Lawsuit filed by Montblanc

[Dlpens]

This is Don Lavin and earlier today I posted a report on the recent litigation instituted by MB against a member of our pen collecting community. I also mentioned that MB has now filed a second lawsuit against another member of our community. I was notified that someone cut and pasted my message to FPN and that it was subsequently deleted. Would someone please inform me as to whether the post was censored or the fact that I did not post it personally. Also, is it against your rules that factual situation involving MB are not to be posted here even though it is public record and public knowledge. The discussions to be instituted about this litigation and the problems faced by a number of artists, sellers and collectors is wide spread and very disturbing and I would not like to think that this forum is out to protect MB from the truth being told. Thanks.

 

Please send me a response, if any, to dlpens@comcast.net

[Journaleur]

I do hope that the message was not censored. I would be very disappointed if it were. But as a matter of sheer curiosity, what are the suits about? Thanks.

[Dlpens]

Following is the posting which I made earlier today on Pentrace.com. I had intended to post it here and on Zoss but did not have the time until now. Hopefully the message will get across that areas of our fine hobby may be under siege by MB:

 

 

"While attending the 2008 Columbus Pen Show recently I, and many others, learned about the legal situation confronting Roger Cromwell and his company, Penopoly. Roger advised many of us that he was being sued by Montblanc because he had posted a picture and description of a MB pen on his web site, which pen had an artistic silver overlay made by a very renowned South American artist in our community. Roger told me that he never even had possession of the pen or owned the pen - that he was merely a conduit for the owner/artist.

 

Roger talked about the extent of the litigation to date leaving all of us present in a stunned state. As the case is a matter of public record, I have obtained from the court the Complaint, Answer and various discovery documents. Here is brief description of the Complaint and parties:

 

On April 25, 2008, MONTBLANC-SIMPLO GMBH and MONTBLANC NORTH AMERICA, LLC filed its suit, case No. 2008 CIV 3907, in the United States District Court for the Southern District of New York. The defendants are Roger Cromwell d/b/a Penopoly.com and John Does 1-5. When I last checked, John Does 1-5 had not been named or made a party to the suit. The suit contains five (5) counts alleging federal and common law trademark infringement, false designation of origin, unfair competition, federal trademark dilution and state law trademark dilution. The plaintiff has also alleged that the image on the pen added by the artist was pornographic. The trademarks plaintiff is referring to are the "Six-Pointed-Rounded-Star" and the "Triple-Gold-Bands".

 

Distilling the complaint further, the plaintiff asserted that the the pen in question is a "counterfeit" in that MB did not authorize the addition of the artwork, nor did MB perform the work. They allege that such an item can cause confusion in the marketplace and affect the public's perception of the "quality" of MB products. The complaint describes "material alteration" of the pen, the fact that such work was not subject to the quality control efforts of the plaintiff, that such pens affect the "goodwill" of the plaintiff and so on. The complaint also alleges that the defendant performed these activities "intentionally, willfully and in bad faith."

 

Roger's answer to the complaint is a general denial of all allegations and includes five (5) affirmative defenses.

 

As I am merely reporting the existence of this matter I do not want to get deep into the my opinion of each count or the merits of the plaintiff's allegations. I have discussed this matter with a number of attorneys and I do not want to impair Roger's defense to this matter by discussing internal matters. I am comfortable with the fact that the file is a public record and access to the file is available to the public upon request.

 

What I am most concerned about is that this case could have been handled in a different manner by the plaintiff. To my knowledge the plaintiff did not give notice to Roger at any time prior to the filing of the lawsuit of the alleged wrongdoing. Instead MB opted to file the case and have Roger served with summons as his first notice. The fact that the service occurred on Roger's wedding anniversary is most unfortunate. The filing of this case is, in my opinion, most unfortunate. This is a "small" case by federal standards with the plaintiff requesting damages in the amount of $25,000 for each alleged violation. This is minor in federal litigation but major to the defendant.

 

I feel that Roger was made the defendant as someone associated with the plaintiff discovered this single item on a website and MB opted to go after Roger without giving him a cease and desist letter, without the making a phone call to discuss the problem and without in any way trying to ameliorate or settle the situation amicably. In my experience, this conduct is most unusual, if not unheard of, in that we try to avoid litigation if at all possible and in this case, a simple notification may have resolved the "conflict".

 

It is also a curious fact that the case was filed in the U.S. District Court for the Southern District of NY where the "buyer" was located and 1,000s of miles away from where Roger lives, making defending this matter even more costly for Roger.

 

I have many questions about this case but I will pose only one - I would like to know why MB did not sue the buyer who allegedly has possession of the pen in question. If the buyer was one of the John Does, MB certainly knows who the buyer is by virtue of the discovery which has already taken place as Roger has had both interrogatories and depositions to contend with and his legal expenses have been considerable. Yet no other defendants have been named to my knowledge.

 

I have been involved in numerous lawsuits involving clients and I have seen how people are affected by being sued, especially when they believe that they are being wronged by the plaintiff. It affects every aspect of their daily lives - fighting for their existence, fighting for the right to operate their business. Now is the time to show compassion.

 

I have known Roger for many years. He is first and foremost a highly qualified pen repairman and a seller of vintage pens. He, to my knowledge, does not and has never imported counterfeit pens such as fake MBs from Asia. You would think that those people would be the likely target of such a case but not in this instance.

 

Roger also is a very valuable asset to our community and he gives of himself freely at every pen show he attends, working hour after hour without a break. He gives seminars and workshops and is quick to share his repair knowledge with everyone and anyone. I would like to see everyone cut Roger considerable slack during this trying time in his life.

 

And just so all of you reading this do not finish thinking that this is an isolated case, be on notice that MB has filed another suit against another member of our community. That case is being defended as I write this message. I have the name of the defendant and I have met this person at past pen shows but I have yet to talk to him/her about the present litigation so I do not wish to comment on that case at this time.

 

I also believe that MB is seeking out many other people in our community who possibly are repairing MBs without being authorized and licensed by MB to repair MB products. I believe that MB, and other modern pen companies, are seeking other people who are offering for sale "modified, enhanced, embellished" pen products without a license or consent. We may be witnessing only the beginning of their attempts to sue artists using MB products, selling such items and maybe even owning such items.

 

How would any of you feel about having had your MB 149 embellished with a stunning silver overlay only to worry about having MB consider your pen a "counterfeit".

 

While MB has filed these actions, I have heard that some artists are having issues with Pelikan and possibly other modern pen companies. That is why I have been warning some sellers to refrain from offering for sale such items at this time. And I am worried about those wonderful artists in our midst known for their fine work on modern pens. While I have never bought any of these pens or commissioned work on these pens, I have reason to worry about others who do own these items and provide this items. We take pride in our possessions, want to show them off etc. Now when going to a pen show are you going to take your prized possession for show and tell? Is the stranger examining your pen an agent for a pen company, looking to seek out the artists? The owners? The sellers?. I wonder.

 

This posting is to alert the pen community of a problem being faced by many in our community and Roger in particular. Please do not use this as a forum to lodge complaints about repairs and/or deliveries. That has been covered earlier by some people here. This case has nothing to do with your issues. This is a serious legal issue being brought by a huge international conglomerate against one small businessman. And remember, the image of the pen has been removed from his website voluntarily by Roger and the pen was sold with direct contact between the artist and the buyer.

 

Don"

[tfwall]

Well, we'll always have Simpole overlays.

 

Perhaps MB will start selling authorized artist designs if they see there is enough demand for them.

Edited December 5, 2008 by Chemyst

[niksch]

I was just reading responses to your post on PT, when I decided to jump over here. Quite interesting and somewhat dismaying as many have already mentioned.

 

Eric

 

 

[cakibler]

I am now a former MB customer since I recently sold my one MB pen, a Diplomat 149, and will never give them another dime for their "precious resin". Too bad they have decided to take the path they have chosen. I emailed a response back today to an advertising email I got from their North American website a day or two ago and expressed my feelings in clear concise words. I used no foul language but my meaning was clear.

 

 

[Dillo]

Hi,

 

This is not good. In my opinion, this is a bit of a stretch. I am hoping that Roger Cromwell wins this case.

 

Dillon

[FredRydr]

Just because it's on the internet, that doesn't mean it's true, and that includes the foregoing. A careful reading of the initial lengthy post shows it is largely opinion and interpretation without personal knowledge of facts underlying the issues in dispute. So let's give it a break and wait for the facts to come out, before the speculation and innuendo get out of hand here.

 

Fred

 

 

[niksch]

Fred-- you should jump over to Pentrace and see the string this post has generated over there.

 

Eric

[Admin]

Due to the sensitive nature of this thread, and for some of the reasons Fred posted, we are taking the subject under advisement, and have closed the thread temporarily.

 

After due consideration, the thread will either be returned, moved, removed or left closed.

 

Please be patient with us while we deliberate the issue.

 

 

The FPN Admin Team

 

 

EDIT: After review, this thread has been reopened, and merged with the ongoing one also started by Don "Lawsuit filed by Montblanc"

Edited December 6, 2008 by FPN Admin Team

[Deirdre]

Link.

 

Suffice to say that I've bought my last Montblanc, nor will I purchase from the Richemont group. I may even sell my lone Montegrappa.

[ViolinWriter]

And to think I've sent about 20 letters to MB requesting they file suit against the counterfeiters that sell in stores here in Chicago, all to no avail. As a result, I estimate at least 2000 people in Chicago have "fake", as in literally copies sold as the real deal, MB pens, and will have no recourse the moment they try to get the pen serviced, or wish to sell it as a real MB pen in a private sale. Each of those pens were sold in a state of blatant criminal behavior, from import to final sale.

 

I'm also an Intellectual Property Attorney by profession. This type of "sue first, ask questions later," gives me an uncomfortable feeling, if the story posted is in fact a true statement of the history of this litigation to date.

 

It indicates a lawyer going after someone they feel has "deep pockets", but not getting the cooperation of the person writing what was essentially a journalistic article, possibly privileged under the First Amendment, about a pen that was modified, but modified without permission of MB.

[Pen Nut]

Interesting. Please keep information on this viewable and updated.

[Deirdre]

Pacer's pretty easy to navigate if you have an account.

 

1:08-cv-03907-PKC Montblanc-Simplo GmbH et al v. Cromwell et al

P. Kevin Castel, presiding

Date filed: 04/25/2008

Date of last filing: 11/14/2008

 

In short:

 

Count 1: Federal Trademark Infringement

Count 2: False Designation of Origin

Count 3: Common Law Trademark Infringement and Unfair Competition

Count 4: Federal Trademark Dilution

Count 5: State Law Trademark Dilution

 

They asked for "in excess of $25,000" for each of the five counts, plus profits, plus destruction of anything relevant, plus costs.

 

Here's the complaint.

Edited December 5, 2008 by Deirdre

[vermiculus]

For what it's worth, I just sent a quick email to MB through their public relations contact form saying that I thought it was a bad thing and that they should drop it. Perhaps a few more people should do the same!

[Phthalo]

Disgraceful.

 

Yet another reason why Montblanc will never receive one cent of my annual (~$15,000) pen budget.

[jd50ae]

If I understand the lawsuit correctly I am really confused.

I mean, wouldn't it be the same if Ford took me to court because I tricked out one of their cars and offered it for sale?

[FredRydr]

One should not take personal offense or jump to take sides without having the facts. Reading a complaint is just the introduction to the issues, and the initial complaint rarely lays out all the facts. The plaintiff may have excellent grounds for their complaint, and the defendant may have excellent grounds to deny the plaintiff of any or part of the relief sought, none of which you know. So why get your knickers in a knot about a post from someone you know nothing about without all the facts?

 

The initial posting in the locked thread does a disservice by attempting to manipulate us into presumptions that the plaintiff is the bad guy and the defendant is the good guy. Phrases premised on "I heard that" and "I believe" and the like are all too numerous. I won't buy into it without knowing the facts, not to mention the law. And neither should all of you. Put it this way, would you make an important decision in your personal life, such as buying a house or getting married, based on what is posted here? Well, if not, don't presume to know enough to judge this issue, either.

 

This case will play out, and when the facts come out, then judge the judgment. But until then, don't get sucked in to premature conclusions suggested by one poster, and then after taking the easy bait start to fill this forum with baseless vitriol towards one party or the other. We are better than that.

 

Fred

 

 

edited for typo

Edited December 5, 2008 by FredRydr

[Deirdre]

  FredRydr said:

But until then, don't get sucked in to premature conclusions suggested by one poster, and then after taking the easy bait start to fill this forum with baseless vitriol towards one party or the other. We are better than that.

I'm not interested in other people's conclusions, but I am a big believer in reading complaints, answers, and rulings (and not reading the rulings without the context of what was being asked for in the complaint and answer and motions). That said, there's no ruling yet.

 

Nevertheless, this looks like a "phoned it in against a counterfeiter" lawsuit template to me. No, I haven't read a lot of them, but I keep a PACER account just because I occasionally like reading a whole docket for fun and sport.

Edited December 5, 2008 by Deirdre

[jmkeuning]

  Deirdre said:

They asked for "in excess of $25,000" for each of the five counts, plus profits, plus destruction of anything relevant, plus costs.

 

Here's the complaint.

 

 

"Destruction of anything relevant" :roflmho:

 

As for the damages award - I believe, although I do not know the rules, that the fact that this complaint states "in excess of $25,000" is a matter of court rules - you cannot state the size of the damages in the complaint. That is a local rule in Minnesota at least. The policy purpose is to prevent the public from over-reacting and making assumptions based on the size of the damages request - like Dr. Evil... one MILLION dollars! The mention of the damages is for jurisdictional purposes.