Lawsuit filed by Montblanc

[thibaulthalpern]

  FPN Admin Team said:

It was thought better to have all the information available in one plage

 

Good idea!

[ViolinWriter]

  Johnny Appleseed said:

  Ondina said:

  Quote

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

. I see more cause on the remakes of Parker 51 that we know well here ( Chinese and Argentinians...). And what about the small makers that make customs pens and as RevAaron states with good sense of humor, whose shapes resemble Mb pens?. I don't know, is just that going after a humble guy seems to me that is intending to make noise and scare a part of the market that they can get a hold of. With all the counterfeits that their pens have, they would be better off controlling their knock offs.

 

The Chinese remakes are a little different. I imagine some of them, with the arrow clip, could be actionable if Parker had maintained trademark status on the arrow clip, etc. However, the overall designs are covered by design patents, not trademarks, and those expire after 17 years with other patents.

 

As for other pens with the shape of MBs, it would have to be a really close copy to argue for trademark infringement. The shape of a product, again, is generally covered by design patents, and then only if it can be argued to be an orginal design. Sheaffer was able to get a design patent on the balance because nobody had ever patented that tapered design, so they were able to defend it while the patent was active. But the MB cigar-shape is pretty common. However, if you mimmicked the profile, clip and the 3-band arrangement, they could probably go after you. [...]

John

 

 

  twdpens said:

  OldGriz said:

As for all the Mont Blanc bashing that is going on... I wonder how quick people would be to bash if it were another major pen company that did not have MBs reputation...

 

I know I'm probably going to get flamed by this statement, but I can't imagine another company being so heavy-handed as to adopt the approach that Montblanc has[...] However, to dive straight in with a lawsuit is just bully-boy tactics, in my opinion. I know businesses have to protect their brand, reputation, intellectual property etc and being in business myself I know these things all to well. However, I also believe that there are "right" and "wrong" ways of conducting business and, unfortunately, in this case I don't see much "right" in the approach of Montblanc or its American Lawyers.

 

Martin

MB is treading heavily, relying on the shape as trademark, which is a trend that really got rolling vis a vis the Playboy Bunny Costume, and the MacDonald's Arches buildings (which was even pre-Golden arches). That said, they must have also registered the shapes, or they might be relying also on "trade dress" which is a tying of the appearance of a product to the overall image that the consumer forms in their minds when viewing the product.

 

 

  Allan said:

  gary said:

If by "know" you mean we weren't eyewitnesses, I agree.

 

We do know that RC has sworn under oath that he received no notice the he "distributed or sold any item which was unauthorized, counterfeit or infringing of a design patent, copyright, trademark, trademarks or trade dress." Is there evidence he is incorrect? Or lying?

 

One may "wonder" if MB had a problem getting in touch with RC, but certified mail is certainly within the grasp of MB. So is a process server to serve a cease-and-desist letter. After all, we do can agree that RC got the Complaint in the federal lawsuit.[...]

 

gary

 

I would agree that he swore that under oath. There are two points there: First, how many murderers have you heard tell the truth when first asked under oath if they committed the crime? Taking an oath does not automatically mean you tell the truth. Second, even if you assume he told the truth, that just means they never got in contact with him. That is no surprise since he is known to be hard to contact. They may have tried to call him, mail him, and even certified mail him, all of which he dodged. This is my point, we don't know so we should not assume that they did not attempt to contact him any more than we should assume they did.[...]

Allan

We also must remember that Roger was identified as a lawyer, which means that any statement he makes in court, under oath or not, must be true, to the best of his knowledge, or he risks losing his license to practice law altogether. Therefore, I tend to believe his statement that he was not given a Cease and Desist letter, fondly known by PI attorneys, as a "stop or die" letter.

 

I've found that lawyers often lose track of the overall goal, which in the present case would be simply stopping modifications to its pens that it believes would disparage the reputation of the pens, due to possible unsavory images on the modified pen. They might have been better served by working with Roger, not suing him, and getting many publications to make it clear that derivative artworks, incorporating MB pen bodies, is not desired by MB as a way of protecting their design integrity. At the same time, some lawyers are just too "suit crazy" and forget the overall goal. Or they want to deserve those huge retainers they received from large corporate clients.

 

And, I still maintain that all Roger did was publish information, as in a journalistic function, which has other protections that compete always with corporate interests, including that lovely, yet sometimes pesky, First Amendment.

[novarider]

I have a question that may have been answerd already so sorry if so. when you buy something isnt it yours to do with what you want? If i were to buy a truck from chevrolet and modify the truck and sell it isnt that the same thing here?

Edited December 7, 2008 by novarider

[BerneseMtDogEatsArco]

I think there's a clause in the patent world that says that you lose your rights to the name/symbol if you don't actively defend it. MB is doing this "fo sho", but wow, they're throwing around nukes.

[Allan]

  ViolinWriter said:

We also must remember that Roger was identified as a lawyer, which means that any statement he makes in court, under oath or not, must be true, to the best of his knowledge, or he risks losing his license to practice law altogether. Therefore, I tend to believe his statement that he was not given a Cease and Desist letter, fondly known by PI attorneys, as a "stop or die" letter.

 

I've found that lawyers often lose track of the overall goal, which in the present case would be simply stopping modifications to its pens that it believes would disparage the reputation of the pens, due to possible unsavory images on the modified pen. They might have been better served by working with Roger, not suing him, and getting many publications to make it clear that derivative artworks, incorporating MB pen bodies, is not desired by MB as a way of protecting their design integrity. At the same time, some lawyers are just too "suit crazy" and forget the overall goal. Or they want to deserve those huge retainers they received from large corporate clients.

 

And, I still maintain that all Roger did was publish information, as in a journalistic function, which has other protections that compete always with corporate interests, including that lovely, yet sometimes pesky, First Amendment.

 

I could be wrong here but as far as I can see anywhere Roger Cromwell is not an attorney. I can find no reference to him being an attorney. May I ask where you heard this? Is it possible you have him confused with Don Lavin, who originally posted the information, who is an attorney, although not Roger Cromwell's actual attorney in this case?

 

I would agree that the first amendment would protect someone who published a review of a pen, or just an article about the pen or manufacturer. My question would be, would the first amendment protect someone selling something on a commercial website that infringed on trademark laws? Would not the "journalistic function" require it to be posted to a website or portion of a website that was not devoted to the sale of items, or are for example all eBay ads protected under this same journalistic function?

 

Allan

[Allan]

  novarider said:

I have a question that may have been answerd already so sorry if so. when you buy something isnt it yours to do with what you want? If i were to buy a truck from chevrolet and modify the truck and sell it isnt that the same thing here?

 

It is pretty tricky is it not?

 

To answer your question: Yes, if you purchase something it is yours to do as you wish, as long as whatever you do does not break any laws. In your truck example, yes, you can buy the truck, modify it, and then resell it. That is fine. What is not fine is doing the exact same thing and selling it as an original unaltered Chevrolet product. Or for that matter, in a way that may lead people to believe the modified truck is an original.

 

I think in the present case what may have happened (since I can not see the ad and pictures I can not be sure) is that the modified pen was not clearly marked as not being a product of MB. Had RC taken a little more time to make sure that a three year old would clearly know the artwork was not done by or even approved by MB the suit may not have been filed. Of course this is all speculation.

 

Allan

[kazoolaw]

  Quote

I would agree that he swore that under oath. There are two points there: First, how many murderers have you heard tell the truth when first asked under oath if they committed the crime? Taking an oath does not automatically mean you tell the truth. Second, even if you assume he told the truth, that just means they never got in contact with him. That is no surprise since he is known to be hard to contact. They may have tried to call him, mail him, and even certified mail him, all of which he dodged. This is my point, we don't know so we should not assume that they did not attempt to contact him any more than we should assume they did.

 

There is a third point: RC's position is unrebutted, despite MB having been asked to produce evidence to the contrary.

The point now is surely clear: MB has produced no proof of any attempted or actual contacts pre-suit.

 

 

  Quote

I would like to know the size of the corporations that were in the suits in which you were involved in. We they comparable in size to MB? Or are we taking about something much smaller?

 

Not as small as MB.

 

  Quote

And I agree that they could have been motivated by any of those factors, I am just not willing to assume the negative reasons any faster than I will assume the positive ones.

 

Allan, you have been willing to hypothesize that RC is lying, dodging calls, not opening his mail, refusing certified mail, and joked (on PT) that RC had a liaison with MB's CEO's daughter. This is difficult to reconcile with your avowed neutrality.

 

It will be interesting to see whether anyone ever finds out what "really" happened. Non-disclosure agreements are often a part of settlements in these cases.

 

gary

 

 

 

[ViolinWriter]

  Allan said:

  ViolinWriter said:

We also must remember that Roger was identified as a lawyer, which means that any statement he makes in court, under oath or not, must be true, to the best of his knowledge, or he risks losing his license to practice law altogether. Therefore, I tend to believe his statement that he was not given a Cease and Desist letter, fondly known by PI attorneys, as a "stop or die" letter.

 

I've found that lawyers often lose track of the overall goal, which in the present case would be simply stopping modifications to its pens that it believes would disparage the reputation of the pens, due to possible unsavory images on the modified pen. They might have been better served by working with Roger, not suing him, and getting many publications to make it clear that derivative artworks, incorporating MB pen bodies, is not desired by MB as a way of protecting their design integrity. At the same time, some lawyers are just too "suit crazy" and forget the overall goal. Or they want to deserve those huge retainers they received from large corporate clients.

 

And, I still maintain that all Roger did was publish information, as in a journalistic function, which has other protections that compete always with corporate interests, including that lovely, yet sometimes pesky, First Amendment.

 

I could be wrong here but as far as I can see anywhere Roger Cromwell is not an attorney. I can find no reference to him being an attorney. May I ask where you heard this? Is it possible you have him confused with Don Lavin, who originally posted the information, who is an attorney, although not Roger Cromwell's actual attorney in this case?

 

I would agree that the first amendment would protect someone who published a review of a pen, or just an article about the pen or manufacturer. My question would be, would the first amendment protect someone selling something on a commercial website that infringed on trademark laws? Would not the "journalistic function" require it to be posted to a website or portion of a website that was not devoted to the sale of items, or are for example all eBay ads protected under this same journalistic function?

 

Allan

Oops, my bad...I broke my shoulder and the pain meds, while helpful, really mean I shouldn't handle complex issues, heavy machinery, or writing that must be cogent, sensible, or factually sound. Sorry about that Chief! :embarrassed_smile:

 

That said, Roger would have to have the IQ of a Brussels Sprout to lie in a case where his defense is inextricably bound up in a finding of his having squeaky clean hands. Suchcases are lost by a single, even very minor, lie told in pleadings or in court.

 

Edited because of pain pills not kicking in the right way. Pain also makes one forget how to typo,err--type, and even leave stuff out that was supposed to have been said.

Edited December 7, 2008 by ViolinWriter

[Allan]

  gary said:

Allan, you have been willing to hypothesize that RC is lying, dodging calls, not opening his mail, refusing certified mail, and joked (on PT) that RC had a liaison with MB's CEO's daughter. This is difficult to reconcile with your avowed neutrality.

 

It will be interesting to see whether anyone ever finds out what "really" happened. Non-disclosure agreements are often a part of settlements in these cases.

 

gary

 

All of the above were made as possible alternatives, never once did I state any of them as actual events. As a matter of fact I even stated the last one was absurd, but still a possibility. My point being since we do not know, there are tons of reasons for what we see, not just the ones that everyone else jumps to.

 

There is a huge difference between hypothesizing either direction, and actually talking about banning MB from pen shows, saying they suck, and selling off your collection calling them objects of tyranny. What I hope to accomplish is to get people to see that there are alternitives to MB being the evil empire and that they should hold off judgment EITHER WAY until the facts are in. Not once have I said MB is innocent of any wrongdoing, not once have I stated I approve of what I have seen so far, not once have I stated RC was guilty of anything at all, I want to see some more facts before I start ranting against either one. You touch on an interesting observation though, why is it when one person posts possible alternatives to MB being the bad guy one is automatically viewed as a supporter of MB's actions?

 

Unfortunately you are correct about the non-disclosure agreements. I can only hope enough facts get out one way or the other to come to a better understanding of why each side did what they did. If it doesn't work out that way, I will be forced to stay pretty neutral on the subject.

 

Allan

[Allan]

  ViolinWriter said:

Oops, my bad...I broke my shoulder and the pain meds, while helpful, really mean I shouldn't handle complex issues, heavy machinery, or writing that must be cogent, sensible, or factually sound. Sorry about that Chief! :embarrassed_smile:

 

How rude! Didn't even offer to share! :embarrassed_smile:

 

Allan

[ViolinWriter]

  Allan said:

  ViolinWriter said:

Oops, my bad...I broke my shoulder and the pain meds, while helpful, really mean I shouldn't handle complex issues, heavy machinery, or writing that must be cogent, sensible, or factually sound. Sorry about that Chief! :embarrassed_smile:

 

How rude! Didn't even offer to share! :embarrassed_smile:

 

Allan

Sorry, modern medicine doesn't give the injured enough to really handle the pain, which after 4 weeks, is wearing me out--sleepiness of pain meds notwithstanding... Probably the pain is due to that third fracture in my non-laughing humerus, or that second break point in the scapula...

[OldGriz]

  PigRatAndGoat said:

http://www.stylophilesonline.com/09-05/09bees.htm

How does this pen fit into the whole thing?

Someone asked about the Classic Pens designs... here is an answer from Andy on that subject from a PenTrace thread

I would say the same holds for the one in the link above.... no reason to believe otherwise...

 

"The Classic Pens sterling silver CP series are Official.

 

Posted by Andreas Lambrou Email on December 7, 2008, 9:00 am, in reply to "Asking permission to create Limited edition pens"

 

The series CP1 to CP7 are customized editions of flagship models by international pen manufacturers. Each and every series is a fruitful working relationship between Classic Pens and the respective pen manufacturer, it is covered by an agreement.

Basically, the manufacturer supplies us with the product plain silver cap and barrel tubes, we develop guilloche engravings and packaging. The engraving designs are the fruit of the working relationship between Classic Pens and Murelli, they are exclusive to each and every CP series.

The engraved tubes are assembled into CP pens by the respective manufacturer. In other words, each manufacturer produces the CPs exclusively for Classic Pens. As such the series are Official and carry the Warranty and after sales service of the respective manufacturer.

With every CP series we work closely with the respective manufacturer, the engravings and packaging are approved by both parties.

With some series, the CP was the first variation of the model to be fully covered in sterling silver -CP3,CP5,CP6,CP7.

In some cases the manufacturer gets involved with the marketing and selling of the CP series they produced for us. They purchase packaged CP pens from us, we agree geographical territorries, they sell the CPs through their Distributors - CP6,CP7.

The CP8 is the first series which is based on our own pen model, the Legend TM. With this, Aquila Brands in Italy produced the pens to our specification.

For further details on the History of the CP Collection and each CP series, please visit our website at: classicpensinc.com

 

Andy."

[Blade Runner]

  OldGriz said:

  PigRatAndGoat said:

http://www.stylophilesonline.com/09-05/09bees.htm

How does this pen fit into the whole thing?

Someone asked about the Classic Pens designs... here is an answer from Andy on that subject from a PenTrace thread

I would say the same holds for the one in the link above.... no reason to believe otherwise...

 

"The Classic Pens sterling silver CP series are Official.

 

Posted by Andreas Lambrou Email on December 7, 2008, 9:00 am, in reply to "Asking permission to create Limited edition pens"

 

The series CP1 to CP7 are customized editions of flagship models by international pen manufacturers. Each and every series is a fruitful working relationship between Classic Pens and the respective pen manufacturer, it is covered by an agreement.

Basically, the manufacturer supplies us with the product plain silver cap and barrel tubes, we develop guilloche engravings and packaging. The engraving designs are the fruit of the working relationship between Classic Pens and Murelli, they are exclusive to each and every CP series.

The engraved tubes are assembled into CP pens by the respective manufacturer. In other words, each manufacturer produces the CPs exclusively for Classic Pens. As such the series are Official and carry the Warranty and after sales service of the respective manufacturer.

With every CP series we work closely with the respective manufacturer, the engravings and packaging are approved by both parties.

With some series, the CP was the first variation of the model to be fully covered in sterling silver -CP3,CP5,CP6,CP7.

In some cases the manufacturer gets involved with the marketing and selling of the CP series they produced for us. They purchase packaged CP pens from us, we agree geographical territorries, they sell the CPs through their Distributors - CP6,CP7.

The CP8 is the first series which is based on our own pen model, the Legend TM. With this, Aquila Brands in Italy produced the pens to our specification.

For further details on the History of the CP Collection and each CP series, please visit our website at: classicpensinc.com

 

Andy."

So if someone creates an overlay or special barrel and uses the guts and logo of a major brand for public sale without a contractual agreement, would it be understandable that that brand might not approve, either of the decision to produce such a pen without their agreement or the quality of the work?

[OldGriz]

  jeen said:

  OldGriz said:

  PigRatAndGoat said:

http://www.stylophilesonline.com/09-05/09bees.htm

How does this pen fit into the whole thing?

Someone asked about the Classic Pens designs... here is an answer from Andy on that subject from a PenTrace thread

I would say the same holds for the one in the link above.... no reason to believe otherwise...

 

"The Classic Pens sterling silver CP series are Official.

 

Posted by Andreas Lambrou Email on December 7, 2008, 9:00 am, in reply to "Asking permission to create Limited edition pens"

 

The series CP1 to CP7 are customized editions of flagship models by international pen manufacturers. Each and every series is a fruitful working relationship between Classic Pens and the respective pen manufacturer, it is covered by an agreement.

Basically, the manufacturer supplies us with the product plain silver cap and barrel tubes, we develop guilloche engravings and packaging. The engraving designs are the fruit of the working relationship between Classic Pens and Murelli, they are exclusive to each and every CP series.

The engraved tubes are assembled into CP pens by the respective manufacturer. In other words, each manufacturer produces the CPs exclusively for Classic Pens. As such the series are Official and carry the Warranty and after sales service of the respective manufacturer.

With every CP series we work closely with the respective manufacturer, the engravings and packaging are approved by both parties.

With some series, the CP was the first variation of the model to be fully covered in sterling silver -CP3,CP5,CP6,CP7.

In some cases the manufacturer gets involved with the marketing and selling of the CP series they produced for us. They purchase packaged CP pens from us, we agree geographical territorries, they sell the CPs through their Distributors - CP6,CP7.

The CP8 is the first series which is based on our own pen model, the Legend TM. With this, Aquila Brands in Italy produced the pens to our specification.

For further details on the History of the CP Collection and each CP series, please visit our website at: classicpensinc.com

 

Andy."

So if someone creates an overlay or special barrel and uses the guts and logo of a major brand for public sale without a contractual agreement, would it be understandable that that brand might not approve, either of the decision to produce such a pen without their agreement or the quality of the work?

 

That is how I see it.... but I am not a lawyer, nor do I play one on FPN...

 

[Allan]

  OldGriz said:

That is how I see it.... but I am not a lawyer, nor do I play one on FPN...

 

But the real question is: Did you stay at a Holiday Inn Express last night?

 

Allan

[OldGriz]

  Allan said:

  OldGriz said:

That is how I see it.... but I am not a lawyer, nor do I play one on FPN...

 

But the real question is: Did you stay at a Holiday Inn Express last night?

 

Allan

 

Dang it... I knew there was something I forgot to do before answering...

 

[LBpens]

I think it's pretty clear that someone at MB dropped the ball and jumped to conclusions about what was really going on and what RC had and hadn't done. I think for some reason they thought they had him cold enough they just filed without cease and desist. But then it turns out that's not the way it was and their case is actually weak. They picked the wrong example to make an example of and a way to back away from it is probably already well in the works.

 

Disclaimer: This is my speculation, I can't prove it and I did not stay in a Holiday Inn Express last night.

[kenny]

  Allan said:

What we also do not know is what happened before the lawsuit. Some would say that the defendant had no prior contact with MB about this and that the lawsuit just popped up out of nowhere. While that may or may not be true, the defendant has had many problems with his customers not being able to contact him which leads me to wonder if maybe MB had the same problem.

 

I doubt that Roger Cromwell will be posting on this thread to clarify, as he is involved in litigation. At least I hope he wouldn't, in order not to harm his case!

 

It would help stem the speculation if we could somehow get a copy of Roger's response filings. Wouldn't that be public domain information as well, just like the initial filing?

 

 

 

 

[kenny]

  gary said:

With regard to "kicks", I have personally been involved in suits motivated by exactly that. And greed, revenge, mentally unstable behavior, delusions, pride and ego.

 

Oh, so you know my ex-wife, do you?

 

 

[Deirdre]

  kenny said:

It would help stem the speculation if we could somehow get a copy of Roger's response filings. Wouldn't that be public domain information as well, just like the initial filing?

It's not public domain, but it is public record, and I do have them on my other computer. I'll try to post them in the next day or so.