Gay Adventist Film in the Making Faces Legal Challenge

[John317]

Gay Adventist Film Faces Legal Challenge from Church Over “Trademark Infringement and Dilution”

Posted June 18th, 2010 by Online Editor

Seventh-Gay Adventists: A film about love, sex, and eternal life is a small, independent documentary being produced by the San Francisco-based husband and wife team of Stephen Eyer and Daneen Akers. Back in November, 2009, Adventist Today interviewed the couple about the challenges associated with making this film.

The couple reports that a few weeks ago, they received a "cease and desist" letter from the law firm that represents the General Conference Corporation of Seventh-day Adventists (GCCSDA), the legal entity that holds the rights to the trademark of “Seventh-day Adventist.” The church 's legal team asserts that the film title infringes on and dilutes the Seventh-day Adventist trademark. Part of the letter reads:

“Your use and modification of the SEVENTH-DAY ADVENTIST mark in this manner is without permission of the GCCSDA and/or the church, and is likely to cause dilution by blurring the distinctive qualities of the SEVENTH-DAY ADVENTIST mark and by tarnishing the reputation of the mark. Your use of the mark in this manner is also likely to cause confusion among consumers who may mistakenly believe that the Church has authorized or approved your use of the SEVENTH-DAY ADVENTIST mark."

While it may be strange to think of a church as a corporation and of its members as “consumers,” it is understood why the church wants to protect its trademark and it has every right. The Adventist Review recently published an interview with two lawyers from the General Conference Office of General Counsel who spoke about the trademark of the name, and how the church goes about defending it. Associate general counsel Dionne A. Parker says that "the trademark 'Adventist' is registered in specific areas such as missionary services, religious observances, education, and health care," which gives the church protection in those specific areas. Yet in an e-mail to Adventist Today, the filmmakers argue that "we aren’t starting a church using [the church] name—we’re making a film."

The church has had one high-profile case similar to this back in 1991, and it was also over the use of the church’s trademark in the context of gay Adventists. Then, the church sued Seventh-day Adventist Kinship (a support group for gay and lesbian Adventists) over the use of their name and lost because the presiding judge found the Seventh-day Adventist mark to be generic. Although Adventists in general are very loathe to sue, the filmmakers believe that goups or projects associated with gay issues have been singled out as worth prosecuting.

The title "Seventh-Gay Adventists," the filmmakers explain, is an allusion to the name of the church (though it’s clearly not identical) because that’s the church their gay subjects grew up in and love dearly despite the marginalization, suspicion, and often outright rejection they have to deal with, say the filmmakers.

And the title gives the future viewers of this already-controversial film a strong hint of what’s to come. To clarify, Akers states in her e-mail:

"They’re likely to realize that the film is about the Seventh-day Adventist church’s policies on homosexuality, or at least the experience of gay members of the church in the face of those policies. This means, in the words of our lawyer, 'The expression inherent in the title is protected by the First Amendment.'

"The church may not like our title, or the inherent identity and authority questions it raises, but because we live in a country where we are privileged to have the freedom to speak our minds and question our religious institutions, we aren’t infringing on their trademark or copyright. We are making a commentary."

As Akers recently wrote in a blog post on their film website, the title Seventh-Gay Adventists was really just a working title for them at first. But the more she met and talked to gay Adventists, the more the title seemed a perfect description of the excruciating challenge the film's subjects faced in trying to integrate their religious and sexual identity. "We all know it isn’t easy to be a gay Christian, but being a gay Adventist is an entirely more challenging proposition because, to most, Adventism is much more than just a belief system, it’s an entire culture and community that’s more like an ethnicity than just a church," stated Akers.

Getting back to the legal war of words, lawyers for Akers and Eyers made a few points in response to the "cease and desist" letter, some of which hinge on the technicalities of trademark law that is best left to the lawyers. Here are the highlights of the return letter:

1. The film isn't done yet, and nobody can watch it.

2. In 1991, the church sued Seventh-day Adventist Kinship International over the use of the name and lost because the presiding judge found the Seventh-day Adventist mark to be generic.

3. The title of a film is a preview to viewers of the film's subject--nobody is going to think the title denotes the maker of the film.

4. Most importantly, when the title of a literary work makes commentary on the trademark holder, then we're no longer talking about trademark law, we're talking about the First Amendment. And the First Amendment trumps.

On June 17, Akers and Eyers received a swift response letter, and the General Conference is not backing down. Adventist Today obtained a copy of the letter sent by the law offices of Buchanan Ingersoll & Rooney PC, which states:

In the present case, there is a high likelihood that consumers will be confused by the title of your client's film. Although you assert that consumers will not be confused because of the tagline, the lack of the Church's logo, and alleged "other attributions to the makers of the film," we do not see anything on your client's web site, or other web sites where the film is being promoted (such as indiegogo.com), that would prevent confusion. There is no explicit disclaimer of any relationship with the Church on the web site, and the description of the film, which refers to the "close-knit [Adventist] community," "unique cultural habits," and "unique practices" of the Church, and asks whether there is "a way to reconcile [gay Adventists'] faith and their identity." This exacerbates confusion rather than prevent it. The fact that your client is not using the Church's logo is irrelevant, since our client has rights in the SEVENTH-DAY ADVENTIST word mark by itself, dating back to at least as early as 1860.

Also of note in this response letter is a reference to the Adventist Today interview back in November:

We note that Mr. Eyer's film appears to be in the early stages of production and that it would not cause any significant prejudice to change the title of the film at this point. In fact, in a recent interview with Adventist Today, your client stated that "Seventh-Gay Adventist" was merely "a working title that may change" (http://www.atoday.com!seventhgay-adventists¬documentary-interview-filmmakers). We therefore encourage your client to change the title of his film so that we may resolve this matter amicably.

Meanwhile, the film is still in production and currently accepting tax-deductible contributions.

http://www.facebook.com/pages/Seventh-Gay-Adventists/108723178221?ref=ts

[Guest]

How do you feel about this John?

[SivartM]

Because I'm sure a lot of people will confuse this movie with our church and not understand it as a pun.

[olger]

Kit Watts involved in this?

[Guest]

Kit Watts involved in this?

Who's Kit Watts?

[doug yowell]

Kit Watts involved in this?

Why do you ask,og?

[olger]

A hunch, Doug.

blessings,

og

[fccool]

Realistically,

There's nothing church can do to stop this, and I don't think it should. Using state to enforce morality... rings familiar. These people should have the right to self-expression and criticism, just like we have the right to say that Catholic Church is the Beast of revelation without getting a law suit for using the church's name.

We may disagree with these people, but that's the point of the civilized discussion. We should take this as opportunity to share our views on sexuality... not as some kind of threat that will destroy the church.

[John317]

Quote:

Richard Holbrook: How do you feel about this John?

I see it as another sign of the times. I believe these kinds of things will finally lead many in the the church to accept homosexuality and lower the moral standards in other ways. We won't be able to rely on others for our personal standards and convictions.

I feel badly that they want to use the name of the church that way in the title.

[John317]

Quote:

Richard Holbrook:

Who's Kit Watts?

http://www.aaw.cc/PDF_files/WOYA_92_Watts.pdf

[olger]

Kit Watts left the Review in 1997 to work with Kinship SDA. She brought her strong feminist perspective to the gay & lesbian organization. Today she works at (you guessed it) La Sierra University in the "Women's Resource Department."