#22 - The Truth Will Out . . .

Interesting, suddenly all of the addendums that belong to the American Plastic Equipment motion for partial summary judgment on the trademark 'Fort Apache' are posted at:

http://www.koehlermarxcustoms.com/

instead of www.sirdinglydang.com. I guess 'Jason Mason' forwarded all the documents to the owner of that website for posting. Funny though, the motion for partial summary judgment is the only thing posted, not any of the motions to dismiss or motions for sanctions. So, the word 'complete' is a serious misnomer.

I'll be filing my response on or before October 11, 2007. We'll see if that is posted, or if the 'complete' record remains one-sided.

Just remember, as I said earlier, both sides get to have their say and then a judge, not the court of public opinion makes the decision.

I have to go back to work now. I have yet another motion to file. I wonder if it will appear on any postings??

Have a good evening everyone! Terri

#21 - The "Jason - Mason" Line

Good morning everyone! Woke up to a gray day in Fort Scott, Kansas and what appeared to be a flaming bag of doggie droppings on my front porch.

The flaming bag in question is an email being circulated by someone calling themselves 'Jason Mason' with the email address 'marxtrials@hotmail.com'.

This email links to a website containing an incomplete public record filing of a motion for summary judgment for the trademark 'Fort Apache' filed by American Plastic Equipment, Inc. a few days ago. Obviously an attempt to draw some kind of 'line in the virtual sand' and sway public opinion against us and in favor of American Plastic.

First, I could really care less about the pleading posting. Public records are by their very nature, public, and everyone who knows how has access to them. Go to them and read all of my motions to dismiss and motions for sanctions against American and their lawyer for lying in the pleadings. Read all the public records and you'll find out this is the third time they've filed this same old repetitive and tired-out motion. I have 20 days to deal with it and will deal with it in my own time.

What bothers me is how and why this particular motion is being circulated.

First, just who is 'Jason Mason?' I can't tell you if this is a real person, or someone hiding behind a fake name. However, this is what I can tell you.

The hot link to the pleadings goes through a website called www.sirdinglydang.com. Now, wondering who would be interested in getting their 'news' from a site with a 'name' like that, I clipped off the .htm segment of the link and went to the base website.

It is an rpg gaming site with an email address of: tkoehler1@woh.rr.com
Check out the ISP server and this places the person in the western part of Ohio. I went to the WHOIS registry to find out who owns this domain name and found that it belongs to:

Tristan Koehler
[address deleted]
Englewood, OH 45322

This is Jill Koehler's husband [this info is on her 'ME' page on eBay] and I can attenst that this is their correct address. I'll let you all decide who 'Jason Mason' is and what Jason's motives might be.

Jay's attorney had attached several 2-3 year old emails to the pleading and 'Jason' made sure there were links to those emails. I don't know what the point of it was, other than to try and stir up a lot of trouble. Unsupported and uncorroborated emails are pure heresay and don't carry much in the way of weight in court. So, the probative value is very little. Therefore, there was an attempt at shock value.

My only comment on the emails is several years ago, things were happening very fast and we were mad at everyone and bitching at everybody, and I'm as guilty as anybody else. More so, because I know better than to behave like that.

However, because we are all adults, everyone that we care about has long since talked it all out and settled the issues and made peace and laughed and opened a couple more 'adult beverages' to celebrate putting all that foolishness behind us.

In other words, it all came to an end. Evidently, for 'Jason' and company, it was just beginning. That horde of emails was supposedly their 'doomsday' weapon.

Everyone has something they've said in private that would make them cringe in public. However, you thought you were speaking to someone you could trust and share bitchy opinions with. People who have gone out of their way to ingratiate themselves to you and assured you that you could trust them forever. However, now 'Jason' feels that betraying confidences and putting a bunch of stale old email out to the public is somehow beneficial.

I've received several calls and emails this morning and I am humbled by everyone's kindness and support. This person gave me permission to post part of their note:

------------------

"I get spammed every few days, usually with some Uganden dead president's wife telling me she has millions to share with me or from the Nigerian Lottery Fund that I have won the Nigerian Lottery. I always mark these as spammed and be done with them.

However, this email really disturbed me as it was obviously sent to directly poise me against you and Noah personally and Circle X Ranch without fair and due process. I assume that all other Johnny West fans received the same email in hopes by the instigater to cause an avalanche of animosity against you, Noah, and the Circle X Ranch. I personally feel the below email was an attempt to slander you, Noah and the Circle X Ranch.

Since my job deals so much with determining if people are a risk to national security, I have learned what is and is not my business and how to read people. The spamming me with this email is my business. The great relationship that we have with each other is my business. Anything outside of that is not my business and does not play a part in our action figure collecting or personal relationship.

So basically, I am trying to say that this attempt to cause adverse affect on my relationship with you, Noah or the Circle X Ranch did not succeed.

---------------------------------------------------------

With friends like this, I feel like a millionaire.

I'm making a small change in the blog. Before, I had it moderated and did not allow anonymous comments. I've changed that. Feel free to comment and say what you will. You can also email me directly at thetoylawyer@yahoo.com and I will answer your questions.

Take care everyone - Terri

The State Court Case Is Concluded . . . #20

Good morning everyone! I promised more information on the state court case and finally have a few moments to post.

The state court case, originally filed in the district court of Bourbon County is concluded and all factors were ruled in favor of the Ranch.

In short, the document signed by both parties and the judge states:

__________________________

1. The court had jurisdiction over the parties and the subject matter.

2. American Plastic Equipment, Inc. has "no protected or actionable interest in the trademarks: Circle X Ranch, Johnny West Adventure, Best of the West, Fort Apache Fighters, Johnny West or Marxman/Marxman Bros under KSA 81-202 or Kansas common law."

_____________________________

American threw in the towel in state court after failing to get a dismissal on 'lack of justiciable controversy.' They also had several other motions pending against them. They claim to not care about state law because they're gonna get us under federal law darn it! Funny, it took a year and a half of hard litigation for them to decide they didn't care about Kansas . . .

Well, now it's up to another judge to decide. I've filed a motion to dismiss their federal case based on the concept of 'res judicata' which is lawyer-speak for 'it's already been decided.'

The law says that once a question, claim, property right or legal matter has been decided in one court that you can't revisit it or attack it in another court, even if you use another set of laws. As far as Kansas is concerned, the Ranch is the owner of the trademarks and American can't say anything about how we run our business or name our products.

Courts are pretty adamant about property rights. Once a court decides that someone owns something, another court can't take it away.

Here is a quote from a case decided in January of this year in the 10th Circuit [that is the federal appellate circuit where Kansas is located and whose law Kansas follows]:

_______________________

"Where the successful pursuit of a federal claim based on such facts would undermine a prior state judgment or impair rights established thereby, such claim cannot survive application of res judicata principles. Judicial economy is not the only basis for the doctrine of res judicata. Res judicata also preserves the integrity of judgments and protects those who rely on them. Copeland v. Ballard, 05-7085 (10th Cir. 1-24-2007)"

______________________

I've presented my side to the judge. American gets to speak their piece and then the judge will decide how to apply the law. He can't make it up, he has to refer to and apply the law that has already been decided ['stare decisis' is the legal term for those folks who are interested. It means 'to stand by things decided.']

As it stands today, there is a state court judgment on property rights, three federally registered trademarks, three state registered trademarks and two pending federal registered trademarks - all decided the Ranch's favor. In the one remaining court case we've also gotten it transferred back to the court that American wanted to stay out of. I'll keep you posted on what happens next.

In real life, all claims of 'legal contracts' are based in the simple concept of property rights. I can claim to own your house, heck, I could even rent it out while you are on vacation and I knew where you hid your keys. But, do I own your house? Just because I say I do? And does the renter have the right to use your house, even if they claim to pay me rent? Just because I told them it was okay and that I owned the property? Think about it and apply your common sense.

As always, if you have any questions, please contact me at thetoylawyer@yahoo.com and ask away. Gossip, rumors, and innuendo are just that. The only opinion that really matters is rendered by a guy in a black robe. Let's see what he has to say.

Thanks to everyone for their support - Terri

Trademark Registration Update #19

Good morning everyone!

I thought I'd post an update on the Ranch's quest to obtain federal registration of the trademarks for the figures and gear sets we are producing.

I am proud to welcome 'Jed Gibson' and the inimitable pixie 'Magic Marxie' to the Ranch's trademark portfolio.

A while back someone was circulating a link to a letter written by Jay's attorney to the federal trademark office. That letter asked that our application be suspended pending the outcome of the lawsuit currently in federal court.

The trademark office REFUSED to suspend the cases [for any reason whatsoever] and gave American Plastic Equipment, Inc. until July 11, 2007 to file a formal opposition to 'Jed Gibson' and until July 18, 2007 to file a formal opposition to 'Magic Marxie - Marx Toys.'

The deadline dates came and went and they did NOT file the opposition documents nor did they ask for addition time. Repeat, American Plastic Equipment, Inc., better known as Jay Horowitz, did NOT oppose our applications for registration.

Therefore, the two trademarks - Jed Gibson and Magic Marxie will register to the Ranch in due course. The time for anyone to oppose our registrations has passed.

American Plastic's attorney hemmed and hawed and delayed, but when it came time to file, he didn't do it and let the time expire. They have no further recourse with the federal trademark office regarding those applications. The trademarks will register and Jed Gibson and the Marx Pixie are on their way to becoming a full-fledged Ranchhands.

The Ranch has a federally protected right to use and defend 'Jed Gibson' and 'Magic Marxie' along with 'Best of the West', 'Johnny West Adventure', and 'Circle X Ranch.'

The next step is resolving the lawsuit. I am waiting for the Judge to sign a document that will end one phase of the litigation and give us the judgment we need to proceed in the next phase. I hope to have more info within the week.

So stay tuned for more news. You can listen to gossip from those who think they know or you can come here or email me at thetoylawyer@yahoo.com for what is really happening.

Thanks again to everyone for their support - Terri

Website "Sale" Into Missouri . . . #18

I was asked a question on our collector club message board about the pretext sale in Missouri that American Plastic tried to hang their venue hat on. I decided to answer it here on the blog for a couple of reasons:

1. To keep my promise not to litigate this case on the message board.

2. I've discovered that this little blog has developed an audience outside of the collector club and wanted to share this amusing story.

I was asked what the Missouri resident purchased off our website in order to 'establish venue' in Missouri.

When I got the 'affidavit' that was 'proof' that we had done business in Missouri, I looked it over very carefully.

At the top were two of those printed notices that fax machines add to the papers that get faxed. The first line said the fax was from American's attorney sending it to a law firm in Kansas City Missouri. The second notice showed the law firm faxing it back to American's attorney. It was done the morning of the day American filed the affidavit in court.

With the info in the two fax lines and the name on the affidavit, I traced the purchase of a Fort Apache Fighter General Odinson to a woman named Monica Hastings.

Here are a few interesting bits:

1. The email address on the PayPal invoice was the email address for an attorney's office in Kansas City, Missouri. The name that made up part of the email address was not Ms. Hastings, it was the attorney.

2. The shipping address was the attorney's office in Kansas City, Missouri.

3. I called the attorney's office and asked to speak to Ms. Hastings. I was told she was not in, but that I could leave a message.

4. The email address used in the PayPal payment is not registered with eBay, so it doesn't belong to a collector that makes regular purchases and has them shipped to a work address.

5. The time stamp on the PayPal payment was 6:22 PM. American Plastic filed their lawsuit the next morning, bright and early.

I was personally amazed and astounded that this person suddenly decided she wanted to collect our action figures less than 24 hours before someone else filed a lawsuit in her home state and district regarding those action figures.

And isn't it a miracle that she works for [or with] an attorney and that American's attorney was able to find this person and get an affidavit from her the very morning that he filed his answer to our motion to transfer venue? Will wonders never cease . . .

This tidbit was not included in the original complaint. The complaint just said that we had transacted business in Missouri. I'm sure American anticipated that we would file a motion to dismiss for lack of jurisdiction and then they could ambush us with this little manufactured factoid.

Here is my response, taken from my reply brief, addressing this earth-shattering bit of info [blocked words are added for clarity]:

"Plaintiff completely misunderstands Defendant’s Motion To Transfer Venue. Relying on the pretext sale, Plaintiff argues that venue is proper upon establishment of personal jurisdiction. As Defendant is not challenging jurisdiction, it does not have to confirm or deny whether it has made legitimate sales into Missouri.

The four factor venue transfer analysis does not rely on the quantity or even existence of sales into the state [of Missouri]. Instead, under [American's] theory, a single pretext sale, in any state, creates ‘universal venue’ where any non-resident can sue any other non-resident at will.

The only convenience here was to [American's] attorney to forum-shop states where he is admitted to practice. When the case in Kansas got complicated, he jumped the border to Missouri and apparently engineered a transaction to facilitate the forum swap. Defendant only asks the case be moved back to the appropriate forum - the District of Kansas."

Thanks to everyone for their continued interest and support. More posts will follow as the drama develops.

Terri

PS: The tabloid title for this post could be "American Plastic caught bootlegging sale to manufacture bogus venue in Missouri."

Get Thee Back To Kansas . . . #17

I guess that since I run a 'tabloid,' my title should read, "American Plastic is run out of Missouri on a rail - film at eleven!"

On June 11, 2007, the judge in the district court of Missouri kicked the new case filed by American back to Kansas saying it should have been filed there in the first place. The judge's opinion is terse and direct and says simply, fight all you want in federal court, but do it someplace other than in my court.

Those little rings all over the case are where the Missouri judge was touching it with a ten-foot pole while deciding what to do with it.

The judge lifted several paragraphs out of my brief and used them in his opinion, specifically that neither company maintains a business in Missouri, both lawyers live and work in Kansas, there is an open court case in Kansas and that American has already tried and failed once in Kansas federal court. In other words . . . . "Get thee back to Kansas." I guess, in law, like in life, there is 'no place like home.' The Missouri judge was not impressed with the single sale that American had 'manufactured' off of our website the night before he filed the lawsuit. When you think about it, just how lame was that stunt anyway . . . As if I wouldn't figure it out.

This is definitely a victory for the Ranch. In a change of venue motion, the defendant bears a heavy burden to move a case to another court. We met that burden squarely and won the decision. It brings the case back in front of the judge that is familiar with the parties and will be able to see how fast and loose American played the facts in its attempt to put one over on the court in Missouri. The attempt to stretch my resources and force me to litigate in two states was a failure. The element of 'surprise' is gone and the attempt to take the initiative away from me is blunted. I changed the entire course of the case, again, back to something of my liking.

The poor little state court case that just 'gets no respect' will have an update in a couple of weeks. When I know something definite, I will post it here.

Thanks to everyone for their continued interest and support.

Terri

The Plot Thickens . . . . #16

Be sure to read post #15 first, it is the lead-in for this post. New Ranchers might want to go all the way to the bottom and read your way up to get the full picture.

The letter posted by spam-queen references a Missouri lawsuit styled "American Plastic Equipment, Inc. v. Toytrackerz LLC." But . . . wait . . . I thought Toytrackerz had sued American in Kansas??

Yes we have and that lawsuit has been pending since January 2006. However, things weren't looking too good for American and its minions in Kansas. They were facing a default judgment and had pretty much been told by the judge that he was going to dismiss Noah and I, as individuals, from the suit for lack of service.

They had also LOST at the federal level when the trademark court decided to uphold the default judgment that cancelled Jay's registration in the trademark 'MARX.' I repeat, Jay Horowitz and American Plastic do NOT hold the Marx federal trademark registration. It is as dead as the proverbial doornail and has been for some time. So, my friends, interpret those ads and sales that claim to be 'Officially Licensed' Marx items with this information in mind. I could give you a 'license' to sell the Brooklyn Bridge or I could say I am 'licensed' to sell the Brooklin Bridge. Just how much is that really worth.

But, I digress. Things are not going well in Kansas and at the federal level for American. So, what did they do? They jumped the border to Missouri and filed their own bright shiny lawsuit against us, using essentially the same documents. Yes, a Florida corporation based in Ohio sued a Kansas company in Missouri. . . . .

In order to do that, they claimed we had done business in Missouri. Jay's attorney also made sure we did business in Missouri by calling up one of his lawyer buddies across the border and having one of his people buy something off of our website the night before he filed the papers. I guess his motto is "If you don't have jurisdiction and venue, then manufacture it!!" Personally, I think it gives a good idea of who we are dealing with. What do you think?

So, instead of dealing with the actual merits of the arguments and finishing up the Kansas case, I've been embroiled in filing motions to dismiss and to transfer the case back to Kansas and other technicalities.

The Missouri case was pretty obviously filed for a number of reasons:

1. Things were going downhill for American in Kansas. They jumped the border in an attempt to clean the slate and get a fresh start.

2. They are trying to avoid paying all the fees needed to properly stand up and litigate at the federal trademark court and 'sue on the cheap.'

3. They left out a LOT of very material facts [such as the fact that the old Marx company had been sold at least twice between Louis Marx and Jay Horowitz] in an attempt to make themselves look better. I say it was to deceive the court and try to obtain an advantage.

4. It is an obvious attempt to harrass and intimidate and take back the initiative. Well, that failed. I regularly check up on Jay's lawyer and how his other cases are going [not well, I might add] and found his little 'surprise' on the Missouri database the day after it was filed. That gave me a month to register to practice in Missouri, do my research and meet with other lawyers to make sure I knew what I needed to know to litigate in another state. So, when my friend, the deputy, showed up at the front door with the papers, it was no surprise, just the opening bell in another round. I came out swinging. So much for the element of surprise . . .

Several motions are before the Missouri federal court and will take as long as they take to get decided. What about the poor little orphaned state court case? Stay tuned, it will have some updates soon.

I'll close with what I've said before. The only two people who have the whole story are myself and Jay's attorney. Listening to anyone else is just speculation, gossip and venom. This case is in state and federal court, not the court-of-public-opinion and people who pretend to know things, like spam-queen, are just pontificating. If you have any questions, drop me an email and I'll answer them to the best of my ability.

Thanks again for your continued support - Terri

It's Been A While! . . . #15

Sorry Gang! It's been a while since I posted. Not a lot has gone on as the legal wheels grind slowly.

However, before I give an update about what's been going on, I want to comment on some emails that have been floating around. Yesterday, three of our friends forwarded me an email that contained this link:

http://ttabvue.uspto.gov/ttabvue/v?pno=78936679&pty=EXT&eno=3


After a little detective work, we discovered who the spammer is. You don't have to do much guessing about her identity . . . I'll just call her 'spam-queen'.

This link is no great secret. It is in the public record of the US Trademark Office [USPTO] and easily available through their website. So, what does it mean?

This link takes you to a letter written by Jay Horowitz's attorney asking that action on one of the Ranch's trademark applications be suspended pending outcome of a lawsuit in Missouri [more about that in a minute]. No big deal, this is a common practice to ask that pending trademark actions be held until a lawsuit is finished. What spam-queen takes as an earth-shattering revelation held my attention for about 5 seconds.

The only thing notable about this letter to the government is that it shows an attempt by Jay Horowitz to 'litigate on the cheap' and try to avoid paying the fees needed to file an opposition to our trademark application.

What that spam-queen didn't send was the USPTO's response. The request to suspend was rejected by USPTO and they were given a specific date to 'cook or get off the stove.' In other words, they can't avoid paying the fees and filing their papers the CORRECT way. They didn't win a thing. The extra time they got is available to anyone just for asking. (You can see the actual USPTO letter by going to the above link and clicking on the dated links in the right hand frame).

So, I'm not sure what spam-queen thought she was accomplishing other than showing, once again, that she knows nothing about what's going on. More to come . . . .

Terri

Day In Court . . . . #14

Post #14

Greetings All! Yesterday was our first appearance in Bourbon County Kansas District Court on the case of Toytrackerz LLC v. American Plastic Equipment Inc.

Even though there was a lot to cover, in the end, there were some procedural problems and jurisdictional questions that precluded getting to the factual issues in the case.

First and foremost, the Federal Court had not sent down a copy of the court file containing all the documents filed between the time of removal and remand. Without the complete file, the Judge couldn't verify my arguments about lack of service and lack of attention to deadlines by American Plastic Equipment. He couldn't even verify that I had filed my primary motion for Summary Judgement.

However, I was able to put into the court record a thorough timeline from the time that American's first lawyer came into the case through the time he was put in jail [he is now in Federal prison for five years] to the time that American's new attorney entered the case and hasn't adhered to the deadlines set down by the rules and the judge.

American's attorney, in an attempt at rebuttal, raised a jurisdictional question that was interesting on its face. The Judge gave us 60 days to file a brief. However, the question was only interesting on its face. After a couple of hours research, I had the answer and will be preparing the documents shortly.

So, with some orders to both attorneys regarding ensuring the case file was made complete and the judge's questions answered, the judge reset the case for May 2007. That's not unusual or onerous for a complicated civil case. There is a lot of issues on the table.

Just before Judge dismissed everyone, American's attorney jumped up and claimed to have a 'couple of matters to clean up.'

One was yet another request for yet another continuance to file an Answer to one of our motions. He claimed he had until Tuesday to file for the continuance. I redid the math a while later and realized he'd run out of time on Monday. The judge gave him until the end of the week to comply, but I will be examining the issues closely and probably contesting the motion.

The second was his motion for Summary Judgment on the issue of 'Fort Apache'. He claimed he has four facts that make judgement obvious for his client. We disagree and have our own facts to back it up. However, it didn't get that far. The Judge's response was a smile and this statement:

"Counsel, your client is in no position to suddenly be in a hurry."

American's attorney sputtered and said they needed an injunction on the issue. Judge replied to the effect of:

"Counsel, after the way you've screwed up this case, you're going to have to tell your client to get over being in a hurry."

With another smile, we were all dismissed. Thanks to everyone for their continued interest and support. Terri

Follow Up . . . #13

Post #13

As usual, the posts about the lawsuit between Toytrackerz and American Plastic Equipment, Inc. is generating conversation and statements by people who are not parties, but talk with a sense of authority as if they are part of it and have special insights into what is going on.

In answer to this, I am posting a portion of the Bill Of Sale signed by Jay Horowitz of American Plastic Equipment, Inc. I have compared the signature on this document with examples of Mr. Horowitz's signature contained in public records and it matches.

I don't make statements and observations beyond what I was willing to sign my own name to and file in a court of law. Because that is already what I have done with this document.

----------------------------------------------------------

BILL OF SALE

Be it know, for good and valuable consideration, and the payment of the sum of $100,000 the receipt and sufficiency of which is acknowledged, the undersigned corporation American Plastic Equipment, Inc. of 1800 N.E. 114th Street, North Miami, Florida (Seller) does hereby sell and transfer to Marx Toys, Inc. of 1800 N.E. 114th Street, North Miami Florida (Buyer) the following described property:

All molds [The Molds] currently owned by American Plastic Equipment, Inc. of Marx toy origin. $95,000

The following property transferred at $5,000

Trademark #1,776,628 as filed at the United States Patent and Trademark Office

[The balance of the line items included in the sale are deleted because they deal specifically with people's businesses and their privacy is my concern at this moment. ]

The Seller warrants to Buyer that is has full authority to sell and transfer said property. Signed by Seller on this First day of the month of August, 2000 in Miami Florida.

American Plastic Equipment, Inc.

[signature]

Jay Horowitz
President

--------------------------------------------------------------------

The important line item, the one at issue here is the sale by American Plastic of the 'Marx' trademark [USPTO #1,776,628]. Now, I'm not someone holding forth in a forum somewhere. I'm just a lawyer. This is not a license or permission to use. This is a transfer of property rights.

American Plastic Equipment, Inc. is a separate corporate entity. A corporation is a legal 'person'. When it sells something, its legal rights to it are gone. Even if the buyer is connected to the seller . . . sold is sold . . . any rights the seller had to claim, control, or use the property is gone.

In all controversial issues it can be hard to decide who to listen to and who to trust. We set up this blog as a place to post the facts that are in the public record and the progress of the litigation, so that there is no question about what is happening before the courts and administrative agencies. It's not about gossip and speculation.

We are always willing to back up our statements with documentation. I am the attorney of record for Toytrackerz LLC and performing the research and preparing the documents. So, from the Toytrackerz perspective, you are getting the same thing the court is. The point we are trying to make here is, there are no products authorized by American Plastic Equipment being manufactured that have anything to do with Marx . . . period . . .