Lawsuit against FAIR

[juliann]

But I am sure their are bad judges who might decide to side with a bad lawyers case.

But this is not a bad judge, Dale.

[Dale]

Good. I am glad he is a good Judge. It's still a very slow process to resolve legal conflicts.

[USU78]

But I am sure their are bad judges who might decide to side with a bad lawyers case. The UTLM folks have not lost yet & it may be quite awhile before this matter get's fully resolved.

There's also this:

Wyatt raised some interesting jurisdictional questions in his motion that a federal judge just might be interested in writing on and having his written opinion published.

The trademark issues he's already written on at some length. Nothing new there to write on, unless the religious aspect of the dispute might have interest to the editors at West.

JM(cynical)O

[Confidential Informant]

Yes, the jurisdictional questions are really quite interesting in this case. The current jurisdictional laws were all formulated before the advent of the Internet so in some instances they aren't very well suited to make such determinations.

I think the specific personal jurisdiction question in this case is totally fascinating. Especially with the interplay between the "Effects" doctrine of Calder v. Jones and the Zippo analysis for web sites. I think the Tanners thought they could assert jurisdiction based only on the Effect doctrine while ignoring Zippo completely, but like I said, Calder was decided long before the advent of the internet (1984) and has some major factors which distinguish it from more recent Internet cases.

I wonder if Judge Kimball is as academically minded as some of the other judges on the Utah circuit such as Judge Cassell? Does he write much for publication?

I still the most devastating argument that Wyatt/FAIR team made was the Unclean Hands argument. Even if it is eventually unsuccessful it still has the tendency to permeate and taint all of the Plaintiff's claims and potentially turn the judge's decision against them even if he eventually rules for the Defendants on another, more substantive issue. I think that's why the Tanner's attorney spent so much time on that topic despite the fact that neither of the two defense attorneys really spent a lot of time on it.

C.I.

[smac97]

I'm curious. How did the Tanners' attorney explain away their use of the http://www.bookofmormon.com/ URL?

The Tanners use this URL as a "forced redirect" ("when an end user attempts to view one URL . . . [and the user is forced] to a different URL"). This, in my view, is worse than Allen's hyperlinks (which actually require a the end user to volitionally click on the link in order to be directed to the FAIR website).

What I think would have been really cool is if the Tanners had taken down this forced redirect after Allen's motion to dismiss had been filed. I think the court would have construed that as an admission that the unclean hands argument is valid (which is probably why the Tanners kept it up).

-Smac

[Dale]

Personally I liked Allens website the one with the Lighthouse on it. I personally hope he can put it back up if he wants to. Not sure he has an interest but I love to see the form of the Tanner website layout spoofed by someone a bit.

I am thinking the Tanners became concerned because the websites provided an critical view of what they were saying. When the had a book prior to the internet was not an easy way to rebut the content of their book. But the internet allows easily accessed counter material which may have caused some persons not to support UTLM anymore. So I figure if they lost some customers they had to find some way to minimize damage to their ministry.

[Confidential Informant]

I'm curious. How did the Tanners' attorney explain away their use of the http://www.bookofmormon.com/ URL?

The Tanners use this URL as a "forced redirect" ("when an end user attempts to view one URL . . . [and the user is forced] to a different URL"). This, in my view, is worse than Allen's hyperlinks (which actually require a the end user to volitionally click on the link in order to be directed to the FAIR website).

What I think would have been really cool is if the Tanners had taken down this forced redirect after Allen's motion to dismiss had been filed. I think the court would have construed that as an admission that the unclean hands argument is valid (which is probably why the Tanners kept it up).

-Smac

It's my understanding that they dind't "explain" it. They simply stated that it wasn't "related" to this current case. The case law, however, belies that claim (which is a point Wyatt's attorney made).

The Tanners only real point was that the LDS Church is competent to defend their own mark. Wyatt's attorney agreed but also stated that fact was irrelevant to the unclean hands argument.

C.I.

[Dale]

Interesting. But mark you mean the url of the Tanner website. So the idea is the LDS Church can sue them on their use of the URL if they want to? I thought the Tanners went after Allen Wyatt, and FAIR because he did something improper in their estimation. Unless I am misunderstanding I sense a legal double standard.

[Confidential Informant]

Interesting.

Very.

But mark you mean the url of the Tanner website.

Actually, no. the URL for the Tanners' website is www.utlm.org. They registered that URL and have used it for quite some time. However, they never bothered registering any sort of Trademarks of any sort.

Wyatt created his web site and then purchased unused URLs under unregistered marks such as www.utahlighthouse.com and www.jeraldtanner.org and www.sandratanner.org. All of the URL redirected to the Wyatt web site.

So the idea is the LDS Church can sue them on their use of the URL if they want to?

Yes, and the LDS church might have a stronger case than the Tanners do against Wyatt and FAIR. Wyatt's links went to a website that was clearly non-commercial. The Tanners only claim was that Wyatt linked to FAIR and since FAIR runs a book store that made Wyatt's site commercial. That argument isn't going to fly for a number of reasons.

However, the Tanner's use of the BOOKOFMORMON.com URL simply redirects a potential visitor to the Tanners website, a website which might (it's not settled) be considered as "commercial" because, unlike the Wyatt Web site, the Tanners' site does have economic uses right on the front page (a link to a long distance company, etc).

However, the fact that the LDS Church could sue the Tanners isn't the important part of Wyatt's claim for Unclean Hands. The Tanners are claiming that Wyatt hijacked their mark but redirected people to a website they weren't expecting. At the same time, they are engaged in exact same activity that they are seeking to enjoin Wyatt from engaging in. Thus, it's irrelevant whether or not the Church can sue, its only relevant that the Tanners have unclean hands.

I thought the Tanners went after Allen Wyatt, and FAIR because he did something improper in their estimation.

Correct, as explained above.

Unless I am misunderstanding I sense a legal double standard.

A double legal standard on the part of whom? The Tanners almost surely. Anyone else, no.

C.I.

[DH]

Sorry, but the link didn't work for me. What is the lawsuit about?

[smac97]

Sorry, but the link didn't work for me. What is the lawsuit about?

I posted a summary yesterday, but this is a long thread, so I'll put it up again:

1. Jerald and Sandra Tanner are a married couple who run a "ministry" ("Utah Lighthouse Ministry") in Salt Lake City that is critical of the LDS Church.

2. FAIR (this board's sponsoring organization) is a non-profit organization intended to defend the LDS Church and its beliefs and practices.

3. Allen Wyatt volunteers as the webmaster for FAIR. He is not paid for his work.

4. A while back Allen purchased some domain names that "spoof" or sound like they would belong to the Tanners (sandratanner.org, sandratanner.com, jeraldtanner.org, jeraldtanner.com, geraldtanner.org, geraldtanner.com, utahlighthouse.org, utahlighthouse.com, utahlighthouseministry.org, and utahlighthouseministry.com).

5. Allen used his own money and time to purchase these domains and build websites on them. These websites mimicked or parodied the Tanners. These websites also included hyperlinks to free articles on the FAIR website. These free articles were written in response to the Tanners.

6. The Tanners filed a trademark infringement lawsuit against Allen and FAIR in federal district court in Salt Lake City.

7. The attorneys for Allen and FAIR filed motions to dismiss the Tanners' lawsuit. The judge ordered oral argument on these motions. The hearing for oral argument was scheduled for today.

The legal arguments against the Tanners' suit are fairly complex, and I don't have time to summarize them here (Confidential Informant would be a much better person to provide such a summary). But here are a few tidbits:

-Allen's websites were clearly non-commercial. The Lanham Act (the federal statute that governs use of trademarks) generally requires that a plaintiff show that use of a trademark was for a commercial purpose.

-The Tanners' claims against FAIR are very tenuous. Basically, they are suggesting that Allen linked to free FAIR articles, and that FAIR has a bookstore elsewhere on its website. These links, the Tanners claim, are sufficient to render Allen's websites "commercial." I don't think the court will buy that argument, as it would virtually destroy the commercial/non-commercial distinction as to websites. That ain't gonna happen.

-There is a Ninth Circuit decision that is squarely on point and goes very much in favor of Allen and FAIR. Alas, Utah is in the Tenth Circuit, so the court isn't obligated to follow that precedent (although I think the court will consider doing so).

[DH]

smac97, gracias for the summary. I assume someone will post the decision here on the website? Are the parody websites still in operation? (Oh, I guess I can just type in the URLs and see--duh!) Aren't the Tanners the ones responsible for "The Godmakers?" Didn't they make money off that? Can the Church sue them?

Take care, and best wishes to Allen.

[Moksha]

Somebody earlier on wondered aloud if it wouldn't be better just to submit these type of cases involving the LDS Church, directly to the Appeals Court in Denver for a ruling.

[DH]

Hey, Moksha,

Is that Gandalf or Moses?! Or are they really the same man?

[DH]

Whoah, the implications if Gandalf and Moses are the same person....!!!!!

[smac97]

Daniel Heath,

> smac97, gracias for the summary. I assume someone will post the decision here on the website?

==That's a fairly safe assumption.

> Are the parody websites still in operation? (Oh, I guess I can just type in the URLs and see--duh!)

==Nope. As I understand it, they are no longer in control of Allen Wyatt. He transferred them into escrow some months ago. This was one of the uncomfortable things the Tanners' attorney had to deal with. The Tanners' attorney admitted at the hearing that their damages are likely "negligible" (CI's word). The appropriate remedy, then, would be for the Tanners to get the domains. But the domains were placed in escrow months ago, with instructions to the escrow officer to release the domain names to nobody but the Tanners. So if the proper remedy (control of the domains) is available to the Tanners without needing the court's intervention, then the purpose for continuing the lawsuit is . . .?

> Aren't the Tanners the ones responsible for "The Godmakers?"

==No. That was Saints Alive, run by a wackadoo named Ed Decker who lives up in Issaquah, Washington. The Tanners strongly disapprove of Decker and his outrageous anti-Mormon stuff (like "The Godmakers"). The Tanners have their faults, but they are head and shoulders above Ed Decker.

> Didn't they make money off that? Can the Church sue them?

==See above. The Church could sue Ed Decker, but that would just draw more attention to him. Decker lacks any real prominence anymore (even among anti-Mormons). His obscurity is best left undisturbed.

Moksha,

> Somebody earlier on wondered aloud if it wouldn't be better just to submit these type of cases involving the LDS Church, directly to the Appeals Court in Denver for a ruling.

==Pretty unlikely, I think. Jurisdiction generally resides with the federal district courts. Federal appellate courts have "original jurisdiction" (the jurisdiction granted a court to try a case in the first instance, make findings of fact, and render a usually appealable decision) in only a few areas, and I think the issues in the Tanners' lawsuit qualify.

==I can't recall precisely under what circumstances the circuit court of appeals would have original jurisdiction over a controversy. Perhaps one of our resident legal eagles can help out?

-Smac

[Confidential Informant]

Somebody earlier on wondered aloud if it wouldn't be better just to submit these type of cases involving the LDS Church, directly to the Appeals Court in Denver for a ruling.

Just out of curiosity...why should "these type of cases" be sent directly to Denver?

Oh, and this case has nothing to do with the LDS church. It's a trademark dispute, pure and simple and the Church is not a party on either side.

C.I.

[Dale]

About the only involvement of the LDS Church is that it's name is brought into the conversation. Anything bad alleged that Mormons do is used to hurt the LDS Church.