"Shortly after the Press-Telegram published a letter to the editor submitted by the Turbine Tribune [summer of 2000], I was sent a cease-and-desist letter.
After one of the updates to my Queen Mary maintenance page, I received a menacing phone call from Joseph Prevratil, operator of the Queen Mary. This was on May 22, 2001. He was displeased with a statement I had made about the lack of care given to the historic liner and admonished me to 'move in a more positive direction'. He alluded to legal recourse, 'If you were to take the Turbine Tribune, it would even violate ... the agreement that we had through the lawsuit...'.
Another cease-and-desist letter arrived on June 9, 2001 with allegations that the Turbine Tribune violated a court order by merely mentioning the Queen Mary in the web site! It was also incorrectly alleged that the Turbine Tribune was 'confusingly similar' to RMS' web site and further, that its URL is a domain name, that the words 'Queen Mary' are contained in the web address and that I personally own a web ring.
Was the cease-and-desist letter caused by 'unfair competition and dilution' against RMS/QSDI on the part of the Turbine Tribune or is it retribution for criticizing Prevratil's operation of the ship? Further, who pays for the lawsuits initiated by Prevratil; the City, the taxpayers?"—Diane Rush
| The R.M.S. Queen Mary's sole advocacy, The Queen Mary Foundation, held it's ground against business interests, city administrators and courts for 10 long years. The Queen Mary Foundation has fought to preserve the historic Queen Mary as well as the right to free speech and due process of law in America. Citizens who love Long Beach and its natural and historic wonders are being silenced by a court system and city government motivated primarily by short-range, personal gain. You are invited to read the details below. |
Summary of the Queen Mary Foundation Lawsuit.
Seven years after illegally attempting to buy the nonprofit status of our small enthusiast organization, Queen Mary Foundation, Joseph F. Prevratil is now suing our group for "unfair competition and dilution", claiming that the Queen Mary Foundation's web site is stealing his business and confusing potential clients.
Since when can a for-profit corporation sue a nonprofit organization for unfair competition?
This untimely suit has been sustained since March 1999 in spite of several technical and legal flaws. The statute of limitations would normally bar a 7-year-old claim from being filed.
Although the relative weight of the plaintiff's and defendant's arguments have not been heard in a court of law, the court has compelled the Queen Mary Foundation to pay sanctions to the plaintiff, thereby depleting the foundation's treasury and depriving the organization of funds to retain legal representation.
While attempting to locate a pro bono attorney, I recognized the pressing need to answer interrogatories, produce discovery documents and propound interrogatories and demand production of documents from the plaintiff.
In an effort to obey court orders, I produced these myself in legal format. As a result, I have been accused of "practicing law without a license". However, when I refrain from taking action, I am charged with "willful disobedience to court orders"!
The Queen Mary Foundation seems destined to finish the case without a voice [and did] even though we are the organization responsible for having the Queen Mary admitted to the National Register of Historic Places and assisting the plaintiff to achieve his position as operator of the ship in 1993!
The price of peace would be to cede the name of our organization (which preceded RMS Foundation by three years) and to cede the domain name of our award-winning web site. The Queen Mary Foundation has always viewed its role as a watch dog organization to protect the Queen Mary as well as a valuable network of dedicated people who promote appreciation for one of the world's rarest treasures - the Queen Mary.
Please visit:
RMS Foundation, Inc./QSDI - Plaintiff: www.queenmary.com
Queen Mary Foundation - Defendant: www.queenmary.org [Now defunct].
Diane Rush
Former President of the
Queen Mary Foundation
1. Improper service of summons and complaint:
First notice I received of the lawsuit was a newspaper article published in the Long Beach Press-Telegram on March 27, 1999. Notice of service documents falsely claimed delivery attempts were made at my residence and signed under the penalty of perjury. It was nearly two months before I was able to get a copy of the summons and complaint from the L. A. Superior Court.
2. Failure of plaintiff to state cause of action/claim for relief:
(Even if every statement in complaint is true, there is no valid legal claim.)
3. Untimely/frivolous lawsuit:
a. Barred by the Statute of Limitations.
b. Barred by the Equitable Doctrine of Laches and Waiver. A legal clause, called the "Equitable Doctrine of Laches" declares that even if a cease-and-desist letter is issued or other legal proceedings are initiated, the plaintiff waives his rights to pursue claims if not carried out in a timely manner.
4. Malicious Prosecution:
a. Barred by the Equitable Doctrine of Estoppel. By the "Equitable Doctrine of Estoppel", it is unlawful to carry out claims that are contradicted by previous agreements or actions between the parties. Joseph F. Prevratil, plaintiff, was a contributing member of the Queen Mary Foundation, defendant, in 1994. Several signed and dated documents from the plaintiff and from Long Beach administrators lauded the volunteer organization's accomplishments.
b. Barred by the Equitable Doctrine of Unclean Hands.
c. Violation of California State Penal Code # 182 "conspiracy".
5. Violations of Federal and State Constitutional Law:
a. First Amendment rights of free speech.
b. Freedom of Information Act (Code 5 U.S.C. Section 552).
6. Abuse of process:
a. Queen Mary Foundation was sanctioned $1200.00 because former attorney of record gave inadequate response to demand for production of documents. This sanction depleted the foundation's treasury making it impossible to retain legal counsel. (This amount has since been increased to $2,223.00 for "frivolous or non-responsive" answers to interrogatories and demand for production of documents and for the defendant "practicing law without a license", etc.)
b. D. Wayne Ruby, Esq. abandoned his client and signed substitution of attorney form naming his colleague, William Hinz, Esq., who is a criminal lawyer with no specialized knowledge of intellectual property law. He was officially regarded as the defendant's "attorney of record" although he never represented the Queen Mary Foundation.
c. The Queen Mary Foundation was unable to obtain pro bono counsel and was threatened with default. I represented the Queen Mary Foundation in pro per at the October 26, 1999 status conference after filing another substitution of attorney form naming myself as the attorney of record. I also responded to and propounded interrogatories and demands for production of documents before I learned that I could not act in pro per as the head of a corporation.
d. It took two (2) months to obtain the original summons and complaint from the Superior Court of Los Angeles after numerous attempts by phone and mail. This delay made it more difficult to obtain adequate legal representation in a timely manner.
e. One request for continuation was granted but subsequent requests were denied (even though the Queen Mary Foundation was not responsible for the abandonment by our counsel).
f. At the status conference of November 18, 1999, the plaintiff's attorney (Joan Lewis-Heard) tried to compel me to sign for a parcel addressed to the ship Queen Mary that had my name on it. This parcel was from Britain and contained a customs stamp. I refused to sign for this because I believed it was contrived to create "evidence" of confusion between the adverse organizations. The Queen Mary Foundation had not received misdirected postal mail before or since.
g. In a recent notice of motion/motion to enter default against the Queen Mary Foundation, additional claims appeared 1. defendant practicing law without a license and 2. disobedience to court orders - failure to pay balance of sanctions (although our treasury was depleted) and failure to obtain legal representation (which we could not afford).
h. Joan Lewis-Heard called me at work repeatedly merely to notify me that my responses and deposition answers were "inadequate". Also, she said I was disobeying court orders by refusing to provide the names of the Queen Mary Foundation membership and complete files of "every document and piece of correspondence mentioning the Queen Mary, etc." Compliance would have exposed membership to harassment. Furthermore, it would have been impossible to produce a copy of every Queen Mary-related document in my possession due to the volume.
i. I had been denied copies of courtroom minutes, could not verify what documents had actually been filed by Ruby or Lewis-Heard and had to rely on information from the plaintiff's counsel or court (all of which were prejudiced against pro per litigants).
j. Was forbidden to tape-record the deposition even though I did not have a witness present and could not afford a copy of the 8-hour deposition transcripts ($336.00). [I later purchased the deposition to have a copy for my files and was charged an even more inflated price of $432.00 which I am still making payments on.]
k. Lewis-Heard refused to speak with me about obtaining a continuance after Ruby abandoned our case because she claimed that William Hinz was the defendant's attorney of record. This was after I explained to her what the circumstances were.
l. When it became evident that the judgment was going to be made without any consideration of the defendant's documentation, I went to the Los Angeles Superior Court to view the Queen Mary Foundation's case file. The receptionists in the Register of Actions and Records Offices as well as the court clerk told me the case file was "missing". Upon my insistence, the file was produced. All of our responses had been stricken and none of our documents had been filed with the court.
7. Selective Enforcement of Trade and Service Marks and Copyrights.
a. Hundreds of establishments, vessels and products exist with "Queen Mary" as part of their name, title or description. "Exclusive, world-wide rights" to this name does not belong to anyone! Plus, to lawfully sue the Queen Mary Foundation, Prevratil would have to demonstrate consistent enforcement of claims. [As of 5/00, there are at least 1500 Queen Mary-related web sites!]
Long Beach - Cunard Steam Ship Ltd. contract of 1967 disproves claim that exclusive world-wide rights were transferred to the City of Long Beach.
8. Questionable standing of lessee to initiate lawsuit regarding intellectual/real property that is a public asset owned by the City of Long Beach:
Is it legal for the lessee of a publicly-owned asset to act as an agent of the city in the initiation of a lawsuit regarding this property? Why would the City of Long Beach not be suing the Queen Mary Foundation if they believed a copyright infringement was involved? The city council was notified of the lawsuit at the council meeting on May 18, 1999.
9. The complaint demands a temporary and permanent injunction for "unfair competition and dilution".
a. How can a for-profit corporation sue a nonprofit organization for "unfair competition"?
b. The Queen Mary Foundation was required by law to conduct a name search through the Secretary of the State of California (which we did in 1989). Further, we conducted a rigorous name search on our own which was recommended by The California Nonprofit Corporation Handbook published in 1992 by Nolo Press. We had a reservation put on the name Queen Mary Foundation and were incorporated as a 501(c) (3) in 1990. The Queen Mary Foundation, Inc. predated the establishment of RMS Foundation, Inc. by three (3) years and Queen's Seaport Development Inc. by almost five (5) years.
c. The issue of contention is strictly over copyright (intellectual property) law. Our web sites and discussion group are not in competition with either RMS or QSDI. We are almost exclusively dedicated to the dissemination of information although California nonprofit law allows us to raise monies. Our members are not "clients."
d. We have the right to the name, Queen Mary, as our extensive records of correspondence with the Long Beach City Clerk and Long Beach City Staff express and imply. We have the right to our domain name, www.queenmary.org. We could have legally purchased and retained (or sold at a profit) all three Queen Mary domain names, as we had the same opportunities and rights to acquisition as the plaintiff(s).
e. The Queen Mary Foundation does not want to be confused with the plaintiff(s) and has conspicuous waivers on its index page so that visitors to the web site(s) understand our identity and purpose. There is no way to prove confusion has taken place and it is dubious how such an unlikely scenario could cause damage or loss of income to plaintiff's business.
f. How can the Queen Mary Foundation represent a "conflict of interest" to the plaintiff(s)? At worst, we question the plaintiff's maintenance performance on the vessel and such activities as the "Grand Tour" proposal and auctions of the vessel's artifacts. Such criticism is aimed at protecting the viability of the Queen Mary as an historic monument and as an attraction.
As your website article regarding the litigation currently going down against QMF states: "How sad."
Whilst having taken a great interest in your activities from afar, this is the first time I have contacted you as I feel I must make some comment.
I have a special regard for QM for these reasons:
1) I was born and brought up in Southampton where the Queen Mary legend lives on.
2) I was born four years after the City of Long Beach assumed custodianship of the liner. Never having been to California I have not experienced the ship. This serves only to heighten my interest. As my first encounter may be some years away, I sometimes wonder whether the Queen Mary will still be there!
3) During school holidays I spent time as a volunteer with the maritime section of Southampton City Museums Service.
4) I am now a university lecturer in Heritage Interpretation specialising in industrial and transport history. I have what I hope is a fairly detailed understanding of the delicate issues involved in the medium and long term viability of historic objects operated as profitable tourist attractions.
I should state that I have no ability to comment on the legal nature of the action brought against QMF, but I claim the right to comment on its equity in a few brief points.
From reading the legal documentation, it appears that QM's current operators honestly believe that they have created the legend! The people of Clydebank, Southampton and New York, indeed everyone who had contact with the ship during its sea going days would feel justified in questioning this view.
On the point of ownership of the name, try telling my friends in Southampton that the name Queen Mary is a piece of private property that cannot be used without permission!
RMS have chosen to use the ship's name also as a trade name. QMF's activities, it seems to me and the rest of the known world, are focused toward the historic object which is universally known as the Queen Mary, not the business, RMS, which claims ownership of the name. Will subsequent reprints of books about the Queen Mary have to cease reference to the name of the ship? Of course not. Why? Because any historical published work done on the Queen Mary helps to keep the name alive - which is a good thing for RMS - but, only as long as one says nice things. I notice that the action is only directed at yourselves [Queen Mary Foundation]. Section 14 line 6: [of the complaint] ..."and criticises Plaintiffs, their President and Chief Executive Officer, and the operation of the Queen Mary attraction". This is the crux of the problem. I am sure that if you said only nice things about RMS, this wouldn't have happened. Will a similar action be directed against the authors, publishers and distributers of the latest published histories of the Queen Mary, some of which are not exactly glowing in their analyses of the ship's recent history? Perhaps freedom of expression only applies to the uncritical. Objective historians beware!
The significance of what is happening here is immense. Without any knowledge of the law, would this case represent case law in the prosecution of 'unofficial' websites, which, by their very nature have to use the name of the subject they deal with? This seems to have very sinister overtones. Will the time come when one can only use a name for as long as one wishes to say nice things? Also, your website has always made it 150 per cent clear that QMF has no official links with RMS. It could not be clearer.
The legal documentation is full of assertions. If it was one of my student's essays it would probably only scrape a pass. For example, section 10 line 3: [of the complaint] "...creates a likelihood [my italics] that the Plaintiff's customers, potential customers and the public generally will be confused or misled as to the source of goods or services...etc". This is weak stuff. Is there any evidence to demonstrate that this is the case? Is the public really as stupid as RMS seems to think?
All of which is detail. The main point: Queen Mary is a legend. Not a brand.
Whilst I am unble to contribute financially to the cause, allow me to offer any assistance I can from afar.
RMS believes that the Queen Mary 'brand' is so big that you have the potential to do it serious damage. If they regard you, of all organisations, as a threat, then it's obvious that thay have no relisation that Queen Mary is in fact bigger than any number of J.P.s. The ship itself is of course reticent about all this. What would it say?
Long may you continue as an irritating, nagging conscience to some of those of this world who know the price of everything and the value of nothing.
Kind regards,
Anonymous, P.G. Dipl., MA