Lawsuit filed by Montblanc

[Deirdre]

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.

Well, the federal court would have subject matter jurisdiction anyway, it's not like they have to have a size like with diversity. Interesting point about the local rules, but is that a local rule in state court or federal?

 

Personally, I'd have challenged them on venue. It's not clear to me that this should have been brought in New York; it's convenient to the plaintiff, but it's not fair to the defendant.

[kazoolaw]

Fred,

I agree with the principles of your post. I'm all for innocent until proven guilty. See, e.g., the Duke lacrosse team.

I disagree with your conclusions, however, for the following reasons:

>Don Lavin is a long, longtime member of the pen community

>Don is also a practicing lawyer.

>One of Don's points is that filing a five Count Complaint without first talking with Roger is at least over-aggressive, if not brutal.

>The Complaint again asserts that three capbands can only be used by MB: pish-posh.

>The filing of a Federal Court Complaint seeking a permanent injunction, turning over inventory, monetary damages, and attorney fees (ask what a NYC intellectual property litigators hourly rate is. Here in the humble Midwest, the case I'm tangentially involved in the attorney's rate was $350/hour. Picture that as a running meter for damages.) is not a neutral act. Particularly once you actually read the Complaint.

>Part of the psychological reason for filing such a document is the intimidation factor, and one can comment on that now, without waiting for the final outcome.

Yes, bullies can be correct. That doesn't mean I can't call them out for being bullies.

It would have been better if MB had followed your advise first: don't file a Complaint trying to make the defendant look like a bad guy. Do you find merit in Don's comments about filing in NYC, not California? Forum shopping, inconvenience for the defendant? How about not naming the customizer?

We all make decisions based on what people say. We buy cars, houses, and even pens based in whole or part on what people say. We judge people's credibility hourly, in person and on the internet. We can reserve judgement on the final merits of the lawsuit. But, like sports, we can comment along the way about how the game is being played.

gary

 

ps Thanks Deirde for linking to the Complaint.

 

[PenHero]

 

 

Amusing title for the PDF of the complaint!

 

;-)

 

Cheers,

 

Jim Mamoulides

www.PenHero.com

Edited December 5, 2008 by FPN Admin Team
Caution regarding link name - Admin

[memphislawyer]

I know the one class in Intellectual Property and Copyright I had in law school qualifies me for nothing, lol. Yes, the filing of the lawsuit does seem very aggressive and filing suit where it is inconvenient to the Defendant smacks of retribution rather than seeking justice. However, if I were Montblanc, seeing many of my products sold on the streets and on Ebay as being counterfeited, and seeing my brand tarnished, cheapened and siphoning off some of my revenues, yes, I would be mad as heck. Kinda like the music industry suing little bitty children for downloading songs, yes, illegally. Im not the CEO of Montblanc or a stockholder, so it does not affect me financially.

 

Yes, on first blush, it seems one-sided, Perhaps the Defendant can file a third-party complaint to bring in the purchaser, move for a change in venue, heck, even file a countercomplaint or allege that he will if he prevails. That is why it is so important for any business to get permission to post pics or get the advice of an attorney before posting pics on a website. I see so many Ebay auctions where they get some sort of on-line stock photo and do not attribute it and wonder why MB does not go against them?

[PigRatAndGoat]

:blink: I can't believe that Montblanc would do this. They're wasting time and money to take down a little guy that is likely not doing anything wrong (completely unintentional, too). I think they're efforts are better doing what ViolinWriter suggested.

[Dlpens]

Hi Fred. If you want to discuss this case further, please e-mail me directly at dlpens@comcast.net. I can then give you my phone number in case you want to discuss this matter over the phone this weekend. Later. Don

 

 

edited for typo

 

[OldGriz]

I am going to be a bit of a devil's advocate here...

Allow me to state that I think the lawsuit might be a bit aggressive and over the top ... but when one considers that Mont Blanc pens are probably one of the most counterfeited items in the world market place, I can see them wanting any Mont Blanc sold to be a licensed product....

 

But my devil's advocate statement is such:

All we seem to have heard is Don's original statements and proof of the lawsuit.....

We have heard people complain and state that Mont Blanc should have sent a cease and desist order to Roger before starting the lawsuit...

My question is How do we know that Mont Blanc did not send a cease and desist order that Roger either ignored or tried to argue away....

We are hearing only the pen community side of this argument.... and I mean Roger's side of the argument as portrayed by others....

 

I am not saying that Roger is hiding the truth or that he actually did what is stated above... BUT, WE do not have the complete story..

I have always been told (by a very good friend who is a trial lawyer), in court their are three sides to every story... the defendants, the prosecutors and the actual unvarnished truth...

Whose side do we have...

[niksch]

They're wasting time and money to take down a little guy that is likely not doing anything wrong (completely unintentional, too).

 

Well, I think that's where MB would disagree...or else they would not have filed a complaint.

 

I agree with Fred and Tom.

 

Eric

Edited December 5, 2008 by niksch

[Ondina]

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!

 

Agreed, vermiculus and idea to be followed. I'd like to add the support of many here to Mr. Cromwell.

 

And a thought for the rest. This lawsuit could have very serious consequences for the hobby of many and for the job of some. If the big companies decide they follow suit, will sending a Parker 51 for reconditioning or repair to a nibmeisnter possible if is not an authorized repair center? What kind of modification can be done and cannot? Grinding? Using only authorized inks? Maybe is time to reconsider many things...

Edited December 5, 2008 by Ondina

[asimplemaestro]

I am going to be a bit of a devil's advocate here...

Allow me to state that I think the lawsuit might be a bit aggressive and over the top ... but when one considers that Mont Blanc pens are probably one of the most counterfeited items in the world market place, I can see them wanting any Mont Blanc sold to be a licensed product....

 

But my devil's advocate statement is such:

All we seem to have heard is Don's original statements and proof of the lawsuit.....

We have heard people complain and state that Mont Blanc should have sent a cease and desist order to Roger before starting the lawsuit...

My question is How do we know that Mont Blanc did not send a cease and desist order that Roger either ignored or tried to argue away....

We are hearing only the pen community side of this argument.... and I mean Roger's side of the argument as portrayed by others....

 

I am not saying that Roger is hiding the truth or that he actually did what is stated above... BUT, WE do not have the complete story..

I have always been told (by a very good friend who is a trial lawyer), in court their are three sides to every story... the defendants, the prosecutors and the actual unvarnished truth...

Whose side do we have...

 

Here here! Spent my entire life in a family of lawyers and now spend 50+ hours a week in a law firm. :bonk: Things are never what they seem.

[sumgaikid]

I am going to be a bit of a devil's advocate here...

Allow me to state that I think the lawsuit might be a bit aggressive and over the top ... but when one considers that Mont Blanc pens are probably one of the most counterfeited items in the world market place, I can see them wanting any Mont Blanc sold to be a licensed product....

 

But my devil's advocate statement is such:

All we seem to have heard is Don's original statements and proof of the lawsuit.....

We have heard people complain and state that Mont Blanc should have sent a cease and desist order to Roger before starting the lawsuit...

My question is How do we know that Mont Blanc did not send a cease and desist order that Roger either ignored or tried to argue away....

We are hearing only the pen community side of this argument.... and I mean Roger's side of the argument as portrayed by others....

 

I am not saying that Roger is hiding the truth or that he actually did what is stated above... BUT, WE do not have the complete story..

I have always been told (by a very good friend who is a trial lawyer), in court their are three sides to every story... the defendants, the prosecutors and the actual unvarnished truth...

Whose side do we have...

 

 

I have to say that I'm in agreement with Tom--the suit was filed over 7 months ago and now this is the first that the

pen community has heard of the situation. I've been to Pentrace and have seen the amount of heat that this situation

has generated. Why wasn't it brought up sooner? That I don't know. What I do know is that not all of the information

is being heard from both sides. Until then,I'll wait to make further judgment on either Roger or MB.

 

John

 

[ViolinWriter]

:blink: I can't believe that Montblanc would do this. They're wasting time and money to take down a little guy that is likely not doing anything wrong (completely unintentional, too). I think they're efforts are better doing what ViolinWriter suggested.

What disturbs me is their total lack of suits file against the various importers of fakes, as each of those are doing real damage to the MB trademarks, up to and including the "bands" (?!?) for which they claim trademark protection. Further, as it appears that the defendant was selected after publishing a picture of this modified pen, they have taken a huge step toward raising the ire of many in the fountain pen community. Such is clear from reading the comments of only the past few hours.

 

In addition, I do not understand their choice of venue, nor do I understand their even naming the publisher of what is in essence, a journalistic article, the publishing of pictures, in this suit. Journalism is not the same as participating in a sale, and is not usually the first defendant named in an infringement suit. True, a newspaper can be brought in when, for example, they advertise an infringing product. But, it is definitely a role that requires more participation than a reporting of an event (the offering for sale) of an allegedly infringing product (the modified pen.) And, such advertising usually requires a request by the maker/distributor of the infringing product, directed to the news outlet, wherein a specific advertisement is created and published.

 

If the initial reports of this situation are true, then finding actionable infringement by the first named defendant will be difficult, if not logically impossible. At the same time, filing suit as was done here, will make achieving cooperation from that first named defendant is more difficult due to failure to send a cease and desist letter, or other indicia of desire to file suit regarding this particular incident of infringement. Tactically, MB may have turned the cannons of litigation into the very weapon that shoots off their own foot. (So to speak.)

[kazoolaw]

 

My question is How do we know that Mont Blanc did not send a cease and desist order that Roger either ignored or tried to argue away....

We are hearing only the pen community side of this argument.... and I mean Roger's side of the argument as portrayed by others....

 

Roger's sworn Interrogatory answer, when asked who gave him notice that he was selling an infringing item:

"No person has given Mr. Cromwell any such notice. Plaintiff has made these allegations in this lawsuit."

 

gary

 

 

 

[Clydesdave]

It is, perhaps, Mont Blancs intention to take a shot across the bow or'e would be conterfieters, to make a noise that they are paying attention. In which case poor Mr. Cromwell is going to pay a large expense for thier loosing the case, but not to worry, Mont Blanc can afford it.

 

I was going to make a desk pen holder that kind of had a bird splat kind of design, but I think I'll think again. It's not looking like they would sell.

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[Johnny Appleseed]

And a thought for the rest. This lawsuit could have very serious consequences for the hobby of many and for the job of some. If the big companies decide they follow suit, will sending a Parker 51 for reconditioning or repair to a nibmeisnter possible if is not an authorized repair center? What kind of modification can be done and cannot? Grinding? Using only authorized inks? Maybe is time to reconsider many things...

 

I doubt this would result in any issue with sending a Parker 51 for repair. If Parker does not provide repair service, then they cannot prevent someone from finding a provider that will provide that service. In fact, I don't think Montblanc or any company can prohibit non-licensed vendors from repairing their product. They can void warranties et. al. if repair is done by an unauthorized repair provider, but they cannot restrict a property owner from getting repair done at the property owner's choice of facilities.

 

In this case it is not a repair, but a significant custom modification of the product that is being sold, with the original branding still intact. While I think there are better ways of going about this, I can see why MB would see this as a trademark infringement.

 

I think what could be more at risk is Nibmiesters offering modified OEM nibs for sale - eg. Richard Binder's modified Pelikan nibs. Pelikan could argue that selling the Pelikan nibs with modifications causes trademark confusion, etc. Of course, if they really wanted to do that they could just pull his sellers agreement.

 

What disturbs me is their total lack of suits file against the various importers of fakes, as each of those are doing real damage to the MB trademarks, up to and including the "bands" (?!?) for which they claim trademark protection. Further, as it appears that the defendant was selected after publishing a picture of this modified pen, they have taken a huge step toward raising the ire of many in the fountain pen community. Such is clear from reading the comments of only the past few hours.

 

Most likely they do go after the importers of fakes, when they can find them (aye, there's the rub!). Dierdre suggests the complaint is probably a boiler-plate trademark infringement complaint. But most counterfeiters are a little more shifty and harder to find. In this case they had Roger as an established person on a website, so he was an easier target.

 

I am not sure what to make of the whole thing. While I find it obnoxious on MBs part, and suspect that it could have been setted much better with a C&D letter, I can also see why they would want to prevent custom and limited edition "Mont Blanc's" from being made and sold commercially. Mont Blanc knows that custom and artist-designed Mont Blanc's are popular and lucrative - thus all of their own limited edition pens. They want to corner the market on artist-Mont Blanc's, and I suspect they have the right to do that.

 

I guess the message, once this case is settled, is that if you want to sell custom overlays and pen designs, sell your own pens (Eg Brian Gray or David Broadwell), or contract with a manufacturer. Or offer it as a post-sale modification, and watch how you advertise.

 

John

 

[Coyotebd]

One way to look at it would be if someone took a popular video game, lets say Far Cry 2, modded it with an arctic theme and sold it as "Far Cry 2: Siberian Expanse"

 

yes, they bought the game. yes, the mod is their own work, but you cannot package and sell the two without the permission of the game's copyright holder.

 

[RedRob]

>The Complaint again asserts that three capbands can only be used by MB: pish-posh.

 

I couldn't agree more. I don't understand how the three cap rings were awarded as a trademark and I wonder if such a trademark is defendable.

 

As for the whole story, I understand that MB is trying to prevent the sale of custom made pens, but the means do seem a little abusive.

[Deirdre]

One way to look at it would be if someone took a popular video game, lets say Far Cry 2, modded it with an arctic theme and sold it as "Far Cry 2: Siberian Expanse"

 

yes, they bought the game. yes, the mod is their own work, but you cannot package and sell the two without the permission of the game's copyright holder.

Software's not the typical case because it's more of a license model than a purchase model. Normal purchased items have the doctrine of first sale, which is what permits video rental companies, for example. It permits after-market modification of cars. It permits me to purchase a copy of Robert Heinlein's Friday, drive over it with my car a few times, and still re-sell it as a copy of Robert Heinlein's Friday. (Believe it or not, the last is a real-life example, though I was not the one who purchased the book, quite a few people have driven over it.)

 

If I go paint my car purple-and-white stripes and add extra bling to it, it doesn't change the fact that it's a Chrysler.

 

What Montblanc's suit is saying is that this artisan's work confuses their customers into thinking it's actually a Montblanc, and therefore diverts money from them -- even though it was (apparently) a real Montblanc underneath.

[jmkeuning]

Can I buy Montblanc pens, cut the bird splat off, throw the pen away, and then glue the splat to my home made pens?

 

And offer them for sale?

 

What is the pen? When does the product stop being the product?