DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: 22361-9-II
Title of Case: Jzk, Inc.
v.
Joseph Glandon
File Date: 05/07/1999
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Thurston County
Docket No: 95-2-00649-1
Judgment or order under review
Date filed: 08/18/1997
Judge signing: Hon. Daniel J. Berschauer
JUDGES
------
Authored by J. Dean Morgan
Concurring: Karen G. Seinfeld
Elaine M. Houghton
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Brian J. Coyne
Miles Way & Coyne
905 24th Way SW
Suite B-3
Olympia, WA 98502
Counsel for Respondent(s)
Joseph Glandon (Appearing Pro Se)
P.O. Box 601
Rainier, WA 98576
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JZK, INC., No. 22361-9-II
Appellant,
v.
JOSEPH GLANDON, UNPUBLISHED OPINION
Respondent. Filed:
MORGAN, J. - JZK, Inc. filed defamation and trademark dilution claims
against Joseph Glandon. The trial court dismissed with prejudice following
a bench trial. We affirm.
J.Z. Knight claims to channel Ramtha, a male spiritual entity who
lived 35,000 years ago. JZK, Inc., a corporation formed by Knight, operates
Ramtha's School of Enlightenment and RSE Products and Services. RSE
publishes and distributes Ramtha's teachings. Knight has trademarked the
word "Ramtha," which she licenses JZK to use.
In November 1994, Joseph Glandon began distributing The Pentagram and
the Holy Grail (hereafter, The Pentagram). At first, it was a seven-page
printed document. Later, it became an eleven-page printed document.
On March 6, 1995, Glandon advertised the eleven-page version in The
Olympian, a general circulation newspaper in Thurston County. He wanted to
advertise in the Nisqually Valley News also, but that paper refused to
accept his ad. The ad published in the Olympian read:
--WHAT are the secret sexual practices implied by the teachings of Ramtha?
--When will you need to go underground to hide from the Lizardmen? --And
what does Revelations tell you about the women Christ? For your copy of
THE PENTAGRAM and the HOLY GRAIL, send $7.00 money order only to: Joe
Glandon, P.O. Box 601 Rainier, Wa. 98576.{1}
Glandon received one response and, presumably, $7.00.
On March 9, 1995, JZK filed a "Complaint for Libel." As later
amended, the complaint contained claims for defamation and injury to
trademark. The complaint alleged that The Pentagram "falsely attribute{d}
certain teachings to the plaintiff," and that Glandon had "communicated the
false allegations in the Work to third parties" "with knowing or reckless
disregard for the truth."2 The complaint also alleged that "Ramtha" is a
registered trademark of J.Z. Knight; that she had licensed JZK, Inc., to
use it; that "Ramtha" constituted a famous mark for purposes of RCW
19.77.160; and that the Pentagram tended to "injure and tarnish" the mark,
thereby diluting its "distinctive quality."3 The complaint sought an
injunction and damages.
On March 20, 1995, JZK obtained a temporary injunction prohibiting
distribution of The Pentagram until after a trial was held. The injunction
notwithstanding, Glandon sent a copy of The Pentagram to KING-TV as part of
a document entitled, The Trial of the Pentagram and the Holy Grail. In an
introductory letter, Glandon said Knight was a "moral censor" of Ramtha's
teachings.4
On June 19, 1997, the case was tried to the bench. JZK's witnesses
testified, in effect, that Ramtha did not teach what Glandon was
attributing to him. Glandon testified, in effect, that he had discerned
Ramtha's hidden and secret meanings (in his dreams, on some occasions), and
that he was truly relating Ramtha's teachings. No one testified that the
Pentagram had affected his or her adherence to Ramtha.
At the end of trial, the court ruled that the Pentagram's statements
were primarily opinion, not fact. To whatever extent the statements
involved fact, the court was unable to determine whether they were true or
false, finding in effect that JZK had failed to carry its burden of proving
falsity. The court also found that JZK had failed to show a substantial
dilution of the mark, "Ramtha." The court dismissed the complaint with
prejudice, and JZK appealed.
II.
The first issue is whether the trial court erred by dismissing the
defamation claim. A defamation claim must be based on a statement that is
provably false.5 "A statement does not meet this test to the extent it
does not express or imply provable facts; necessarily, such a statement
communicates only ideas or opinions, and 'there is no such thing as a false
idea.'"6 The burden of proving falsity by a preponderance of the evidence
rests on the one claiming defamation.7
Here, most if not all of Glandon's statements were opinion. To the extent
his statements involved fact, the trial court obviously had no way of
determining whether they were true or false. JZK failed to prove the
elements of defamation, and the trial court did not err by dismissing that
claim.8
III.
The next issue is whether the trial court erred by dismissing the
trademark claim. RCW 19.77.160 provides:
The owner of a famous mark shall be entitled, subject to the
principles of equity, to an injunction against another person's use in this
state of a mark, commencing after the mark becomes famous, which causes
dilution of the distinctive quality of the mark, and to obtain such other
relief as is provided in this section.
RCW 19.77.010(6) defines "dilution" as "the material reduction of the
distinctive quality of a famous mark through use of a mark by another
person, regardless of the presence or absence of (a) competition between
the users of the mark, or (b) likelihood of confusion, mistake, or
deception arising from that use." The statutes do not define "material
reduction," but in common usage "material" means "being of real importance
or great consequence."9
Assuming (without so holding) that "Ramtha" is a famous mark for
purposes of RCW 19.77.160,10 we agree with the trial court that JZK failed
to prove a trademark claim. The evidence clearly supports a reasonable
inference that Glandon's impact on the mark was de minimis indeed, he
received one response to his ad. The evidence does not show, so clearly
that reasonable minds could not differ, that Glandon diluted the mark in
the sense of materially reducing its distinctive character i.e., in the
sense of diluting the mark in a way that had real importance or was of
great consequence. It follows that the trial court was not required to
accept the trademark claim, and that it did not err by rejecting it.
Even if the trial court had found a material reduction in the
distinctive character of the mark, it would not have been required to issue
an injunction. RCW 19.77.160 expressly makes the issuance of an injunction
"subject to the principles of equity." According to those principles, the
issuance of an injunction is highly discretionary, and the trial court's
decision will only be disturbed only if manifestly unreasonable or
arbitrary.11 Moreover, a trial court need not enjoin "in a doubtful case.'"12
This case is doubtful at best, and the trial court did not abuse its
discretion by declining to enjoin.
Affirmed.
A majority of the panel having determined that this opinion will not
be printed in the Washington Appellate Reports, but will be filed for
public record pursuant to RCW 2.06.040, it is so ordered.
Morgan, P.J.
We concur:
Seinfeld, J.
Houghton, J.
1 Exhibit 9.
2 Clerk's Papers at 5-6.
3 Clerk's Papers at 124-25.
4 Exhibit 10 at 1; Clerk's Papers at 53.
5 Schmalenberg v. Tacoma News, 87 Wn. App. 579, 590, 943 P.2d 350 (1997),
review denied, 134 Wn.2d 1013 (1998).
6 Schmalenberg, 87 Wn. App. at 591 (quoting Gertz v. Welch, Inc., 418 U.S.
323, 339, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974)); Dunlap v. Wayne, 105
Wn.2d 529, 538, 716 P.2d 842 (1986).
7 Schmalenberg, 87 Wn. App. at 591; Richmond v. Thompson, 130 Wn.2d 368,
385-86, 922 P.2d 1343 (1996). Actual malice must be shown with convincing
clarity. Richmond, 130 Wn.2d at 385-86. JZK, Inc. agrees that the actual
malice standard applies; however, we do not reach this issue.
8 There may well be additional reasons why a defamation claim was not
established. However, we need not address those.
9 Webster's Third New Int'l Dictionary 1392 (1969); see Gerberding v.
Munro, 134 Wn.2d 188, 199, 949 P.2d 1366 (1998); Boeing Co. v. Aetna Cas.
& Sur. Co., 113 Wn.2d 869, 877, 784 P.2d 507 (1990) (undefined terms are
given their "plain, ordinary and popular" meaning, according to standard
English language dictionaries).
10 The parties agreed on this at trial. Report of Proceedings at 97;
Clerk's Papers at 398.
11 Federal Way Family Physicians, Inc. v. Tacoma Stands Up for Life, 106
Wn.2d 261, 264, 721 P.2d 946 (1986).
12 Tyler Pipe, 96 Wn.2d 785, 793, 638 P.2d 1213 (1982) (quoting Isthmian
S.S. Co. v. National Marine Eng'rs' Beneficial Ass'n, 41 Wn.2d 106, 117,
247 P.2d 549 (1952)).