Post #7
Good morning all! I haven't posted for a while, because nothing much has been happening with the lawsuit between Toytrackerz and American Plastic Equipment.
However, we had a little flurry of activity this week.
For one, Jay Horowitz's attorney Jan Helder has left the case. Some of the court papers refer to a 'personal tragedy.' Mr. Helder is leaving the case because he has lost his license to practice law after a federal criminal conviction and will probably be going to federal prison shortly. Whether that qualifies as a 'personal tragedy' I leave to you to decide.
Onto the matter at hand:
APE has long claimed to own the Marx trademark and logo. In truth, the only federally registered trademark regarding this is the single word 'Marx'. As part of the legal proceedings, I filed a motion for the Trademark Trial and Appeal Board [TTAB] to cancel this registration.
In order to cancel a federal trademark, especially one more than five years old, you have to have three things: standing, service of process and grounds.
As far as standing: I cited Jay's 'cease and desist' letter [that cited the Marx registration] and ending of our eBay sales to show I am an interested party with a stake in the status of this trademark and have had actual damages.
As far as service: When I filed the cancellation petition, the TTAB served Jay with the papers at the address he had given and that we know for a fact is where he maintains an office - in Sebring Ohio.
As far as grounds: I cited several instances of fraud and abandonment stemming from Jay's use of the Marx name. No more details right now, that's a post for another time.
The bottom line is - after showing standing and grounds and after service under TTAB rules, there was no response from APE. The petition sat for 40 days unanswered.
It was in the public record for the whole world to see
[TTAB Record], but not a peep out of Ohio.
If the link doesn't work, you can cut and paste the URL
http://ttabvue.uspto.gov/ttabvue/v?pno=92045690&pty=CAN
After the 40 days expired, I filed a Motion For Default Judgment with the TTAB and served it on Jay at his address of record pursuant to the TTAB rules. Now I waited . . . . Not a sound out of Ohio . . . .
After a wait of approximately 30 days, the TTAB granted my motion and the 'Marx' trademark went into 'pending cancellation' mode. Notice of this was sent to APE by the federal authorities.
In the pending mode, there is an automatic appeal period. During this period, APE could have filed the barest of motions and overturned the default judgment and reinstutited the cancellation proceeding. They did NOT file any sort of appeal.
As a result, on June 30, 2006, the American Plastic Equipment, Inc. federally registered trademark 'Marx' was cancelled and no longer a federally protected and recognized right of ownership. This showed in the public internet record for anyone interested in looking.
It is now August 5, 2006. Five long weeks later. Enter a new attorney and a frantic motion to vacate the Default Judgment claiming that APE 'did not recall' ever hearing about the cancellation and saying they were never served . . . .
They also attack our standing and try a couple of other defenses, but service is the issue. No problem, this is their right and I will vigorously pursue and defend our rights. I will post more when I file our answer and motion to maintain the default judgment.
However, until a court of law determines otherwise, American Plastic Equipment, Inc. does not have registered ownership of the trade name 'Marx,' no matter what anyone says in their eBay sales or on their website.
Have a great day everyone
