377 lines
15 KiB
Plaintext
377 lines
15 KiB
Plaintext
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THE HON. CHARLES A. LEGGE
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O.T.O. v. Motta
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Findings of Fact and
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Conclusions of Law
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The following Findings of Fact represent the early conclusions of the
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U.S. District Court for Northern California in our lawsuit against
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Marcelo Motta, and should be read in conjunction with the Judgment
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that immediately follows.--H.B.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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GRADY McMURTRY, et al,
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Plaintiffs
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v.
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SOCIETY ORDO TEMPLI ORIENTIS, et al,
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Defendants
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THE ACTION WAS TRIED to the court without a jury from May 13 through
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May 17, 1985, and was then submitted for decision. The court has heard
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the testimony, read the exhibits, and weighed the evidence. The court
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makes the following findings of fact by a preponderance of the
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evidence, makes the following conclusions of law, and directs that
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judgment be entered in favor of plaintiffs and against defendants on
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plaintiffs' complaint, defendants' counterclaims, and plaintiffs'
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counterclaims to the counterclaims.
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For simplicity, plaintiffs, counter-defendants, and counter-counter
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plaintiffs will be called ``plaintiffs;'' and defendants,
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counterclaimants, and counter-counter defendants will be called
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``defendants.''
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FINDINGS OF FACT
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1. The organization and system of beliefs which is called ``Ordo
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Templi Orientis'' or ``OTO'' is a mystical and fraternal organization
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begun around 1900. The chief international executive of OTO is known
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as the ``Outer Head'' or ``OHO.'' Aleister Crowley became OHO in
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approximately 1921 and served until his death in 1947. Crowley wrote,
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or rewrote from earlier versions, many of the rituals, doctrine, and
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interpretative and instructive literature of OTO. Crowley set forth
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the rules of operation and procedures of OTO in numerous books,
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essays, and correspondence.
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2. OTO had and now has lodges where its members meet. One such lodge,
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which existed during the 1930's and subsequently, was Agape Lodge in
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California.
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3. After Crowley's death, Karl Germer became the OHO.
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4. At his death, Crowley left all of his previously undisposed
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intellectual and tangible literary property to OTO. As OHO, Karl
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Germer took possession of all of the tangible property of OTO around
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1950 and moved the property to California.
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5. Karl Germer died in California in 1962. No will of Germer was
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offered for probate and the property of OTO remained in the possession
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of Germer's widow, Sasha Germer.
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6. Sasha Germer died in 1975.
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7. In 1976, plaintiffs obtained an order from the Superior Court of
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the State of California, Calaveras County, ``In the Matter of the
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Estate of Sasha Germer.'' The order decreed that plaintiff Grady
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McMurtry was authorized to take possession, on behalf of OTO, of
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certain property identified as belonging to OTO. Pursuant to that
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order plaintiff McMurtry and others took possession of properties
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which had formerly been in the possession of Crowley, Karl Germer,
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Sasha Germer and OTO.
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8. Plaintiff OTO is now a California Corporation. It has a legal
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structure; is a membership organization; maintains records; has a set
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of beliefs; has an established set of procedures; conducts regular
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meetings; conducts financial transactions; initiates and promotes
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members; and follows the beliefs and practices derived from Crowley
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and the prior unincorporated OTO. It is a continuation of the
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organization, beliefs and practices originally established and
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conducted by Crowley and OTO.
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9. Defendant Society Ordo Templi Orientis (``SOTO'') was incorporated
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in the State of Tennessee. SOTO is not the continuation of the
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organization, beliefs and practices originally established by Crowley
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and OTO.
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10. Defendant Motta is a citizen of Brazil. He has for years been
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interested in the work of OTO and Crowley. Motta has caused some
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literary works of Crowley to be published, commented, and edited, in
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his own name and in the name of OTO and SOTO.
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11. Plaintiff OTO now owns, holds all right and title to, has used,
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does now use, and has the right to use: the name ``Ordo Templi
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Orientis''; the initials ``OTO''; the various insignia, registers and
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symbols of OTO; all writings and publications of Crowley which were
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not assigned to others at the time of his death; the publications of
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other matters pertaining to OTO; and the trademarks, service marks,
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and copyrights pertaining to the same. Defendants do not own, hold, or
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have any right to the use of such properties.
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12. The name ``Thelema'' in connection with publications is a part of
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the property owned by plaintiff OTO. Plaintiff Smith has used that
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name on behalf of plaintiff OTO since 1962. Plaintiff OTO has the
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rights to the trademarks, service marks and copyrights of the name
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``Thelema,'' and equivalents of that name, in connection with
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publications.
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13. Defendants have used the name ``Thelema'' in publications
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subsequent to its use by plaintiffs. Defendants do not have ownership
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of or the legal right to use the name ``Thelema'' or its equivalents.
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Defendants' use of the name of ``Thelema'' was without the consent of
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plaintiffs and constitutes infringement of that name. Defendants' use
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of the name ``Thelema'' in connection with publications has caused
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confusion in the publishing industry and among purchasers of books,
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and will if continued cause confusion in the future. However,
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plaintiffs have not shown sufficient evidence of monetary losses from
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that confusion to support an award of compensatory damages for
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defendants' improper use of the name ``Thelema.''
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14. Defendants' use, and purported registration of trademarks and
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copyrights under the names ``OTO,'' ``Crowley,'' and ``Thelema'' were
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done in contemplation of this litigation and were done without the
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rights of ownership of the property purportedly registered and
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copyrighted.
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15. Plaintiff McMurtry is the acting OHO of OTO in the United States
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and is the highest overall member. Plaintiff McMurtry was personally
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assigned by Crowley, and continues to own, a 25% interest in Crowley's
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Magick Without Tears.
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16. Defendant Motta is not the OHO of OTO.
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17. In 1981 defendants published and distributed certain books in
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California and elsewhere which contained statements regarding the
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individual plaintiffs listed below. Certain of the statements were
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matters of opinion, or were matters pertaining to religious beliefs,
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and hence are protected under the First Amendment. The following
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statements about individual plaintiffs were not protected and were
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libelous:
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(a)Plaintiff P. Seckler (nee P. Wade, P. McMurtry) was accused of
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sending a gang to assault and rob Sasha Germer, and was alleged to
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have misappropriated property.
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(b)Plaintiff Grady McMurtry was alleged to have committed slander,
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misappropriated property, pirated property, delivered property to the
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hand of thieves, and contributed to the death of Sasha Germer.
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(c)Plaintiff H. P. Smith was alleged to be a thief.
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(d)Plaintiff James Wasserman was alleged to have delivered property to
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thieves and to have pirated property.
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18. The statements made about the plaintiffs enumerated in paragraphs
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17-a, b, c and d were untrue and constituted libel per se.
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19. The plaintiffs enumerated in paragraphs 17-a, b, c, d did not
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establish by sufficient evidence any special damages, but are entitled
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to general damages from defendants in the amount of $10,000 each.
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20. The publications of the libels in paragraph 17-a, b, c, and d
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were done with actual malice by defendants, with knowledge of their
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falsity, and with a reckless disregard for the truth, and those
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plaintiffs are entitled to punitive damages from defendants in the
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amount of $25,000 each.
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21. Neither plaintiffs nor defendants are parties engaged in the
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media business, and are not entitled to rights or defenses
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attributable thereto.
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22. There is not sufficient evidence to establish that defendants
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obtained any substantial gross revenue or profit from their
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publications, or that plaintiffs lost any gross revenue or profit, to
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support an award of damages to plaintiffs for defendants' use of
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plaintiffs' names, publications or symbols.
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23. Plaintiff Wasserman was an agent of defendant Motta for certain
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purposes in 1976. Plaintiff Wasserman terminated that agency in 1976,
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and the termination was acknowledged by defendant Motta. Any cause of
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action by Motta for the breach of that agency relationship by
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Wasserman accrued in 1976.
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24. No property of defendants was converted by plaintiffs. Even if
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some personal properties of defendants were included in the material
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obtained by plaintiffs from Karl and Sasha Germer, they were obtained
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in 1976, and the obtaining was known to defendants in 1976.
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25. Plaintiffs circulated among OTO members a letter written by
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defendant Motta to Karl Germer dealing with certain matters personal
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to Motta. Motta has not shown by sufficient evidence that the
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circulation was a violation of his right of privacy, or that the
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circulation caused him any special or general damages. The circulation
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was not done with malice, but in connection with the dispute between
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plaintiffs and defendants as to who was the OHO and who rightfully
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held the properties of OTO. The circulation occurred, and was known by
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defendant Motta to have occurred, more than one year prior to the
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filing of the complaint in this action.
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26. Unless enjoined, defendants will continue to claim and use the
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name ``Ordo Templi Orientis'' and the initials ``OTO,'' and will
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continue to claim that defendant Motta is the OHO of OTO, and will use
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plaintiff OTO's names, insignia, initials, symbols, trademarks and
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other properties of plaintiff OTO to the injury of plaintiff OTO.
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CONCLUSIONS OF LAW
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1. To the extent that any of the above findings of fact may be deemed
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to be conclusions of law, they are incorporated by reference herein.
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2. The libelous statements enumerated in paragraphs 17-a, b,c, and d
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of the findings of fact are libel per se, and general damages are
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presumed.
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3. The other allegedly libelous statements about plaintiffs
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enumerated in the third and fourth causes of action of plaintiffs'
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first amended complaint are not actionable because they are matters of
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opinion or are religious matters protected by the First Amendment to
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the Constitution of the United States.
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4. Any publications by defendants of allegedly libelous statements
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about plaintiffs which occurred subsequent to the filing of the first
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amended complaint cannot be the basis for any award of damages to
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plaintiffs in this action.
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5. Plaintiffs are entitled to judgment on their first amended
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complaint against defendants as follows:
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(a)On the first cause of action for unfair competition regarding the
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use of the name ``Ordo Templi Orientis,'' and the initials ``OTO,''
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and the insignia and other properties of OTO.
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(b)On the second cause of action for infringement of trademarks owned
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by plaintiff OTO.
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(c)On the third and fourth causes of action for the libels enumerated
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in paragraphs 17-a, b, c, and d of the findings of fact.
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(d)On the fifth cause of action for unfair competition in the use of
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the name ``Thelema.''
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6. By virtue of the decision of the United States District Court for
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the District of Maine, United States District Judge Gene Carter, in
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the action entitled Motta, et al v. Samuel Weiser, Inc., No. 81-0459,
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defendants are collaterally estopped from asserting certain of their
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counterclaims against plaintiffs. Judgment should be entered in favor
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of plaintiffs and against defendants on defendants' counterclaims as
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follows, both because of the collateral estoppel effect of that action
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and because of the findings of fact which are made above:
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(a)Defendants do not own the Crowley copyrights.
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(b)Motta is not the OHO of OTO.
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(c)Defendants' purported registration of copyrights are not valid
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because defendants do not own the property purportedly copyrighted.
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(d)Plaintiffs did not breach any copyrights of defendants, as alleged
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in defendants' first counterclaim.
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7. Plaintiffs did not violate defendants' alleged trademarks
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regarding the insignia of OTO, as is alleged in defendants' second and
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eighth counterclaims.
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8. Plaintiffs did not violate defendants' alleged trademarks
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regarding SOTO, as alleged in defendants' third counterclaim.
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9. Defendants' fourth counterclaim is barred by the statutes of
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limitations, either by the two year statute of limitations provided in
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California Code of Civil Procedure Section 339 or by the three year
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statute of limitations provided in California Code of Civil Procedure
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Section 338; the cause of action accrued in 1976 and was barred prior
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to the filing of the complaint in this action in March 1983.
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10. Defendants' fifth counterclaim is barred by the three year
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statute of limitations provided in California Code of Civil Procedure
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Section 338; the cause of action accrued in 1976 and was barred prior
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to the filing of the complaint in this action in March 1983.
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11. Defendants' sixth counterclaim is barred by the one year statute
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of limitations provided in California Code of Civil Procedure Section
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340; the cause of the action had accrued and was barred prior to the
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filing of the complaint in this action in March 1983.
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12. Plaintiffs have not waived their statute of limitations defenses
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by not specifically asserting them in an answer to defendants'
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counterclaims.
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13. Plaintiffs did not breach any federal trademark regarding the
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name ``Ordo Templi Orientis'' as alleged in defendants' seventh
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counterclaim.
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14. Plaintiffs did not breach any federal trademark in the symbol
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``OTO'' as alleged in defendants' eighth counterclaim.
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15. Plaintiff OTO is entitled to the exclusive use of the trademarks
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and names claimed by defendants in their counterclaims, except those
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of SOTO.
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16. Plaintiff McMurtry owns the interest in Magick Without Tears
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assigned to him by Crowley.
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17. Plaintiff OTO is entitled to possession and ownership of: the
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remainder of the copyrighted material about OTO, the archives of OTO,
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and the remainder of the writings of Crowley.
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18. Defendants' purported registration of trademarks are invalid and
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of no legal effect, because defendants did not and do not own the
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marks, except those of SOTO.
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19. Plaintiffs are entitled to injunctive relief request in their
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counterclaim to the counterclaim.
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JUDGMENT
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Plaintiffs are to submit to this court, within twenty days of the date
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below, a proposed form of judgment incorporating these findings and
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conclusions. Plaintiffs are to simultaneously submit the proposed form
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of judgment to defendants, and within ten days thereafter defendants
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are to advise the court in writing what objections they have to the
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proposed form of judgment prepared by plaintiffs. Judgment will then
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be entered by the court.
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Dated: July 10, 1985.
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CHARLES A. LEGGE
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UNITED STATES DISTRICT JUDGE
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