Pro Se in the Rocket Docket - Part 5 - Post Bench Trial

Have to come back to the 'dresses'. Per plaintiff's post seizure declaration, plaintiff's attorneys seized 54 (fifty-four) dresses from our home in Dec 2006. We delivered to plaintiff's attorneys an additional 9 (nine) dresses in the days following the seizure for a total of 63 (sixty-three) dresses. Plaintiff's COO attested in her Aug 8th 2007 affidavit that plaintiff's counsel had sent her 64 (sixty-four) dresses on August 7, 2007. She then thoroughly examined these 64 dresses and without disclosing a single fact as to how she had determined the dresses were counterfeit, stated that the dresses were counterfeit. Again (as she had in her November 2006 affidavit) she states that "it takes a trained eye", to discern the subtle differences between a 'genuine' and a 'counterfeit' dress.

The exact number of dresses remains elusive. Plaintiff's counsel did not have 63 dresses in their control to send to New York for thorough examination. Yet the affiant declares that she examined 64 dresses. Plaintiff's counsel only brought 60 dresses into the courtroom for the damages bench trial. Plaintiff's counsel concedes that four of the dresses were not dresses at all leaving them with 56 dresses.

So there are some obvious questions regarding the 'ultimate issue' in this case and we think that they are hard to explain away. Again, we did not go to law school but you seize counterfeit items, in this case 'dresses', not clothing, not garments but 'dresses'. You count the dresses. Someone examines the dresses (they had to be examined prior to the post seizure declaration to the court ...) and then you throw them into a box, labeled "63 dresses/evidence/Snyder/06cv1356-VA" or something to that effect and you're done. Eight months later you send them to someone to examine (re-examine?). The box is opened and the dresses scrutinized with a 'trained eye'. Write your affidavit, close up the box to be returned to plaintiff's counsel and again, your done. How hard is that?

But it would seem clear after some simple arithmetic, that plaintiff's counsel did not have 64 dresses to send to New York. Or they had 64 'items', dresses, slips, a coat and a detachable collar and the 'trained eye' failed to note that a slip is not a dress, a coat is not a dress and that a collar is not a dress. Or she did note this but failed to ..., what? Be precise in her affidavit? Possible I guess. But why did plaintiff's counsel bring only 60 dresses/items into court for the damages bench trial. 4 of the dresses not being dresses, leaving them with only 56 dresses?

In plaintiff's response to our apellate court brief, regarding the dresses, we were assured that "precise number is irrelevant." It could be 64, 60, 54 "or some similar number".

There is one last area of confusion regarding the dresses. Also in plaintiff's response to our appellate court brief, plaintiff states the dresses were "precise copies, down to the cut, style and fabric" But in the two affidavits submitted by plaintiff's COO, as well as scattered through the various documents filed throughout this action, it was stated that the dresses were of shoddy workmanship, poor copies of a genuine dress. So which is it? Precise copies requiring a trained eye or shoddily constructed knockoffs?

It makes sense that they were 'precise copies'. But that raises the question again as to whether or not plaintiff's COO was an expert or lay witness. If it requires a 'trained eye' to distinguish between genuine and counterfeit dresses, then clearly she has some 'specialized knowledge' that an ordinary consumer would not. By definition, that would have made her an expert witness.

Perhaps others may be in a better position to consider these lingering questions. Are we being to hard on the plaintiff and her counsel here? This is only counterfeit trademark infringement after all. One mark or two marks allegedly infringed upon. Does the number of marks really matter? Maybe the precise number of dresses is irrelevant. Pick a number between 54 and 64. I guess that we expected that a high level of precision would be required when one is seeking millions of dollars in statutory damages under the Lanham Act. Or maybe pursuing infringement actions in federal court is really not that demanding after all. Be reasonably precise, fairly accurate in your claims and related proof to those claims. The other side will just have to get over it.