20230407-Closed Matter

Current Revision:2023-04-07

Regarding a closed matter

(Analysis of the 2022-23 trademark infringement dispute. Author: Joseph Puente)

 Other than certain ubiquitous social media platforms and with the notable exception of the Utah Filmmakers™ Association (“Utah Filmmakers™,” “UFA™,” the “organization”) and its Founder, Joseph L. Puente (the “author,” “administrator,” “admin”), no individual person, organization, business, entity, agency, or event is identified by name in this memorandum.

1.0 In service to the local film community

The Utah Filmmakers™ Association is committed to guiding aspiring filmmakers to professional resources, directly providing practical assistance whenever possible. It will do more when it sees a potentially greater benefit to the local film community—if it’s economically feasible and falls within the parameters of the organization’s mission. Such efforts are often received with gratitude, especially since remuneration is usually limited to administrative costs, a simple acknowledgment in the closing credits of a motion picture project, or a social media post.

1.1 Recognizing a need & opportunity

For some time, the author has held the opinion that the organizers of a local event (the “Respondents”) were—and still are—in desperate need of consistent brand management. A service that Utah Filmmakers™ could offer, and enthusiastically went the extra mile to help them achieve it. When the sum of its efforts was presented as part of a proposal for an in-kind sponsorship, all that was anticipated was the practical negotiation of details before drafting a formal agreement. Based on past experience, it was assumed that the time, effort, and resources invested—in good faith and for the benefit of the Respondents—would be received with some degree of appreciation. However, their actual reaction was unexpected.

1.1.1 Unanticipated backlash

As stated in an analysis of the proposal, “Hindsight being 20/20, there were definitely more effective ways of going about this...” Despite efforts to be clear in its language, transparent with its intentions, and emphasize the “in-kind” aspects of the proposal—i.e. the complete absence of any required financial transaction between the parties—incorrect assumptions were made about the people with whom the organization was attempting to negotiate. Based on their public presentation, it was assumed that the Respondents were rational, informed, and experienced professionals. In reality, they are not. A lesson painfully learned—thus, not easily forgotten.

That said, different approaches that could have been taken were briefly considered—discussing the proposal sooner, asking for their input before writing it, etc.—but such speculation would not change the final outcome.

1.2 Red flags

Over several months, during which the organization tried to work with the Respondents, many red flags should have been taken more seriously and much sooner. Like their active resistance to communicate and their unwillingness to do so clearly or in a timely manner. Their insistence on maintaining a clumsily worded domain name—based on a defunct and feckless moniker that constantly drew attention to the sketchy “pay-to-play” origins of the differently-named event it promoted. And a stupefying inability to discern a sponsorship proposal from a hostile takeover. These indicators raised serious questions about their basic business acumen and capacity to effectively—and sustainably—manage any corporate venture, to say nothing of a brand with growth potential.

1.2.1 Cutting our losses

Notwithstanding any mistakes or misjudgments on the part of the UFA™ administrator, the Respondents’ behavior was alarming, indicative of personas devoid of healthy interpersonal boundaries, obvious trust issues, and narcissistic traits that—based on the author’s personal experience—could only be explained through comprehensive psychological analysis. While the author lacks the qualifications to make a diagnosis based on the apparent pathologies they witnessed, they DO have knowledge and experience in their own vocation that allows them to make a professional judgment—and their administrative position required just that, concluding that the Respondents failed spectacularly to meet the professional and ethical standards that the Utah Filmakers™ Association strives for and encourages its members, associates, and partners to uphold.

It is also the author’s opinion that the Respondents would have reacted in a similar manner to any proposal, regardless of when or how it was presented—at any stage of development, in person or remotely, verbally or in writing, with or without assets. The gross incompetence, emotional immaturity, and interpersonal toxicity they displayed completely destroyed any confidence that may have existed for the event's future—demonstrating that brand management is the least of their problems. If the behavior documented throughout this ordeal is any indicator, the Respondents themselves are the greatest obstacle—and liability—preventing them from achieving any practical measure of success.

It was with that unfortunate realization that the sponsorship proposal was withdrawn and all related assets were simply donated—gratis—with the hope of at least maintaining a practical working relationship with one of the Respondents, who was, as far as the author could tell, at the time, the lesser of two problematic individuals.

1.3 Problems coming to light

The abovementioned conclusions were reached before the author learned of the Respondents’ inefficacy—or unwillingness—to understand or implement basic ethical business practices. They also demonstrated a lack of respect for intellectual property and the rule of law by infringing on a trademark registered by the organization, attempted to use their known association with Utah Filmmakers™ to foster public confusion through brand dilution and metadata manipulation, exploited access to confidential information, and instigated a social media whisper campaign. Their inept efforts to obfuscate their most overtly unethical actions would have been laughable were they not so obvious.

2.0 Wanting to move on

Utah Filmmakers™ was prepared to simply move on from the matter, even to the point of ignoring the infringement on its trademark—to describe the problematic phrase in question as “derivative” would be to credit the Respondents with more creative effort than they deserve. Unfortunately, when they announced their intentions to commoditize their use of the “confusingly similar” business name that raised concerns about trademark infringement, to begin with, the organization was left with few options.

2.1 Representative Intercession

On January 26, 2023, a written Demand to Cease and Desist (the “C&D”) infringing on the organization’s registered trademark was submitted to the Respondents, who were granted a 14-day grace period to comply. The list of terms for compliance included a requirement that they sign a Nondisclosure Agreement (NDA). The author has maintained their professional decorum in their dealings with the Respondents—despite their embarrassing and provocative behavior—to the point of insisting that any disagreements, misunderstandings, or conflicts between them remain confidential for the sake of the film community for which both parties have expressed a desire to help promote and nurture.

2.1.1 The purpose of the NDA

The NDA clause was included specifically to protect the Respondents’ reputation in the film community. No rational business owner would allow their own private pettiness, an established record of multiple ethical breaches resulting in a formal dismissal, violation of established legal statutes, an astonishing lack of professionalism, and an incredible display of general incompetence to become public information—assuming such a constellation of character traits could even allow for that level of self-awareness.

2.2 Responding with forfeiture

Upon receipt of the C&D, the Respondents immediately forfeited the 14-day grace period and an extremely generous offer to keep their unethical and unprofessional behavior confidential when they made blatantly misleading written statements in publicly accessible social media posts in an obvious attempt to draw attention away from their own actions. When questioned in a comment, they acknowledged that they had yet to hire a lawyer. One would assume that any competent attorney would have advised against making a public statement before submitting a formal response to a C&D. This gross error in judgment was either ignored by—or withheld from—the legal counsel they would eventually retain.

It should be noted that social media “engagement”—including comments and “reactions”—may have appeared very exciting from the Respondents’ point of view as they received hundreds of notifications about the activity level on their posts. However, the number of individuals whose attention was “engaged” enough to prompt multiple interactions consisted of the same core group of people participating in angry comment threads, which, according to one commenter—equally sympathetic and sycophantic—represented “the entire community.”

In reality, it approximated 1.5% of UFA™ Community Members—a figure based on a conservative estimate informed by the membership of our primary online forum. 

2.2.1 Observations

Utah Filmmakers™ did not respond publicly to the social media “drama” that was unfolding in the comments of one individual’s posts on a personal social media profile, apart from acknowledging the inaccuracy of their statements in an email to our Associate Members. This included the observation that the Respondents were “...doing themselves a disservice by choosing to discuss a confidential matter…” and failing to “...not engage in public behavior that is unbecoming of professionals in any industry.”

2.2.2 Hiring a lawyer when it’s too late to be practical

An attorney representing the Respondents contacted the organization’s legal counsel on February 7—12 days after receiving the C&D—to inform them that they would be in contact again in one-to-two weeks to respond to the already forfeited opportunity for their clients to comply with the C&D.

After another two weeks lapsed, the Respondents’ attorney still had yet to reply formally. However, during that two-week period, the UFA™ administrator became aware that some of the key requirements of the C&D were voluntarily met.

3.0 Addressing false assertions with facts

Nearly a month following the Respondents’ social media posts, Utah Filmmakers™ decided to discretely address the specific false allegations that were made, including additional assertions written in subsequent comments—most of which, as noted in §2.2, were completely unrelated to the substance of the C&D. Since the posts were still publicly viewable at the time, the Respondents did not appear concerned about maintaining confidentiality—even though their false statements and deceptive practices could be easily exposed. A dossier was prepared that consisted of contextually relevant information in direct response to their defamatory public statements—which were archived and referenced along with other evidentiary materials. The dossier was posted on isolated pages within the Utah Filmmakers™ website, accessible only to those with knowledge of its specific web address, and no direct link from any of the site’s primary pages. There was no formal announcement of this action apart from some private notifications sent to select UFA™ Community Members on February 21, 2023.

3.1 Another attempt to change the narrative

When the Respondents became aware of the dossier, they deleted their defamatory social media posts and wrote a new post, claiming that the UFA™ Administrator was “spamming” individuals listed among their social media “friends.” As stated in §3.0 above, the individuals were contacted because they are Community Members of the Utah Filmmakers™ Association and/or friends and acquaintances in common with the UFA™ Administrator. As noted in an update to the dossier by the author, “...when [they] became aware of my efforts to set the record straight, [they] deleted [their] previous posts and, once again, reframed the narrative. An unfortunately effective manipulation technique known as ‘Gaslighting’...” This new post was also subsequently deleted.

3.2 Voluntary compliance

Several steps outlined in the C&D to avoid litigation were rendered moot due to the Respondents’ almost immediate forfeiture of the 14-day grace period and their own public disclosure of the matter (§2.2.2)—however inaccurate, misleading, and potentially damaging to their own reputation, it may have been. Their decision to change the problematic phrase—to include the registration of new domain names—so that its implementation no longer infringed on our trademark, along with changes to the screen names and web addresses on their social media presence to match, are also noteworthy. However, their voluntary compliance with the one step in the letter that was most important to us—specifically, the cancellation of a DBA—was especially surprising since it was implemented without any litigation, settlement agreement, and/or court order, or any relevant communication by their legal counsel until after the fact. Such an action may be inferred as a tacit admission that our claims had merit if not a realization and acknowledgment on their part—however unlikely—that they had, in fact, acted unethically and broken the law.

4.0 An example of how NOT to negotiate

The letter that eventually arrived from the Respondents’ attorney on February 23, 2023—16 days after their assurance to contact us in “...one to two weeks”—informed us of their voluntary compliance with one key term, part of another, and falsely claimed that “the… Facebook pages in your second and third demands have been deleted…” The referenced “pages”—actually a page and a group—were not deleted; as noted in §3.2 above, the screen names and web addresses were simply changed, so they were no longer “confusingly similar” to the trademark.

They informed us that their clients “categorically refuse to sign” the UFA™ Code of Ethics & Conduct—one of the steps required for compliance, which would have been a token gesture, at best—and also expressed their refusal to sign an NDA. The reason for their refusal to meet that requirement was based on the dossier posted on the UFA™ website referenced in §3.0 above, conveniently ignoring the fact that it was published in response to their clients’ forfeiture of confidentiality through their own defamatory public statements on social media—a decision they made before hiring legal counsel (§3.1).

If their attorney wasn’t already aware of them and had thoroughly reviewed the dossier, they would have learned about those posts and would have seen screenshots of them. If that were the case, they would have to have deliberately ignored the truth of their client's actions—as described in §2.2—and would be complicit in their efforts to gaslight and perpetuate the same false assertions. What would such behavior say about their ethical obligations as an officer of the court?

4.1 Giving away one’s imaginary leverage

The letter would have been a pleasant surprise if it was not couched in quid-pro-quo terms, attempting to address grievances based on the same false premises propagated in the Respondents’ social media posts the previous month. Regardless, those disingenuous assertions have already been addressed, disproven, and are unworthy of further comment or direct response.

Confirmation of meeting the core requirements of the C&D was accompanied by accusations of “...attempting to damage [the Respondents’] well-earned reputation in the Utah film industry” and some demands of their own—complete with a 48-hour deadline.

Their first demand:

“...immediately cease all efforts to libel the [Respondents].”

The definition of “libel” is “a published false statement that is damaging to a person's reputation; a written defamation.” Technically, the Respondents did this in their social media posts targeting the Utah Filmmakers™ Association and its Administrator. That they voluntarily deleted those posts may suggest that they were made aware of the potential legal consequences of being found guilty of criminal defamation.

They also demanded “...a public retraction and apology regarding not only [the UFA™ Administrator’s] current libelous activity…”

Since the statements made in the dossier regarding the Respondents are factual—and presented with evidence—they are not libelous.

“...but also provide full disclosure as to his wrongdoings…including the fraudulent acquisition of the [local event’s] mark…”

It’s our understanding that an acquisition of a mark is fraudulent if someone misrepresents themselves as another entity or falsely claims to represent another entity. i.e. if someone claimed to be the Respondents or that they were representing them. The nature of acquiring the mark in question does not meet that definition.

“Such retraction will include personal messages to those he has directly [contacted] and will be prominently located on the UFA social media accounts and website.”

That’s adorable.

Additionally, they “recommend [the UFA™ Administrator’s] immediate resignation” and concluded, “Failure to meet these demands will be met with further efforts on my clients' behalf and may include litigation.”

As of the current revision of this memorandum, the 48-hour deadline has come and gone with no action taken on their part.

5.0 How this all could have been avoided

The Respondents were offered multiple opportunities to resolve our trademark concerns amicably without going to the expense of retaining legal counsel. These included options that would have allowed them to maintain positions of trust and recognition within the Utah Filmmakers™ Association with the potential to participate in a formal leadership role—pursuant to acknowledging the problematic nature of their actions in writing and a demonstrable commitment to abide by the organization’s ethics code.

Even when they initially refused those offers, and despite their unwillingness to take responsibility for their unethical behavior, Utah Filmmakers™ was still willing to maintain the confidentiality of the matter in recognition and sincere appreciation for their positive contributions to the local film community to the point that the Respondents were extended an explicit invitation to continue participating in our primary online forum to promote their business and recurring events as they always have. An offer that has not been rescinded.

5.1 Continued misrepresentation

The Respondents consciously chose to leave the one forum and resource that has benefited them and their business more than any other. They also misrepresented their deliberate choice to leave as an involuntary and retaliatory banishment outside their control.

6.0 On affected reputations

Any assertion that anyone could possibly do more damage to the Respondents’ reputation than what they have already inflicted upon themselves is absurd—as is the suggestion that they have any reputation to speak of outside of the local film community, which Utah Filmmakers™ has always maintained is distinct and separate from Utah’s film industry.

7.0 On potential reactions to this memo

As stated in the opening paragraph of this memorandum, with a few noted exceptions, no individual person, organization, business, entity, agency, or event is identified by name herein. Should anyone publicly claim to have been slighted or embarrassed by any of the information presented in the preceding paragraphs, they could not do so without identifying themselves as the Respondents and/or their above-referenced associates.