Lawsuit filed by Montblanc

[wpblaw]

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.

 

Thanks for the update. Any word on who the John Does were?

 

Not judging any particular pen company, but I sure hate bullies...

[Dlpens]

When I first read the complaint I assumed that the "John Does" were the buyer and anyone else involved in this and other identical transactions. To date MB has NOT named any other defendant. When I pressed Roger's attorneys to have the buyer added as one of the John Does I was advised that the buyer was "involved" with the plaintiff. The plaintiff will not sue one of their own. This is an outrage as far as I am concerned.

 

The case has also been assigned to a magistrate for a settlement conference with a new date of April 17, 2009 for report on status. I sincerely hope that this matter is settled long before then as MB has obtained almost all of the requested documents and is awaiting financial records for 2007 and 2008 and they are being redacted at this time. MB is trying to bleed Roger dry.

 

Finally, Roger attended a very long deposition and answered the questions put to him while MB has failed and refused to date to answer the Interrogatories posed to them. They have objected to almost every single interrogatory even the ones which were identical or nearly identical to the ones they posed to Roger. Another outrage. Don

[tfwall]

When I first read the complaint I assumed that the "John Does" were the buyer and anyone else involved in this and other identical transactions. To date MB has NOT named any other defendant. When I pressed Roger's attorneys to have the buyer added as one of the John Does I was advised that the buyer was "involved" with the plaintiff. The plaintiff will not sue one of their own. This is an outrage as far as I am concerned.

 

Hardly unusual and definitely not an outrage. The buyer was probably very cooperative to avoid being sued himself. Whether or not this same deal was offered to Roger, we'll never know.

 

They have objected to almost every single interrogatory even the ones which were identical or nearly identical to the ones they posed to Roger. Another outrage. Don

 

Again, far from unusual and not even close to outrage. It is pretty standard practice in corporate litigation to challenge every single interrogatory. It'd be stupid to simply volunteer information that didn't specifically fit within your strategy for the case.

 

I look forward to our April update!

Edited December 24, 2008 by Chemyst

[Deirdre]

Again, far from unusual and not even close to outrage. It is pretty standard practice in corporate litigation to challenge every single interrogatory. It'd be stupid to simply volunteer information that didn't specifically fit within your strategy for the case.

Agreed. It's all posturing and tactics. Obviously Roger objected (rightly) to the request for production or there wouldn't have been a ruling on the motion to compel.

 

In many US District Courts, Motions to Compel require meetings beforehand. Here's California Northern District requirements:

 

37. MOTIONS TO COMPEL DISCLOSURE OR DISCOVERY

OR FOR SANCTIONS

 

37-1. Procedures for Resolving Disputes.

 

(a) Conference Between Counsel Required. The Court will not entertain a request or a motion to resolve a disclosure or discovery dispute unless, pursuant to FRCivP 37, counsel have previously conferred for the purpose of attempting to resolve all disputed issues. If counsel for the moving party seeks to arrange such a conference and opposing counsel refuses or fails to confer, the Judge may impose an appropriate sanction, which may include an order requiring payment of all reasonable expenses, including attorney’s fees, caused by the refusal or failure to confer.

 

( Requests for Intervention During a Discovery Event. If a dispute arises during a discovery event the parties must attempt to resolve the matter without judicial intervention by conferring in good faith. If good faith negotiations between the parties fail to resolve the matter, and if disposition of the dispute during the discovery event likely would result in substantial savings of expense or time, counsel or a party may contact the chambers of the assigned District Judge or Magistrate Judge to ask if the Judge is available to address the problem through a telephone conference during the discovery event.

 

[Pendragon]

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

They will if those few hundred pen freaks write a letters condemning Mont Blanc's lawsuit. Marketing departments really do pay attention to customer (or potential customer) feedback, and generally go out of their way to avoid negative publicity. If Mont Blanc is brought to the realization that the lawsuit tarnishes public perception of their brand, it might lead them to change course or at least be less confrontational. At the very least, it will make them think twice before undertaking such endeavors in the future.

 

Since fountain pen enthusiasts can have some affect the outcome of this little drama (yes, you can!), why not organize a letter writing campaign? Calm, rational, polite and written with a fountain pen, of course. Between The Fountain Pen Network and Pentrace, it should be possible to get many letters sent, possibly in the hundreds. It is time for the fountain pen enthusiast community to get involved, and thereby have a positive impact on matters.

 

My letter got dropped in the mailbox about an hour ago. And yours?

 

[Deirdre]

To make it easier for everyone:

 

Johann Rupert

Executive Chairman

Compagnie Financière Richemont SA

Hinterbergstrasse 22

CHAM CH-6330

Switzerland

 

 

[Blade Runner]

Since I don't know all the facts and do know for certain that the defendant is innocent, I don't feel comfortable writing in support of the defendant.

 

Best,

Jeen

[Deirdre]

Since I don't know all the facts and do know for certain that the defendant is innocent, I don't feel comfortable writing in support of the defendant.

You don't have to, but it does seem rather odd (and unconscionable) that there wasn't contact before the lawsuit.

[rogerb]

I agree with Fred that we should wait and see how this all pans-out, before making any hasty judgements about the parties involved.

 

However, there is no pen-maker or seller who I would feel unable to boycott if their business practices offended me sufficiently......there are whole oceans full of fish out there

 

Are we so addicted to pen-collecting that we are willing to compromise our moral/ethical principles for 'just another pen'?

 

It is really not so simple, Roger, and I am certainly not compromising my moral/ethical principles: I think the matter is not quite in that territory for me. I am frustrated by and resentful of the company, yet I like their products.

 

The question is, who will I be hurting more by getting rid of pens I like -- Montblanc or myself? And I think the answer is myself, because Montblanc would not feel the loss at all, whereas I would feel it quite a bit.

 

I have faced this dilemma with other companies before, where I disagree with their business practices but need their product/service. For example, there are two specific companies (neither of them MB) that have beautiful pens but very, very poor QC. I buy their beautiful pens despite knowing that there is a 80% chance of them not writing out of the box. Then I pay extra and send them to a professional to tune, after which they are flawless. I do not like these companies' lack of QC and I think it is unacceptable to sell high end pens in non-writing condition. But if I boycot them, I will be depriving myself of some of my very favourite pens.

 

I am not addicted to pen collecting in general. But I have a specific collector's focus/ aesthetic that interests me, and I am quite attached to the pens I love, which I think is not unnatural.

 

Sorry, I have been away and only just seen this & Deirdre's comments.

 

I was in no way criticising anyone for collecting whatever they choose-to, either directly or by inference......just asking a question, albeit perhaps a little provocatively :embarrassed_smile:

 

For myself, the answer to the question about who would be hurt is that I, personally, would feel uncomfortable about owning any products of such companies.

I know that it won't hurt them if I make my small gesture of disapproval by divesting myself of their products, but I would feel better...and probably better still if I made the effort to write and tell them.

 

And, of course, as pendragon says below, if enough people make such protests, and get some publicity, then it really can hurt and result in changes being made.

 

As for 'bad QC', I don't put that in quite the same category as what on the face of it is 'commercial bullying'.....I know if I buy certain makes of pen, it's taking a bit of a chance....but again it's a matter of choice.

[QM2]

I was in no way criticising anyone for collecting whatever they choose-to, either directly or by inference......just asking a question, albeit perhaps a little provocatively :embarrassed_smile:

 

For myself, the answer to the question about who would be hurt is that I, personally, would feel uncomfortable about owning any products of such companies.

I know that it won't hurt them if I make my small gesture of disapproval by divesting myself of their products, but I would feel better...and probably better still if I made the effort to write and tell them.

 

And, of course, as pendragon says below, if enough people make such protests, and get some publicity, then it really can hurt and result in changes being made.

 

As for 'bad QC', I don't put that in quite the same category as what on the face of it is 'commercial bullying'.....I know if I buy certain makes of pen, it's taking a bit of a chance....but again it's a matter of choice.

 

I suppose what I meant was, that I don't see commercial bullying -- particularly in a case where I do not have enough information to defend the person MB is going after -- as a reason for me to stop purchasing the company's products, given how much I like some of those products. For me it is just a case of disliking the company's policies, yet liking their products, and the latter outweighing the former. What I was responding to in your post, was the reference to (my) ethics: To me, this is not a sufficiently serious (or clear) issue for that. We are not talking about violations of child labor laws here, or the use of endangered species as ingredients, or the support of totalitarian governments; we are talking about a law suit that was made possible by the America's very own legal system. I find it distasteful, yes, and also idiotic, but not necessarily unethical in the context of what big businesses do to protect their interests.

[Deirdre]

I suppose what I meant was, that I don't see commercial bullying -- particularly in a case where I do not have enough information to defend the person MB is going after -- as a reason for me to stop purchasing the company's products, given how much I like some of those products. For me it is just a case of disliking the company's policies, yet liking their products, and the latter outweighing the former.

Fair enough. Until the situation is resolved AND it's clear that the defendant was in the wrong, I'm siding with the defendant. I've never met him, only surfed his site a few times over the years. However, it seems very very weird to me that a European company is claiming pornography when most of the world thinks the US is too uptight. To me, this sounds like it's being run out of the US offices by an uptight person and perhaps not even known about at the upper levels of Richemont.

 

From Pentrace, here's the letter they sent to Brian Gray:

 

Dear Mr. Gray,

Thank you for your email. Modifying genuine Montblanc pens in the course of trade (in addition to wrongly describing them as being Montblanc factory-produced items) is proscribed by the relevant laws in the U.S. and elsewhere.

Customizing a pen for private use is legally permissible, provided, again, this is not in the course of trade. If you have any doubts in this regard, it would be best to consult a qualified attorney.

 

With respect to the defendant in the currently pending case, that defendant repeatedly modified Montblanc pens and sold them in commerce. What is worse is that a number of pens were modified to add pornographic artwork to the outside of the pen. Since the pens retain Montblanc's trademarks and nowhere indicate that they are altered, there is a high likelihood that the public will believe that these pens are so manufactured from the Montblanc factory.

 

Best regards,

 

Sandra Milde

 

MONTBLANC International Marketing Services

 

Edited December 29, 2008 by Deirdre

[QM2]

Deirdre, thanks for posting that letter here. I have to say that it reads as reasonable. Whether or not it describes the situation accurately, we may never know, since images of the pens have now been removed from RC's website and I have no knowledge of his previous sales. Also, the way the letter is phrased suggests to me that there has been contact before the lawsuit. I do not know the seller personally. However, from what I hear -- and from what you can readily look up on FPN -- the feedback about his reliability is rather mixed. He has been accused of not returning phone calls, emails, and pleas from customers for months. The character and reliability of this person does not change my opinion that Montblanc's actions are distasteful. But it is further evidence that this matter is really not as clear and one-dimensional as it was initially presented on FPN.

Edited December 29, 2008 by QM2

[Deirdre]

Deirdre, thanks for posting that letter here. I have to say that it reads as reasonable.

It might seem so absent part of Roger's answer:

 

Mr. Cromwell does not and has never owned the pen in question, is not and has never been in possession of the pen in question, and did not etch the pen in question or alter it in any way, as alleged in the complaint. Rather, Mr. Cromwell, who is a restorer and refurbisher of antique pens and other writing implements, posted a picture of the Montblanc pen with an artistic acid etching performed by an Argentinean artist on his website with the caption that the object was a Montblanc pen with an overlay by the Argentinian artist.

 

A copy of the picture posted on the web site was attached to the answer and, honestly, one can't see anything, but if you want to have a peek here it is. Sans the pictures, here's how the web page appeared at the time, courtesy of archive.org.

 

In other words: this is about ONE pen, and one that Roger made no money on (per information later in his answer), for a total value of $600. And he's being sued for a quarter mil.

 

I don't think Roger's reliability is even an issue, frankly.

 

Normally, I take the side of the plaintiff, but in this case, I'm really going to have to see MB provide some real evidence and get some good case law and not see the typical sub rosa thing before I'd ever buy another MB pen, because I don't want to be funding this kind of behavior.

Edited December 29, 2008 by Deirdre

[Pendragon]

Since I don't know all the facts and do know for certain that the defendant is innocent, I don't feel comfortable writing in support of the defendant.

 

Best,

Jeen

If a company files suit against a member of a community, it is no surprise that other members of the community will react negatively. To make Mont Blanc acutely aware of this does not require a comprehensive knowledge of the case.

 

Deirdre's link to the complaint on the first page of this thread details Mont Blanc's allegations (thanks Deirdre). I did not mean to imply that anyone is obligated to write Mont Blanc regarding this issue, only that a coordinated letter writing campaign could have a positive effect. There is a long history of writing instrument customization, so Mont Blanc's actions are of concern to anyone who collects or uses modified fountain pens.

 

In addition to what is here on The Fountain Pen Network, readers might find these links to Pentrace posts informative:

 

The Mountblanc Problem

 

I also got an email from Mont Blanc, but with more information....

 

Case Status Update

 

received a reply from Montblanc

 

Some of the posts are little more than speculation, but there is also factual content. There are even one or two examples of email messages sent to Mont Blanc. Mailed letters generally have more impact than an email message, though.

 

You don't have to, but it does seem rather odd (and unconscionable) that there wasn't contact before the lawsuit.

To be fair, Mont Blanc may have tried to resolve the issue in an amicable matter. If they sent emails and thought they were being ignored, that would likely trigger a very no-nonsense approach.

[QM2]

It might seem so absent part of Roger's answer:

 

Mr. Cromwell does not and has never owned the pen in question, is not and has never been in possession of the pen in question, and did not etch the pen in question or alter it in any way, as alleged in the complaint. Rather, Mr. Cromwell, who is a restorer and refurbisher of antique pens and other writing implements, posted a picture of the Montblanc pen with an artistic acid etching performed by an Argentinean artist on his website with the caption that the object was a Montblanc pen with an overlay by the Argentinian artist.

 

A copy of the picture posted on the web site was attached to the answer and, honestly, one can't see anything, but if you want to have a peek here it is. Sans the pictures, here's how the web page appeared at the time, courtesy of archive.org.

 

Hmm, well here is at least one inconsistency from the original story we were given: The link you posted from the web archive, clearly shows that the pen was offered for sale by RC. The way the story was initially presented (I believe on the first FPN thread regarding the matter, which was later closed) was that RC was not the seller of the pen, but merely included the image in a journalistic article on his site. That was certainly how I heard it, from several sources defending RC. Yet, based on the archived webpage that is clearly not the case; he was indeed selling it. The statement on his behalf that he was never in possession of the pen is irrelevant, given that he was the seller. Sellers are responsible for the merchandise they sell and advertise, even if they had never actually been in receipt of the item.

 

As far as repeated sales go, I have seen no proof offered so far either for or against MB's accusation that this was a repeated sale of a pen altered in this manner. This means, that the possibility that it may have been a repeat case cannot be ruled out. Please correct me if I am wrong in this.

 

I don't know, but the more tidbits of information surface about this, the more I feel that it is just plain foolish for those not involved in the case to make judgments about either party.

 

And again, this does not diminish my disapproval of MB's policies, which I have expressed steadily since well before ever hearing of this case.

[Deirdre]

Hmm, well here is at least one inconsistency from the original story we were given: The link you posted from the web archive, clearly shows that the pen was offered for sale by RC. The way the story was initially presented (I believe on the first FPN thread regarding the matter, which was later closed) was that RC was not the seller of the pen, but merely included the image in a journalistic article on his site.

 

Actually, I think it was a journalistic article elsewhere?

 

That was certainly how I heard it, from several sources defending RC. Yet, based on the archived webpage that is clearly not the case; he was indeed selling it. The statement on his behalf that he was never in possession of the pen is irrelevant, given that he was the seller. Sellers are responsible for the merchandise they sell and advertise, even if they had never actually been in receipt of the item.

 

Not necessarily, actually. This is a legitimate pen, and the complaint actually accuses him of counterfeiting (false designation of origin) and unfair competition with Montblanc.

 

As far as repeated sales go, I have seen no proof offered so far either for or against MB's accusation that this was a repeated sale of a pen altered in this manner. This means, that the possibility that it may have been a repeat case cannot be ruled out. Please correct me if I am wrong in this.

 

The case is still really early in discovery process, in fact discovery's scarcely started. Montblanc has refused to answer interrogatories despite them being served on August 1. (Federal rules of civil procedure grant 30 days for answering interrogatories, so MB is several months overdue.)

 

I don't know if we'll ever know more than we know now, frankly, a sub rosa agreement could occur at any time.

 

I don't know, but the more tidbits of information surface about this, the more I feel that it is just plain foolish for those not involved in the case to make judgments about either party.

 

And again, this does not diminish my disapproval of MB's policies, which I have expressed steadily since well before ever hearing of this case.

 

Montblanc doesn't sue that many people in federal court. Since the beginning of 2007, there's been 11 cases filed where Richemont/MB is either the plaintiff (10 times) or the defendant (1 time).

 

Four cases are still ongoing:

 

a) Pen Shoppe Company, their Puerto Rican distributor, who sued MB.

 

Cromwell's, covered already

 

c) Colibri, because one of Panerai's watches looked too similar to one of MB's.

 

d) Peepchick, which opened with an ex-parte motion long before the complaint was filed, and had the series of docket entries one would expect of a trademark holder protecting their trademark against a counterfeiter. The body of the complaint that pertained to Montblanc was nearly identical to the one filed against Cromwell (thus my prior comment that it looked like a template lawsuit). There's lots of docket entries pertaining to an ex parte writ of seizure and Marshal's filings about what was seized. In other words, this appears to be how MB proceeds against a real counterfeiter. This case has been ongoing for almost 2-1/2 years, btw.

 

Given the above, Cromwell is clearly an outlier.

 

Edited December 29, 2008 by Deirdre

[Bananafish]

...

Not necessarily, actually. This is a legitimate pen, and the complaint actually accuses him of counterfeiting (false designation of origin) and unfair competition with Montblanc.

...

 

"Counterfeiting" is not the same as "False Designation of Origin" 15 USC 1125(a). Counterfeiting is a criminal offense under Title 18 USC 2320, which I don't see included in the counts?

 

 

[kirchh]

...

Not necessarily, actually. This is a legitimate pen, and the complaint actually accuses him of counterfeiting (false designation of origin) and unfair competition with Montblanc.

...

 

"Counterfeiting" is not the same as "False Designation of Origin" 15 USC 1125(a). Counterfeiting is a criminal offense under Title 18 USC 2320, which I don't see included in the counts?

Montblanc indeed accuses the defendant of engaging in sales, offers for sale and distribution of counterfeit Montblancs:

 

http://home.comcast.net/~kirchh/Misc/Montblanc_RC_Counterfeit_Claim.jpg

 

--Daniel

[Bananafish]

Hi Daniel, those are allegations; the accusations are in the counts.

 

As an aside, if I'd written that Paragraph, I'd rap my own knuckles for imprecision! Ahem.

 

 

[Daniel7]

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

They will if those few hundred pen freaks write a letters condemning Mont Blanc's lawsuit. Marketing departments really do pay attention to customer (or potential customer) feedback, and generally go out of their way to avoid negative publicity. If Mont Blanc is brought to the realization that the lawsuit tarnishes public perception of their brand, it might lead them to change course or at least be less confrontational. At the very least, it will make them think twice before undertaking such endeavors in the future.

 

Since fountain pen enthusiasts can have some affect the outcome of this little drama (yes, you can!), why not organize a letter writing campaign? Calm, rational, polite and written with a fountain pen, of course. Between The Fountain Pen Network and Pentrace, it should be possible to get many letters sent, possibly in the hundreds. It is time for the fountain pen enthusiast community to get involved, and thereby have a positive impact on matters.

 

My letter got dropped in the mailbox about an hour ago. And yours?

 

Hi,

 

I can only agree with you. As an european some of the thoughts exchanged here are above my understanding; Montblanc is a great brand, as thus it is normal that people do enhance their products with artistic features. That's my point, and I cannot agree that MB feels threatned by those people, because what is the percentage of these ameliorations against normal sales? The basic is that those people are taking MB because they feel that they are the best basis for their work and this is allready a recognition of the qualities of Montblanc!!!

I wonder what Bentley is going to say about Pairs hiltons' pink acquisition :-))))

Cheers,

 

Daniel