California Business Litigation Blog

At Oneida Middle School in Schenectady, New York, a student's rosary was labeled as gang related beads. The item was banned from the student's use. After complaints, the school dropped the ban, but a civil rights lawsuit filed against school officials rages on. The lawsuit continues because the school officials are accused of retaliating against the student for complaining about the ban.

The lawsuit was brought on by the American Center for Law and Justice. The student involved in Raymond Hoisier. The policy change, the American Center for Law and Justice says, is a victory for religious freedom. The policy, the organization stated, was discriminatory against the student's constitutional right of free speech and the free exercise of religion.

The student wore the rosary to school to express his faith and to honor the memories of an uncle and brother who died with the rosary in hand. The lawsuit states that the student is not part of any criminal gang and does not use the rosary as a way of promoting any gang related activities or belongings. The student's lawsuit states that the student did not cause any disruption to the school environment by wearing the rosary.

The lawsuit remains in effect because, allegedly, the school dean came up to the student when the student returned to school and ordered the student to detention. According to the lawsuit, the dean said, "If you want to play the insubordinate game, we can play, too." The school is also charged with writing the child up numerous times following the period after the student filed the complaint than it had in the year prior. The lawsuit claims that the school is trying to portray the student as a troublemaker.

The judge in the case, U.S. District Judge Lawrence Kahn stated that the student was allowed to continue wearing the rosary until the issue was resolved.

The organization also claims that the policy has come into question in other instances as well, including one incident in which the school required a 12 year old girl to remove the red, white and blue beaded necklace she wore as a way to support her family members serving in Iraq. The school, at that time, banished the necklace. That case was settled out of court.

In US District Court, a judge ruled against McSwain Union Elementary School in Merced, CA. The lawsuit against the school was filed on behalf of Tiffany Amador, by her mother Anna Amador. In 2008 an incident involving the then sixth grader resulted in the school requiring the student to take off a pro life t-shirt. The judge ruled that the school and three officials from the school violated the student's rights, including violations to the First, Fourth and the Fourteenth Amendment.

The case was scheduled to go to trial later this month, but the school settled the claim for $50,000, without admitting any wrong doing in the case.

The T-shirt in the case portrayed several pictures of an unborn fetus in the womb, with the word "Abortion" written in capital letters across the top of the shirt. The first two pictures on the shirt portrayed an unborn child through sonographic images. The final square was black, with the word "gone" under it. The school stated that the t-shirt violated the school's dress code.

According to the lawsuit, the student was required by a staff member to throw away her lunch and immediately report to the main office of the school. Then, according to the lawsuit, another school official grabbed the student by the arm and forcibly took her to another official's office. She was then ordered to remove her t-shirt and to never wear it again.

The Amadors’ attorney stated that the school had done the right thing by avoiding a trial and by allowing the judgment to be entered. According to the attorney, "Student speech at all grade levels is protected by the First Amendment. With few exemptions, such as profanity and lewdness, the Constitution prohibits school officials from picking and choosing what messages they find acceptable."

The school has since revised its dress code. The new code takes effect in the coming school year and it prohibits students from where any clothing with text or graphics, except for small school logos.

Last month, the Ninth Circuit Court of Appeals ruled that an automobile broker’s use of the following five letters “Lexus” was not trademark infringement. It stated that it was actually a “lawful nominative fair use”.

Farzad and Lisa Tabari are independent, online auto brokers in Southern California who formerly used the domain names “buy-a-lexus.com” and “buyorleaselexus.com”. Toyota Motor Sales USA filed a trademark infringement lawsuit against the Tabaris. Toyota also sought an injunction to prevent use of the Lexus mark.

The District Court concluded that the brokers had infringed Toyota's mark. That court enjoined use of the Lexus mark in any domain name or metatag. The Tabaris appealed these decisions.
On appeal, the Ninth Circuit reversed the lower court’s decisions. The appellate court stated that consumers looking for a Lexus online are sophisticated enough to know an official Lexus website from the Tabaris sites. The court also affirmed that internet searchers are used to trial and error searches, and as such would not be confused.

Lacking any affirmative suggestion of affiliation or sponsorship, the Ninth Circuit reasoned, simple use of the mark in the domain name would not cause Internet users to believe there is sponsorship or affiliation with Toyota/Lexus.

Quoted from the Ninth Circuit decision, which may be viewed HERE : “The Tabaris are using the term Lexus to describe their business of brokering Lexus automobiles; when they say Lexus, they mean Lexus. We’ve long held that such use of the trademark is a fair use, namely nominative fair use. And fair use is, by definition, not infringement.”

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