Oh, you mean that legal threat!

President Kieschnick continues to claim that he is “not aware of any …threat of any lawsuit against Rev. Todd Wilken or Jeff Schwarz.”

This is odd, since, on three separate occasions before Dr. Kieschnick made that statement, Pastor Wilken and Jeff Schwarz emailed the individual members of the LCMS BOD –including Dr. Kieschnick.

As you can read for yourself, all three of these emails describe in some detail the LCMS BOD’s letter threatening to recommend legal action against Pastor Wilken and Jeff Schwarz. The January 17 and February 16 emails were even sent with a copy of the actual letter attached.

So, after reading these emails from Pastor Wilken and Jeff Schwarz to the members of the LCMS BOD (including Dr. Kieschnick), ask yourself, how could Dr. Kieschnick be unaware of any threat of any lawsuit against Rev. Todd Wilken or Jeff Schwarz?

January 17

Dear LCMS Board of Directors Member,

In the name of Jesus, greetings.

We are writing to you and every member of the LCMS Board of Directors concerning what appears to be a change in the Board’s position regarding our use of the “Issues, Etc.” name for our new radio program.

When we began dealing with the LCMS over the “Issues, Etc.” name, we were under the impression that the LCMS BoD was not opposed to our use of the name for our radio program.

This remained our belief, especially after the Board’s announcement in the August edition of the Reporter:

“…the Board authorized its general counsel to prepare a release for use of the LCMS-owned trademark for the radio program “Issues, Etc.,” the archived programs, and related materials to Rev. Todd Wilken and Jeff Schwarz. Wilken and Schwarz intend to continue the program, which was dropped by KFUO. According to Schultz, the Board expects the agreement will help bring the recent programming issues to a positive conclusion.”

However, recent action by and communication from synod’s legal counsel (opposing a trademark application for the name, and threatening to recommend that the LCMS take legal action against us personally) have led us to believe otherwise.

A brief review of the events surrounding the “Issues, Etc.” name may be helpful:

According to the US Trademark office, in October of 1999, the LCMS cancelled its trademark on the name “Issues, Etc.” Please note that this was almost ten years ago.

On March 18 2008, the LCMS cancelled the radio program bearing the name “Issues, Etc.”

In May 2008, we asked Mr. Harry Madsen, president of Lutheran Public Radio, to make application for the name “Issues, Etc.” with the US Trademark Office. Mr. Madsen applied on May 31, agreeing to arrange for us to use the name for our new radio program.

On September 9 2008, an attorney for the LCMS BoD sent us a proposed “Trademark Assignment and License Back” agreement. Among other things, this proposed agreement would have required, 1) that we concede that the LCMS still holds the trademark, 2) that we cause Mr. Madsen to abandon his application for the trademark, 3) that we submit to a broad non-disparagement clause regarding the LCMS, and 4) that we waive our rights to a jury trial in the event of a breach in the agreement.

For obvious reasons, we found this proposal unacceptable and informed the Board’s attorney of such on November 13.

On November 4, Mr. Madsen’s application for a trademark on the name “Issues, Etc.” was published by the US Trademark office in the Official Gazette, and a Notice of Publication was issued.

On December 7, the LCMS filed a Letter of Opposition to Mr. Madsen’s trademark application.

Finally, on December 16, the attorney for the LCMS BoD sent a letter to our attorney, informing us of the Board’s Letter of Opposition, and threatening to recommend legal action against us personally. You will find this letter, as well as the Letter of Opposition attached to this email.

The argument in the LCMS’s Letter of Opposition indicates that the LCMS BoD is now opposed to our use of the name “Issues, Etc.” in principle. The threat of legal action against us personally makes it appear that the Board now opposes our use of the name for our radio show in particular.

Since no vote regarding this matter is recorded in the minutes of the BoD’s most recent, November meeting, we are at a loss to explain this apparent change in the Board’s position.

In any case, we find the BoD’s apparent change of position regrettable. We fail to see how opposition to Mr. Madsen’s trademark application or a threat of legal action against us personally will serve to “bring the recent programming issues to a positive conclusion.”

Wir sind alle Bettler,

Todd Wilken, Host
Issues, Etc.

Jeff Schwarz, Producer
Issues, Etc.


February 8

Dear LCMS Board of Directors Member,

In the name of Jesus, greetings.

Again, we are writing to you and every member of the LCMS Board of Directors concerning events that have transpired since our January 17 email to you regarding the trademark “Issues, Etc.”

Shortly before our last email, we approached Ron Schultz through Southern Illinois District President Herb Mueller, and offered to meet with Mr. Schultz without attorneys present. Mr. Schultz refused, stating that he had been advised by LCMS legal counsel that he should not meet with us without counsel present.

On January 30, the attorney for the LCMS BoD sent a letter to our attorney, acknowledging our email January 17 to each of you, and urging us to meet with him and Mr. Schultz sometime early in February.

On February 6, while still considering that request, we were contacted by President Mueller again, this time acting on a request from Sherri Strand, Chief Legal Counsel for the LCMS.

In an email addressed to us, Sherri Strand, Ron Schultz and Tom Polcyn, President Mueller urged both sides to meet, with legal counsel present, and attempt to resolve the dispute over the “Issues, Etc.” trademark.

After careful consideration, we must decline to meet with Ron Schultz and LCMS legal counsel at this time. We believe that you, as a member of the LCMS BoD, should be fully informed of our reasons. We also plan to publicly inform our listeners of our current situation and of these reasons. They are as follows:

1) The LCMS BoD still actively opposes Harry Madsen’s trademark application for the “Issues, Etc.” name. We have no authority or standing in that dispute.

2) The LCMS BoD still threatens to take legal action against us personally. We will not enter into any negotiation under the threat of a lawsuit.

3) The LCMS BoD proposes nothing new, and what they have proposed before (the “Trademark Assignment and License Back”) remains unacceptable on several points. We will not concede that LCMS owns the “Issues, Etc.” trademark. We will not ask Mr. Madsen to abandon his trademark application. And, we will not sign away our First Amendment or Seventh Amendment rights.

If the BoD offers another proposal that does not include any of these egregious demands, or others like them, we will consider a meeting.

4) Finally, the meeting that LCMS legal counsel is requesting would be costly. We prefer to spend our donors’ money on the broadcast of the Gospel, not on lawyers. Again, we have offered, and continue to offer to meet with Mr. Schultz without attorneys present.

As some of you may have already realized, the easiest, cheapest and smartest way to resolve this situation would be for the LCMS BoD to withdraw its Letter of Opposition to Mr. Madsen’s trademark application, and withdraw its threat of legal action against us.

That would immediately end this entire dispute, cost nothing, and achieve the BoD’s stated goal to “help bring the recent programming issues to a positive conclusion.”

Wir sind alle Bettler,

Todd Wilken, host
Issues, Etc.

Jeff Schwarz, producer
Issues, Etc.


February 16

Dear LCMS Board of Directors Member,

In the name of Jesus, greetings.

We are writing you again concerning one of the recent developments in the LCMS BOD’s threat of legal action against us.

It has come to our attention that Ron Schultz has been responding to inquiries regarding the LCMS BOD’s threat, denying that any threat has been made.

In a response to one inquiry, Mr. Schultz wrote:

“…contrary to what you may have heard, nor has the LCMS threatened to sue them. Apparently, Rev. Wilken has been telling people that the LCMS has threatened to sue him by referring to a letter our attorney wrote to his attorney encouraging them to negotiate in good faith. Rev. Wilken has taken part of the letter out of context and mischaracterized it as a threat by the LCMS.”

As we have before, we are attaching a PDF file of the actual letter, dated December 16, 2008, which our attorney received from Tom Polycyn. The relevant section reads:

“Unless your client is willing to negotiate in good faith to finalize a mutually acceptable agreement in the near future, along the lines that were discussed last summer, we will be left with no alternative but to recommend that The Lutheran Church-Missouri Synod prosecute the opposition against Madsen’s application and take action against your clients to enforce its rights to the trademark.”

As you can see, this letter threatens to recommend to you, the members of the LCMS BOD, two actions. First, “to… prosecute the opposition against Madsen’s application.” Second, “to… take action against your clients to enforce its rights to the trademark.”

The LCMS BOD has acted on the first recommendation, and is actively opposing Harry Madsen’s trademark application for the “Issues, Etc.” name.

Therefore, it is reasonable to expect that the LCMS BOD will also act on the second recommendation, “to… take action against your clients to enforce its rights to the trademark.”

In any event, we have neither taken out of context, nor mischaracterized anything in this December 16th letter.

We have received no communication from the LCMS BOD that in any way indicates that its threat of legal action against us has been withdrawn or retracted.

We are disappointed that Mr. Schultz would deny the BOD’s threat of legal action. We are further disappointed that he would accuse us of taking part of the December 16th letter out of context, and of mischaracterizing the content of the letter.

If the LCMS BOD has withdrawn or retracted its threat of legal action against us, or wishes to do so, then we would appreciate it if this withdrawal or retraction would be communicated to us in writing.

Wir sind alle Bettler,

Todd Wilken, host
Issues, Etc.

Jeff Schwarz, producer
Issues, Etc.


Comments

Oh, you mean that legal threat! — 15 Comments

  1. I can only presume that they think we’re all idiots, who tune in to idiots for 2 hours weekdays.
    Or–worse–that they think Wilken, Schwarz, and the entire audience of Issues, Etc. think and act on the same level as they.

  2. A couple of maxims might be in order: If one ignores truth long enough, it becomes difficult to recognize it. If one tells oneself a lie long enough, one begins to believe it. Sadly, this is most certainly true

  3. Rev. Wollenburg,
    What you say is true and very sad, but the truth is here to see in the light of day. It is hard to deny these facts. The truth or lack of it may lead to the undoing of some who cannot embrace it.

  4. To #1:

    “I can only presume that they think we’re all idiots,”

    Sad to say, I came to that conclusion a long time ago.

  5. In law, it’s all about the billable hours. Any idiot knows that. In spring 2008, LCMS,Inc made Mr. David Strand the face of the Synod during and after the firing of Wilken/Schwarz. Now, Mrs. Sherri Strand and her business/law partners stand to earn a good deal of the LCMess’s $450k legal reserve. A “you owe us” scenario?

    Think about it. All this time, money and embarrassment to the reputation of Lutheranism, fighting for the name of a program that we were assured “only about seven people listened to, anyway.” A show so insignificant that LCMEss powers-that-be apparently didn’t think anybody would miss it.

    One hand washes the other. And bullies rarely work alone. That smell is not incense.

  6. To quote a member of the British House of Commons:

    “The House has noticed the Prime Minister’s remarkable transformation in the last few weeks from Stalin to Mr. Beane… creating chaos out of order rather than order out of chaos.”

    Ahh… the clarity of British wit. 😛

  7. Saw this joke at Arcamax and thought it might be appropriate for President Kieschnick and the current situation in the LCMS.

    Three Envelopes

    A new manager spends a week at his new office with the manager he is replacing. On the last day the departing manager tells him, “I have left three numbered envelopes in the desk drawer. Open an envelope if you encounter a crisis you can’t solve.”

    Three months down the track there is a major drama, everything goes wrong – the usual stuff – and the manager feels very threatened by it all. He remembers the parting words of his predecessor and opens the first envelope. The message inside says “Blame your predecessor!” He does this and gets off the hook.

    About half a year later, the company is experiencing a dip in sales, combined with serious product problems. The manager quickly opens the second envelope. The message read, “Reorganize!” This he does, and the company quickly rebounds.

    Three months later, at his next crisis, he opens the third envelope. The message inside says “Prepare three envelopes”.

    Paul

  8. The first email appears to be written in the hope that the Board of Directors was not aware and did not approve of the December 16th letter threatening Todd and Jeff with legal action. This hope appears to be based on the fact that the previously recorded decision to “release for use” (not “license for use”) the Issues Etc. trademark had not been rescinded, and no decision to oppose the trademark application and/or threaten Todd and Jeff with a lawsuit had been recorded in the published minutes of the Board’s meetings. Given these circumstances one might hope that a rogue executive in the LCMS hierarchy was taking action on behalf of the Board without its knowledge or approval.

    All that hope appears to be missing from the last email. It appears to be written on the assumption that the Board of Directors was and is aware of the threat and approved the making of it. This raises a lot of questions, most of which have already been asked in some form or another on this blog.

    From the perspective of Issues Etc. supporters the Board of Directors is being incredibly fickle — first deciding to “release” the trademark, and then fighting to hold onto it. From the Board’s perspective there is a certain consistency to their actions. Throughout this entire process LCMS, Inc. has always acted on the belief that it owned the “Issues Etc.” name.

    I suspect much of LCMS, Inc.’s case before the U.S. Patent and Trademark Office will hinge on Todd and Jeff’s written request to obtain the trademark, which they submitted back in June(?) as a condition for getting the matter on the Board of Directors agenda. The outcome of this matter may ultimately rest on the answer to certain questions related to that request.

    Does the request constitute a concession, real or implied, that LCMS had or has some legal right or claim to the “Issues Etc.” trademark?

    If so, who was making that concession? Was it an agent of the applicant acting on his behalf?

    I am no lawyer, but I think that request will wind up being the crux of the case, because I can think of no other valid legal basis for LCMS claiming ownership of the trademark. I also believe Harry Madsen and Lutheran Public Radio are well-positioned to prevail. I pray he does.

  9. It’s not that they presume we’re all idiots, it’s that they presume that there aren’t enough of us to make a difference or to concern them.

  10. It really seems to be quite simple, the BoD is simply saying, I know that you believe you understand what you think I said, but I’m not sure you realize that what you heard is not what I meant.

    Or quite possibly it’s all about that little story amongst Everybody, Somebody, Anybody, and Nobody.

    There was an important job to be done and Everybody was sure that Somebody would do it.

    Anybody could have done it, but Nobody did it.

    Somebody got angry about that because it was Everybody’s job.

    Everybody thought that Anybody could do it, but Nobody realized that Everybody wouldn’t do it.

    It ended up that Everybody blamed Somebody when Nobody did what Anybody could have done.

  11. Actually, I think at one of the Bd meetings someone must have said, “Just drop the Issue,” and someone took it out of context.

  12. “it’s that they presume that there aren’t enough of us to make a difference or to concern them.”

    Or, they think that we Confessional Lutherans can’t unite together long enough to make a difference. If they believe any of these to be the case, they are sadly mistaken.

  13. Somebody help me out here…Which of the parties in this business isn’t acting in good faith? Hmm…

  14. Hows could the Issues, Etc. trademark have been both divorced from the LCMS (the condition for the current program) and married to the LCMS (the archived programs) — as the BOD resolution required? It would have been a source of continuing confusion. Is Issues, Etc. a program of the LCMS? Well, yes and no.

    Whether the POS played any part in initiating or encouraging the action to regain ownership of the trademark for the LCMS is beside the point. His responsibility was to advise against it and to object to expending scarce synodical funds on unnecessary legal actions.

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