Can the Swastika Seriously Be "Rehabilitated"?

Ancient pottery with a swastika

Without a doubt, the most shocking and recognizable symbol of modern racial hatred is the swastika.

Adopted by Adolf Hitler as the banner for the German National Socialist (Nazi) party in the 1930's, the swastika has become synonymous with racial animosity and violence ever since then.

However, the swastika actually originated as an ancient symbol symbolizing the sun, and was used by many different cultures and religions before Hitler saw fit to adopt it for political usage.  Artifacts such as pottery and coins from ancient Troy show that the swastika was a commonly used symbol as far back as 1000 B.C.

Flag of the Third Reich

Now, one modern religious group is engaged in a high-profile bid to "re-brand" the swastika, and it is making some people see red.

The Raëlian Movement, who believe that Extra-Terrestrials originally created all life on earth, have used a symbol that is the source of considerable controversy:  an interlaced star of David and a swastika.

The Raelian Movement's Symbol

The Raelians apparently believe that the Star of David represents infinity in space whereas the swastika represents infinity in time, i.e., there being no beginning and no end in time, and everything being cyclic.

In 1991, their symbol was changed to remove the swastika, out of respect to the victims of the Holocaust, but as of 2007 has been restored to its original form.

  

According to the the movement's website, ProSwastika.org, on Saturday, July 12, 2014, the International Raelian Movement repeated the culminating event of its annual swastika rehabilitation effort by flying banners featuring the symbol over beaches adjacent to New York City, Miami and other U.S. locations.

But in contrast to prior years, this year’s flybys will constitute the grand finale for an entire week of events rather than for the 24-hour period formerly known as Swastika Rehabilitation Day.

“We decided we need an entire week to really get the word out,” said Raelian Guide Thomas Kaenzig. “Swastika Rehabilitation Week began on July 5, and we’ve already held events in about 20 cities in Africa, Australia, Asia, Europe and South America. This weekend we’ll hold events all over North America, including the United States and Canada.”

And indeed, they did.  USA Today reports that the banner has caused quite a stir when it was flown over New York's Coney Island.

Canada’s largest billboard company rejected the group’s order for a large sign it wanted to display in that country, Kaenzig said.

“The company representative said many people would see our ad as offensive and inflammatory, so they wouldn’t post it,” Kaenzig explained. “So this poses a real catch 22. How can the world be reeducated about the truth of this symbol if we can’t get the word out to show people? Luckily, religious freedom is more respected in the United States than in Canada, so we are able to do more here.”

Kaenzig said pre-Nazi era swastikas still exist in hundreds of public places in the United States.

Mosaic swastika tile

“It’s still readily seen in NYC subway stations and museums, in the old U.S. mint, at the Garfield Monument, and in Native American artwork,” he pointed out.

“There's even a town in upstate New York that was named ‘Swastika’ after gold was found there a century ago.  And although most people in the West don’t realize it, the swastika is still a revered symbol for billions of Asians, for whom it signifies good luck and good will.”

He said the Raelian Movement launched an offshoot group, the ProSwastika Alliance, with the goal of uniting all religions that cherish the swastika, and noted that it is cherished by Raelians since it intertwines with a six-pointed star to form the Raelian symbol.

“501c3 tax exemption status for the alliance is pending,” Kaenzig said. “We’ve submitted the IRS application.”

There is no word from the IRS on the application's status.

Needless to say, taking a symbol that was widely used in connection with mass murder and "rehabilitating" it through rebranding may very well be impossible.

Service of Process Can Frustrate IP Rights

Service of process is the fairly mundane procedure by which a party to a lawsuit gives an appropriate notice of initial legal action to another party (such as a defendant) in an effort to exercise jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body, or other tribunal.  Notice is typically furnished by delivering a set of court documents (called "process") to the person to be served.

Within the United States, this is usually a fairly simple matter that involves having a licensed process server (or in some cases, a U.S. Marshal or Sheriff) deliver a hard copy of the Summons or other legal document to the Defendant or to a corporate representative, in the case of a corporation.  For some corporations, it may be sufficient to serve the Secretary of State where the company is incorporated.

In those cases where a party to be served is difficult to locate, the court may permit substitute service through publication in a local newspaper.

For the vast majority of cases, process can be routinely served in one or more of these manners, and a defendant would have a tough time arguing that he was not properly served, if he chooses to default and claim that he didn't know about the case.

But for brand owners whose infringers often reside well outside the United States, service of process can become a rather tricky prospect -- one that may even frustrate all relief entirely.

International service of foreign judicial and extrajudicial documents is governed in general by the 1965 Hague Service Convention.

Prior to the enactment of the Hague Service Convention, service of process in civil cases was generally effected by a letter rogatory, a formal request from the court in the country where proceedings were initiated or underway to a court in another country where the defendant resided. 

This procedure generally required the use of consular and diplomatic channels as the request had to be made to the foreign minister (Secretary of State in the United States) of the defendant's country by the foreign minister of the originating court.

Since 1965, member states designate a central authority for service of process and requests go directly there. 

In addition, some governments allow some type of service directly by mail or personal service by a person otherwise authorized to service process without involvement of local courts.

By way of example, the United Kingdom and Hong Kong permit a person or corporate entity to be served through simple International Registered Mail. The People's Republic of China, however, formally objected to this process and insists that any form of such service is not only ineffective, it is illegal.

Therefore, the process of service of process on a Chinese national can take months or sometimes years, and cost tens of thousands of dollars. In some cases, the documents must be translated into a foreign language such as Cantonese or Mandarin.

And, to make matters even more challenging, assuming that the Chinese national or entity does not participate in the foreign proceeding, there is no guarantee that the Chinese government will enforce a foreign default judgment against his assets located there.

The end result is that that the People's Rebublic of China has effectively insulated approximately 1/5 of the world's population from simple service of legal process from abroad.

John Wayne's Heirs Sue Duke University Over Trademark Rights to Alcohol

John Wayne (pictured left) was born Marion Robert Morrison in 1907.  As a boy, the eventual actor owned a dog named "Duke."  Even after the actor later adopted the stage name John Wayne, he was still known to many as "the Duke."

Duke University, another storied American institution that was named after the Duke family established the Duke Endowment, has been attempting for nearly a decade to federally register and protect trademarks for "Duke" in connection with a variety of goods and services, including alcohol and restaurant services.

John Wayne Enterprises, which still controls Wayne's intellectual property rights after his death, has also attempted to register "Duke" for alcoholic beverages.  Duke University objected, citing a likelihood of confusion even though the college does not currently produce, market or sell alcohol, according to a Complaint.

John Wayne Enterprises has apparently now filed a lawsuit in federal court in the Central District of California against the University, hoping to adjudicate the parties' rights once and for all.

Chinese Counterfeiters: Experts at Gaming Complex Systems

It has been said that, in both fun and geopolitics, Americans play simple checkers, Russians play the more challenging chess and the Chinese play the most complex game of all -- Mahjong.

Undoubtedly, Chinese culture encourages and rewards skill at successfully navigating complexity.

Consequently, the Chinese counterfeiter is fluent and adept at using the inherent complexity of the international legal and technological system to hide financial assets, creating a confusing web of identities designed to mask illegal conduct through an elaborate web of anonymity and dead-ends.

The following is a classic "case in point" of just one such counterfeiter.

A Chinese national by the name of Lin resides in the city of Putian in the eastern Fujian province in the People's Republic of China.  

Putian has over 3 million Chinese nationals living and working, a testament to the thriving international trade in counterfeit goods, as much of this city is dedicated to serving that industry through manufacture and distribution.

Lin receives an order for 3,000 pairs of white Nike sneakers from a merchant in Italy.  He has no idea how to make genuine Nike shoes, but pays no mind.  

He takes a genuine pair of Nike tennis shoes, disassembles them, studies the stitching, creates his own CAD design on a computer, and oversees the production of 10,000 counterfeit pair using a cheap labor force, completing and shipping the order within a matter of days.  He can sell 3,000 of the goods for $15,000, and markets the remaining inventory of 7,000 pair for $50.00 per pair on the Internet.

The factory that Lin works in is a nondescript building with a street address that might be associated with several dozen other companies.  The entity that Lin manages might be called "Fujian Sneaker and Shoe Trading Company Limited," a Hong Kong-based limited liability company, at least on paper.

But if one were to actually order and translate a copy of Fujian Sneaker and Shoe Trading Company Limited's corporate documents on file in Hong Kong, one would not find any evidence of Lin or the Fujian factory.  Rather, an unknown individual named "Jing Kim" might be listed as the company's sole owner, along with a business address in Beijing, one that has no clear ties to Lin's factory.

Furthermore, assume that Lin's counterfeit goods are openly sold to customers and distributors on a commercial website associated with the Internet domain name CheapSneakersForLess.com.

This domain name could have easily been registered by Lin's assistant for under $10 through an ICANN-accredited registrar in China such as Chengdu Fly-Digital Technology Co., Inc., and could be hosted for a few dollars a month, through a shared webhost such as iPage.com.  IPage's web servers are located in Sweden, far outside of the easy reach of Nike's aggressive intellectual property lawyers in Portland, Oregon.

This maddening maze of legal and technological complexity affords Lin virtual anonymity as he deposits the sum of $15,000 that the Italians paid for his sneakers into one of many bank accounts that he owns at the Agricultural Bank of China.  He will put the remainder of the profits generated from the Internet sales into a different account.

This bank is ideal for Lin, as it has dozens of domestic branches throughout mainland China, but also maintains overseas institutions in Singapore, New York, Seoul, Sydney, London, and Tokyo, allowing Lin easy access to his funds when he travels abroad.  

Of course, because each international institution claims to be a technically separate legal entity, Lin isn't particularly concerned that any of his accounts are exposed to potential foreign creditors, such as Nike, even if one of any of those accounts could somehow be connected to his workplace.

Of course, no one account is listed in connection to any company that has a clear legal relationship to Lin.

If one were to even begin to try to untangle the international maze built by Lin, it would take hundreds of hours and tens of thousands of dollars in legal fees and investigative expenses, with no one account containing more than $15,000 in it.

All told, Lin's ninety-two accounts at this bank alone total assets of over $1,000,000, mostly generated from the manufacture and distribution of fake sneakers.

You see, Lin's desire is to someday move to the United States and buy real estate and start his own fashion brand.

Opening Pandora's Box: Supreme Court Allows Archaic Copyright Infringement Cases to Proceed

This week, the U.S. Supreme Court opened Pandora's Box.

The decision that the Supreme Court may come to regret involved a copyright infringement lawsuit surrounding the script to the movie Raging Bull, which was released in 1980.  In the film, Oscar-award winning actor Robert DeNiro played boxer Jake LaMotta.  

An heir to the co-author of a 1963 screenplay about the life of the boxer apparently waited until 2009 to file a copyright lawsuit, claiming that the 1980 movie had copied portions of her father's screenplay without authorization.

The District Court in Los Angeles and the Ninth Circuit Court of Appeals applied the equitable doctrine of "estoppel by laches," borrowing the 3-year statute of limitations in the U.S. Copyright Act.  Those Courts both found that the writer's heir had deliberately waited to file suit, prejudicing MGM which had released the film thirty-four years ago.

However, on Monday, in an unusual 6-3 split not along ideological lines, Judge Ruth Bader Ginsburg wrote for the majority, finding that the significant delay will not bar the heir from seeking damages or an injunction on a rolling basis, going forward.

The majority reasoned that each time a new Raging Bull DVD is printed and sold, there is a new independent act of copyright infringement potentially violating the heir's copyrights. Every new DVD that is printed, every time the film is broadcast on television or the film is re-mastered or re-released, is effectively a new act of infringement subject to the 3-year window going forward, not backward.

The end result is that copyright disputes that originated thirty or forty years ago -- or even in the more distant past -- can be resurrected and instituted now.

Justices Stephen Breyer, Anthony Kennedy and Chief Justice Roberts dissented, holding that the precedent would upset settled doctrine, and open up years of litigation over old wounds.

70-year old Jimmy Page, Robert Plant and others in Led Zeppelin presumably agree with the dissent's point of view.

In 1971, Zeppelin released the now iconic "Stairway to Heaven."  According to some estimates, the song has earned at least $562 million since its release, a number poised to rise higher since Zeppelin is set to release new versions of its albums this summer.

Relying on Monday's Raging Bull decision from the U.S. Supreme Court, Time magazine reports that a new copyright infringement lawsuit has now been filed by representatives of the band Spirit, which released an instrumental song "Taurus" in 1968.  According to the newly-filed lawsuit, Zeppelin opened for Spirit in the late 1960's, and was inspired to write the now famous guitar introduction to Stairway.

Direct evidence of copying may nonetheless be difficult to gather.  Spirit's lead guitarist Randy California died in 1997 and documents showing copying, if any, were presumably lost to the mists of time.

FCC Chairman Wheeler: A “Conservative” Approach in Washington Today?

Recently, the Chairman of the Federal Communications Commission (FCC) Tom Wheeler opened up to public comment the agency’s decision whether to permit the use of cell phones on airline flights.  

This decision follows the Federal Aviation Administration’s (FAA’s) decision to allow airlines to safely expand passenger use of consumer electronics during all phases of flight.

Chairman Wheeler recently announced his own views:  “The job of the FCC with respect to this issue is limited to issues related to communications technology.  Technology is available and being deployed today on flights outside the United States that permits use of mobile devices on planes without causing interference to cell phone networks on the ground.  These advances in technology likely no longer warrant – on a technological basis – the prohibition of in-flight phone use with the appropriate on-board equipment.”

He went on to further note that “[w]e understand that many passengers would prefer that voice calls not be made on airplanes.  I feel that way myself.  Ultimately, if the FCC adopts the proposal in the coming months, it will be airlines’ decisions, in consultation with their customers, as to whether to permit voice calls while airborne.”

Therefore, Chairman Wheeler’s decision to open the controversial issue up to public commentary took an act of political courage.  The FCC recognizes that its charge is limited to technological issues, and such restraint should permit free market forces to work to set the correct level of regulation.

Further, Chairman Wheeler is also advancing the position that rewriting “net neutrality” rules to require a flat playing field for all Internet providers may be a form of potentially unwarranted interference with the free market’s desire to offer faster Internet connections to those who want to pay for them. 

Many commentators agree, and argue effectively that Internet access is no different than any other commodity subject to market forces:  “Wouldn’t it be great if a two bedroom, 2,000 square foot apartment on Park Avenue cost the same as one in Queens?  Or if a front row ticket to a Broadway show cost the same as one in the mezzanine?  Wouldn’t it be great if you could buy a new BMW for the same amount as a new Hyundai?  Or if the price of a Harvard education were equal to one from your local community college?  These things are priced differently.  They are not neutral.  Nothing is neutral in a free market economy."

Chairman Wheeler’s willingness to discuss the proper level of governmental regulation of the free market in the mobile telephone and Internet access situations is a breath of fresh air in a political environment too often filled with federal agencies seeking to perennially expand their regulatory power and exert leverage over the free market, regardless of consequence.

The Chairman should be applauded for his courage in entertaining these important discussions in such a toxic political environment.