To threaten or not to threaten; The full letter

Since LCMS Inc. is denying that it has threatened legal action against Pastor Wilken and Jeff Schwarz, we at BJS thought that you should see the actual letter that LCMS Inc. sent them. Read it for yourself.

We have posted the letter at LCMSpolitics.org to make it easier to find in the future, and duplicate it below for our readers.

The PDF is here. The text of the letter is below.


Lynette Petruska, Esq.
Pleban & Associates, LLC
2010 south Big Bend Boulevard
St. Louis, Missouri, 63117

Re: ISSUES, ETC.; Our Ref 46324-80132

Dear Lynette:

Enclosed is a courtesy copy of a Notice of Opposition filed on December 2, 2008 on behalf of The Lutheran Church-Missouri Synod against U.S. Trademark Application No 77/487,948 filed by Harry B. Madsen. Though Rev. Wilken and Mr. Schwarz are not parties to this TTAB proceeding, we wanted to provide you with a copy of this filing, as it relates to matters we have been discussing.

We received your November 13, 2008 letter, and were disappointed in your clients’ response to our draft Agreement. We have discussed the letter with The Lutheran Church-Missouri Synod, and find many of the points raised in your letter to be in direct contradiction to what we understood to be an agreement in principle. While it remains our strong preference to continue negotiations and resolve this matter amicably between the parties, unless your client is willing to negotiate in good faith to finalize a mutually acceptable agreement in the near future, along the lines that we were discussing 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.

Sincerely,

Thompson Coburn LLP

By
Thomas A. Polcyn
TAP/sal
Enclosure

About Norm Fisher

Norm was raised in the UCC in Connecticut, and like many fell away from the church after high school. With this background he saw it primarily as a service organization. On the miracle of his first child he came back to the church. On moving to Texas a few years later he found a home in Lutheranism when he was invited to a confessional church a half-hour away by our new neighbors.

He is one of those people who found a like mind in computers while in Middle School and has been programming ever since. He's responsible for many websites, including the Book of Concord, LCMSsermons.com, and several other sites.

He has served the church in various positions, including financial secretary, sunday school teacher, elder, PTF board member, and choir member.

More of his work can be found at KNFA.net.

Comments

To threaten or not to threaten; The full letter — 25 Comments

  1. Quote: “…LCMS Inc. is denying that it has threatened legal action against Pastor Wilken and Jeff Schwarz”

    Technically, this appears to be true and the LCMS is right to deny that they have threatened to take action… the letter from the attorney is saying that his firm would have no alternative, but to RECOMMEND that the LCMS take legal action against Todd & Jeff. That is not the same as the LCMS threatening to take action. This is a law firm threatening to RECOMMEND to it’s clients (LCMS) that they take legal action. Apparently, the firm has not yet recommended legal action and the LCMS has made no decision to take any legal action against Todd & Jeff at this point in time.

    There is a line from this attorney that makes no sense to me.

    “…no alternative but to recommend that The Lutheran Church-Missouri Synod prosecute the opposition against Madsen’s application”

    Huh? Does this sentence make sense to anyone? Does this mean the law firm will recommend that the LCMS should prosecute themselves for opposing the Madsen application??? This is a very confused letter?

  2. SjB,

    Three questions:

    1) If it isn’t a threat, then what is it?

    2) If the purpose was not to threaten, then why mention the possibility of legal action at all?

    3) If this letter was addressed to you, would you consider it a threat?

  3. “We have discussed the letter with The Lutheran Church-Missouri Synod, and find many of the points raised in your letter to be in direct contradiction to what we understood to be an agreement in principle.”

    It is my understanding from the beginning, through all the conversations here and elsewhere, the terms were never acceptable.
    Hey even if Todd and Jeff have changed on what was acceptable then, it may not be now that Synod changed the rules.

    John

  4. A devil’s advocate question? Isn’t the threatened suit against Madsen and not Jeff and Todd directly? I just want to make sure we are all on the same page.

    Kiley Campbell

  5. It has been brought to my attention that the BOD meets this week (nov 19-20), and the COP meets this weekend. Get your emails sent to your DP and the BOD ASAP! Click on those links to get contact information from LCMSpolitics.org.

  6. John,

    There never was “an agreement in principle” with the LCMS. For some reason they persist in saying that.

    The only thing we ever agreed (and that tentatively) to was an outline for discussion at the very beginning of this. That soon fell apart after they started making egregious demands.

    Let me make this absolutely clear: Contrary to what you may have read in the Reporter or elsewhere, there never has been any agreement, in principle or otherwise. This “agreement in principle” is a fiction.

    TW

  7. Publicola,

    I had no intention of being disruptive. I am trying to understand the letter and I find the situation confusing.

    I do see it as a threat. I see it as a threat from an attorney to RECOMMEND to the LCMS that they take legal action. As far as I can tell, at this point, it has neither been accepted nor rejected by the LCMS. Hence, it is a threat from an attorney and not yet a threat from the LCMS.

    Yes, I would feel threatened, but only by the possibility that the LCMS would take the law firm’s advice. I could not yet call it a real threat against me until I knew if the LCMS would take their advice. The LCMS is under no obligation to accept their advice and has not yet threatened me. And I certainly would not like getting a letter like this one. I hope that makes sense?

    I find the wording here in the letter very confusing: no alternative but to recommend that The Lutheran Church-Missouri Synod prosecute the opposition against Madsen’s application Huh? The LCMS should prosecute itself? The LCMS is the opposition against the Madsen application.

    Basically, the letter makes no sense to me except as hot air from a posturing attorny, But then again… neither does it make sense to think I would have rights to a trademark I had abandoned 10 years earlier.

  8. Synod, Inc. is parsing words. No they didn’t DIRECTLY threaten a lawsuit, so they can say that they didn’t since the “threat” comes in a letter that technically says that if thus, then so. The technicalities are how Syond, Inc. can say one thing to the public but MEAN something else completely. How two-faced. 🙁

  9. These lawyers are not doing this on their own. They work for the LCMS. If the LCMS wants to distance themselves from these lawyers they can. All LCMS, Inc. has to say is we will not sue Pastor Wilken, Mr. Jeff Schwarz and Mr. Madsen. They can fire the lawyers and go about doing the business of running Synod, Inc. The lawyers are doing what the leaders of LCMS, Inc. want done. LCMS, Inc. is not doing what the lawyers want unless the lawyers are running LCMS, Inc.

  10. Everyone here is missing the point, or at least the obvious.

    1. Why would LCMS, Inc. wait until the very last day possible to file legal action, to then file that action over a trademark they gave up 10 years ago? A trademark they showed absolutely no interest in renewing, up to and including canceling the very show that used that trademark, as well as telling Todd & Jeff directly that they had no interest in the trademark while allowing them to go forward using the name “Issues, Etc.” for the new show?

    2. What business does a Christian denomination, so-called, have in bringing a suit against a fellow Christian, Harry B. Madsen, and threatening legal action (despite their denials, no one could interpret the letter as anything other than a threat of legal action) against an ordained pastor of the Lutheran Church Missouri Synod?

    Points 1 and 2, in my opinion, can only lead to one conclusion. This is about power politics. It is about threatening Todd & Jeff with financial loss through legal intimidation tactics, forcing them to retain attorneys and pay huge legal expenses to defend themselves. In my opinion, this is nothing more than pure legal harassment, in an attempt to bring them to the table to sign away their right to speak out against Kieschnick and LCMS, Inc., to silence a popular voice of criticism (Issues, Etc., after cancelation, has gone on to become far bigger and more successful than LCMS, Inc. ever dreamed).

    This is about LCMS, Inc. playing the kinds of games corporations play. It’s about protecting those at the top from criticism, as well as protecting their precious programs (Ablaze!) from criticism. It’s about silencing the opposition through hardball tactics and intimidation.

    Does any of that sound Christian to you? It doesn’t to me. My opinion is that President Kieschnick needs to sincerely repent, as do the entire BOD, and they need to drop this action immediately. They should publish a public apology to all involved, especially over such a misuse and waste of LCMS finances.

  11. I had a lawyer draft a letter for me “threatening” my neighbor that a lawsuit could follow if she did not do some certain things. My lawyer told me he could not directly threaten anyone since it is against the law, but he used similar language that is in this letter from LCMS’s attorney. Basically, its a threat without being illegal.

  12. ” and take action against your clients ” is directed against Pr. Wilken and Mr. Schwarz, period. While Coburn admits that Pr. Wilken and Mr. Schwarz have nothing to do with the trademark dispute, he still writes that he may have no choice but to recommend that LCMS, Inc. take action. That is a threat.

    Put another way, if someone was to walk up to me and say “you’ve agreed to give me your wallet and if you don’t give it to me I’m going to hit you with a tire iron because that’s the terms that I want you to agree to” well, well, that’s a threat and I need to treat it as such.

  13. TW8
    Todd,
    I did not want to imply that you changed stance. I know better. My real point was the implication of Sinod that you did somehow agree with them.
    I just said it twisted. Typical.
    I make a better smart alec.
    IE; see synod above
    John

  14. SjB #2,
    ““…no alternative but to recommend that The Lutheran Church-Missouri Synod prosecute the opposition against Madsen’s application”

    Huh? Does this sentence make sense to anyone?”

    They mean that they will recommend to prosecute the Synods opposition to the Trademark. In other words to take action to oppose the trademark application.

    Which, by the way, it appears they already are doing and have been doing.
    Sam

  15. Maybe I’m misreading something but it seems like the legal action they are threatening is the continuation of their opposition to the trademark application. They will withdraw their opposition if they have full control of content and could in effect shut it down at anytime for any perceived violation of what they consider appropriate. It does not seem to reference any separate legal action.

  16. I find it interesting that all of a sudden LCMS Inc is interested in keeping the trademarked name of a show that was supposedly bankrupting KFUO. They were incredibly eager to blame the financial failure of the entire radio show on “Issues ETC.” but suddenly now they can’t live without it.

    Maybe it’s because the guest speakers won’t even show up to their own “Afternoon Show.”

  17. I like the “plausible deniability” here. I agree with Ross up there, the LCMS could put out this kerfuffle very easily by making a public announcement that they would never sue another Christian, specifically Pastor Wilken and Mr. Schwarz. Doing something brave and take that option off the table is bad business but good religion.

    That aside, I wonder if Pastor Wilken has considered changing the name of the show? “Issues” is such a Liberal Boomer word (no offence to all the Boomers out there), whereas LPR and Pirate Christian Radio have some panache. Think Romans 12:20. Just my opinion, humble as it is.

  18. I suppose they could try to sue Todd and Jeff over trademark infringement, but given that Madsen had obtained permission from the government for its use during his application it would be a tough sell. That’s not to say it couldn’t be done, it would just be without merit.

  19. “We have discussed the letter with The Lutheran Church-Missouri Synod…. ” I wonder how they did that. Members of the Lutheran Church-Missouri Synod include voting members (pastors and congregations) and advisory members (certain rostered laymen). How many of the members were contacted for discussions with this law firm. As far as I know, neither the congregation I am a member of nor my pastor were contacted.

    It is not accurate to say that the lawyers waited until the very last day to file opposition to Harry Madsen’s registration of “Issues, Etc.” They filed it earlier but forgot to send a copy to Madsen. Their opposition was initially dismissed because of that. Upon being informed of this by the US Patent and Trademark Office, they refiled and this time they sent a copy to Madsen.

  20. The case could be made that the LCMS seeks to retain the rights to episodes that were aired during their ownership of the show. I am not sure how their rights would be affected if the trademark was owned by someone else. IF the new ownership would impact their rights then some other things do not add up.

    Why the abrupt removal of all mention of the show from the website after cancellation?

    Why were materials with the name on them sent to LPR?

    I think most importantly of all, why does their offer not seek only those rights, why seek total control if it is about something else?

    In their Trademark Assignment and License Back, they claim a desire to utilize past online archives, CDs and related merchandise on a limited basis (OPP-8.PDF p49). This does not seem to click with their abrupt removal of the archives, the destruction of years worth of CDs and the surrender of merchandise to LPR.

    They do seem intent on retaining rights to their archived material (ibid. p50). LPR can use the archives, provided they remove any reference to LCMS trademarks to ensure syondical endorsement is not inferred (ibid. p51). I doubt most listeners to the show would draw such a conclusion given the current state of synod. One certainly does not want to be portrayed as tolerating an opposing opinion.

    Under their proposal the show would not be allowed to air anything that “disparages the LCMS or in any way casts the LCMS or its members in a negative light.” (ibid. p51) The consequence of which is unless it is rectified or a plan to rectify it is submitted to synod within 15 days of written notice all rights to the trademark revert to synod (ibid. p52). If they only sought to retain rights to shows created under their ownership why add this?

    They also want any legal action to be without a jury trial and the winner in any court case can seek to recover legal fees from the other party (ibid p53).

  21. In a sentence, Jerry wants even more control than he had when they were on KFUO (earning their own keep, with a percentage to the house besides).

  22. Perhaps Pres. Kieschnick realizes that he made a mistake in canceling Issues Etc. And I do believe he was the one who canceled it, since all I’ve heard of David Strand indicates that he would never make a decision like that on his own authority.

    But now Kieschnick has a show with a lot more audience & credibility than other so-called rogues in the synod, like a certain newspaper I could name, & he has absolutely no control over it. And they don’t have a problem saying that the emperor has no clothes on. At least, when they were under the thumb of KFUO Kieschnick had control.

    Anyway, I don’t see the numerous other church bodies & purpose driven pastors who have been criticized by Issues over the years suing to place a gag order on the show. Only the LCMS.

  23. Not only is Issues, Etc. critical of LCMS, Inc. but it is attracting potential Ablaze dollars. What’s next – some type of threat at BJS? Lot of fires for Dr. Kieschnick to extinguish prior to 2010.

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