Georgetown law professor Rebecca Tushnet’s 43(B)log (“false advertising and more”) has been following the legal dispute between the Roman Catholic Sovereign Military Order of Malta (SMOM) and a rival “Ecumenical Order” based in Florida. SMOM, which enjoys a reputation considerable standing, took its ecumenical rival to a district court in Florida 2011 on trademark grounds – only to lose the case and to find itself accused of trademark fraud. Members of the Ecumenical Order include the neo-Pentecostal evangelist Rick Joyner (“Deputy Member of the Supreme Council) and Gen. William “Jerry” Boykin (“Chancellor”).
Tushnet summarised an opinion given in September. The appeal court rejected the fraud accusation on the following grounds:
Fraud means knowingly false, material representations of fact with an intent to deceive the [Patent and Trademark Office]; it must be shown by clear and convincing evidence. The court of appeals narrowed its focus to the intent of the individual declarant, which isn’t actually required by the concept of subjective intent—other areas of the law have managed to determine the intent of a corporation—but made fraud impossible here, since the declarant didn’t know about the Ecumenical Order at all.
The appeal court also took a dim view of the original judge’s failure to conceal his general distaste:
As to the parties, the district court “struggle[d] with the parties’ characterizing themselves” as charities given the “unimpressive” amount of money they raised for charitable purposes; the court thought that members of both were “more interested in dressing up in costumes, conferring titles on each other and playing in a ‘weird world of princes and knights’ than in performing charitable acts.” Also, the judge opined that it was “tragic” that all Dr. Vann had done in her life was study the Knights of Malta and their records. While deeming these remarks “wholly inappropriate” and “offensive,” reassignment was not justified because they didn’t show actual bias in favor of or against one of the parties over the other.
However, Theresa M. Vann, who was the expert witness for the Roman Catholic order, has scholarly credentials; the Ecumenical Order, by contrast, was represented by its Grand Master, a businessman named Nicholas Papanicolaou. Papanicolaou believes that the “Ecumenical Order” is a legitimate expression of the Knights of Malta both because of events in 1798 (when there was a Russian interlude), and because of the context of the Order’s origins in the eleventh century. Somewhat to my surprise, Papanicolaou emailed me with his views last year, and I discussed the historical claims here.
There has now been a follow-up; Tushnet again reports:
…This time, the court of appeals found that the district court abused its discretion in considering Papanicolaou’s testimony, but that the error was harmless.
It was abuse of discretion to permit a lay witness to testify about historical matters. But the district court made two discrete factual determinations, each of which independently supported its holding: first, that the two organizations shared a history until 1798, and second, that the Florida Priory expressly associated itself with the Ecumenical Order, a non-Catholic organization that couldn’t cause any confusion.
Papanicolaou has close links with some high-profile Christian Right figures, and Rick Joyner and Gen William “Jerry” Boykin are both members of the Ecumenical Order.
A new complication is that there is also now more than one Ecumenical Order – a number of European members “have dissociated themselves from the leadership / grand master-ship of Chev. Nicholas Papanicolaou for grave reasons already explained in detail to him by correspondence, after due warnings and requests for his resignation”.
Perhaps the reason was Papanicolaou’s association with Christian Right figures, and his use of anti-Islam scaremongering for fundraising purposes; here’s an extract from a letter he co-signed with Boykin in 2010:
Read Sura 18:21 and you will know WHY Muslims insist on building a mosque over Ground Zero… Your DONATION to the KNIGHTS will directly go to our global effort to… heighten the awareness of the grave danger that is confronting us and the United States Constitution…against Sharia Law.
One can understand why SMOM might want to do all it can to ensure that nobody confuses this kind of thing with its own statements.
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