Lawsuit filed by Montblanc

[Johnny Appleseed]

  Bananafish said:

  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.

 

My comments were in regard to some who were interpreting the suit to mean that MB might come after them for having a nib reground, or having a custom overlay made personally. If you have the pen modified, as the pen owner, and do not sell it, then the modification does not fall under the test above, as it is not being used in commerce.

 

I do suspect that someone could get in trouble for advertising that they would do modifications to MB pens and useing the trademarks in their advertising, even if they never owned or sold the pens but only did modifications to the pens already owned by the customer.

 

How does this sort of thing work for used goods? Obviously you can't sell them as factory new or from MB, but if someone has a stash of pens that have been modified without authorization, can MB block, say, their sale at an estate sale when the owner dies? I know that there are situations where copywrite holders can block the sale of infringing material, or trademark holders can go after the subsequent sales of counterfiet items, but could they really block a subsequent "used" sale of something like this?

 

John

[LBpens]

  jmkeuning said:

  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.

 

Mont Blanc is suing someone because they acted without getting the facts straight and learning exactly who had done what. They end up suing someone who didn't modify a pen and didn't try to resell it so they have egg on their face and of course they will drop it. If they don't drop it voluntarily it will be dismissed and the possibility of a countersuit will loom large. They try to make an example out of someone and pick the wrong example. Reminds me of one of those stories where the swat team breaks in the door of the wrong house. Also, reminds me of a T shirt I saw years ago: "Mont Blanc - Every Insurance Salesman Has One"

[tfwall]

  LBpens said:

Mont Blanc is suing someone because they acted without getting the facts straight and learning exactly who had done what.

 

I assume you see the humor in your posting this in a thread about a case they no one actually knows anything about?

[Deirdre]

  DrPJM1 said:

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

Email? I'm hand-writing it with a Stipula filled with Noodler's.

[LBpens]

  Chemyst said:

  LBpens said:

Mont Blanc is suing someone because they acted without getting the facts straight and learning exactly who had done what.

 

I assume you see the humor in your posting this in a thread about a case they no one actually knows anything about?

 

We know plenty and more than enough to completely justify my statement. It is painfully obvious that Mont Blanc botched this and their case has little merit. I would think that a MB fancier would be the first to want this kind of PR bungling recognized and dealt with rather than leaping blindy to defend the indefensible. If you were MB and went around looking for a lawyer to take this case the best you could find would be the basest of ambulance-chasers and even he wouldn't take it on contingency.

[OldGriz]

  LBpens said:

  Chemyst said:

  LBpens said:

Mont Blanc is suing someone because they acted without getting the facts straight and learning exactly who had done what.

 

I assume you see the humor in your posting this in a thread about a case they no one actually knows anything about?

 

We know plenty and more than enough to completely justify my statement. It is painfully obvious that Mont Blanc botched this and their case has little merit. I would think that a MB fancier would be the first to want this kind of PR bungling recognized and dealt with rather than leaping blindy to defend the indefensible. If you were MB and went around looking for a lawyer to take this case the best you could find would be the basest of ambulance-chasers and even he wouldn't take it on contingency.

 

BUT not everything.... and not knowing everything we are seeing a flame war against MB....

I am not saying MB is in the right.... but it is apparent that no one (other than Roger and MB) know everything about what is going on...

Until the courts settle this lawsuit, we will not know everything... in fact even after the courts settle the case we may not know everything..

We will know what Roger and MB want us to know and nothing more....

[Deirdre]

  Thornton said:

  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.

If, as it seems, they flew off the handle and sued someone they shouldn't have (especially at that point in the process) AND they pay costs and such, THEN I might consider it, but only if the settlement is NOT sub rosa, because only then can I see that they've undone the damage they did.

 

Even if they didn't fly off the handle, I think they're hitting the wrong target, and if other people who've turned in complaints about counterfeiters that weren't pursued put in amicus briefs stating so, this could end badly for MB.

[tfwall]

  OldGriz said:

  LBpens said:

  Chemyst said:

  LBpens said:

Mont Blanc is suing someone because they acted without getting the facts straight and learning exactly who had done what.

 

I assume you see the humor in your posting this in a thread about a case they no one actually knows anything about?

 

We know plenty and more than enough to completely justify my statement. It is painfully obvious that Mont Blanc botched this and their case has little merit. I would think that a MB fancier would be the first to want this kind of PR bungling recognized and dealt with rather than leaping blindy to defend the indefensible. If you were MB and went around looking for a lawyer to take this case the best you could find would be the basest of ambulance-chasers and even he wouldn't take it on contingency.

 

BUT not everything.... and not knowing everything we are seeing a flame war against MB....

I am not saying MB is in the right.... but it is apparent that no one (other than Roger and MB) know everything about what is going on...

Until the courts settle this lawsuit, we will not know everything... in fact even after the courts settle the case we may not know everything..

We will know what Roger and MB want us to know and nothing more....

 

Exactly.

 

Maybe it is that MB is in the wrong and some junior legal counsel accidentally opened this suit when it should have gone down a different road.

 

Maybe Roger ignored MB's pleas and told them where they could stick it. I want my day in court and that sort of thing.

 

It is entirely possible that the learned legal team retained by MB knows exactly what they are doing and we just can't see the big picture from our armchair legal benches.

 

We don't know. We only have the few documents pulled from the initial stages of the cases. So, people are lining up based on their opinion of MB. That doesn't mean that MB is wrong, morally or legally.

Edited December 9, 2008 by Chemyst

[LBpens]

For those of you who think it is a toss-up - anyone interested in a wager? I'll be this never goes to trial, let alone that MB can't prevail.

[FredRydr]

  LBpens said:

For those of you who think it is a toss-up - anyone interested in a wager? I'll be this never goes to trial, let alone that MB can't prevail.

 

Your wager is silly. Who wins the wager if summary judgment is granted in favor of Montblanc? You're in over your head, here, LB.

 

Fred

Edited December 10, 2008 by FredRydr

[tfwall]

  LBpens said:

For those of you who think it is a toss-up - anyone interested in a wager? I'll be this never goes to trial, let alone that MB can't prevail.

 

Whether or not it goes to trial has no relationship to whether or not MB is in the right or has a case. Settlements happen for all sorts of reasons, not the least of which being savings in time and legal fees for both parties.

 

Roger could cave under the pressure and settle under any sort of conditions, up to and including that he pay thousands in damages each year for the rest of his life.

 

Alternately, MB could settle and agree to pay Roger damages as long as he never brings litigation against MB and considers the matter closed.

 

The only hope of ever seeing the truth on this issue, is for the case to proceed to completion in open court.

[Deirdre]

  FredRydr said:

  LBpens said:

For those of you who think it is a toss-up - anyone interested in a wager? I'll be this never goes to trial, let alone that MB can't prevail.

 

Your wager is silly. Who wins the wager if summary judgment is granted in favor of Montblanc? You're over your head, here, LB.

In federal court rules, when there's a motion for summary judgment, it's either got to be a situation where there's no facts in dispute (i.e., it's not a matter of facts) and the law is interpreted as much in favor of the non-moving party as possible.

 

Thus, I just don't see it happening in this case, at least not at this point.

Edited December 10, 2008 by Deirdre

[jmkeuning]

I'm thinking 12{B}(6).

 

Followed by some 11{B} sanctions.

 

It's on!!

 

 

(edit: had to edit out the auto-emoticons)

Edited December 10, 2008 by jmkeuning

[FredRydr]

My final observation is the original poster creating this thread has done a disservice to this forum.

 

Goodnight.

 

Fred

Edited December 10, 2008 by FredRydr

[LBpens]

Fred, If there is any kind of judgment for MB you win. How's that? You in? (over my head - LOL)

[ViolinWriter]

  Deirdre said:

  Thornton said:

  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.

If, as it seems, they flew off the handle and sued someone they shouldn't have (especially at that point in the process) AND they pay costs and such, THEN I might consider it, but only if the settlement is NOT sub rosa, because only then can I see that they've undone the damage they did.

 

Even if they didn't fly off the handle, I think they're hitting the wrong target, and if other people who've turned in complaints about counterfeiters that weren't pursued put in amicus briefs stating so, this could end badly for MB.

Oh how I hope it doesn't get to the amicus stage. Sheesh!

 

But, if they do...need an amicus that is...I think you've got a good idea there.

 

[david i]

  FredRydr said:

  LBpens said:

For those of you who think it is a toss-up - anyone interested in a wager? I'll be this never goes to trial, let alone that MB can't prevail.

 

Your wager is silly. Who wins the wager if summary judgment is granted in favor of Montblanc? You're in over your head, here, LB.

 

Fred

 

Knowing that Lynn stands by his word, I do not believe his wagre is silly. He might win it or lose it, but he is not being silly. Indeed, I would venture the guess that any sort of judgement for MB would be considered by Lynn to have been a loss of his wager, and then he would pay he who bet against him.

 

regards

 

david

[wpblaw]

  Deirdre said:

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.

 

If the pen is merely modified and clearly not a counterfeit, then what next? GM suing Corvette collectors selling their cars featuring custom paint jobs? Bumper stickers diluting the Toyota trademark? Bizarre. MB may do more damage to its reputation (in the FP community at least) by filing these suits than anything Penopoly or the others could do...

 

The fountain pen legal network should file a Rule 11 amicus.

 

Edited December 24, 2008 by wpblaw

[Deirdre]

  wpblaw said:

If the pen is merely modified and clearly not a counterfeit, then what next? GM suing Corvette collectors selling their cars featuring custom paint jobs? Bumper stickers diluting the Toyota trademark? Bizarre. MB may do more damage to its reputation (in the FP community at least) by filing these suits than anything Penopoly or the others could do...

 

The fountain pen legal network should file a Rule 11 amicus.

 

No kidding. For one thing, many of us scarcely looked at Penopoly's site before.

 

However, if it gets rid of the cartoon stickers of kids peeing, I'm all for it....

 

Docket summary of 12/12 actions.

 

1) (Docket item 17) The case was demoted to a Magistrate Judge for settlement.

 

2) (Docket item 18) A scheduling order wsas made.

 

3) (Docket item 19) Roger was ordered to produce bank records for 2007 and 2008 for opposing council.

 

None of these are particularly unusual, fwiw.

[wpblaw]

  OldGriz said:

  LBpens said:

  Chemyst said:

  LBpens said:

Mont Blanc is suing someone because they acted without getting the facts straight and learning exactly who had done what.

 

I assume you see the humor in your posting this in a thread about a case they no one actually knows anything about?

 

We know plenty and more than enough to completely justify my statement. It is painfully obvious that Mont Blanc botched this and their case has little merit. I would think that a MB fancier would be the first to want this kind of PR bungling recognized and dealt with rather than leaping blindy to defend the indefensible. If you were MB and went around looking for a lawyer to take this case the best you could find would be the basest of ambulance-chasers and even he wouldn't take it on contingency.

 

BUT not everything.... and not knowing everything we are seeing a flame war against MB....

I am not saying MB is in the right.... but it is apparent that no one (other than Roger and MB) know everything about what is going on...

Until the courts settle this lawsuit, we will not know everything... in fact even after the courts settle the case we may not know everything..

We will know what Roger and MB want us to know and nothing more....

 

A flame war? Montblanc bashing? I think the exchange is incredibly civil and informative and I'm grateful that it hasn't spiraled into a flame war or bashing. Frankly, I think it's an unkind characterization of these posts...devil's advocate or not.