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The American Unitarian Association^TM
6806 Springfield Drive
Mason Neck, Virginia 22079

February 1, 2001

Dr. John A. Buehrens
President
Unitarian Universalist Association
25 Beacon Street
Boston, MA 02108
By facsimile and by Fedex

Dear Dr. Buehrens:

I am writing in response to the attached letter from your attorneys addressed to Mr. Dean Fisher and myself. Their letter indicates that you have received a copy of it as well.

I was disappointed that you chose to attempt to intimidate us with threats before making any attempt to discuss any differences you may have with us. Perhaps I am very old-fashioned and have an undue sentimental attachment to civility, but one would think that some communication would have been in order before threatening to sue us. We had hoped that the Unitarian Universalist Association (UUA), which espouses religious tolerance, and the American Unitarian Association, which is committed to religious tolerance, would be able to live side by side in a friendly and constructive manner. It seems, however, that your commitment to religious tolerance does not extend so far as to allow another Unitarian voice to develop unmolested. How ironic it is that the UUA, an organization that publicly positions itself as the leading promoter of tolerance, is so intolerant when it perceives its own religious orthodoxy to be at risk. Perhaps you will reconsider your position and practice the tolerance you have preached for so long.

First, I will explain the reasons that the AUA was formed. Those of us involved with the AUA believe that the UUA has been a poor steward of the Unitarian tradition. The UUA has, in fact, repudiated much of what made the Unitarian tradition of value. The UUA has evolved into more of a political organization than a religious one. This is evident to anyone who reads the World magazine, reviews the UUA web site, listens to most (although certainly not all) UU ministers in the pulpit, observes the UUA Washington office in action, reads the UUA sanctioned boards on the internet or watches the UUA censors in action on those same internet sites. We at the AUA hold to the view that Unitarianism should be about religion not politics.

We also believe that the Unitarian faith involves an affirmation of God or the divine or a higher power. In contrast, the religion you call Unitarian Universalism presents atheism or witchcraft as perfectly consonant with the tenants of UUism. The authentic Unitarian tradition is a rich, substantial tradition that has much to offer people in modern times seeking a spiritual home that offers direction and meaning but nevertheless embraces reason, science and religious tolerance. Contemporary Unitarian Universalism, in contrast, under the guidance of the UUA, has collapsed into a vulgar, simplistic relativism that is virtually devoid of religious substance and offers almost no direction.

Those that founded the Unitarian movement in the United States would undoubtedly agree with us at the AUA that religion should be about God or the divine, not atheism, and that religious organizations should be about religion not politics. It is our contention that seeking truth, meaning, communion and love, addressing the problems of how to live our lives in a moral and fulfilling manner and providing guidance about right and wrong is what religion should be about. Religion should not be about the latest political campaign, or about the bill currently being considered in Congress. There are thousands of political and policy organizations which exist to address these questions and we do not believe most people get up on Sunday mornings to hear about politics.

Moreover, for Churches and religious organizations to become routinely and aggressively involved in political disputes is to dangerously entangle the state and religion. Just as the state has an obligation not to impede the free exercise of religion, religious leaders have an obligation not to undertake political action in a fashion that blurs the distinction between the religious and the political. By blurring that distinction, two things occur. First, democratic politics becomes not a matter of reasoned discussion and compromise but instead an uncompromisable competition among competing visions of how to implement God’s word. The impact of introducing religion so centrally into politics can be seen across the world in places like Ireland, Bosnia and the Middle East. Secondly, when religion is so clearly involved in secular, political disputes, then religion invites opposing political forces to marshal the state’s coercive powers against religion.

We chose the American Unitarian Association name precisely to emphasize the degree to which the UUA has rejected the Unitarian tradition and to emphasize our commitment to a rebirth of that tradition. The new AUA will, like the old AUA, promote a theist Unitarian religion rather than the secular political faith that has consumed the UUA. It is our hope and expectation that a Unitarianism loyal to its traditions will, in the long run, succeed and grow because it will be of more value to those interested in liberal religion than what the UUA has to offer.

Obviously, the UUA has a great many more resources than do we. It will take much work and many resources to build a movement dedicated to our principles. We believe, however, that we will be successful in the fullness of time.

Let me summarize our legal position and inform you of certain facts that you may wish to consider as you decide how you are going to proceed. We would be glad to meet with you to discuss any issues you would like to discuss. We would prefer to resolve any disagreements without litigation.

As I will explain in some detail, you need to understand that our legal position is much stronger than the UUA’s with respect to the right to use of the AUA name. If your lawyers tell you otherwise, I would strongly encourage you to secure independent legal advice on this issue rather than rely on the firm that has represented you in connection with such matters in the past.

Before I discuss the allegations and assertions made by Mr. Leibensperger in his letter, I would like to bring to your attention a few other facts. First, your subordinates have already made public via e-mail the general content of his letter. Although I had hoped that we might keep our differences private until we had at least discussed them, actions by UUA employees have made this impossible. Accordingly, we will make known the text of your letter and our response. Second, I have the misfortune of being a lawyer in private practice. Both myself and others stand ready to litigate this matter if necessary on behalf of the American Unitarian Association. Ergo, notwithstanding your considerable ability to spend your congregants’ dues on lawyers in an effort to coerce us, we are not intimidated and we have the means to defend a lawsuit. Third, if you decide to pursue this attempt to suppress a competing Unitarian vision, this lack of religious tolerance on your part will be made known to the greater public through the print and electronic media. Finally, knowingly pursuing a lawsuit that lacks merit exposes the UUA to financial liability.

The corporations called the American Unitarian Association and the Universalist Church of America were consolidated in 1961. It is black letter law that this means that the two constituent corporations (here the AUA and the UCA) ceased to exist. Thus, no corporation existed with the name American Unitarian Association until it was incorporated in Virginia in 2000.

As part of that merger, not only did the name of the organization change but the name of the religion changed as well. Unitarians and Universalists alike became Unitarian Universalists and, as you know, people routinely refer themselves and their religion as UUs and UUism, respectively. A new age was born and the two denominations moved forward as one, unified, new faith.

Your lawyer asserts, without basis, that 40 years after the UUA abandoned the AUA name that the UUA still has exclusive rights to its use. In point of fact, the UUA has legally lost all rights in the name. Religious corporations, religious tradenames and religious trademarks are governed by the same rules as other corporations, trademarks and tradenames. Trademark and tradename law require use in commerce for a name or mark to be protected. As the Supreme Court stated in United Drug Co. v. Theodore Rectanus Co., 248. U.S. 90, 63 L.Ed. 141, 39 S. Ct. 48 (1918) "[t]here is no such thing as property in a trademark except as a right appurtenant to an established business or trade in connection with which the mark is employed." A corporate name may become abandoned through long non-use even if the corporation still uses the name for payment of taxes, declaring dividends and the like. Lawyers Title Ins. Co. v. Lawyers Title Ins. Corp., 109 F.2d 35 (D.C. Cir. 1939) cert. denied 309 U.S. 684, 84 L.Ed. 1028, 60 S. Ct. 806 (1940). If the corporate name is not being used by the buying public, then it is not being used in such a way that it furnishes a basis for preventing similar use by others. See Stock Pot Restaurant, Inc. v. Stockpot, Inc., 737 F.2d 1576 (Fed. Cir. 1984).

Under the Lanham Act, there is a presumption of abandonment after three years of non use. Under federal law, use of a mark means the bona fide use of that mark made in the ordinary course of trade, and not made merely to reserve a right in the mark. 15 U.S.C.A. §1127. Moreover, the standard is intent not to resume use, not intent to abandon.

It is clear that the UUA hasn’t done business or trade under the AUA name for decades. It is clear, as a matter of fact, that the UUA does not intend to reject its 40 year old name of UUism and resume doing business under the AUA name. Both you and your attorneys know that. This is made more clear by the fact that the UUA has trademarked the name "Unitarian Universalist," "Unitarian Universalist Service Committee," "UU&Me," "UUWorld," and "World the Journal of the Unitarian Universalist Association" although you have never trademarked "American Unitarian Association." Why? Because that would involve a rejection of the UU idea and the UU tradename. Moreover, it is clear that the UUA could not sustain the trademark of the American Unitarian Association since it would never use the name in trade. In the words of the Fifth Circuit Court of Appeals, "An intent to resume requires the trademark owner to have plans to resume commercial use of the mark. Stopping at an intent to abandon tolerates an owner’s protecting a mark with neither commercial use nor plans to resume commercial use. Such a license is not permitted by the Lanham Act." Exxon Corp. v Humble Exploration Co., 695 F. 2d 96 (5^th Cir. 1983). See also, e.g., General Cigar Co., Inc. v. G.D.M., Inc., 988 F. Supp. 647 (S.D.N.Y 1997).

Moreover, the UUA on many occasions has made it clear that it considers the religion it represents to be Unitarian Universalism and members of its congregations are UUs. The UUA is neither Unitarian nor Universalist but UU. It has publicly said so on many occasions. The UUA is thus estopped from claiming such an intent to resume use when we in good faith detrimentally relied on the UUA’s assertion that it is a UU denomination rather than an AUA or Unitarian denomination. Hiland Potato Chip Co. v. Culbro Snack Foods, Inc. 585 F. Supp. 17, affirmed on point, 720 F.2d 981 (8^th Cir. 1983); Intrawest Financial Corp. v. Western Nat’l Bank, 610 F. Supp. 950 (D. Colo. 1985).

Furthermore, some courts have held that religious organizations which deviate from fundamental doctrine may lose the right to protect its name against a new association which adopted the same name and was formed by dissenting members. In this case, the UUA not only changed its corporate name and doctrine but also changed the name of its religion. See, e.g., Rosicrucian Fellowship v. Rosicrucian Fellowship Non-Sectarian Church 39 Cal. 2d 121, 245 P.2d 481 cert. denied 345 U.S. 938, 97 L. Ed. 1365, 73 S. Ct. 828 (1952); Re: Clarion Baptist Ass. Charter, Inc., 10 Pa D & C 189 (1927).; Purcell v. Summers, 145 F.2d 979 (4^th Cir. 1944).

There is no confusion between the AUA and UUA. Everyone understands precisely what is going on. We have a different religious vision from the UUA. There is no more confusion between the AUA and UUA than there is between Chevy and Ford. Moreover, we are just as interested as you are in the public understanding the differences between us because we believe our vision is more attractive to most Americans. Our web site makes this clear.

Moreover, given the free exercise, free speech and establishment clauses of the First Amendment and the Supreme Court’s freedom of association jurisprudence, any court will be forced to construe limitations on our religious freedom narrowly.

There is one point about which we are quite willing to be accommodating. Just as there is a chance that we may both may be struck by lightening tomorrow, there also is the chance (mentioned by your lawyer) that a will may contain a bequest to the AUA that was executed before the merger and has not been superceded or amended in the intervening 40 years. We are willing to discuss entering into an agreement whereby bequests, if any, made to the AUA prior to the incorporation of the AUA would go to the UUA.

In short, we are well within our legal rights to not change our name and we will not withdraw our trademark application. I would be glad to discuss with you any differences you may have with the AUA and I would hope that we could, as religious liberals, resolve this issue amicably. I look forward to hearing from you.

You may reach me at my office. (phone number deleted) or by e-mail at (deleted).

Sincerely,

David R. Burton
President

Cc: Mr. Edward P. Leibensperger
Nutter, McClennen & Fish