Sunday, January 14, 2007

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.



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.


Jay Horowitz


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 . . .

Saturday, January 13, 2007

#12 The Voyage Of Discovery . . . .

Post #12

Greetings Everyone! It's been a long time between posts as the legal wheels grind very slowly. However, while not much is happening with the courts and judges, the process of Discovery is going on. I thought I'd fill you all in on some of what's been up.

It's exactly like it sounds. Each party goes on a hunt, trying to ferret out the facts and evidence. I've got requests into American Plastic and their 'licensees' for quite a lot of information. Some of it is due today as a matter of fact and as of yet, I've received nothing from them. I find the silence telling. If you had information that might support your claim, wouldn't you throw it at me?

However, that hasn't stopped me. One of my jobs before I went to law school was professional auditor for Mobil Oil Corporation. I learned how to pick records apart and became especially proficient at searching and analyzing computer records. I became so good that I was actually threatened by a manager through backdoor channels that if I cared about my career, I should be a little less 'efficient' in my computer quests.

For this lawsuit, I've turned these skills to the biggest filing cabinet of them all - the internet. The depth and breadth of records available via the net is amazing. Especially from the governments that have developed some of the most fantastic databases in existence.

A federal SEC filing from 2001 was especially interesting. It dealt with the sale of Marx assets between American Plastic Equipment, Inc. and Stereoscape [remember them?]. It said, in effect, that all of the molds and accompanying intellectual property was included in the sale.

Well, the intellectual property is what we are fighting American Plastic over. But, if it was sold, how can Jay [and others] claim they own it and own licenses to it? Once you sell your house or your car, it's not yours anymore and you don't have any claim to it. It's the same with intellectual property.

So, I started exploring and digging and asking questions. Finally, I turned up a Bill of Sale, signed in 2000 by Jay Horowitz, transferring the federally registered trademark "Marx" by name and trademark number from American Plastic Equipment, Inc. to another corporation and then I know that the other corporation was then sold to Stereoscape.

Interesting, to say the least. I've filed a motion for summary judgment to let a judge decide. I say that American Plastic has sold the Marx name and has no standing to claim any rights in it. I have predicted their answer to my claim and already have a reply formulated for their answer. As they say, 'the devil is in the details.'

I am telling you all of this because I think everyone should consider this information when forming their thoughts and opinions. A lot of people are making all sorts of claims of ownership and licensing of 'Marx' and other names by invoking the name of American Plastic Equipment, Inc. They are even selling goods they claim are 'officially licensed' Marx pieces and that the 'official license' was issued by American Plastic Equipment.

Yet, I have a Bill of Sale dating from 2000 saying it no longer belongs to them and hasn't for about six years.

I continue to dig with my virtual shovel every day. With their cooperation or without it, the facts behind the business dealings of American Plastic Equipment, Inc. and its 'licensees' and 'partners' will continue to be revealed, because that is what Discovery is all about. Thanks to everyone for their continued kind words and support. It means the world to us.

More to come . . . . Terri