Greetings to everyone. I appreciate you taking the time to look over this blog and to hear our side of the current litigation between our company, Toytrackerz LLC, [TT] and American Plastic Equipment, Inc. [APE]. You may know us better as Noah and Terri of The Circle X Ranch, but our 'official' company is Toytrackerz LLC.
This blog is to give our side of the story. There is a mass of info flying around via email and back channels - we have found most of it to be incorrect. Comments to this blog are allowed, but you have to identify yourself [no 'anonymous' posts] and the comments will be reviewed and moderated. You can also email me directly with your questions.
Now . . . onto our tale . . .
The story begins well before this time, but the chain of events that led to the current lawsuit started on December 3, 2005 when we received a 'Cease & Desist' letter signed by Jay Horowitz on behalf of APE. He claimed that APE unequivocable rights and ownership of the trademarks - Marx, Johnny West, Johnny West Adventure, Best of the West, Fort Apache, Circle X Ranch and objected to even Noah's use of the nickname 'marxman'.
If you've never seen a Cease & Desist letter before, most contain the same bristling, saber-rattling language threatening dire consequences if you continue to violate what they are claiming as their property rights.
However, when you remove the hyperbole, you are left with the basics. It's a letter. As you all know, you can say whatever you want in an email and it is just electronic noise. Unless it is signed by a judge, it has no force of law.
A C&D letter is just a warning and a threat - like a drunk telling you they are going to kick your a$$ if you don't give them the peanut bowl. It can be taken as warning - hey, the drunk may actually kick your a$$, but it is not a legal requirement that you give up the peanuts.
When you receive a Cease & Desist letter, you have three choices: You can indeed cease & desist, you can ignore it and let the consequences fall where they may, or you can take the fight back to the source and say 'I don't think so . . . . '.
So, upon receipt of this email, I did what anyone should do, I consulted a lawyer to determine which of these three choices was right for us.
Buy, hey, I'm a lawyer - right??
Yes, I am. However, I don't try and claim expertise in all areas of the law. I practice primarily criminal law - not intellectual property. So, I found a firm that specializes in intellectual property and asked for advice.
Cease & Desist letters come in two forms:
a) Measured and Reasonable
: These letters assume people are responsible businessmen who have, perhaps unknowingly, infringed on another's rights. Similar to politely telling your neighbor that they have crossed your property line, a well-written C&D letter provides notice without being obnoxious [ya know, the difference between 'Please pass the peanuts, that is my bowl' and 'Give me my #$%^ing peanuts or I'll rip your head off'.] This type of letter usually invites you to enter into a conversation about the writer's concerns and leaves open the possibility of a fair and friendly resolution.
b) Obnoxious and Threatening
: This type of C&D letter acts like you are a criminal that has the character and IQ of a rabid hyena that is peeing on the carpet. It bristles with threats of the dire consequences if you don't immediately cease your every activity, including, but not limited to, even thinking about the contested trademark. This type of letter leaves no option for negotiation and often tells you to sit and wait quietly until you receive your next set of orders. A common catch phrase in a 'Type B' letter is 'GOVERN YOURSELVES ACCORDINGLY'.
Our letter was definitely of the 'Type B' variety.
So, an issue that could have most likely been resolved with either a 'Type A' letter or better yet, a phone call, escalated to the next level. . . .