Update 78: Judge's ruling + Factual error + Finishing for film fests 2019
Hello backers and supporters,
As promised, I've attached a copy of the judge's decision in our Freedom of Information (FOIA) lawsuit that you can read here.
As I mentioned in our last update, United States Federal District Judge, Christopher R. Cooper, did not rule in our favor, but granted the USPTO summary judgment.
Interestingly, a closer scrutiny of Judge Cooper's opinion reveals that he made at least one factual error in deciding our case.
Don't worry, we're not going to challenge his decision and are moving on. We're grateful to have come to the end of this road, and appreciate that Judge Cooper wished us well on our film.
And now with the FOIA lawsuit out of the way and one remaining interview, it's on to finishing our film. I'm working to complete our documentary to submit and premiere at a Vermont film festival in 2019.
As I've forwarded to you in previous updates, I've been shooting Vermont b-roll footage to include in our film, and have included a couple of stills in this update from a recent shoot in a Glover, Vermont woods.
Now, about that factual error.
As I've mentioned before, the reason I filed the Freedom of Information lawsuit in the first place was to access documents the United States Patent and Trademark Office (USPTO) was keeping secret and withholding from our film.
Bo's trademark application took four years to progress through the agency -- an inordinately long time. It's reasonable to expect that we should know why the government was taking so long on Bo's case.
In emails I obtained through FOIA requests, it's clear that top management at the USPTO was taking a personal interest in the Eat More Kale case.
In an unusual move, USPTO managing attorney, Andrew Lawrence, wrote in a 2011 email that he assigned the Eat More Kale case to himself "to make certain it doesn't move."
There were also a string of emails going to and from the head of the trademark office, United States Commissioner of Trademarks, Deborah Cohn. As a documentary film covering this story, it's reasonable that we should want to access those public documents.
However, Judge Cooper didn't see it that way.
In deciding our case he wrote, "With the high number of trademark applications that the agency receives each year, it is extremely unlikely that the head of the trademarks office would become personally involved in a particular application."
However, this is factually untrue. Further, Judge Cooper had this information in filings made both by the USPTO and my FOIA lawyer, Scott Hodes.
"Debbie, I just wanted to keep you in the loop on this."
In emails I obtained through FOIA from other USPTO offices, then United States Commissioner of Trademarks, Deborah Cohn, was personally involved in the Eat More Kale case -- including reviewing USPTO responses to Bo's application, interview requests made by me, and even the minutia of reviewing at least one customer service response to a fan of Eat More Kale.
In a handful of emails regarding Eat More Kale spanning from 2012 to 2013, Commissioner Cohn writes, "Can I see a copy of the response, please?" while other USPTO staffers interject for her, writing, "Debbie [Cohn] wants to see it before we send it."
A flurry of 2012 emails both to and from Commissioner Cohn regarding interview requests made by me, were obtained through FOIA -- but only as completely blank sheets of paper (the USPTO had redacted every word on the page).
There's also an April 26, 2013 email from Steven Berk, Trademarks Chief of Staff, who writes to Commissioner Cohn under the subject: Eat More Kale:
"Debbie, I just wanted to keep you in the loop on this. Please see Andrew [Lawrence's] email regarding Eat More Kale."
In the year Bo applied for a registered trademark there were over 300,000 trademark applications sent to the USPTO. It is highly unusual that the then Commissioner of Trademarks would take such a personal interest in a single one of those applications -- an application that took four years to make its way through the agency Commissioner Cohn was overseeing.
It's reasonable that the public should know why.
As an aside, in an example of the revolving door between government and industry, Commissioner Cohn left her position at the USPTO in 2014, then months later become a lobbyist for the trademark industry as Senior Director of Government Relations with the International Trademark Association (INTA).
According to an April 2018 issue of World Trademark Review, "In terms of lobbying, INTA's efforts are led by Deborah Cohn, the former US Commissioner of of Trademarks."
As I've reported previously, neither the USPTO or INTA responded to my repeated requests for interviews for our film.
Okay, that's all for now.
Here's to a good rest of the summer for you and yours. As always, I'll keep you posted on our progress.
If you're just joining us after a while and want to catch up, check out the article I wrote on Medium called, "From Kale to Doughnuts: Vermont's very long, sometimes misleading, often confusing tale of Eat More Kale."
And truly, I'd love to hear from you. If you have thoughts, questions or tips about our story, feel free to contact me through Kickstarter, or at the website below.
PS. Per my last update, some folks emailed and said they went to see the movie, Leave No Trace and were really moved by this story of a veteran with PTSD and his daughter. Its 100% rating on Rotten Tomatoes is well deserved.
As an independent film amidst the summer blockbuster season, Leave No Trace, probably won't be in theaters for long. Hope you get a chance to see it before it disappears. It's truly a beautiful and moving film. j.l.