Likelihood of Success

Devastated… for today, at least

Jan 21, 2009 Lex scripta, Sisyphus

In Long Island federal court today, I lost hard, I lost bad, and I lost big.  A jury — essentially directed to a verdict by a judge who interpreted as illegal the same behavior that another judge, considering the same issue in a different state (but applying the same legal rules), deemed not actionable as a matter of law — put my clients out of business.

Did I lose fair? If you’ve got the stomach for it, read this and decide. Your thoughts and comments (there) will be appreciated.

One more thought.  I once wrote about how a leading big-firm light of the trademark litigation bar ribbed me in front of maybe a thousand colleagues when we sat together on an INTA panel for promoting my work in the Jews for Jesus v. Brodsky case. “You lost, Ron! You lost!”

Yeah, he really said that. I used to be humble enough not to slug someone for something like that.

Yeah, I lost.  I lost this one, too.  But as pointed out here, and in numerous other commentaries since that time, Brodsky is now recognized as “one of the early awful victories for trademark holders.” Indeed, though it is still “good law” in the Third Circuit, the decision was described in Ford Motor Co. v. 2600 Enterprises, 177 F.Supp.2d 661 (E.D.Mich. 2001) as “flawed” and by the Fourth Circuit Court of Appeals as “wrongly decided” in Lamparello v. Falwell, 420 F.3d 309 (4th 2005).  (On our own appeal, a panel of the Third Circuit, including now-Justice Alito — who sat stoically and unengaged during the entire oral agument — ignored our appeal brief and affirmed the court below without opinion.)

So, we’ll see.  For me, I hope, there’s a future, if not for my clients — any appeal reversal will be far too little, far too late for them.

Right now we’re living in a time warp.  Read my analysis at LIKELIHOOD OF CONFUSION® and tell me:  Who is living in the future, Arizona?  Or New York?

UPDATE:  The damages awarded to our adversary by this jury, even if  reduced by the judge, will never be collected, as a practical matter, because the defendants (my clients) do not have assets amenable to collection.  And by my efforts in this cause I kept this client in business from 2004 — when it received its first blustering, threatening cease and desist letter — until today.

AND ANOTHER THING:  Let me put it yet another way:  I don’t take a case this far if I don’t believe it is meritorious on the law and the facts.  I am not in the business of fooling juries, or trying to.  You don’t have to believe my sincerity in making that statement; nor do you have to trust my judgment or intellect, or my courtroom skills.  But without trusting me or adopting my view on any of those things, I am explaining the source of my passion about how wrong this outcome is, and why this issue and this verdict are not going to go away from this page and the others I have some influence over.

UPDATE: Philip K. Howard:  “The growth of litigation and regulation has injected a paralyzing uncertainty into everyday choices. All around us are warnings and legal risks.”  Via Glenn Reynolds.