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Local plaintiffs firm Kwok Daniel is fighting back against a suit filed by the Texas Children’s Hospital over the use of a graphic from the hospital’s website. The firm has argued that the hospital’s claims are an attempt to silence free speech.

Houston’s Kwok Daniel and its name partners have filed an Anti-SLAPP motion seeking to quickly dismiss the trademark infringement suit brought by Texas Children’s Hospital. The hospital has alleged that Kwok Daniel used a logo from TCH’s website, in an altered form, to damage its reputation.

Kwok Daniel, founding partner Robert Kwok and managing partner Thomas Daniel allege in the motion to dismiss that the hospital’s “frivolous claims” are exactly what the Texas Legislature intended to prevent by mandating early dismissal of SLAPP (strategic litigation against public participation) suits.

Robert Kwok.

“The court should dismiss this case under the Anti-SLAPP provisions of Texas law because defendants and the ancillary court are victims of an improperly submitted, retaliatory temporary restraining order and lawsuit designed to strong-arm and silence free speech rights on matters of public concern,” the Kwok Daniel defendants allege in the motion, which was filed on Monday.

TCH has not filed a response to the Anti-SLAPP motion. Ali Dhanani, a partner at Baker Botts in Houston who represents TCH, did not immediately return a telephone message seeking comment. But in a statement provided by Baker Botts, Texas Children’s Hospital wrote that the lawsuit is solely related to the use of the trademark for charitable fundraising.

“We believe the defendants are misappropriating the Promise Mark,” the hospital wrote in its statement. “We are well aware of the defendants’ Anti-SLAPP motion, and we do not believe the statute applies to lawyers advertising for profit. We are opposing the motion.”

In the Anti-SLAPP motion, the firm argues that it is entitled to immediate dismissal of the suit and a fee award because its defenses would “defeat every claim” in TCH’s suit, and because the hospital fails to provide proof for every element of every claim.

“Because TCH is suing over acts Kwok Firm took in their role of reporting newsworthy factual events and criticizing TCH with a graphic, Kwok firm enjoys fair use of any perceived or alleged trademark,” the defendants allege in the motion.

The Texas Legislature passed a law in 2011, the Texas Citizens Participation Act, that allows judges to quickly dismiss suits that infringe on free-speech rights and forces a plaintiff to pay the defendant’s court costs.

The legal dispute began on Dec. 18, 2018, when a Houston couple represented by Kwok Daniel filed a petition in state district court in Houston. Their petition sought a temporary restraining order to prevent TCH from destroying video, documents or other evidence in connection with medical treatment of the couple’s 17-day-old child, who died at the hospital last October.

The next day, the judge hearing emergency orders in Harris County, 11th District judge Kristen Hawkins, instructed the parties to reach an agreed order, which she signed, the motion said.

On Dec. 21, TCH filed a lawsuit seeking a temporary restraining order to force Kwok Daniel and the two lawyers to remove a graphic, which the hospital refers to as the Promise mark, from the firm’s website.

TCH said in Texas Children’s Hospital v. Kwok Daniel that the hospital began using the graphic in 2015 as part of its “Promise campaign” to raise money for services and construction of a new 19-floor pediatric tower. The firm’s use of the graphic, the hospital alleged, “tarnished and dilutes and blatantly infringes TCH’s famous Promise mark, thus causing irreparable injury to TCH and its name and marks.”

According to the motion, it came to the hospital’s attention on Dec. 19 that the Kwok defendants posted a “disparaging and inflammatory article” about its client’s lawsuit against the hospital. The article was posted with a graphic showing the Promise mark with a black slash drawn through the word “Promise.”

“Defendants’ intent was to draw attention to their website…by displaying and distributing this image in order to damage the reputation of TCH and TCH’s charitable ‘Promise Campaign,’” the hospital alleged in the petition.

On Dec. 21, Judge Hawkins granted the hospital’s temporary restraining order, and the defendants removed the graphic on Dec. 26. The firm replaced it with another one that did not include the word “promise.”

Like firm’s first broken-promise graphic, the revised graphic has a red background. It says: “17-day-old infant dies at Texas Children’s Hospital.”

On Jan. 10, 295th District Judge Donna Roth dissolved the temporary restraining order Hawkins had granted, saying it was based on a “defective affidavit.” The defendants had alleged the affidavit was not signed by the proper individual at TCH.

After that, TCH sought a temporary injunction, arguing, among other things, that the revised graphic Kwok Daniel posted on its website is commercial speech and not protected by fair use.

On Monday, Roth denied TCH’s request for a temporary injunction. Later the same day the Kwok defendants filed the Anti-SLAPP motion to dismiss.

Kwok said he is confident the judge will dismiss the hospital’s case based on the Anti-SLAPP motion. “They are not going to be able to get away from our Anti-SLAPP case,” he said.

Dale Jefferson, a partner at Martin, Disiere, Jefferson & Wisdom in Houston who represents the Kwok defendants, said TCH alleges it has the right to sue because of information on the news section of the Kwok Daniel firm website, but he disagrees.

“We have a First Amendment right to put it up there, not only because it is fair use, but [because] parody and criticism are integral components of the First Amendment,” he said.