Friday, June 19, 2009

#39 - Preliminary Injunction Hearing


Hi Gang! Sorry to be so remiss on keeping the law blog up to date. We've just been running 90 miles an hour setting up the new building, trying to keep up with orders and getting ready for JohnnyCon.

However, I wanted to tell you about the prelim injunction hearing on June 17, 2009. I'm sure the opposition's camp is abuzz with info and I wanted to tell our side of it.

On March 15, 2009, I filed for a preliminary injunction to stop Koehler and Kosowski, better known as The Friends of Johnny or FoJ from selling goods bearing the trademarks registered to our company.

On May 24th, on a phone conference, both Koehler and Kosowski explicitly said they would be at the hearing scheduled for June 17, 2009.

An aside, as a result of Kansas rules regarding an attorney who is also a party in the case, I have joined a friend and colleague of mine, Justin Meeks to act as counsel when we have evidentiary hearings in front of the court. Koehler did not disqualify me with her motion. The judge rejected most of her demands and adopted my voluntary order almost word for word. I can do all the fun stuff lawyers do (such as filing briefs) except for advocate in open court.

So, Justin and I prepared for the hearing on June 17, 2009. We had our line of questioning ready and our exhibits ready to go.

At about 8:00 PM, on June 16th (the night before the hearing), guess who files an entry of appearance on behalf of Koehler and Kosowski?

My old buddy David Herron, attorney for American Plastic Equipment. The entry seems providential, filed too late for me to be able to contact Justin, discuss it with Justin, or do anything about it.

The next surprise occurred in court when I discovered that Koehler and Kosowski decided they didn't need to show up for their own hearing. Only Mr. Herron appeared. As the two defendants explicitly told the judge they would be appearing, I didn't subpeona them. That won't happen again. Also, it is fairly unheard of for parties to blow off their own court appearances.

Justin and I discussed it. Of course, we had prepared inquiries for Koehler and Kosowski. We couldn't question their lawyer.

So, at this time, I had three choices:

1. We could ask for a continuance and subpeona Koehler and Kosowski into court. However, that would delay things another 6 - 8 weeks.

2. I could turn around and walk out. If Koehler and Kosowski didn't need to be there, neither did it. I could have let Justin speak for me.

3. I could 'man up' and stand up for my company and my beliefs in court and not hide behind my lawyer.

I chose option #3.

I spend nearly two and a half hours on the witness stand with Mr. Herron screaming and ranting at me. He rolled his eyes. He waved his arms. He beseeched the heavens. He called me a liar and a thief. He asked the same question over and over (and over) trying to get me to change my answer.

I believe I answered the same question three times with something along the lines of:

Yes, to the best of my knowledge Jill Koehler was taking scans of vintage boxes to Kinko's and printing them out. Those boxes said 'Trademark of Marx Toys of Glendale West Virginia.'

Ask me the same question over and over again and you will get the same answer.

He tried to get me to authenticate a book written by Jay Horowitz as somehow relevant to the proceedings. He tried to get me to admit that the fact that 'Circle X Ranch' had been used in 1965 was relevant to the matter. He tried to get me to admit that we had 'stolen' Jed Gibson because people sell vintage Jed Gibsons on ebay. He tried to get me to admit that those broken-down-piece-of-crap Custers made by Jay Horowitz were relevant. It went on and on and on . . .

I admit, it was a long afternoon. Three years of rage and emnity between myself and Mr. Herron was played out. Justin and even the judge were spectators. I'm not at the computer where I can post links to the most recent documents filed in the other trademark case, but they are 'pointed' to say the least, including one where I have filed a substantial fee motion where I also ask for sanctions against Mr. Herron.

He, of course, countered with a fee motion for the prelim injunction hearing. I have case law saying, sorry, can't do that at this stage of the game and, by the way, your fee motion is woefully inadequate in form, style, and function. I have to waste my time preparing and filing an answer. Oh well . . .

Back to court. Option #3 had its high points. Since I chose to face the issue head on and show up for court, it gave me a chance to make eye contact with the judge, and tell him, in my own words, the entire history of both cases, including the fact that Mr. Herron had lost American Plastic's case in the other court. I got the chance to lay out all of our business and how we came to be where we are today. I got to connect. The judge now knows me.

I tell clients all the time that this is their one chance to get to talk to the judge directly and if they are confident in their position to take that chance. Let the judge hear your voice and connect your name with your face.

I got to frame the debate in my own tone and my own words. I didn't yell, I didn't scream, I didn't rant, I didn't call names. I talked. I talked as long as I thought the judge would listen. I introduced as much case law and trademark law as I could remember off the top of my head. I educated the judge about toy collecting and our business. He now knows our story. He knows me. The judge knows nothing about Koehler and Kosowski other than their screaming gesticulating attorney who he had to continually tell to stop interrupting me.

How is it going to come out? I really don't know. We weren't able to formally introduce a fair amount of our evidence, such as the terms of Koehler's licensing agreement or Kosowski's website. It is all in our brief and instead of trying to out-drama Mr. Herron, Justin just kept asking the judge to read the brief, that it was all in the document.

This judge is very formal and very old-school. He will consider everything and apply the law. We may win. We may lose. The last minute ambush may have allowed the other side to sufficiently muddy the waters that the judge may feel the balance didn't tip far enough in our favor for the injunction. I was reading some Supreme Court case law about this type of tactic and the court talked about parties that may win the injunction battle, but shoot everything they have in that proceeding and go on to lose the war. They showed us all they have and now we will be prepared for it.

It's just one battle in what will be a long hard war. Also, we won't fall for the 8:00 night-before-the-proceeding ambush again . . .