Lawsuit filed by Montblanc

[Allan]

  kenny said:

  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?

 

I actually have a copy of the response as well, and as you would expect it is a long string of "I didn't do its". What I think would be more interesting is to get the records of all the depositions. I think RC commenting here would be about as useful to finding the truth as if a MB rep posted here, what would you expect either of them to say? The most interesting to me would be original copies of the ads and pictures.

 

Allan

[LBpens]

This will do for Mont Blanc what a plane crash does for an airline.

[sumgaikid]

Biting the hand that feeds you is not the smartest thing to do............... :hmm1:

 

John

[hardyb]

-It is better to suffer an injustice than to do an injustice.

 

- Let them hate provided that they fear. (Seneca)

 

-In necessary things unity, in doubtful things liberty, in all things charity.

Edited December 8, 2008 by hardyb

[FredRydr]

The strongest arguments prove nothing so long as the conclusions are not verified by the facts.

 

Fred

[Johnny Appleseed]

  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?

 

The difference is that RC was showing a pen that somone else was offering for sale as a customized Mont Blanc pen. It was purchased for resale with all the branding of the original. If you buy a pen and send it off to a jewler to add an overlay, you both would be safe, as it was your property and the manufacturer can't restrict you from modifying it (though they can void warranties, etc). If you later sold it as a used product, you would also be protected by the first sale protection cited above. However, in this case it appeared that a customized Mont Blanc was being offered for sale as a new product, purchased with the intent to resell as new, and that is what the main issue is.

 

With a truck it is a little different. Part of the reason being that there is a long tradition of people customizing and adding non OEM parts to cars and trucks, so there is not the same perception of authenticity as there is with a pen (a truck with a custom paint-job is not assumed to be a factory product, while an MB pen with an overlay would probably be assumed to be a factory product unless it were very clearly identified otherwise). Also, car manufacturers are probably pretty strict and aggressive about parts and products being labelled or marked in such a way as to cause confusion with the OEM product. EG - if you design a custom light assembly to fit a Ford Truck, it better not say FORD on it.

 

I wonder how it works with selling new or realtively new, customized cars. I suspect that dealer agreements restrict dealers from doing a lot of non-oem modifications. I also suspect that if you wanted to buy a Chevy, customize it and turn around and sell it, you would have to prominantly disclose that you were not an official dealer (and there may be warranty issues), and that this was a custom design. And it well may be that auto companies could have been more aggressive on this front but choose not to be, because it was in their best business interests to allow widespread customization as long as it was properly labelled.

 

  LBpens said:

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.

 

I suspect they are pretty aggressively going after anyone who even thinks of making a customized pen without their permission. They may have misread how strong a case that had, but I suspect they also don't care. They want to make sure any other small pen dealer is warned or intimidated from in any way offering an unauthorized customized MB for sale. Again, my speculation, but I doubt they will consider this a mistake.

 

  LBpens said:

This will do for Mont Blanc what a plane crash does for an airline.

 

I doubt it. It will damage their reputation around a very small circle of enthusiasts. Their market is bigger and different from those of us likely to get upset about this. They are more worried about artisans cutting into their high-end LE market.

 

John

Edited December 8, 2008 by Johnny Appleseed

[jmkeuning]

  LBpens said:

This will do for Mont Blanc what a plane crash does for an airline.

 

 

  sumgaikid said:

Biting the hand that feeds you is not the smartest thing to do............... :hmm1:

 

John

 

 

Montblanc does not care what a few hundred pen freaks think.

[koa]

  jmkeuning said:

  LBpens said:

This will do for Mont Blanc what a plane crash does for an airline.

 

  sumgaikid said:

Biting the hand that feeds you is not the smartest thing to do............... :hmm1:

John

 

Montblanc does not care what a few hundred pen freaks think.

 

But we are legion!!! Or at least a couple of tens of thousands. But given the reputation they already have here. . . I have been tempted to start a thread on identifying all the counterfeit Heros and Esterbrooks that are out there. :hmm1:

Edited December 8, 2008 by koa

[kenny]

  Johnny Appleseed said:

  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?

 

The difference is that RC was showing a pen that somone else was offering for sale as a customized Mont Blanc pen. It was purchased for resale with all the branding of the original. If you buy a pen and send it off to a jewler to add an overlay, you both would be safe, as it was your property and the manufacturer can't restrict you from modifying it (though they can void warranties, etc). If you later sold it as a used product, you would also be protected by the first sale protection cited above. However, in this case it appeared that a customized Mont Blanc was being offered for sale as a new product, purchased with the intent to resell as new, and that is what the main issue is.

 

 

While your argument makes sense as posted, is that what the law actually says? (I have no idea myself.)

 

 

 

 

[tfwall]

  koa said:

  jmkeuning said:

 

  sumgaikid said:

Biting the hand that feeds you is not the smartest thing to do............... :hmm1:

John

 

Montblanc does not care what a few hundred pen freaks think.

 

But we are legion!!! Or at least a couple of tens of thousands. But given the reputation they already have here. . .

 

Not to rain on your parade, but our buying power is so small, that we can't even convince Pendemonium that it would be worthwhile to keep our favourite inks in stock. I somehow doubt that our buying power is much greater where MB LE pens are concerned.

 

The MB haters will rant about this case for a while, instead of their usual ranting about MB marketing and precious resin. The people who buy MB pens will continue to do so. Montblanc will secure its trademark and prevent freelance artists from cutting into its high-end and high-profit LE pen market. All remains right in the world.

 

I don't find any of the speculation or rhetoric all the that moving. We don't know the facts and will just have to hope it goes to trial and isn't settled with a non-disclosure clause. Personally, knowing Roger and how miserable he is at communicating with anyone (inc. paying customers), I wouldn't be surprised if he dodged or disregarded rafts of cease and desist orders and brought this all on himself. Again though, we won't know how it played out until the case gets its day in court.

Edited December 9, 2008 by Chemyst

[Johnny Appleseed]

  kenny said:

  Johnny Appleseed said:

  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?

 

The difference is that RC was showing a pen that somone else was offering for sale as a customized Mont Blanc pen. It was purchased for resale with all the branding of the original. If you buy a pen and send it off to a jewler to add an overlay, you both would be safe, as it was your property and the manufacturer can't restrict you from modifying it (though they can void warranties, etc). If you later sold it as a used product, you would also be protected by the first sale protection cited above. However, in this case it appeared that a customized Mont Blanc was being offered for sale as a new product, purchased with the intent to resell as new, and that is what the main issue is.

 

 

While your argument makes sense as posted, is that what the law actually says? (I have no idea myself.)

 

I think so, but I am not a lawyer. Trademark law is pretty tricky stuff. I have followed a few cases though in pen research. Once you purchase something, you, as owner, have a lot of leeway to do with it as you choose, but selling a new or modified-new product runs into the trademark issues.

 

  Chemyst said:

I don't find any of the speculation or rhetoric all the that moving. We don't know the facts and will just have to hope it goes to trial and isn't settled with a non-disclosure clause. Personally, knowing Roger and how miserable he is at communicating with anyone (inc. paying customers), I wouldn't be surprised if he got dodged or disregarded rafts of cease and desist orders and brought this all on himself. Again though, we won't know how it played out until the case gets its day in court.

 

MB acknowledged in their pleadings that they had not served Roger a C&D order or letter prior to initiating the lawsuit. A couple of the lawyers who commented over at Pentrace stated that MB would have produced copies of any C&D orders or letters to the defendant in order to bolster their case. The fact they did not cite them is evidence they never bothered.

 

John

 

[chibu]

This is like Fileing lawsuits to Picasso, Dali, etc. By the canvas company. Thnaks for convinceing me on not buying any more very expenssive piece of plastic.

[Bananafish]

  Johnny Appleseed said:

...

 

I think so, but I am not a lawyer. Trademark law is pretty tricky stuff. I have followed a few cases though in pen research. Once you purchase something, you, as owner, have a lot of leeway to do with it as you choose, but selling a new or modified-new product runs into the trademark issues.

 

...

 

I doubt if that's what the trademark law says. The first count in the Complaint, for instance, is the Lanham Act codified in 15 USC 1114(1) Federal trademark infringements. The legal elements therein are:

 

1/ any person used without the consent of the registrant;

2/ in commerce;

3/ the trademark or a similar mark;

4/ in connection with the sale, offering for sale, distribution, or advertising of any goods or services;

5/ such use is likely to cause confusion, or mistake, or deception.

 

The standard test here is whether there's been a trademark use, and whether such use is likely to cause confusion. Whether or not the pen is new is not relevant. Intention is also not a requisite element in a trademark infringement case, but it may be used as a mitigating factor. The other counts are typical tag-on trademark infringement allegations; they differ more or less in their legal elements.

 

The case in question is ongoing; I think it's better to let the fact-finders decide what happened should it come to trial.

Edited December 9, 2008 by Bananafish

[wspohn]

  Johnny Appleseed said:

With a truck it is a little different. Part of the reason being that there is a long tradition of people customizing and adding non OEM parts to cars and trucks, so there is not the same perception of authenticity as there is with a pen (a truck with a custom paint-job is not assumed to be a factory product, while an MB pen with an overlay would probably be assumed to be a factory product unless it were very clearly identified otherwise). Also, car manufacturers are probably pretty strict and aggressive about parts and products being labelled or marked in such a way as to cause confusion with the OEM product. EG - if you design a custom light assembly to fit a Ford Truck, it better not say FORD on it.

 

 

So you figure this guy would be OK?

 

http://www.vwworldseries.com/images/JMVWRollsRoyceBeetleFrontWE.jpg

 

Earthshaking as this whole topic may be to pen fanatics, I doubt that it will make a small ripple in the world at large.

 

Only thing I have to wonder is if MB was primarily interested in having the activity stop, I'd have thought a cease and desist letter as a shot across the bows would have been the most cost effective and would almost certainly have accomplished the result they seek. Ah, but then it wouldn't have resulted in all those legal fees for their lawyers (he said, cynically).

[tfwall]

  wspohn said:

Only thing I have to wonder is if MB was primarily interested in having the activity stop, I'd have thought a cease and desist letter as a shot across the bows would have been the most cost effective and would almost certainly have accomplished the result they seek. Ah, but then it wouldn't have resulted in all those legal fees for their lawyers (he said, cynically).

 

Assuming that MB didn't send a cease and desist letter, this method is proving very effective if their goal is to prevent future activity:

• It has FPN and PT buzzing with activity, giving wide notification to the pen collecting circles that this is something MB is not going to tolerate in any form. No more rogue artists.
• Win or lose, MB should be able to beggar Roger with all the time and cost of defending himself in court. He'll serve as a powerful reminder for prospective future dealers that brokering the sale of MB pens isn't something that non-authorized dealers should try to do. No more rogue dealers.

Send a letter and only the recipient and a few people at pen shows might hear about the issue. Sue and everyone in pendom gets the word.

 

It removes the whole exchange of:

 

"You don't want to sell overlay MBs, Roger tried that back in 2007 and got a nasty letter."

 

"What? That was just a pen show urban legend. I sell what I want."

Edited December 9, 2008 by Chemyst

[Deirdre]

  Chemyst said:

Assuming that MB didn't send a cease and desist letter, this method is proving very effective if their goal is to prevent future activity:

...and they lose a few customers they didn't care about anyway.

[DrPJM1]

Please send e-mails to MB expressing your displeasure. Maybe after 100's of messages they will drop the suit.

[OldGriz]

  DrPJM1 said:

Please send e-mails to MB expressing your displeasure. Maybe after 100's of messages they will drop the suit.

 

I can't believe people honestly believe that MB is going to drop the suit because some people on a pen forum write them complaining...

In fact I think they might find it rather amusing....

They appear to be dead serious about this law suit and I seriously doubt any emails or letters from members of a pen forum is going to change that attitude...

But if it makes people feel better doing it... go ahead....

[Thornton]

  Deirdre said:

...and they lose a few customers they didn't care about anyway.

 

Deirdre, I've been nodding my head in a agreement to your posts throughout this thread and I couldn't agree with you more on this point. Now, I love Montblanc pens. However, the brand does hold so much prestige and is such a status symbol that I feel as though MB has the authority to "pick and choose" its customers so to speak. I'm sure they would never turn down the chance to make a sale, but there are so many people who want their product that a few lost sales won't kill them. I have read through the complaint and am disappointed in how MB has handled the situation. I will think long and hard before buying another product from them knowing what I know now.

[jmkeuning]

  OldGriz said:

  DrPJM1 said:

Please send e-mails to MB expressing your displeasure. Maybe after 100's of messages they will drop the suit.

 

I can't believe people honestly believe that MB is going to drop the suit because some people on a pen forum write them complaining...

In fact I think they might find it rather amusing....

They appear to be dead serious about this law suit and I seriously doubt any emails or letters from members of a pen forum is going to change that attitude...

But if it makes people feel better doing it... go ahead....

 

Montblanc is suing someone because MB thinks the person is stealing from them. Bottom line.

 

Writing them is akin to asking if they will allow people to continue to steal from them.