Thomas M. Small
Small, Larkin & Kidde, LLP
10940 Wilshire Blvd., 18th Floor
Los Angeles, CA 90024-3945

RE: Scientology Church Demand Letter

Dear Mr. Small:

In association with the American Civil Liberties Union Foundation of Colorado and the Electronic Frontier Foundation, I represent Ray Randolph, and I am writing to respond to your letter of January 14, 1998, to Mr. Randolph regarding his use of the website www.scientology-kills.net.

Although your client may well have valid trademark rights in "SCIENTOLOGY," I am sure you are aware that this is only the first element of a dilution action under 15 USC 1125(c). My review of the particular facts of this case leads me to the conclusion that Mr. Randolph's use of his website has not and will not dilute your mark. Moreover, the very cases cited in your letter make clear that your client has no claim against Mr. Randolph under any trademark theory.

As your letter points out, the leading case in this area is Planned Parenthood Federation Of America, Inc. v. Bucci, 42 U.S.P.Q. 1430 (S.D.N.Y. 1997). ALthough Judge Wood concluded in that case that the defendant's use of the website www.plannedparenthood.com infringed the trademark rights of the plaintiff, the reasoning of that case demonstrates clearly that Mr. Randolph's website does not infringe your client's rights or in any way dilute your clients mark.

First, the defendant's website in the Planned Parenthood case was identical to the mark owned by plaintiff, and the homepage featured the greeting "Welcome to the Planned Parenthood Home Page." Accordingly, the Court relied heavily on the fact that users searching for the plaintiff's website would locate defendant's site, and would not be able to tell from the name of the site or the homepage that they were encountering the wrong site. Planned Parenthood, at 1438. More importantly, the Court in the Planned Parenthood case concluded that the defendant's website name was not a parody protected by the First Ammendment because users would not recognize the website and homepage to be a parody of plaintiff's name or a "communicative message" by the defendant about plaintiff. Rather, the Court concluded that the defendant's website was developed to, and would have the effect of leading users to believe that they were encountering the Planned Paranthood website. Planned Parenthood, at 1440. Clearly, that is not the case here, where Mr. Randolph's site www.scientology-kills.net would immediately alert the user that this was not your client's site.

It is a fundamental principle of both the First Ammendment and trademark law that a trademark is not infringed by an unauthorized use of the mark which is for the purpose of communicating a message about the trademark owner. Yankee Publishing, Inc. v. News American Publishing, Inc., 809 F. Supp. 267, 275 (S.D.N.Y. 1992). It is only when the mark is used to create confusion between the plaintiff and the defendant that a violation of the trademark laws will be found. Clearly, the name Mr. Randolph has selected for his website would not lead anyone to think they were encountering the website of the Church Of Scientology. Moreover, the website www.scientology-kills.net is a communicative message which, although critical of your client, is clearly protected under the First Ammendment. Planned Parenthood, at 1440.

In short, I conclude that your client's trademark rights have not been violated in any way and that, although your client may be unhappy with the message Mr Randolph is distributing over the internet, his right to do so is celarly protected by the First Ammendment.

Sincerely,
Hugh Q. Gottschalk
for
Otten, Johnson, Robinson,
Neff & Ragonetti, P.C.