Pro Se in the Rocket Docket - Part 1

Things move quickly in the Rocket Docket (read here ...). We filed a motion to dismiss for failure to state a claim on which relief can be granted: Plaintiff did not give us notice and does not display the r in a circle on her trademarks. The language in 1111 is clear, no notice, no r in a circle, no damages. Plaintiff responded with Playboy Enterprises, Inc. v. Universal Tel-A-Talk, Inc., 1999 WL 285883 (E.D. Pa. 1999) (“[C]ongress intended to recognize that counterfeiting, while a subsection of infringement, represents a greater evil than ordinary infringement, and thus allowed an alternative route to damages and a less degree of required notice”).

An interesting case that bases an award of damages on an opinion as to 'Congresses intent' without an examination or analysis as to how the court devined or otherwise came to that opinion.

It is our opinion (read here ...) that an examination and analysis of the Supreme Court thought's on the matter (See Stark Brothers Nurseries v. Stark, 255 U.S. 756 (1921)), the legislative history of The Lanham Act, The Trademark Counterfeiting Act of 1984 and the Anticounterfeiting Consumer Protection Act of 1996 can reasonably and logically lead to a different conclusion. That 1111 remains the controlling section regarding an award of damages for claims brought under 15 USC, Chapter 22 - The Lanham Act.

Our motion to dismiss was denied by the court.

*An interesting note. At the hearing on our motion to dismiss, no fewer than six attorneys for the plaintiff were present and before the court to oppose our motion. An impressive show of force (against two pro se defendants) and no doubt an expensive day for the plaintiff.

We were shut out of discovery and the plaintiff other than deposing my wife and I (seven months after the fact), did not bother to discover anything. They did not need to as they had removed and copied nearly every personal and financial document from our home in December 2006. As we were unable to discover anything, we informed the Plaintiff that we were contemplating a motion to compel. Plaintiff responded that a motion to compel would in all likelihood result in a motion for sanctions. We never expected that we would be able to discover anything useful in discovery anyway and so we let this go.

We filed a motion to exclude witnesses and exhibits. There was nothing, no evidence before the court regarding 'counterfeit' dresses. Plaintiff's COO had submitted an affidavit in December 2006 attesting that a dress purchased from my wife had been examined and found to be counterfeit. She stated that ordinary consumers (would be confused) would not readily be able to determine a genuine dress from a counterfeit as it required "a trained eye". She went into some detail, providing specific facts as to how her trained eye was able to discern that the dress was a counterfeit. She had not been disclosed as an expert witness and so we wanted her excluded. Plaintiff responded that she was not an expert witness but a fact witness. She would be testifying about Plaintiff's trademarks.

Our motion was denied.