Report on the eighth day of trial from the Episcopal Church in South Carolina
July 17, 2014 (Day 8)
Trademark infringement issues are evident in the case of a local group that broke away from The Episcopal Church in 2012, yet continues to call itself “Episcopal” in its names, signs and advertising, an expert witness testified Thursday.
Leslie Lott, an attorney specializing in intellectual property law in Florida with more than 30 years of experience in patent and trademark issues, testified as an expert witness for The Episcopal Church in South Carolina.
For many years, the national church used the official name “The Protestant Episcopal Church in the United States of America.” It also has registered the name “The Episcopal Church.” Meanwhile, the plaintiffs have disaffiliated from the national church and filed suit against local Episcopalians, seeking the right to use these names of the diocese:
• “The Protestant Episcopal Church in the Diocese of South Carolina”
• “The Episcopal Diocese of South Carolina”; and
• “The Diocese of South Carolina”.
In January 2013, the group went before Circuit Judge Diane Goodstein, who – without notice to local Episcopalians – held an ex parte hearing and issued a temporary restraining order that prevented anyone but the breakaway group from using those names. To comply with that order, the Episcopal Church’s recognized diocese in eastern South Carolina is operating under a working name, “The Episcopal Church in South Carolina.”
On Thursday, the breakaway diocese introduced several documents indicating when the names first were used historically; some dating to the 18th century.
But Ms. Lott said that regardless of when a name is first used, or who used which name first, “If it is used in a way that is likely to cause confusion in the public, that is the definition of trademark infringement.”
Because the diocese and local parishes operated as parts of The Episcopal Church for many years, people reasonably assume that when they see a church calling itself an “Episcopal Church,” it is part of the national church. The potential for confusion is heightened by the fact that the two entities offer similar services, and operate out of similar facilities – churches.
The fact that the public reasonably believes that a “diocese” is a subdivision of a larger church body leads to further confusion, she said. “The recent history has been one organization,” she said. “If they now continue to use the name ‘Episcopal’ or ‘Episcopal Diocese,’ not being part of that organization, it will inevitably cause confusion on the part of the public.”
Beyond Ms. Lott’s testimony, much of the morning in court was spent in a lengthy back-and-forth over the admissibility of one expert witness, who was called to testify about research he conducted on church names and the public confusion created by the breakaway group.
The judge excluded the witness, and spent several minutes criticizing the defendants, saying they had not complied with three orders she had issued about providing names of expert witnesses. She cited this as her reason for excluding the witness, acknowledging that doing so was an extraordinary step.
The judge’s remarks involved a complex series of filings, responses, scheduling orders and hearings leading up to the trial. TECSC has repeatedly notified Judge Goodstein that the plaintiffs have submitted documents that misled the court. Some of these documents from the plaintiffs said TECSC had agreed to proposed deposition dates when they had not agreed. Others were “incorrectly (and self-servingly) purporting to list the experts …and excluding one,” according to a motion filed by the defendants.
Interspersed throughout the day were three witnesses who testified about what happened when their former parishes departed from The Episcopal Church. All of them had to leave their home churches and find other ways to worship as Episcopalians.
Rebecca Lovelace talked about having to leave St. Paul’s Conway when its clergy announced they were no longer part of The Episcopal Church. Before that, she said, “we had many conversations over the years and many representations that we were never leaving The Episcopal Church.” Later, she went to help start a new mission: St. Anne’s, Conway.
Eleanor Koets described the departure of her formerly Episcopalian parish of St. Paul’s in Summerville, and how she became part of the new Episcopal mission of Good Shepherd, Summerville. She brought a recent local newspaper article to court, showing that her former parish continues to have “St. Paul’s Episcopal Church” on the sign out front, in spite of announcing to the congregation in 2012 that it was leaving The Episcopal Church.
Frances Elmore had been a member of St. John’s Episcopal in Florence. She recalled a day October 2012 when she arrived for a Sunday service and was told by her rector: “’We are no longer in The Episcopal Church, and you may not feel comfortable worshiping here anymore.’” That evening, she was attending a service of Compline (night prayer) at someone’s home with people from St. John’s and three other Florence-area churches. They went on to create the new mission church of St. Catherine’s, Florence.
By 4:45 p.m. Thursday, Judge Goodstein instructed all parties to meet and work out details for submitting hundreds of pages of exhibits that the defense plans to file in response to the plaintiff diocese and each of the dozens of plaintiff parishes. Court resumes at 10:00 a.m. Friday with more defense witnesses. The judge indicated she would adjourn for the day Friday by about 3:30 p.m.