to, and does, apply to everyone. The Supreme Court of "Olympism" showed the Gays and the ACLU.
The National Association of Olympic Businesses [NAOB] will be disbanded and dissolved at the end of the quarter and thereafter the actions of Leo O. LaBranche Jr. will not reflect upon or include any of the members. I am taking out of court actions against the I.O.C. (which is responsible for this crap) and the games have begun. In fact, the Canadians (who have ten times the spine of most of you) took the matter into their own hands and made the government change the policy regarding 'no use' of olympic, but only because the Canadian olympic businesses stood up and fought (with special help from the Greek Canadians and the Greek Ambassador). I played a small part in that event. The Canadian media howled when the Canadian Olympic Association a/k/a the Olympic Trust tried to prevent publication of the country's major magazine (McLeans). The magazine was taken to Federal court and lost at every turn until the issue smelled so bad that the Olympic Trust dropped the injunction. It is interesting that I can be of assistance to help others free themselves from oppression but I can't do a damn thing about it in my own country. It would take at least five (5) hundred or more American olympic businesses joined together in a federal class action to be "EQUAL UNDER LAW TO THE USOC." Everybody bows to the USOC, including you and yours who tacitly bow by accepting the situation.
Good-bye and Good Luck. I am ashamed that my countrymen are such spineless wimps.
Truly O-WIM-PICS.
President, Olympic Records, Inc.
P.S. Courtesy, protocol, and procedure mean absolutely nothing in this situation. If you want something done by this government you must DEMAND IT! Do you pay taxes? What do you get for it? You are a tainted American business and through absolutely no fault of mine, and I thank God. End of Final Olympic Utterance
NEW YORK TIMES
Ten days after the Court's decision in SFAA the following statements were made by the
Executive director of the Olympic Committee, Mr. George Miller.
New York Times - July 5, 1987, section 3, pg. 1:5
Publicly stated position SELECTIVE ENFORCEMENT
With the Olympic Games approaching the Committee will be more aggressive about protecting its exclusive right to the word "Olympic." Any use of the name is illegal," said George Miller, executive director. [But] we can't go after them all. The main targets will be athletic contests and businesses that link themselves to the Olympic Games . . .
The statement in italics accurately reflects the intention of Congress with respect to interpretation of § 380 of the Amateur Sports Act. Further statements made by the USOC regarding legislative intent appear in the records of the 99th Congress. 100 video copies (and transcripts) of a network television broadcast were sent to members of Congress, accompanying petition 0274, in 1986. On this broadcast appeared Mr. Richard G. Kline, Esq., general counsel for USOC, holding a souvenier T-shirt up to view which included the five interlocked rings and the term 1984 Olympics and stated: This is the kind of marketing activity the statute was designed to prevent. This statement is also true and in harmony with Congressional Intent. Yet threats were made during the broadcast to sue all those who use the word "olympic" for the purposes of trade since 1950. The Amateur Sports Act states "olympic" is a word, not a name.
So the USOC has a federal law that cannot be used against all others, and used when it suits their purpose and design and they have a Supreme Court opinion (case law) to enable them to do what, where, and when they choose with no control or oversight according to the Martian court. The people in this organization need to get out of MY country. Nowhere in the history of our laws (show me otherwise) has any entity ever had this kind of power, implemented by self-serving men and women with no oversight necessary. The gods have finally arrived from Mount Olympus and they're as superlative as always and do what they want with no oversight.
This, in effect, ends the Olympic story. I obeyed the federal court order and shredded my products, canceled my licenses, closed the Corporation, and closed the Lobby. Below the written Order, of course written by the Olympic lawyers and signed by the judge.
JUDGMENT AND PERMANENT INJUNCTION
U. S. District Court, case no. CV 481 RG LABRANCHE v USOC
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:
1. This Court has jurisdiction of the subject matter and over the parties to this action;
2. Plaintiff (counter-defendant/LABRANCHE) shall take nothing by his claims.
3. The use by LABRANCHE of the term "Olympic Records" as a trademark and/or as a trade name on or in connection with his products infringes upon the rights in and to use the term "OLYMPIC" granted to the USOC by 36 U.S. Code section 380.
4. LABRANCHE, his successors, legal representatives, and assigns, and his agents, servants, employees, attorneys, and all persons in active concert or participation with LABRANCHE are perpetually enjoined and restrained:
A) from using the term "OLYMPIC" or "OLYMPIC RECORDS" or any other word or words, term or terms which is or are confusingly similar thereto, as a trademark, trade name, brand name, or indication of source or origin on or in connection with any product or any service and/or the advertising, offering for sale or the sale of any product or service;
B) from using the term "OLYMPIC" alone, and or as a part of any trademark containing other words or devices, and/or trade name, trade style, or designation which includes the word "OLYMPIC;" and
C) from committing any acts calculated or likely to cause others to believe that the products or services of LABRANCHE are the USOC's products or services, or are sponsored or approved by, or connected with or produced under the supervision of USOC.
5. LABRANCHE is further enjoined and ordered to:
A) destroy any and all of his labels, packaging, and other documents and material which include the Term "OLYMPIC" or "OLYMPIC RECORDS;"
B) destroy any and all of his advertising materials which include, refer, or relate to use of the term "OLYMPIC" or "OLYMPIC RECORDS" on or in connection with its product or services;
C) take such action as is necessary to cause removal from any and all directories or publications of any and all references to LABRANCHE or his product or services which include the term "OLYMPIC" or "OLYMPIC RECORDS;"
D) abandon his U. S. Trademark Application Serial No. S452,602 and abandon or otherwise cancel or revoke any other Federal, state or foreign trademark application or registrations which he may have for any mark which includes the term "OLYMPIC" or "OLYMPIC RECORDS;"
E) cancel or cause to be cancelled any and all trade name certificates, registrations, or fictitious name statements which include the term "OLYMPIC or "OLYMPIC RECORDS" and which have been issued or granted to LABRANCHE; and
F) cancel or cause to be cancelled any and all certificates of brand or label approval from any brand or label which include the term "OLYMPIC" or "OLYMPIC RECORDS," and which have been granted or issued to him.
6. LABRANCHE is further ordered to account to USOC, and to pay to USOC all gains, profits and advantages derived from his sale of goods or services in connection with which he has used the term "OLYMPIC" or "OLYMPIC RECORDS" as an identifying designation or otherwise.
7. This Court retains jurisdiction of the parties hereto with respect to compliance with this Permanent Judgement against LABRANCHE.
8. That the USOC recover of LABRANCHE its costs, including attorneys' fees.
Dated: 12/31/85 - mandated 4-4-88 s/s Richard A. Gadbois Jr.
United States District Judge
I located a company in Arizona which will shred my company products and other items as covered in the above ORDER. I get my friend Billy Milo, the country artist, to go with me to Arizona and get him to film it, as required, to show and to prove the destruction. It was about a 5 x 8 U-haul full of records and tapes and whatever else required to go in the shredder. I go to Arizona because I will not spend any money in California ever again.
I left California shortly thereafter and moved to Arizona where I considered a future as Don Coyote chasing "The Impossible Curse." I could not consider a book as was suggested by Mr. Lewis M. Brown because I couldn't go through it again. I kept the 150 pounds of history for some reason but thought I was just dragging my past.
The foregoing began August 1982 and ended April 1988. It is highly not recommended that anyone do this unless you are steeped in, and expect to be ruled by, Martian law. Don't forget, I'm just a member of the Public and it could have been You.
Chapter 25
EPILOG
For all intents and purposes this Olympic record had ended, though incomplete.
Telling the story would have been different (if at all) had I Googled the Amateur Sports Act in January, 2010. I now know why it was an unconscious decision and on forced reflection, I admit I didn't want to know, one way or the other. I knew everyone was free because Olympic businesses and Olympics of every description are widespread throughout the Country, more prevalent now than back during my court time and there were many thousands then.
So, if the law was changed - then great, I was right and I'm just as screwed as ever. [Vindication and a dollar will get you a bottled water.] However if the law was not changed then my beliefs about my efforts (4 years) and effectiveness (which had somewhat sustained me) would have been shattered. Impotence by retrospect. Believing you made a difference and then finding out you didn't.
When confronted by the question, "When did this event (if any) occur which freed the Olympic slaves, so to speak?" Then I had to click the Google search button. That was March 15. Congress finally saw fit to change the law in 1998 and when it was amended and reenacted it had the much needed, and litigated for, and lobbied for, "change." Utilizing the word "permitted" as opposed to the word "prohibited." Pertinent part below in Bold.
Excerpt from "Ted Stevens, Amateur Sports Act." (1998)
See, ** connecting to ***.
(c) CIVIL ACTION FOR UNAUTHORIZED USE.—Except as provided in subsection (d) of this section, the corporation may file a civil action against a person for the remedies provided in the Act of July 5, 1946 (15 U.S.C. 1051 et seq.) (popularly known as the Trademark Act of 1946) if the person, without the consent of the corporation, uses for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition—
(1) the symbol described in subsection (a)(2) of this section;
(2) the emblem described in subsection (a)(3) of this section;
** (3) the words described in subsection (a)(4) of this section, or any combination or simulation of those words tending to cause confusion or mistake, to deceive, or to falsely suggest a connection with the corporation or any Olympic, Paralympic, or Pan-American Games activity; or
(d) PRE-EXISTING AND GEOGRAPHIC REFERENCE RIGHTS.—
(1) A person who actually used the emblem described in subsection (a)(3) of this section, or the words or any combination of the words described in subsection (a)(4) of this section, for any lawful purpose before September 21, 1950, is not prohibited by this section from continuing the lawful use for the same purpose and for the same goods or services.
(2) A person who actually used, or whose assignor actually used, the words or any combination of the words described in subsection (a)(4) of this section, or a trademark, trade name, sign, symbol, or insignia described in subsection (c)(4) of this section, for any lawful purpose before September 21, 1950, is not prohibited by this section from continuing the lawful use for the same purpose and for the same goods or services.
*** (3) Use of the word “Olympic” to identify a business or goods or services is permitted by this section where—
(A) such use is not combined with any of the intellectual properties referenced in subsections (a) or (c) of this section;
IT’S ABOUT TIME.
This story (the Pro Se parts) has added dimension with the "Ted Stevens - Amateur Sports Act" as ultimate conclusion and proof. Thirteen years after ordered by a federal court to destroy my business and stop lobbying using the word Olympic it finally comes to pass, actually in legislative print. Freedom for all except me though I knew that. The law was amended in 1998 with NO MENTION of the minor changes as above highlighted. Thirteen years later Congress changes the Amateur Sports Act in harmony with my Complaint, Petitions, and requests. Go back to the latter part of Chapter 21.
My Congressional Petitions are Public record and show when it was lodged with the Congress and referred by the Speaker (O'Neil) to the Judiciary Committees of both Houses (Thurmond & Rodino). These Public records, noted in the Congressional Record, given a number, involving committee Chairmen - my actions truly becoming the "country's business," for a moment possibly. In late 1985 I was contacted and assured by members of the Senate Judiciary Committee that the Amateur Sports Act was to be corrected or clarified sometime in the near future. In the preceding chapters I commented on feeling relief for a few days when hearing that possibility. Thirteen years later Ted's Amateur Act appears and twelve years after that I come upon it. I guess this is closure.
At minimum the Pro Se Litigant reflects what can occur when you are right, truthful, follow the rules, do due diligence, invest capital, and stand up for your rights. A typical American story where only the whistleblower, martyr, and pariah rides, or is carried off, into the sunset never to be heard from again. Chalk up another one for Don Coyote in the mountains of Colorado in search of his personal and possible dream.
Fine
APPENDIXES
APPENDIX A - FIRST AMENDED COMPLAINT
APPENDIX B - TOC - EVIDENCE
APPENDIX C - LEGAL BRIEF
APPENDIX D - CASE LAWS AND STATUTES
APPENDIX E - FEDERAL RULES OF EVIDENCE
APPENDIX A
FIRST AMENDED COMPLAINT
U.S. District Court
Central District of California
Case CV 85 481 RG
LABRANCHE v USOC
PLAINTIFF COMPLAINS AGAINST DEFENDANT AND FOR
FIRST CLAIM OF RELIEF ALLEGES:
JURISDICTION:
Federal questions and the amount in Controversy exceeds Ten Thousand Dollars. Actions arises under the Constitution of the United States: Article I, Section 8-clause 3; Article IV section 1 & 2; The First Amendment; the Fifth Amendment; the 9th and 10th Amendment; Fourteenth Amendment; 15 U.S.C. § 1051 et seq.; 17 U.S.C. § 101 et seq.; and upon jurisdiction 28 U.S.C. 1338(b), and 15 U.S.C. sections 2 and 15 as more fully hereinafter appears.
CAUSE OF ACTION
1. On April 26, 1984 the plaintiff was refused the right to register his trademark and design by the P.T.O. pursuant to the section 380 of the Amateur Sports Act of 1978.
2. On August 1, 1984 a C.B.S. network broadcast titled, "Crossroads" aired and was viewed by the plaintiff, during which the defendant made statements to the effect that, "anyone using the word olympic after 1950 was violating the Act and would be litigated by the defendant.
3. Article in legal trade publication, "Los Angeles Lawyer" (July issue), repeats threat of litigation to all unauthorized users of the word Olympic.
4. An investment of more than $100,000 has been used for the formation and foundation of of plaintiff's business and that is jeopardized by the defendant's statements and threats.
5. Plaintiff formed the New York corporation, Olympic Records, Inc., January 5, 1983 and that entity and its stock owned by the plaintiff is denied full faith and credit and put in jeopardy by the defendant and section 380 of the Act.
6. Plaintiff formed his business on September 15, 1982 and has legally acquired and obtained all licenses and permits necessary to conduct his business and these licenses and permits are denied credit pursuant to the defendant and section 380 of the Act.
TABLE OF CONTENTS - - CHARGES AND OFFENSES
I. Fifth Amendment: Due Process Non-enforcement/selective enforcement
II. Fifth Amendment: Due Process Right to Contract
III. Fifth Amendment: Due Process Pursue Business of Chosen Profession
IV. First Amendment: Freedom from Prior Restraint
V. 1st, 5th, 9th, and 14th Amends. Over breadth of Legislation
VI. Article IV, §1. Full Faith and Credit Denied
VII. Article IV, §2. Property rights in Stock, and trademark
VIII. Fourteenth Amendment: Equal Protection
IX. Fourteenth Amendment: Privileges and Immunities
X. 17 U.S.C. §101 et. seq. Denial of valid Copyrights
XI. Tenth Amendment: Persons and States rights.
XII. Ninth Amendment: Privacy and Reputation
XIII. 15 U.S.C. §1051 et seq. Illegal Trademark registration
XIV. 15 U.S.C. §1051 et seq. Unfair Use of Trademark
XV. 15 U.S.C. §2, Sherman Act. Attempted Monopoly
XVI. Article I, §8, clause 3. Attempt to Regulate Interstate Comm.
XVII. 15 U.S.C. §15, Clayton Act. Interference with right to trade and exist
COUNT NO. 1
1). Plaintiff claims section 380 of the Amateur Act is being selectively enforced or not enforced at all in violation of the plaintiff's rights guaranteed by the Due Process Clause of the Fifth Amendment.
2). Plaintiff claims section 380 of the Amateur Act remained dormant for 28 to 30 years in violation of Plaintiff claims section 380 of the Amateur Act.
3). Plaintiff claims, and provides proof, of non-enforcement of §380 of the Amateur Act by the following Federal Agencies:
(a) Internal revenue Service (b) Interstate Commerce Commission (c) Copyright Office (d)Comptroller of the Currency (e) Securities and Exchange Commission (f) F.D.I.C. (g) F.S.L.I.C. in violation of the plaintiff's rights guaranteed by the Due Process Clause of the Fifth Amendment.
4). Plaintiff claims non-enforcement of §380 of the Amateur Act in the following states: NY, MN, IN, WI, NC, OH, IL, FL, GA, MA, TX, VA, RI, AZ, NE, SC. OK, and WA in violation of the plaintiff's rights guaranteed by the Due Process Clause of the Fifth Amendment.
5). Plaintiff claims selective enforcement of §380 of the Amateur Act in the following states: AL, MI, CA in violation of the plaintiff's rights guaranteed by the Due Process Clause of the Fifth Amendment.
COUNT NO. 2
Liberty to Contract
6). Plaintiff claims his liberty to contract is prohibited pursuant to §380 of the Amateur Act in violation of the plaintiff's rights guaranteed by the Due Process Clause of the Fifth Amendment.
COUNT NO. 3
Pursue Chosen Profession
7). Plaintiff claims his "right to pursue the business of his chosen profession" is denied by Plaintiff claims in violation of the plaintiff's rights guaranteed by the Due Process Clause of the Fifth Amendment.
COUNT NO. 4
Prior Restraint of Free Speech
8). Plaintiff claims §380 of the Amateur Act and the defendant require that permission be obtained for use of a "a spoken word" which is an illegal exercise in "prior restraint" in violation of the plaintiff's rights under the First Amendment.
COUNT NO. 5
Overbreadth of Legislation
9). Plaintiff claims that §380 of the Amateur Act is unconstitutionally broad because it is susceptible of application to the plaintiff's conduct which is guaranteed by the First Amendment of the Constitution.
10). Plaintiff claims that §380 of the Amateur Act is "invalid as applied" because it is not capable of being enforced against all alike under the same circumstances, in violation of the plaintiff's rights guaranteed by the Fifth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the Constitution.
11). Plaintiff claims that §380 of the Amateur Act is "invalid as not applied" because the Amateur Act is not enforced by Federal Agencies (except the PTO) and not enforced by 46 +/- 2 states in violation of the plaintiff's rights.
COUNT NO. 6
Full Faith and Credit
12). Plaintiff claims that §380 of the Amateur Act denies credit to permits and licenses legally acquired in the state of California, in violation of plaintiff's rights guaranteed by the Full Faith and Credit provision of Article IV, section 1 of the Constitution.
13). Plaintiff claims that §380 of the Amateur Act denies credit to the New York corporation, Olympic Records, Inc., in violation of plaintiff's rights guaranteed by the Full Faith and Credit provision of Article IV, Section 1 of the Constitution.
14). Plaintiff claims that §380 of the Amateur Act denies credit to corporations, businesses, and copyright holders included as evidence in violation of the plaintiff's rights and those "similarly situated" guaranteed by Article IV, Section 1 of the Constitution.
COUNT NO. 7
Violation of Article IV, Section 2
15). Plaintiff claims that §380 of the Amateur Act denies the right to own or sell stock in the legally formed New York corporation, Olympic Records, Inc., in violation of the plaintiff's rights guaranteed by Article IV, Section 2 of the Constitution and further guaranteed by the Fourteenth Amendment.
16). Plaintiff claims that §380 of the Amateur Act denies the right to design, own, and register a trademark and design in violation of the plaintiff's rights guaranteed by Article IV, Section 2 of the Constitution.
17). Plaintiff claims that §380 of the Amateur Act denies the plaintiff's business the right to exist in violation of the plaintiff's rights guaranteed by Article IV, Section 2 of the Constitution.
COUNT NO. 8
Equal Protection of Laws
18). Plaintiff claims that §380 of the Amateur Act, selectively enforced by the state of California, violates the plaintiff's rights guaranteed by the Equal Protection provision of the Fourteenth Amendment of the Constitution.
19). Plaintiff claims that §380 of the Amateur Act is explicit in its prohibitions and as such reach and include all persons in the state of California, with no exceptions, and the state only selectively prohibits corporations using the word olympic and has no enforcement policy regarding any and all others, in violation of the plaintiff's rights guaranteed by the Equal Protection provision of the Fourteenth Amendment.
20). Plaintiff claims that the State Board of Equalization allows foreign corporations with olympic as apart of their corporate name to obtain a sales Tax resale license issued by the state of California, in violation of the plaintiff's rights and those "similarly situated," guaranteed by the Equal Protection provision of the Fourteenth Amendment.
21). Plaintiff claims that that the state of California denies corporate protection (umbrella) for its legally formed businesses using the word olympic, in violation of the plaintiff's rights and those "similarly situated," guaranteed by the Equal Protection provision of the Fourteenth Amendment of the Constitution.
COUNT NO. 9
Privileges & Immunities
22). Plaintiff claims that §380 of the Amateur Act, selectively enforced by the state of California, forbids persons to incorporate in violation of the plaintiff's rights guaranteed by the Privileges and Immunity provision of the Constitution.
23). Plaintiff claims that §380 of the Amateur Act, selectively enforced by the state of California does not treat all person "similarly situated" alike in regard to privileges conferred and liabilities imposed in violation of the plaintiff's rights guaranteed by the Privileges and Immunity provision of the Constitution.
24). Plaintiff claims that §380 of the Amateur Act, selectively enforced by the state of California, denies plaintiff's right to form a corporation, own stock, design and own a trademark or obtain a foreign corporation license, in violation of the plaintiff's rights guaranteed by virtue of National Citizenship and the Privileges and Immunity provision of the Constitution.
25). Plaintiff claims that §380 of the Amateur Act, selectively enforced by the state of California, denies plaintiff's "right to protect his business, property, trademark, and his investment of time, effort, and capital in violation of the plaintiff's rights guaranteed by virtue of National Citizenship and the Privileges and Immunity provision of the Constitution.
26). Plaintiff claims that §380 of the Amateur Act, selectively enforced by the state of California, "authorizes" the state to violate the Equal Protection provision and the Privileges and Immunity provision of the 14th Amendment.
COUNT NO. 10
Violation of 17 U.S.C. §101 et seq.
Article I, Section 8, Clause 8
27). Plaintiff claims that the federal law and the defendant deny credit and validity to U. S. Copyrights owned or held by the plaintiff in violation of the plaintiff's rights guaranteed by 17 U.S.C. §102(2)(5)(7) and further guaranteed by Article I, §8, clause 8 of the Constitution.
28). Plaintiff claims that Copyright registration number SR 49-369 and VA 137-790, owned by the plaintiff, are denied credit and validity by § 380 of the Amateur Act and by the defendant in violation of the plaintiff's rights guaranteed by 17 U.S.C. §106(1-3) and further guaranteed by Article I, §8, clause 8 of the Constitution.
29). Plaintiff claims that the federal law and the defendant deny credit to ALL copyrights legally issued by the Register of Copyrights to the plaintiff and over five hundred (500) others "similarly situated" in violation of the plaintiff's rights guaranteed by 17 U.S.C. §101 et seq. and further guaranteed by Article I, §8, clause 8 of the Constitution.
COUNT NO. 11
Violation of the Tenth Amendment
30). Plaintiff claims that §380 of the Amateur Act has been ignored, taken exception to, avoided, or otherwise rejected by state officers, state attorneys, state tax boards, and state corporation commissions; and plaintiff claims, and proves in evidence, that 46 +/- 2 of the states have chosen not to violate the rights of their citizens even though the Amateur Act gives (illegal) authority to do so, and consequently §380 of the Amateur Act is in violation of the plaintiff's and the states' rights guaranteed by the Tenth Amendment of the Constitution.
31). Plaintiff claims that §380 of the Amateur Act enacted by Congress is defective as applied, and as not applied,and plaintiff claims the Act was brought to the attention of the states in 1978 which plaintiff claims is 28 years too late for the Act to have any effect except an unconstitutional one, and this dormancy of the Act violates plaintiff's and states' rights guaranteed by the Tenth Amendment of the Constitution.
COUNT NO. 12
Violation of the 9th Amendment
32). Plaintiff claims that the defendant and §380 of the Amateur Act are denying plaintiff's right to privacy by intrusions created by the appearance of the defendant on August 1, 1984 network television broadcast during which the defendant 'warned' the general public that all businesses or person using the word Olympic without their permission was violating the Amateur Act and would be litigated by the defendant in violation of the plaintiff's rights under the Ninth Amendment of the Constitution.
33). Plaintiff claims that the defendant in the act of supporting the Amateur Act by appearing on network television has blatantly, obnoxiously, unwarrantedly, and with reckless disregard, attacked the plaintiff, and all others "similarly situated," in violation of the plaintiff's right of Privacy and Reputation guaranteed by the Ninth Amendment of the Constitution.
COUNT NO. 13
Illegal Trademark Registration - the word Olympic
34). Plaintiff claims that trademark registration number 968,566 (trademark/servicemark/collective membership mark- the word olympic) owned and used by the defendant is in violation of 15 U.S.C. § 1064(c) because the defendant has no control over use of the mark and for all practical purposes the mark has been abandoned to the public (who always owned it) in violation of the Trademark Act of 1946 [15 U.S.C. 1064 (c)] and the plaintiff's rights under the Due Process clause of the Fifth Amendment.
35). Plaintiff claims this registered trademark has been used, and is being used, to further an attempt to partially monopolize using this illegal and invalid registration by attempting to preclude all others from registering any mark in any class of goods using the word olympic, and this mark has been used for and as unfair competition, 15 U.S.C. § 1115(b)(7) and violates plaintiff's right to be afforded protection of a Registration on the Principal Register of the P.T.O..
36). Plaintiff claims hat this registration was obtained and issued in error because the year the registration was issued (1971) there were, and still are, numerous (1000's) of legal businesses and corporations using the word olympic in each of the classes of goods the defendant claims exclusive rights in, in violation of 15 U.S.C. 1064 (c) and the plaintiff's rights under the Due Process clause of the Fifth Amendment of the Constitution.
COUNT NO. 14
Unfair Use of Trademark 980,734
37). Plaintiff claim's the defendant's mark, registration no. 980,734, has been used for the purposes on unfair competition in violation of 15 U.S.C. §1115(b)(7) of the Trademark Act and the plaintiff's right to be admitted on the register of the P.T.O..
38). Plaintiff claims that in 1978 the defendant gave notice to all the states that §380 of Amateur Act was in effect and that each state should now prevent their citizens, and the citizens of other states, from forming corporations using the word olympic, and also requested enforcement assistance (this mark was used on the notice) in violation of plaintiff's rights guaranteed by the Fourteenth Amendment of the Constitution.
39). Plaintiff claims unfair competition regarding this mark because the notice to the states suggests no policy regarding unincorporated businesses, and in effect, discriminates against corporations in violation of the rights of the class (corporations) of which the plaintiff claims membership, guaranteed by the Equal Protection clause of the Fourteenth Amendment of the Constitution.
COUNT NO. 15
Violation of Sherman Act, section 2
40). Plaintiff re-alleges jurisdiction based on 28 U.S.C. §1338(b), as this and proceeding counts are associated with Counts No. 13 & 14.
41). Plaintiff claims that defendant is attempting to exclude the plaintiff, and others "similarly situated" fro doing legal, unobstructed interstates commerce in the violation of the plaintiff's rights under 15 U.S.C. section 2.
42). Plaintiff claims the defendant has warned the general public, including the plaintiff, that litigation will follow any unauthorized use of the word olympic, which under present circumstances, is "impossible," due to the several thousand legitimate businesses and corporations now in existence, in violation of plaintiff's rights under the Fifth Amendment of the Constitution and in violation of the Sherman Act, section 2.
43). Plaintiff claims that the defendant appeared on network television August 1, 1984 to proclaim the Amateur Act and their rights under it, and this appearance was a blatant example of attempted monopoly in violation of the Sherman Act, section 2.
44). Plaintiff claims actions of the defendant's part designed to intimidate weaker opponents, while avoiding confrontations with those stronger than the defendant, is an illegal attempt to perpetuate a partial monopoly at the expense of the weaker party or parties, violation of the plaintiff's rights, and the rights of all others similarly situated, under 15 U.S.C. section 2.
COUNT NO. 16
Violation of Article I, Section 8, Clause 3
45). Plaintiff claims that the defendant is attempting to regulate interstate commerce, in violation of the rights of the plaintiff, and all others "similarly situated," guaranteed by Article I, section 8, clause 3, of the Constitution.
46). Plaintiff claims the Amateur Act includes illegal provisions which entitle the defendant to act in a predatory manner, to attempt to regulate legal commercial businesses and corporations in violation of the rights of the plaintiff, and all others "similarly situated," guaranteed by Article I, section 8, clause 3, of the Constitution.
47). Plaintiff claims that the Amateur Act is explicit in its prohibitions, and these prohibitions reach and include all persons, natural and artificial, in the United States, yet the defendant suggests to the states that they only prohibit corporations, in contravention of the Amateur Act itself, which prohibits all person, in violation of the rights of the plaintiff, and all others "similarly situated," guaranteed by Article I, section 8, clause 3, of the Constitution.
COUNT NO.17
Violation of 15 U.S.C., Section 15
48). Plaintiff claims that the defendant has illegally interfered with the plaintiff's right to trade, and plaintiff's business the right to exist in violation of the Sherman and Clayton antitrust acts.
APPENDIX B
FEDERAL COURT RECORD
TABLE OF EVIDENCE Case No. CV 85 481 RG, Central District CA
Clerk's record. Leo Oliver LaBranche Jr. v. USOC (A corporation)
Declaration of authenticity of television broadcast.
Exhibit 1, P.T.O. refusal.
Exhibits 3-6, C.B.S. broadcast transcript
Exhibits 7-10, Legal Trade Publication.
Exhibits 11, 16-26 assorted corporations, permits & licenses.
Exhibits 27-31, New York Certificates. [Good Standing]
Exhibits 32-36, Minnesota Certificates.
Exhibits 37-38, Indiana Certificates.
Exhibits 39-48, Wisconsin Certificates.
Exhibits 49-60, North Carolina Certificates.
Exhibits 61-65, Ohio Certificates.
Exhibits 66-69, Illinois Certificates.
Exhibits 70-72, Florida Certificates.
Exhibits 73-75, Georgia Certificates.
Exhibits 76-80, Maryland Certificates.
Exhibits 81-89, Texas Certificates.
Exhibits 90-94, Virginia Certificates.
Exhibits 95-97, Rhode Island.
Exhibits 98-101, Arizona Certificates.
Exhibits 102-105, Nebraska Certificates.
Exhibits 106-110, Oklahoma Certificates.
Exhibits 111-116, COLORADO Certificates-USOC home state.
Exhibits 141-153, Policy of states of N.Y, M.N., MA., OH., IL., IA., TX., R.I.,
AZ., NE., S.C., OK., WA.
Exhibits 154-158, New York list from tax board.
Exhibits 159-172, California computer print out.
Exhibits 197-199, Ohio computer print out.
Exhibits 200-203, Florida computer print out.
Exhibits 204, 205, Maryland reply w/list.
Exhibits 206, South Carolina letter reply.
Exhibits 224-227, Pennsylvania computer print out.
Exhibits 228, 229, New Mexico computer print out.
Exhibits 230-232, Certified letter sent by USOC to all states during 1978,
after amending 36 U.S.C. §§ 371 et seq..
Exhibits 233, Interstate Commerce Commission computer p/o.
Exhibits 237, Important letter reply from U.S. Copyright Office.
Exhibits 249, 250, F.S.L.I.C. computer print-out.
Exhibits 251-252, various refusals from Florida, Georgia,
Alabama, Michigan, and California.
Exhibits 256-258, Copyrights, 17 U.S.C. §§ 101 et seq..
Exhibits 297-300, Massachusetts corporations, list of contents.
Exhibits 521, 522, Microfiche No. 26 & 27 received from State of WA
Exhibits 523, 526, Compilation from microfiche.
These exhibits are a small percentage of the number of businesses and corporations throughout the United States.
End of Table of Contents of bound exhibits.
APPENDIX C
LEGAL BRIEF
IN SUPPORT OF AMENDED COMPLAINT
Jurisdiction:
This action arises under the Constitution of the United States: Article I, Section 8, Clause 3; Article IV, Section 1 and 2; the First Amendment; the Fifth Amendment; the Fourteenth Amendment; 15 U.S.C. §1051 et seq.; 17 U.S.C. §101 et seq.; and upon jurisdiction 28 U.S.C. 1138(b), and 15 U.S.C. Section 2 and 15.
Cause of Action:
They threatened to sue any users of Olympic which included me and also stopped me from getting a federal registered trademark for my company name and corporation. I took an affirmative position and sued them.
TABLE OF CONTENTS AND OFFENSES
I. Fifth Amendment: Due Process Non-enforcement/selective enforcement
II. Fifth Amendment: Due Process Right to Contract
III. Fifth Amendment: Due Process Pursue Chosen Profession
IV. First Amendment: Freedom from Prior Restraint
V. 1st, 5th, 9th, and 14th Amends. Over breadth of Legislation
VI. Article IV, §1. Full Faith and Credit Denied
VII. Article IV, §2. Property rights in Stock, and Trademark
VIII. Fourteenth Amendment: Equal Protection
IX. Fourteenth Amendment: Privileges and Immunities
X. 17 U.S.C. §101 et. seq. Denial of valid Copyrights
XI. Tenth Amendment: Persons and States rights
XII. Ninth Amendment: Privacy and Reputation
XIII. 15 U.S.C. §1051 et seq. Illegal Trademark registration
XIV. 15 U.S.C. §1051 et seq. Unfair Use of Trademark
XV. 15 U.S.C. §2, Sherman Act Attempted Monopoly
XVI. Article I, §8, Clause 3. Attempt to Regulate Int. Commerce
XVII. 15 U.S.C. §15, Clayton Act Interference with right to trade or exist
Cases Argued and Cited
Fourteenth Amendment: Selective enforcement
Yick Wo v Hopkins, (1886) 118 US 356, 359; 30 L Ed 220, 227; 6 S. Ct. 1064, 1070 the court stated,"If a law is applied and administered by public authority with an evil eye and unequal hand, so as to practically make unjust and illegal discriminations between persons of similar circumstances, material to their rights, the denial of equal protection is within the prohibitions of the Constitution. Louisville Gas & Electric v Coleman, (1928) 277 US 32, 37; 48 S. CT. 423, the Court said, "The Equal Protection clause of the Fourteenth Amendment means that rights of all persons must rest on the same rule under similar circumstances, and applies to the exercise of all the powers of the state which can affect the individual or his property." Distinguished in Frost v Corp. Comm. of OK, (1929) 278 US 515, 522; 49 S. Ct. 235. In Frost, the Court stated that it has "several times decided that a corporation is as much entitled to the equal protection of laws as an individual. The converse is equally true. A classification which is bad because it arbitrarily favors the individual as against the corporation certainly cannot be good when it favors the corporation as against the individual. In either case, the classification, in order to be valid, must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all person similarly situated shall be treated alike."
The state of California acted upon the USOC's instructions to selectively enforce section 380 against their citizens, including this citizen, even when defendant cannot gain this enforcement assistance and support for section 380 in any other leading commercial state in the country nor in Colorado, the state of incorporation of the defendant.
In Shelly v Kraemer, (1948) 334 US 1; 22 S. Ct. 836, the Court stated, "The Constitution confers upon no individual person the right to demand action by the State which results in the denial of equal protection of he laws to other individuals.
The defendant USOC has no right or authority to request the state of California, or any other state or agency to deny equal protection of the law to the plaintiff or any other similarly situated person.
Fifth Amendment: Selective enforcement and Due Process
In Johnson v Robison, (1974) 415 US 316, 365; 94 S. Ct. 1160, the Court said, "If a classification would be valid under the equal protection clause of the Fourteenth Amendment, it is also inconsistent with the due process clause of the Fifth Amendment." In USDA v Moreno, (1973) 413 US 528; 93 S Ct. 2821, the Court stated, "Under the equal protection analysis a legislative classification must be sustained if the classification itself is rationally related to a legitimate governmental interest."
There can be no rational basis for the distinction drawn between natural and artificial persons in California nor any rational basis for the distinction drawn between California businesses and businesses using olympic in 46 other states.
First Amendment: Prior Restraint
In Freedman v Maryland, (1965) 380 US 51, 57; 85 S. CT. 734 It was stated by the Court, "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."
36 U.SC. §380 provides that the defendant has licensing control over use of the word olympic. There will have to be reasonable and definite standard by which the defendant could "rent" the word olympic without the accompanying olympic designations. There can be no reasonable and definite standard made out as to "rent" the word olympic, nor can the word be diluted as the defendant suggests because there must be exclusivity in order for there to be dilution and there is no exclusivity. Vagueness in the system of licensing is established by his "lack of reasonable and definite standard" to use olympic as a guide for renting the word olympic.
In Interstate Circuit v Dallas, (1968) 390 US 676; 88 S. Ct. 12 the Court concluded that "the absence narrowly drawn, reasonable and definite standards for officials to follow [in licensing] is fatal. In Huntley v Public Utilities Commission, (1968) 442 P 2d 685, 688, the California Supreme Court sitting en banc stated, " Improper restraints on communication may vary in form and degree, but all have effect of restricting the dissemination of ideas. The clearest abuse is an "outright prohibition" of a constitutionally protected form of speech. Regulation short of "absolute prohibition" is also invalid when expression is made dependent on state approval by the obtaining of a permit, or is conditioned upon obtaining approval of a board of censors."
The USOC states that permission must be granted to use olympic but it remains to be discovered whether the defendant has ever rented the word to anyone without an accompanying olympic designation. It also remains to be discovered what reasonable and definite standard the defendant uses to determine who can and who cannot use olympic, how much it would cost, restrictions and limitations upon its use, duration of use, as well as other considerations, separate from an olympic trademarked designation.
"No one has the constitutional right to interfere with, restrain or coerce another in the exercise of the same right . . ." NRLB v Continental Oil, distinguishing NRLB v Link Belt Co., (1940) 311 US 584, 598; 61 S. Ct. 358.
The plaintiff claims the right to use olympic under the First Amendment provision which provides that persons are to be free from a prior restraint on the use of a spoken word.
Delegation of Licensing Power to a Private Corporation
"In our view the delegation by the Legislature (NY) of its licensing power to the Jockey Club, a private corporation, is such an abdication as to be patently an unconstitutional relinquishment of legislative power in violation of section 1 of Article III of the constitution of this state (NY) which provides: The legislative power of this State shall be vested in the Senate and the Assembly." Fink v Cole, (1951) 97 NE 2d 873, 876; 302 NY 216.
This is analogous to the provisions of the Commerce Clause of the U.S. Constitution in that Congress may not delegate powers to any person which in effect, or in fact, create the illusion of Federally granted power to license [olympic] over the entire field of commercial enterprise or endeavor. The legislative history of 36 U.S.C. § 371 et seq. bears a recital. These games have 'only' to do with amateur athletics. The defendant assumes the position as proprietor of the word olympic over the entire filed of commercial endeavor. This is grossly incompatible with the legislative history as defined by Senate Report No. 2523 regarding the Amateur Act.
COMMERCE CLAUSE - Article I, Section 8, Clause 3
"Activities that are beyond the reach of Congress under the commerce power are those which are completely within the particular state, and with which it is not necessary to interfere for the purpose of executing some general powers of government." Katzenback v McClung, 379 US 294; 85 S. Ct. 377.
"Authority of Federal government over interstate commerce may not be pushed to such extremes as to destroy the distinction between commerce among the several states and internal concerns of [the] state." NLRB v Jones & Laughlin Steel, (1937) 301 US 1; 57 S. Ct. 615.
The statue under attack makes no distinction between intrastate and interstate commerce, and it may well be true that most olympic businesses throughout the U.S. may be small, locally owned, intrastate businesses. Congress has no grant of power over the states in regard to purely intrastate business unless it substantially effects interstate commerce.
Right of Olympic Records, Inc. to Interstate Commerce
"The state cannot exclude from its limits a corporation engaged in interstate or foreign commerce . . ." Horn Silver Mining v New York, (1892) 143 US 305; 12 S. Ct. 403. "A corporation from one state may go into another without leave of license of the latter for all legitimate purposes of interstate commerce, and any statute of the latter state which obstructs or lays burden on the exercise of this privilege is void under the commerce clause of the Federal Constitution." Western Union v Kansas, (1910) 216 US 1; 30 S. Ct. 190. Pullman Co. v Kansas, (1910) 216 US 56; 30 S. Ct. 232. "Right to engage in interstate commerce is not a gift of the state and it cannot be restrained or regulated by the state, nor cab the state exclude from its limits a corporation engaged in such commerce." "It follows that under the commerce clause [a] corporation authorized by the state of its creation to engage in interstate commerce may not be prevented by another state from coming into its limits for all legitimate purposes of such commerce . . ." Sioux Remedy v Cope, (1914) 235 US 197; 35 S. Ct. 57.
"State has authority to control doing business within the state by foreign corporations but it is without power to use its lawful authority to exclude foreign corporations by directly burdening interstate commerce, as a condition of permitting them to do business within the state, in violation of he Federal Constitution." Looney v Crane Co, (1917) 245 US 178; 38 S. Ct. 85.
The state of California burdens interstate commerce by refusing Olympic Records, Inc. the right and ability to do business in the state.
Invalid Trademark Registration No. 968,566
In the case of G. & C. Merriam v Saalfield, (1912) 198 F 369 a Public Right doctrine was stated by the court, "Primarily, it would seem that one might appropriate to himself for his goods any words or phrase that he chose; but this is not so, because the broader Public Right prevails, and one may not appropriate to his own exclusive use a word which already belongs to the Public and so may be used by any one of the Public."
In Delaware Canal v Clark, (1871) 13 Wall. 311, 323; 20 L Ed 581, 583, the court held, "No one can claim protection for the exclusive use of a trade name or trademark which would give him a monopoly in the sale of any goods other than those produced by himself. If he could the Public would be injured, for competition would be destroyed." Distinguished in Standard Paint v Trinidad Asphalt, (1911) 220 US 446, 453; 36 S. Ct. 456. Also stated in Delaware, "There is no moral or legal wrong in the adoption or imitation of what is claimed by another as a trademark if it is just as true in it's application to the goods of the second adopter as to those of the first."
In United Drug v Theodore Rectanus, (1918) 248 US 90, 98; 39 S. Ct. 90, the Court held, "The owner of a trademark may not, like the proprietor of a patented invention, make a negative and merely prohibitive use of it as a monopoly." Distinguished in American Steel v Robertson, (1925) 269 US 372, 380; 70 L Ed 317, 320, in American the Court further stated, "The mere fact that one person has adopted and used a trademark on his goods does not prevent the adoption and use of the same trademark by others on articles of different description."
"No damages shall be recovered by a party failing to give notice of registration exception proof that the plaintiff or defendant was duly notified of the infringement and continued the same after notice." Stark Bros. v Stark (1920) 255 US 50; 41 S. Ct. 221. 15 USC §1111 provides the same authority as Stark. The defendant was precluded from using the notice provision provided for by 15 USC §1111.
DISCRIMINATORY USE OF TRADEMARK - Registration no. 980, 734
This trademark was used by the defendant on a letter sent to all the 50 States during 1978 requesting the selective enforcement of section 380 of the Amateur Sports Act. [Exh. 231] Regarding the plaintiff's torch: In Corning v Pasmantier, 30 Supp 477,480 (1939), the court made a visual comparison of the torch trademarks and found the question of infringement rested on a visual comparison of the marks.
The plaintiff has no registration for a torch though one is pending. The defendant has a torch in registration no. 980,734 but this torch is not mentioned or described in any way, thus neither the plaintiff nor the defendant have a registration for a torch and a visual comparison of the torches is a good test for infringement. Plaintiff used a pre-existing torch as a model from which his torch was derived. The model was not the olympic torch.
ATTEMPTED MONOPOLY - Sherman Act §2
"A monopoly in the United States created by contract or agreement with foreign corporations is unlawful." U.S. v American Tobacco, (1911) 221 US 106; 31 S. Ct. 632. distinguished in Bausch Machine v Aluminum Co., (2nd Circuit, 1934).
In Peto v Howell 101 F 2d 353, 358 (7th Cir. 1938), a classic explanation of a monopoly was states by the court, Monopoly is the acquisition of something for one's own self, not necessarily the whole of a given commodity or the whole commerce therein but control, at least, of a part thereof sufficient to constitute withholding from the public the right to deal therein in an open market." The source for this authority lies in U.S. v Keystone Watch, (D.C. PA 1915; 218 F 502. This court distinguishing Standard Oil v U.S., 221 U.S. 1; 31 S. Ct. 502, 516, stated, "Congress, in speaking of monopolies of any part of interstate commerce, must have had in mind such restraints of such part of that commerce as bring about an extraordinary control of any part of the commodities in the stream of commerce . . . the court added, The words 'to monopolize,' and 'monopolize' as used in this section [§2] reach every act bringing about the prohibited results."
"It is not of importance whether the means used to accomplish the unlawful objective are in themselves lawful or unlawful . . . " American Tobacco v U.S. (1945) 328 U.S. 781, 809; 66 S. Ct. 1125.
In U.S. v Griffith (1948) 334 US 100, 105; 68 S. Ct. 941, the Court stated, "It is, however, not always necessary to find specific intent to restrain trade or to build a monopoly in order to find that the antitrust laws have been violated. It is sufficient that the restraint of trade or monopoly results as the consequences of a defendant's conduct or business arrangements." Id. L Ed at 1243, "So it is that monopoly power, whether lawfully or unlawfully acquired, may itself constitute an evil and stand condemned under section 2 . . . for section 2 of the Act is aimed at the acquisition or retention of effective market control." The court continued, "Hence the existence of power 'to exclude competition when it is desired to do so' is in itself a violation of section 2, provided it is coupled with the purpose or intent to exercise that power." See, American Tobacco v U.S., SUPRA. The antitrust laws are as much violated by the prevention of competition as by its destruction."
In U.S. v Grinnel Corp., (1966) 384 US 563, 570, 571; 86 S. Ct 1698, the Court said, "The offense of monopoly under section 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power . . . Id. at L Ed 2d 787, "we [the Court] see no barrier to combining in a single market a number of different products or services where that combination reflects commercial realities."
In regard to (1) defendant's control over commerce in the United states, pursuant to section 380, indicates that the relevant market [of the defendant] as being the entire field commercial products and services and (2) here is no question as to the willful maintenance of the power of section 380.
In Hiland Dairy v Kroger (8th Cir. 1968) 402 F 2d 968, 971, the court stated, "Under the section 2 [Sherman Act] the attempt to monopolize must be 'likely to accomplish' monopolization, Kansas City Star v U.S., 240 F 2D 643, 663 (8th Cir. 1957), or afford a 'dangerous probability of monopolization." Also stated, "The specific intent necessary to support an attempted monopolization under section 2 must be shown by the conduct or acts from which a wrongful intent can be inferred."
DAMAGES UNDER 15 U.S.C. § 15
In Clark Oil v Phillips Petro, 148 F2d 580, 582 (8th Cir. 1945), the court stated its explanation of damages under the antitrust statutes. "The Sherman Act and the Clayton Act afford a cause of action for those suffering damages. In their provisions for damages hey embody both punitive and compensatory damages but no recovery can be had unless a case for compensatory damages is made. In the event of compensatory damages, the automatically punitive damages follow." In Clark, supra F 2d at 583, "[A]n action to recover treble damages under the Clayton Act is based upon tort and is not fixed by statutory provisions, but the damages are unliquidated."
15 U.S.C. § 24
The purpose and intent of 15 U.S.C. § 24 was analyzed in the case of U.S v Wise, (1962) 370 US 405, 413, 414; 82 S. Ct. 1354, in which the Court discussed its analysis regarding eh definition f he word "persons" as used in the antitrust laws not meant to exclude corporate officers and directors by stating, "The reasons for section 14 [Clayton Act] are sufficiently revealed by the legislative history . . . The reports provide no assistance but the debates do . ."[§14] is merely a reenactment of the Sherman law, sections 1, 2, and 3. It has always been held that the officers of corporations violating the law wee punishable under these sections."
The plaintiff holds that the 'artificial person' of the defendant [Federally Chartered Corporation] is only capable of injuring another person through a natural person, e.g., an officer, director, or authorized agent.
THE LANHAM ACT APPLIES TO 36 U.S.C. §371 et. seq.
In the amending of 36 U.S.C. § 371 et. seq. (1950) into the Amateur Sports Act of 1978, a provision was added to apply the rights and remedies available under the Trademark Act of 1946 [Lanham Act] to all existing rights and privileges encompassed in the Amateur Sports Act of 1978.
In the defendant's "Memorandum in Support of Summary Judgment, p.8 line 11, "As regards is constitutionality, section 380 presents no different issue that traditional trademarks and the right to exclusive use of the words comprising the mark that trademark law grants to the holder."
In the treatise on trademarks by Dubroff & Seidel, Trademark Law and Practice, §1:06 declaring the general principals regarding trademarks, "It must be of such a nature as to permit exclusive appropriation by one person . . . [U]nless the trademark performs its proper function, neither can the first adopter be injured by appropriation or imitation of it [TM] by others, nor can the public be deceived."
Olympic has not been exclusively appropriated by the defendant, whether rights exist to that effect, or not. It is important to note that olympic cannot be appropriated by any person, not even the defendant, and at this time the only way to exclusively appropriate olympic wold be to take it away from all other persons who have various rights and titles thereto, an impossible accomplishment.
WHEREFORE, the plaintiff prays that judgment be had against the defendant as demanded in his First Amended Complaint.
APPENDIX D
TABLE OF STATUTES and CASE LAW referenced since 06/84.
ARTICLE I, Section 8, clause 3 - - COMMERCE CLAUSE
NATL. LEAGUE OF CITIES v USERY 426 US 833, 49 L Ed 2d 245 (1976)
ARTICLE I, Section 8, clause 8 - - Intellectual Property
ARTICLE IV, Section 1 - - Full Faith & Credit
ARTICLE IV, Section 2 - - Privileges & Immunities
First Amendment: Speech, Assembly, Redress
i) INTERSTATE CIRCUITS v DALLAS 390 US 676, 20 L Ed 2d 225 (1968)
ii) NRLB v CONTINENTAL OIL 159 F 2d 326 (1947)
iii) HESS v INDIANA 414 US 105, 38 L Ed 2d 303 (1973)
iv) CANTWELL v CONNECTICUT N/A religion
v) HUNTLEY v PUBLIC UTL. COMM. 69 CAL Rptr. 37 (1968)
vi) GOODING v WILSON 405 US 518, 31 L Ed 2d 408 (1972) N/A
vii) F.C.C. & U.S. v RED LION BROAD. ?
viii) LARGENT v TEXAS 318 US 418, 87 L Ed 873 (1943) N/A
ix) GRAUSAM v MURPHEY (1971) N/A
x) FINK v COLE 97 NE 2d 55
xi) KEYISIAN v BOARD OF REGENTS 385 US 589, 17 L Ed 2d 629 (1967)
a) ZACCHINI v SCRIPPS-HOWARD B. 433 US 562, 53 L. Ed 2d 965 (1977)
b) CENT. HUDSON GAS v PSC of NY 447 US 557, 65 L. Ed 2d 341(1980)
c) BUSH v LUCAS 103 S. Ct. 2404 (1983)
d) BUCKLEY v VALEO 424 US 1, 46 L Ed 2d 659 (1976)
Fifth Amendment: Due Process & Equal Protection
i) NEBBIA v NY 291 US 502, (1933)
ii) PRUDENTIAL INS. CO. v CHEEK 259 US , 66 L Ed 1044 (1921) corps.
iii) JOHNSON v ROBISON 415 US 361, 39 L Ed 2d 389 (1974)
iv) RASULIS v WEINBERGER 502 F 2d 500
v) USD of A v MORENO 413 US 528, 37 L Ed 782 (1973)
vi) U.S. v ANTELOPE 96 S Ct. 1100 (1976)
vii) ANNOTATION: Due Process - he 5th & 14th Amendments. 47 L Ed 2d 975
a) HECKLER v MATHEWS 104 S. Ct. 1387 (1984)
b) USRRB v FRITZ 449 US 166, 66 L. Ed 2d 368 (1980)
c) SCHWEIKER v WILSON 450 us 221, 67 L.Ed 2d 186 (1981)
d) APTHEKER v SEC. OF STATE 378 US 500, 12 L Ed 2d 992 (1964)
e) GREENE v McELROY 360 US 474, 3 L Ed 2d 1377 (1959)
f) ADAIR v U.S. 208 US 161, 67 L Ed 437 (1908)
Ninth Amendment: Privacy
RIGHT OF PRIVACY - - Annotation: 43 L Ed 2d 871 S. Ct. views.
Tenth Amendment: States Rights
a) NATL LEAGUE OF CITIES v USERY 426 US 833, 49 L Ed 2d 245 (1976)
Fourteenth Amendment: Equal Protection
i) YICK WO v HOPKINS 118 US 220, 225 (1886)
ii) LOUISVILLE GAS & ELECTRIC 227 US 32, 72 L Ed 770 (1928)
iii) FROST v CORP. COMMISSION OF OK 278 US 515, 522 (1929)
iv) TRUAX v CORRIGAN 257 US 312 (1921)
v) SHAPIRO v THOMPSON 394 US 618, 22 L Ed 2d 600 (1969)
vi) COMMONWEALTH v INTERNATIONAL HARVESTER N/A
vii) FREEDMAN v MARYLAND N/A
viii) BARROWS v JACKSON 346 US 429 (1953) regarding Cal. enforce.
ix) GRAYNED v ROCKFORD 408 US 104, 33 L Ed 2d 222 (1972)
x) BLUMENTHAL v BOARD MED. EXAM 18 Cal Rptr. 501 const.
xi) PEOPLE (CA) v DUFFY 79 CA 2d Supp. 875; 179 p 2d 876 (1947)
xii) BYERS v BOARD OF SUPER. 262 CA 2d 148 (1968) constitutionality
Const. Amend. 14:
b) CLEMENTS v FASHING 102 S. Ct. 2836 (1982)
c) WASH. v SEATTLE SCHOOL DIST. 458 US 457, 73 L. Ed 2d 896 (1982)
d) CHALMERS v CITY OF LA 762 F 2d 753 (1985)
e) MINN. v CLOVER LEAF CREAMERY 449 US 456, 66 L. Ed 2d 659 (1981)
Ninth Circuit: 14th Amendment cases
f) HOFFMAN v U.S. 767 F 2d 1431 (1985)
g) RICHARDS v SEC. OF STATE 752 F 2d 1413 (1985)
h) PARKS v WATSON 716 F 2d 646 (1983)
i) LEGAL AID SOC. OF ALA. CTY v BRENNAN 608 F 2d 1319 (1979)
j) ADAMS v HOWERTON 673 F 2d 1036 (1982)
k) HIRST v GERTZEN 676 F 2d 1252 (1982)
Trademark Act of 1946: Title 15 U.S.C. §§1051 et seq..
i) UNITED DRUG v THEO RECTANUS 248 US 90, 63 L Ed 141 (1918)
ii) AMER. STEEL FOUNDRIES v ROBERTSON 70 L Ed 317, (1925)
iii) STANDARD PAINT. v TRINIDAD ASPH. 220 US 453, 55 L Ed 536 (1910)
iv) G. & C. MERRIAM CO. v SAALFIELD 198 F. 369 (1912)
v) FURNITURE HOSP. v DORFMAN 166 SW 862 (1914)
vi) CORNING GLASS WORKS v PASMANTIER DC NY (1939)
vii) WALKER PROCESS v FOOD CORP. 382 US 172, 15 L Ed 2d 247 (1965)
viii) U.S. v US GYPSUM CO. 333 US 364, 92 L Ed 762 (1947)
ix) QUAKER STATE v STEINBERG N/A
a) VUITTON ET FILS S.A. v J. YOUNG ENT. 644 F 2d 769 (1981)
b) ROYER v STOODY CO. False publications ("Crossroads")
c) REDKEN v CLAIROL INC. (IMPOVERISH LANGUAGE OF COMMERCE)
d) ELLAY STORES v SAVITZ 30 F Supp 462 (1939)
e) Application of DEISTER 289 F 2d 496 (1961) Patent law.
f) CONFUSION OF SOURCE [treatise 1st restatements torts - chap. 35
Copyright Act of 1976: Title 17 U.S.C. §§ 101 et seq.
COPYRIGHTABLE MATERIALS ¶ 505 - ¶ 2175
Entire code 17 U.S.C. 101-118
UNIVERSAL COPYRIGHT CONVENTION [Revised] entire text.
Sherman/Clayton Act - - Title 15 U.S.C. Section 1
Actions involving extraterritorial conduct: 24 Fed. Proc. L Ed §§ 54:115-122
a) U.S. v SOCONY-VACUUM OIL 310 US 150, (1939)
b) TREASURE VALLEY POTATO v ORE-IDA FOODS (1974)
c) FINCK v SCHNEIDER GRANITE 86 SW ___(1905)
d) U. S. v PARAMOUNT PICTURES 334 US 131, 92 L Ed 1260 (1947)
e) TODHUNTER-MITCHELL v ANHEUSER BUSCH 375 F Supp 610 (1974)
f) FLINTKOTE v LYSFJORD 246 F 2d 368 (1957)
Sherman/Clayton Act: Title 15 U.S.C. Section 2
a) JERROLD ELEC. v WESCOAST BROAD. CO. 341 F 2d 653 (1965) N/A
b) U. S. v GRINNELL CORP. 384 US 563, 16 L Ed 2d 778 (1966)
c) BAUSH MACHINE v ALUM. CO. of AMER. 72 F 2d 236,240 (1934)
d) U.S. v AMERICAN TOBACCO CO. 221 US 106, 55 L Ed 2d 663 (1945)
e) U. S. v GRIFFITH 334 US 100, 92 L Ed 1236 (1947)
f) AMERICAN TOBACCO v U.S. 328 US 780, 90 L Ed 2d 1575 (1945)
g) PETO v HOWELL 101 F 2d 23 (1939)
h) UNITED SHOE MACH. CORP. v U.S. 374 US 521, 98 L Ed 910 (1953)
i) HILAND DAIRY v KROGER 402 F 2d 968 (1968)
Sherman/Clayton Act: Title 15 U.S.C. Section 15
STARK BROS. v STARK 255 us 31, J. Holmes op. on damages under §15
CLARK OIL CO. v PHILLIPS PETRO. 148 F 2d 580 (1945)
ANTITRUST - TREBLE DAMAGEs - 16 ALR Fed. Pg. 14-69, [Lost investment]
PUNITIVE or EXEMPLARY DAMAGES RECOVERABLE, 47 ALR 2d 1118
CIVIL RIGHTS REMEDIES - - [42 USC 1983] Regarding standards for determ. injuries. Case - PATON v LA PRADE n. 15, 524 F 2d 862 (1975)
CIVIL RIGHTS STATUTE - 42 U.S.C. § 1983 from n 102-114, n 185-206, 522
Sherman/Clayton Act: Title 15 U.S.C. Section 24
U. S. v WISE 370 US 405, 8 L Ed 2d 590 (1962)
SUMMARY JUDGMENT
a) BUSHIE v STENOCORD No. 25536 (1972)
b) Asso. Press v U.S. 327 US 1-60 (1944)
c) MOORE v MATTHEWS No. 71-2186 (1972)
CASES INVOLVING THE OLYMPIC COMMITTEE
a) CHRIS BURTON v USOC No. 83-3088
b) MARTIN v I.O.C. 740 F 2d 670 (1985)
c) Stop The Olympic Prison v USOC
INTERNATIONAL AGREEMENTS
Protection of Industrial Property - - Convention of 1925
TRADEMARK AND COMMERCIAL PROTECTION - - Convention of 1929
Selected International Conventions - - Important regarding litigation.
PRINCIPALS OF INTERNATIONAL LAW
Federal Rules Decisions
a) FINANCIAL SECURITIES LIT. v PENN MART REAL. 74 FRD 497 (1975)
b) SHERMAN PARK COMM. ASSO. v WAUWATOSA 486 F Supp 838 (1980)
c) HOCKLEY v ZENT 89 FRD 26 (1980)
d) ROESBERG v JOHNS MANVILLE CORP 85 FRD 292 (1980)
e) WEINER v STUART 76 FRD 624 (1977)
TREATISES with regard to CONGRESS
LOBBYING: A Constitutionally Protected Right
Federal Regulation of Lobbying Act of 1946 PL 79-601
CONGRESS AND LAW MAKING, Researching the Legislative Process
By: Robert Goehlert. Clio Books
CAPITOL HILL MANUAL - - Frank Cummings
THE SUPREME COURT - - 1965 TERM - - Archibald Cox
TREATISES/TEXT BOOKS
CONSTITUTIONAL LAW - - AM JUR 2d, Volume 16-17, §§ 150-826
CONTROLLING TRIAL PUBLICITY - - 1 AM JUR TRIALS, 305-355
MOTION PICTURES AS EVIDENCE [Videos] - - AM JUR 8, 153-173
MONOPOLIES 54 AM JUR 2d, § 463-479, § 696-715, § 812-850
EVIDENCE - - 19 AM JUR 2d §§ 159-174, Presumptions & Inferences
OPENING STATEMENTS [Plaintiff & defendant] 5 AM JUR TRIALS, 285-329.
COMPARATOR FRCP & comparison to state rules.
DISCOVERY
HARVARD LAW REVIEW [Discovery] - - Vol. 74, 940-1046 (1960)
YALE LAW REVIEW [Discovery] - - Vol. 71, (1962) 371-436
REQUEST FOR ADMISSIONS [Plaintiff] - - 4 AM JUR TRIALS, 186-209
GENERAL PROVISIONS OF RULE 26 [Discovery] pg. 1.211-3.108
TRADEMARK/UNFAIR COMPETITION - - treatises
TM Infringement/Unfair Competition Laws - - 8 AM JUR TRIALS, 363-482
ADMINISTRATIVE AGENCY REVIEWS - - 2 AM JUR 2d, § 653-711
GOVERNMENTAL *IMMUNITY OF EXEMP FROM ANTI-TRUST LAWS
12 ALR FED., 329-359.
WHITTEN v PADDOCK, [*Immunity] Columbia Law Review. Vol 71, 140-156
CALLMAN UNFAIR COMPETITION - - p. 94-105
ANTI-TRUST - TREBLE DAMAGES - 16 ALR Fed. 14-69, [Lost investment]
APPENDIX E
FEDERAL RULES OF EVIDENCE
F. R. E. Rule 902(1) & 28 U.S.C. § 1739
1) "[E]vidence of authenticity as a condition precedent to admissibility is not required as to a document bearing a seal purporting to be that of the United States or of any state,. . . " Hunter, Federal Trial handbook 2d, § 58.6 at 679. Plaintiff relies on F. R. E. 902(1), as well as upon 28 U.S.C. § 1739, Hunter, Federal Trial Handbook 2d, § 58.7 at 681 and F. R. E. 902(4), Id. at 683 for admissibility of plaintiff's exhibits 27-140.
2) Plaintiff relies on 28 U.S.C. § 1739 and F. R. E. 901(b)(7) for admission of exhibits 141-153 of First Amended Complaint.
3) Plaintiff relies on 28 U.S.C. §§ 1733, 1739 for admission of exhibits 233, 237, 238, 239-246 (F. R. E. 1003) and 247.
4) Plaintiff relies on F. R. E. 803(6), 1001(3), for admission of exhibits 155-158, 160-172, 174-181, 184-196, 197-199, 201-203, 205, 207-220, 222, 224-227, 229, 234-236,248, and 250.
5) Plaintiff relies on 28 U.S.C. § 1732 {Federal Business Records Act} for admission of exhibit 504.
6) Plaintiff relies on F. R. E. 1006 for admission of exhibits 523-526.
7) Plaintiff relies on presumption "Omnia praesumuntur rite essa acta" as will be indicated by an (* ) in the forthcoming chart.
EXHIBIT NO. EVIDENCE RULE
1-2 28 U.S.C. § 1744.
3-6 F. R. E. 404(b), 405(b).
7-10 F. R. E. 902(6).
11* F. R. E. 1733(b), 1739.
12-14 28 U.S.C. § 1732.
16-22* 28 U.S.C. §§ 1732. 1733(b), 1739.
23-26 28 U.S.C. § 1732.
27-140* F. R. E. 902(4), 28 U.S.C. § 1739.
141-153 F. R. E. 901(b)(7).
154* F. R. E 901(b)(7)
155-158 F. R. E. 803(6)(8), 1001(3)
159* F. R. E. 901(b)(7)
160-172 F. R. E. 803(6)(8), 1001(3)
173* F. R. E. 901(b)(7)
174-181 F. R. E. 803(6)(8), 1001(3)
183* F. R. E. 901(b)(7)
184-196 F. R. E. 901(b)(7)
197-199 F. R. E. 803(6)(8), 1001(3)
200* F. R. E. 901(b)(7)
201-203 F. R. E. 803(6)(8), 1001(3)
204* F. R. E. 901(b)(7)
205 F. R. E. 803(6)(8)
206 F. R. E. 901(b)(7), 28 U.S.C. § 1733(b).
207-220 F. R. E. 1001(3)
221* F. R. E. 901(b)(7)
222 F. R. E. 803(6)(8)
223 F. R. E. 901(b)(7)
224-227 F. R. E. 1001(3)
228* F. R. E. 901(b)(7)
229 F. R. E. 1001(3)
230* 28 U.S.C. §§ 1733(b), 1739
231 28 U.S.C. § 1733(b), 1739
232* F. R. E. 902(4)
233* 28 U.S.C. 1733(b).
234-236 F. R. E. 1001(3)
237* 28 U.S.C. § 1733(b)
238* 28 U.S.C. § 1733(b)
239-246 F. R. E. 1003
247* 28 U.S.C. §§ 1733(b), 1739
248 F. R. E. 1001(3)
249-250 F. R. E. 1001(3)
251-255* F. R. E. 901(b)(7)
256-258* 28 U.S.C. §§ 1739, 1733(b)
259-265* 28 U.S.C. §§ 1739, 1733(b)
267-269 F. R. E. 1006
270-289 28 U.S.C. § 1744
290-295 28 U.S.C. § 1744
297-298* F. R. E. 901(b)(7)
299-300 F. R. E. 1006
301-503* F. R. E. 1003
504 28 U.S.C. § 1732
505-520 F. R. E. 1003
521-522* F. R. E. 1003
523-526 F. R. E. 1006
In regard to DOJ appeal No. 85-0521.
Exhibits A - K attached to appeal* 28 U.S.C. § 1733(b), 1739.
8) This list of exhibits and the rules under which the plaintiff will rely on at trial are not to be construed as limiting the plaintiff from using other authorities or rules that may be omitted from the instant request.
II
PRESUMPTIONS
9) Internal Revenue Service tax I. D. numbers for any company or corporation included in and as exhibits 27-140, 155-158, 160-172, 174-181, 184-196, 197-199, 201-203, 205, 206, 207-220, 222, 223, 224-227, 229, 234-236, 239-246 (Fed. I.R.S. I.D. No. included on these documents), 248, 250, 505-520, 523-526.
10) "Omnia praesumuntur rite essa acta" applies to each exhibit followed by (*).
11) Presumption that rightful owners of property are not likely to permit their property to remain in the continued possession of others that assert title thereto, and that the possession is authorized by some grant or license. Hunter, Federal Trial Handbook 2d, § 54.12 at 648. This presumption applies to trademark registration 968,566 and is equally applicable to section 380.
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