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CEASE AND DESIST
March 5, 2008
Via Electronic Mail and Certified Mail Return Receipt Requested averymatthews@yahoo.com sales@divine9forobama.com shipping@divine9forobama.com questions@divine9forobama.com Avery Matthews M Square Designs, Inc. 4924 Stone Gate Trail McKinney, Texas 75075 Re: National Pan-Hellenic Council Dear Mr. Matthews: This firm has been retained to represent the National Pan-Hellenic Council ("NPHC") with respect to their intellectual property. It has come to our attention that your company is using trademarks owned by the individual NPHC organizations to promote your web site and certain political campaigns without their permission. Your actions are unlawful. As you are aware the NPHC is a collaboration of the nine national, historically black Greek lettered fraternities and sororities, namely, Alpha Phi Alpha, Omega Psi Phi, Phi Beta Sigma, Kappa Alpha Psi, Sigma Gamma Rho, Alpha Kappa Alpha, Delta Sigma Theta, Iota Phi Theta and Zeta Phi Beta. These organizations are often collectively referred to, as you have done on your web site, as the "Divine Nine." The individual NPHC organizations own families of federal and common law trademarks that include their names, colors and Greek letter representations. The use of the NPHC's trademarks by your company is without the NPHC's permission and is illegal. Therefore, you are instructed to immediately CEASE AND DESIST your illegal use of the NPHC's trademarks. The continued unauthorized use of the NPHC's trademarks violates numerous state and federal statutes. For example, the unauthorized use violates 15 U.S.C. § 1114(a) for trademark infringement; 15 U.S.C. § 1125(a) for false designation of origin and false representation; and 15 U.S.C. § 1125(a) for trademark dilution; common law trademark infringement; common law unfair competition; and unjust enrichment. Your violations will entitle the NPHC to recover your company's profits, damages sustained by the NPHC, and costs of any litigation. In addition your behavior will be considered willful entitling the NPHC to recover enhanced damages up to three times the amount awarded by a judge or jury. Avery Matthews March 5, 2008 Page 2 Finally, the NPHC will also have the right to seek and enforce a temporary restraining order as well as a temporary and permanent injunction against your unlawful use of its trademarks. Any legal action that may result from your acts will be expensive and unnecessary. However, the NPHC is fully prepared to pursue its civil remedies. If formal action is to be avoided, the NPHC insists that you immediately cease all uses of its trademarks. To comply with this demand, you must on or before noon C.S.T, Friday, March 7, 2008, among other things, take the following steps immediately: remove the NPHC's trademarks from your web site and all promotional materials; disable your web site located <http://divine9forobama.com/> and discontinue the use of "divine9forobama". The NPHC is prepared to file a lawsuit against anyone who uses its trademarks without permission, this includes your organization. Finally, it is important that you not destroy copies of anything you have that displays or uses NPHC's intellectual property. Destroying any infringing item at this point will neither remedy your past illegal conduct, nor conclude our investigation. The destruction or spoliation of evidence may result in additional legal sanctions and may also prejudice our ability to reach a mutually satisfactory resolution of this matter. You should also instruct everyone within your company to discontinue any destruction of the items mentioned in this paragraph. My clients are fully prepared to pursue their civil remedies in this matter. A resolution short of litigation may be possible but, if formal action is to be avoided, we insist that you cease your infringing conduct immediately. Please contact me immediately to confirm your compliance with the demands in this letter. This letter shall not waive, affect, or impair any rights, remedies or defenses of the NPHC, including without limitation, the right to seek ex parte injunctive relief from the appropriate court. I look forward to your prompt response. Sincerely, Michael D. Pegues MDP:jdf Dallas 1329424_1 7852.1 |
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As of 9:46 a.m. EST, the site is still up. |
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The problem with that shirt, as cute as it may be, is that if someone were to see you wearing it, with AKA symbols on it, it could imply that AKA was supporting a candidate which would be electioneering and could cause your organization to lose its tax exemption. Yes, I've seen thongs and other crap with our letters on it, however, those things may not cause the organization to lose its tax exempt status. They are tacky yes, but the IRS doesn't care about a thong with AKA on it, but it does care about a tshirt stating that AKA supports Obama, Clinton, Nader or any one else. Whether the entire organization supports the person or not is irrelevant, all it takes is one person wearing that shirt to cause a stir (as it has!). |
^^^ Your tone is more civil than some. :(
The site is now http://www.greeksunitedforobama.com/home.html, and he added a disclaimer about not being affiliated wth NPHC. Interesting that there are links to the Obama website on his website as well as if Sen. Obama might be okay with this website... |
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And the point is still the same. Quote:
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Please pardon the crash.
Even though he changed the name of the website, the shirts are still the same. (??) Therefore, it still appears that these shirts could threaten your tax-exempt status, no? As someone who has worked for a non-profit before, let me tell ya... you really have to watch how people use your name, because their misuse can cause your organization serious trouble. |
Good point. I don't know if he is changing the shirts, too.
I really hope the cease and desist from the NPHC isn't halted because of the change in the website. |
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I don't know if the various nicknames (pretty ladies, nupes, etc) on the shirts are copyrighted by each organization, but there is one that says "S G Rho for Obama." That one for sure has got to go. |
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And if our own members don't understand this, why would a vendor care? |
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I wasn't aware that the tax-exempt status extended that far either. I knew that our organization could not unilaterally support any political candidate, but on first glance, I would not think that a simple shirt could be such a threat (though now, reading this thread, I can see how the shirt might be perceived as an organizational endorsement.)
Another thing, while I understand the theoretical threat, I do wonder about the realistic possibility of the IRS pursuing such a course. I guess it is better to be safe than sorry. I thought it was cute too. :o Course, those colors together generally are. :D |
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The IRS is no joke, and in the last few years there has been a major crack down on nonprofits in general. Why? Because the government wants the taxes it is missing from tax-exempt organization. But I also don't see what is so complicated about the ruling that we cannot endorse a candidate. Wearing a generic Barack (or anyone else for that matter) indicates that the individual endorses that candidate. Add your orgs symbols indicate that you as a member of XYZ endorse that candidate. That is a big difference, especially since we have all been taught from day one that when we wear our symbols in public we are representing our orgs. Thus the protocol rules on when and where they should be worn. Prime example: if I go to a bar wearing a DST shirt and get sloppy drunk, folx won't be saying LG got drunk, they will be saying LG the Delta got drunk. Lastly, there is also the whole issue of buying merchandise from a vendor that has not been sanctioned (licensed) by our org. |
I understand all of that, though I did not know about the increasing strictness and crack downs with regard to those policies.
I guess what I am saying is that in viewing the T-shirts, that is not the first thought that would come to my mind. I guess the lesson is here is eternal vigilance. |
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Being a small devil's advocate, the only thing I would think of is that he might not want to do something that could alienate millions of potential voters that are in BGLOs. If one or all nine orgs hypothetically lost that tax-exempt status over this website, he could lose a great source of other campaign funds: individuals in the BGLOS and those individuals' associates who could spread the word in a grassroots effort - similar to his own. It's only a hypothetical situation, but something tells me that Obama's camp is not aware of all the details of this website - if the Obama campaign approves of the affliation. |
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It took me a minute to grasp the concept of licensed vendors, perhaps because I did not buy 'nalia that often and didn't know all that went into being a GLO vendor. Of course I found that the licensed vendors had better quality things. |
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Shirts
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I am going to check out Obama's site to see the red and white shirt. I might become an Obama supporter soon. We'll see. :D |
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I liked the design of the shirt so I purchased it. As a Omega Man, I endorse Barack Obama so I saw the shirt fitting
However, given the fact that these types of actions can potentially threaten our national organizations I would probably think twice in the future. There are so many vendors who are not liscensed with our national bodies...as a consumer its hard to regulate even when we are provided with lists of those authorized vendors. I guess your best bet is to do all your nalia shopping during national/ regional meetings. |
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I know shirts like this: http://www.zazzle.com/delta_sigma_th...80415594403900 would violate our tax-exempt status. This shirt is a little different: http://cgi.ebay.com/Obama-This-Delta...ayphotohosting since it shows the opinion of one member, instead of the entire organization. Would you consider the shirt since it addresses your personal views? I wouldn't buy it, but I wanted to get the opinion of others. |
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I guess my bigger question is why the need to mix the two in the first place? |
The answer:$$$$$$$$$$
And LG, did you see the disclaimer of the Ebay shirt that says this is not affiliated with NPHC or the campaign? And there are also shirts available for AKA and Zeta (sorry SGRhos). :p |
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You know how consent is not a valid defense against a hazing accusation?
Consent of the person wearing the shirt doesn't make it less of a violation of the tax code. A member of an organization has the right to represent themselves as a member of the organization but also has the responsibility to not legally compromise that representation. They do not have the right to give consent to compromise that representation. It puts us on a slippery slope when it comes to the tax code. 501c7s and 501c3s have to be very, very careful. It's just better to not mix the two. (Or if you want to make a statement, make one that doesn't include trademarked symbols.) |
I see your point, though, I doubt someone who wanted to question the item would note the "This..." especially since it is followed by the huge red greek letters. The point is the Delta-Sigma-Theta and Obama. Personally, I would not buy any of it!
In response to another post, I too do not see the need to equate my fraternal affiliation with my candidate preference, just like I wouldn't equate my fraternal affiliation with my neighborhood or church or favorite restaurant, etc. To everything there is a season... Quote:
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DONT BUY FROM COLISEUM APPAREL
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I wouldn't advise anyone to make purchases from them-EVER! |
I had a similar experience with that coliseum apparel. I waited a about a month and half for my Barack the vote shirt. I emailed, filed a claim, and he finally got back to me saying that the shirt is in high demand and he is waiting on a shipment to come in. My response: NOT MY PROBLEM. I paid for a shirt that should have only taken 2wks to get to my house. He didn't have to wait on my payment! Eventually I got my shirt, but I wouldn't advise anyone to buy a product from him.
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