Our Appeal

Of our appeal, I can only say that given our experience in the lower court, I was and remain highly skeptical that the 'issues' with our appeal were honest 'mistakes' that are common in any process. We filed our intent to appeal in a timely fashion and then filed our brief in a timely fashion as well. A few days after the plaintiff filed it's response, we received a Rule 15 notice that our appeal was going to be dismissed as we had not filed our brief. I looked at the docket and the docket entry for our brief was gone (it had been there the last time I looked). huh? I began to click on the links for the various docket entries and found our brief behind the link for the plaintiff's response. I called the clerks office in Richmond, Va and was able to get a clerk on the phone. She was pleasant and helpful. I gave her the case number and she looked it up. I explained the problem and then she put me on hold for a few minutes. The senior clerk came on the line and I explained the problem to her, both of us looking at the docket entries. 'So you see our brief and the date time stamp', right? She did not reply but put me on hold for a long time. When she came back she was clearly not in a good mood about this. I asked her, nicely, about the missing docket entry. She replied tersely, I'm correcting it now. Great, thanks I said. And about the Rule 15 notice. She replied, I'll send it out. Is there anything else I can help you with? she asked with some real attitude. Uhm, no that's it, I replied. Thanks again.

Months go by and we reviewed the opinions posted by the court a couple of times a week. We then checked the case numbers against the filing dates to get a sense of the timing; how long it takes for a case to make its way before the court. After seven months I believe, it seemed that our case should be close (if not already ...) to being before the court . I called the clerks office again, a nice, pleasant clerk picked up; I asked, in general/rough terms, when our case might be before the court. She said, 'Oh, It looks like this should have been heard (not sure if she used the word 'heard' or something else) already. She put me on hold for several minutes. The clerk I had spoken to months ago regarding the Rule 15, docket entry issue came on the phone. Again, she was not in a good mood. What is your question? she asked. So again, just asking, in general/rough terms when the court might get to our case. She said, we're waiting on the court record. Okay I said. Can you tell me when you think you might receive it from the District Court? No. Well, once you do get the record, can you give me a general/rough guess as to when our case might get before the court? No. Would it help if I called the District Court and asked about the record, when they might get it to you? No, I'll take care of it. Great, thanks I said. Will there be anything else I can help you with she asked. No, thank you again.

So I called the District Court and spoke with the woman who handles these requests and gave her our case number. No, she have not received a request for the record she said. When you do get these requests, how long does it usually take to get the record to Richmond I asked. It depends she said. She said that she would follow up with the court in Richmond. The clerk in Richmond called me the next to tell me that the record had been requested from the District Court. Great I said, thanks for you help. Can you give me a general/rough guess as to when our case might get before the court, once the record arrives I asked. No.

We finally get the appellate court opinion after a nine month wait. It was the standard three paragraph opinion upholding the lower courts decision with an '*'.

The appellate court remedied the lower courts 'harmless error' (damages under 1111) and in a footnote without citing or otherwise referring to Playboy Enterprises, Inc. v. Universal Tel-A-Talk (or any other case) awarded damages based on "*1116(d)(1)(B) & 1117(c)."

So here's what we think happened. The District Court did not want to award damages pursuant to Playboy Enterprises, Inc. v. Universal Tel-A-Talk because then the appellate court would (should) have to consider this award either affirming or denying the reasoning behind the 3rd circuit court decision. It is my opinion that the courts reasoning (and subsequent damage award pursuant to Playboy Enterprises, Inc. v. Universal Tel-A-Talk) amounts to a straw man argument that will eventually be knocked down by another court. The 4th circuit appellate court in 'correcting' the District Court's harmless error in our case, ducks Playboy Enterprises, Inc. v. Universal Tel-A-Talk all together. So anyone researching, looking for trademark cases and damage awards that circumvent 1111 will almost certainly never find this case and it appears that the 4th circuit has not considered this issue when in fact, it has. That seems pretty clever.