The Marx Filings

#40 - Case Update

2010-02-23T14:53:00.001-08:00

Hi Gang! Not much has happened in the lawsuit since the injunction hearing back in the summer. Wow, seems like a million years ago that it was even warm . . . Remember summer?

However, today there was a phone conference between the Judge, myself, our attorney, and the attorney for Jill Koehler and Mike Kosowski.

I wanted to post because I am sure information is already buzzing around in emails and group posts and phone calls. As always, I wanted to provide our side of the story.

Justin (our attorney who Jill likened to Jason from Friday the 13th in an email to me) and I talked long and hard the last two weeks and came to a decision.

Because of Noah's accident, there was no way he can participate in the preparation for the trial and the actual trial. He is still in the active recovery process from his spinal fusion surgery and in a lot of pain.

Also, we don't have a vehicle that could safely and comfortably take him to and from Kansas City (about 100 miles each way) and the entire process could seriously undermine his health and recovery from his accident and surgery.

As much as we love Johnny West and the hobby, family has to come before business.

As a result, we have dismissed our case against Koehler and Kosowski. The dismissal was granted without prejudice, meaning I am free to refile the case at a later date. After Noah has recovered from his surgery and feels more comfortable with his condition, we will reexamine our position, and take whatever legal action we feel is right for our business. Again, family first, business later.

That action released Michael Kosowski from any further participation in this lawsuit unless Jill Koehler calls him as a witness.

Koehler had the option to also dismiss her counter-claim to cancel our trademarks (on her claim of 'fraud'), but chose not do, despite her knowledge of Noah's condition. As they say, there is no enemy like an old friend. No problem, that is her absolute legal right.

Regardless, even though the only claim left is identical to the one that Jill Koehler has on file before the federal Patent and Trademark Court, she chose to go forward with the duplicative lawsuit in Kansas. No problem, again, that is her absolute right and I look forward to seeing her personally in court. No night-before-the-trial ambushes this time. The question will be settled.

Meanwhile, we wait for the judge's ruling in the latest round of motions in the other case. For the last two years, the judge has issued rulings on March 1st, so we'll wait and we'll see.

To refresh your memory, that is the motion where I have asked for attorneys fees against American Plastic, joint and several with his attorney (who now represents Jill K). I asked for fees because the court ruled in our favor on all trademark and copyright claims. The other side filed a motion asking the judge to reconsider his decision on the copyrights because they just found a bunch of info that should have been in first claims all along, but wasn't, but they really mean it this time . . .

Again, as I said, we'll see what happens. Thanks for sticking with me during this seemingly never-ending process. I have no problem with the American court system. Yes, it seems like it takes forever (especially when it is your case), but the system does work. Back in law school there was a saying that the main thing you'll learn in three years is how to 'love the law.' It is times like this, that I understand that saying. Both sides have their say and the judge decides based on the accumulated legal knowledge of our culture. That is freedom and that is what we are about.

Terri

#39 - Preliminary Injunction Hearing

2009-06-19T07:18:00.000-07:00

#39

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 . . .

#38 . . . Status On The Status Conference

2009-04-07T15:04:00.000-07:00

A quick post this afternoon. In our second lawsuit against American Plastic and its licensees, I filed first for a preliminary injunction and second for a temporary restraining order.

The judge had us all on a telephone conference today and this was the result:

1. My motion for a temporary restraining order was denied on procedural grounds. Repeat, on procedural grounds. I didn't follow the correct practice/procedure rule when I filed it, and the judge denied it on those grounds alone. He addressed nothing about my underlying argument, but denied it based on procedure. The judge felt that the existing preliminary injunction filing was adequate.

2. The preliminary injunction motion is set for a full hearing in May 2009.

3. Responses to the preliminary injunction by the defendants were allowed. I argued they were out of time, but the judge relied on a Colorado case allowing a longer response period. Again, a procedural issue.

Aren't y'all glad you didn't go to law school? More rules than when you visit your Aunt who collects antique crystal and has white carpet!

More updates to come! Tomorrow is a full out law day, preparing some other motions to file. Talk to ya all later. Terri

#37 . . . Terri Speaks Out

2009-04-02T08:35:00.000-07:00

Good Morning All! A long one today, so make some coffee or print it out for reading at your leisure.

I decided to use this post to tell my side of the story on the issue of the ethical matters that are currently pending before the Kansas Bar Association.

As Noah predicted, one of the defendants in the case I now call 'Trademark II' basically ignored everything that happened the day before in 'Trademark I' (see post #36) to fixate and gleefully comment on a companion opinion filed on the same day by Judge Waxse.

In this opinion, the judge declined to disqualify me from motions practice (filing legal papers in the case) on the grounds of American's claim of professional misconduct. However, in his duty as a judge, he did forward a copy of his opinion and the related pleadings to the ethics committee.

To summarize the ruling. On other grounds I was disqualified from conducting the trial because I would also be a witness. I had volunteered for this disqualification and the ruling was almost word for word my profferred order. However, I am still allowed to pursue post-judgment motions.

On the claim of professional misconduct, I was not disqualified, but was admonished from using any information I received during my direct and ex parte communications with American Plastic, should the case go to trial. Half an hour later, the judge published a ruling in favor of the Ranch and closed the case (except for post-judgment motions). The claim of misconduct was also rightfully forwarded to the appropriate professionals for further review. All in all, fair and reasonable under the facts and the law. Again, I stand in awe of this judge, one of the most respected in the Kansas legal system.

Now, because defendant Koehler had gleefully filed a multi-count ethics complaint against me last year, and included a cryptic reference to this matter, which did not concern her in the least, I took the opportunity to explain myself to the investigator about the ex parte communication. The investigator has already filed his report with the head of the ethics committee, so the judge's referral is not new news. I await the committee's ruling on the complaint and will act appropriately. In the meantime, my ability to practice law is not, in any way, impaired or diminished.

In 'Trademark I', I declined, in my response, for several reasons, to elaborate on the whole affair, stating only the defense of consent. I requested a full evidentiary hearing, and the judge declined.

Again, I was not found guilty of anything by Judge Waxse. I was not disqualified based on my actions. I was properly, and gently, admonished and the matter was sent on to the ethics committee for further review.

That being said, to anyone who is interested, here is my side of the story:

In Spring of 2008, I was approached by American's lawyer about a possible settlement of Trademark I. That settlement offer included an invitation to purchase certain assets owned by American Plastic Equipment. During the back-and-forth, the offer included an invitation to physically inspect the assets.

I asked for a list of those assets and was not satisfied with the result. I told the lawyer that we would not agree to anything without better lists and an opportunity to physically inspect the assets.

I knew I was going to be in West Virginia in June 2008 for JohnnyCon. I informed the lawyer I would like to physically inspect the assets on my way back home to Kansas. I received a one-line email from the lawyer saying he had informed his client of my intent to visit the American Plastic Equipment, Inc. facility in Sebring, Ohio. I thought the matter was settled.

On the drive home from West Virginia to Kansas, I detoured north into Ohio and presented myself at the Sebring facility on Monday morning. Nothing was ready, no one was prepared, one secretary said something like, 'oh yeah, I remember hearing something about that, but didn't know what was going on . . . '

I was not amused. I had taken an extra day of traveling to make this journey. However, by stroke of luck, Jay Horowitz was in residence that day and deigned to meet with me.

Now is where it started getting and feeling weird . . .

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

The crux of this entire issue is that once a person or company is represented by counsel, the opposing attorney is not to have contact with the person or company so represented. The one defense is consent.

I was operating under the assumption that I had consent.

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

Back to our story. I met with Jay Horowitz. I absolutely told him he had the right to have his attorney present and asked him if he wanted to contact his attorney. He declined. He said some other things as well, that I will not disclose.

We discussed the assets. The conversation remained polite, but did become curt after a while. Again, all I will say. I agreed with Mr. Horowitz to keep the specifics of the negotiations confidential. That is the reason I did not post a defense in my brief. However, today, I am including some generalities.

We agreed that American would, by email, send us a detailed list of assets in possession of American and other parties. Upon an agreement on the asset list, we would offer a price.

So now, I am on the road again and back home.

I exchanged several emails and telephone calls with Mr. Horowitz. For the most part the communications were highly technical, dealing primarily with the list and condition of the assets. However, the tension escalated with each phone call.

Still with me? I was attempting to negotiate a settlement with Mr. Horowitz to end Trademark I through a purchase of assets. In this stead I was acting more as a company owner than a lawyer.

However, one of the problems was American's absolute refusal to admit or believe that we had won a judgment in our favor on all trademark related counts back in August 2007. All settlement offers included a demand that we 'buy the rights' from American. I felt like I was talking to a brick wall.

In the meantime,

1. I have American's lawyer battering me with discovery requests and demands for depositions. Those discovery requests included demands for information relating to at least one trademark count that had already been dismissed. I finally applied for, and received, a protective order stopping all discovery. I should have done it weeks earlier and saved myself a lot of tension.

2. I have the 'so-called licensees' gleefully ignoring said court decisions and aggressively marketing goods under trademarks that had been stripped from American (to this day not one defendant will admit that the court decision has any validity)

3. I have the pressure of trying to put together the asset list and a settlement offer and carry my day-to-day responsibilities.

Boys and Girls, I cracked under the strain and I lost my temper. I took the bait that was being dangled in front of me and waded right on in.

I unloaded, via more than one email, on Mr. Horowitz my overall opinion of the negotiations, his attorney, the case in general, and the licensees. Those emails were immediately forwarded by Jay to his attorney and almost instantaneously the motion to DQ me for 'ethical violations' was filed.

Those last few days of the settlement negotiations are where I made my error.

When I saw that there was no middle ground for settlement, in that American would never admit the validity of the court ruling, I should have broken off the emails and blocked any further phone calls from Jay Horowitz. That's what a cold, cool, uber-attorney would have done.

I didn't. I let my temper get the best of me.

That is my ethical violation. I exceeded the bounds of the consent to inspect the assets and had an improper ex parte communication with Jay Horowitz regarding the case and those involved in it. That was the basis for American's demand that I be completely disqualified from acting as attorney for the case.

This rule is sound. It is intended to prevent attorneys from going around a client's protective legal shield to coerce and intimidate vulnerable parties.

However, I doubt Mr. Horowitz felt either coerced or intimidated. He gave as good as he got during the technical discussions.

The microsecond that American's attorney filed his motion to DQ me, I informed Mr. Horowitz that our discussions were finished and I would not make any additional contact, nor would I could accept any contact from him. I turned the whole thing over to Noah to continue the discussions. The entire tentative deal almost immediately fell apart and all chances of settlement disappeared - if they had ever existed in the first place. So, nine months later, because of that DQ complaint, instead of a settlement, American lost the case and has had judgment entered against it on all counts.

However, I did step over the line. I fully admit it, and it will certainly not happen again. It is not the serious, egregious, horrific ethical violation that the defendants in Trademark II would like everyone to believe. If I am to be penalized in any way, I will deal with it as it comes. My business is now between myself and the bar association and no business of the defendants in Trademark II.

Rules exist for a reason and this acts as a reminder to me. That's what the canon of ethics is for. Geneations of attorneys making errors and a series of rules resulted from those errors. Don't you just hate it when authority figures are proved right again and again? Again, rules exist for a reason. No, you shouldn't run with scissors, and, no, even when it might result in a settlement beneficial to all parties, a lawyer/owner shouldn't negotiate directly with the other party. It is asking for trouble.

As for the other complaint filed by a Trademark II defendant. I thought about publishing it here on the blog. I have an absolute right to anonimity. However, the Trademark II defendant decided to reference her complaint in pleadings she has made. That gave me an absolute right to mount a public defense.

However, her complaint includes a lot of personal information about a lot of people that she took upon herself to include in the complaint. If the complaint is ever formally adjudicated in court, a LOT of very personal dirty laundry is going to be thoroughly washed and aired in public. Therefore, I will withold any statements on that case until such time as it is adjudicated.

So, in closing, I will say, there is no 'new' or additional referral to the ethics committee in the judge's opinion. It is the same issue being submitted through a different channel. Judge Waxse had an absolute duty to make the referral and I neither suprised, offended, or worried. It is all being dealt with. Meanwhile Trademark II clunks along at a micro-snail pace (more posts to come on THAT issue).

Thanks again everyone - Terri

#36 Extra . . . Extra . . . Read All About It . . .

2009-03-31T14:27:00.000-07:00

The original lawsuit where American Plastic Equipment, Inc. sued the Ranch for everything and the kitchen sink is OVER!

And the Ranch WON!

Today, the Judge issued an order granting summary judgment in favor of Toytrackerz LLC (the legal name for the Ranch) on the issue of copyright violation.

In other words, American LOST!

For those of you who've been around for awhile, this order comes exactly one year after the same judge dismissed all counts, with prejudice, regarding the trademarks.

In other words, American LOST!

Now it's on all counts. The case is concluded except for any post-judgment motions that might come along in the next 10 days.

I'll be posting more updates, including a copy of the judge's decision.

Thanks to everyone for their support - Terri

#35 . . . How Far Can You Push An Attorney?

2009-02-11T09:47:00.000-08:00

The answer is simple . . . all the way to the courthouse.

This post is somewhat off-topic, but still interesting food for thought. As I wait for the assorted lawsuits to meander their way through the court system, I research constantly and keep track of new cases that might affect our cases.

For example, a recent Supreme Court case caused me to toss out a stack of caselaw I had been assembling for my next motion. The Supremes decision did not go against my position, it summarized and clarified all the of the disparate and inconsistent applications of a certain legal doctrine. Clarified them in my favor, I might add.

However, back to the discussion at hand. There has been a case back east I've been watching. In a small nutshell:

1. An attorney (call him Floyd) sent some strongly worded demand letters and cease and desist letters to someone (call her Mary) threatening Mary with legal action if she continued on a certain course.

2. A second person (call him Joe), not related to Mary, apparently took it upon himself to file an ethics complaint with the state bar association on behalf of Mary and others claiming that Floyd was guilty of extortion and a plethora of other unethical acts.

3. Joe also made it all public, where they could potentially influence the legal positions of Floyd's client and Mary.

Okay, dokey . . . so attorney Floyd has been dragged into an ethics complaint before the Bar based on his actions as an attorney on his client's behalf. The fact that the complaint was filed has been made public. What does Floyd do?

Floyd sues Joe . . . . with a vengeance, for personal and professional defamation.

A year later, a jury comes back in favor of Floyd against Joe. To the tune of $225,000 . . . . In my research, this is the biggest jury award given to an attorney against someone who tried to use the legal ethics process as a cudgel in a civil legal situation.

Interesting times. An appeal will come and there may be some adjustment. However, based on my research, I don't think the verdict will be overturned.

I haven't gotten into the meaty details of Floyd's actions as an attorney and Joe's complaints regarding those actions, because they aren't the point.

The point is that the Legal Ethics Process in place in every Bar Association in the country is there for a reason.

1. That reason is NOT to use it in an attempt to influence the outcome of civil litigation.

2. That reason is NOT to attempt to intimidate attorneys or influence the actions they take on behalf of their clients.

3. That reason is NOT to try and ruin the professional reputation of an attorney.

4. That reason is NOT to attempt to influence public opinion, and try to make others, including the client, think badly of the attorney and question the attorney's ethics and abilities.

No matter what you think of an attorney, either professionally or personally, the Bar Association Ethics Process is not a legal weapon of mass destruction.

I think the reason I am interested in this case is obvious to all. If not, read the last few posts in this blog. Using the Bar complaint process and then alleging and including it in a pleading that will be read by the judge??? What possible reason could the person have for that except for reasons 1 - 4 listed above?

A last observation on the above case. Joe went pro se and represented himself in court. Every adult is entitled to represent themself in court. However, just because you can, doesn't mean you should . . . One of my first thoughts as I read the outcome of the case above was, "Pro Se is on the same page as Professional Suicide in the big book of Common Sense."

When you call out an attorney in their own house, you don't often get the results you want . . .

Thanks for hanging in during this long slow strange ride. Your friendship and support is appreciated.

#34 - My Responses To Motions To Dismiss

2008-11-29T10:17:00.000-08:00

#34

Greetings all! Too busy today to be clever with titles, but I wanted to post an update for those who are following the world's slowest tennis match.

Mike and Robin filed their expected motions to dismiss for lack of personal jurisdiction. They didn't use my response as a guide and filed pretty much the same documents as Jill.

I filed my responses to those motions:

Here is my response to Robin.

Here is my response to Mike.

Most of the cover stuff is the same in both responses, but there are some interesting differences if you are patient enough to dig into it. As always I apologize for the cotton-picking typos that seem to elude my multiple proofreadings!

I spared everyone the 90+ pages of attachments to each response, but they are available to the truly masochistic if you wish.

Jay's attorney, no great surprise called me and asked for a 10-day extension and I agreed. However, when the paperwork went to the court, it was more like a 15-day extension. . . . Hmmmmm . . . . Oh well! American really isn't the focal point of this suit anyway.

I have to wait for one more deadline to pass before I can file my next round of motions. I have a shorty due Monday, so I have to get that one done ASAP!

Have a great holiday weekend everyone and thank you for your continued support.

Terri

#33 . . . Motion To DQ is Denied

2008-11-06T06:43:00.000-08:00

A quick post this morning before I head off to court.

Jill Koehler had filed a motion to disqualify me from representing our company and the Ranch before the United States Patent and Trademark Office proceeding. The judicial branch, the 'TTAB' denied that motion this morning.

You can read the decision here.

This 'motion' had a couple of quotes parroted out of one of the federal cases. The one Kansas case cited had zero to do with TTAB practice. My guess is that the motion was an attempt to try and force us to hire outside counsel. It failed. I have an absolute right to represent our company in the proceeding before the TTAB.

One small step for the Ranch as this thing clunks along the administrative law path.

Have a great day everyone! Terri

#32 . . . Making A Federal Case . . .

2008-10-23T15:04:00.000-07:00

Greetings Everyone!

I haven't blogged this much in years! However, with new developments coming quite often, I want to keep up with my pledge to tell our side of the story and to provide access to the public records.

As I had said before, one of the 'defendants' [no names, wouldn't want to be puerile] filed a motion to dismiss for lack of personal jurisdiction.

That means this person is challenging our reasons for bringing her into court in Kansas. The laws say that there has to be a connection between the defendant, the lawsuit and the forum state. No problem, this is her right.

Here is that motion. I'm not posting the attachments, it is an affidavit saying the defendant had nothing to do with Kansas.

I filed my response.

I am sparing you the 90 pages of attachments. If you can't follow along and want to read a specific exhibit, please email me with the exhibit number. The defendant claimed my response was 'anemic.' Oh, shot through the heart . . . You, the reader can make your own judgement.

As the one who filed the motion, the defendant gets the last word. So, here it is.

Now, a reply is supposed to limit itself to rebutting the arguments presented in the response. However, the defendant took this opportunity to launch into a 'discussion' of the blog. Well . . . I'll let you read it for yourself.

My only comment has to do with living in a glass house . . .

An interesting aside. The defendant's motion [filed word-for-word by the other two defendants] has an interesting case cite. The case is called 'Sunlight Sauna v. Sundance et. al.'. Two sauna sellers went at it in cyberspace. One created a website dedicated to saying what scuzzballs the others were and generally saying their products were shoddy and not worth a hoot and calling all sorts of names.

Sound familiar? Reading it for the first time, I felt like I had been transferred into a parallel universe. That's when I read it about 2 years ago. One of my good friends and colleague was the lead attorney for one of the parties so I kept track of the case. The defendants plucked out one sentence about jurisdiction, but didn't really read and understand the case. In a nutshell, the parties that were whooping it up, having fun on the internet, calling the other side poopy-heads, and using the other parties' trademarks, and all that fun stuff ended up with a sizable jury verdict against them. The two sides eventually settled, but it still cost them in a big way . . . I couldn't find the sentence based on the case cite the defendant put in her motion. So, I went back and read the briefs and the judge's opinion. A little stroll down memory lane. Always fun!

On to the case at hand. I ran through my archives from the JWCorral2 and other email that has been forwarded to me by interested parties. Over the years, I have been called a 'scumbag', 'evil', 'wacky', 'treacherous,' and my personal favorite 'Himmler.' And that was all just in a few minutes of reviewing old archive documents. When the defendant thought it was acceptable and desirable to keep a website with links to the public records, that was evidentally okey-dokey. Her introduction was:

"The statements here are only my opinion, of course. The documentation speaks for itself. Please, if you don't like what's being said, just stop reading it and go somewhere else. I won't blame you one bit."

Guess what . . . neither will I.

I am commenting on how the cases are being presented and telling our side of the story. I will even post the documents filed by both sides, not just the ones that say what I want to hear.

It is evidentally okay for the opposition to say whatever they wish, but I cannot reply. Last time I checked, my bar card does not negate my constitutional right to freedom of speech. I haven't said a thing that is not contained in or inferred by the public records.

So, as long as there is a JWCorral2, FriendsOfJohnny, or any other group under any other name dedicated to 'chatting' about the on-going litigation, this blog will exist.

Happy reading everyone! These are public record documents and can be printed, emailed, used as party favors or recycled as you wish. Terri

#31 . . . Quick Federal Court Update

2008-10-15T09:09:00.000-07:00

Greetings All!

I've been asked why I keep this blog. Simple, to tell our side of the story. We know the defendants have a finely-tuned propaganda machine, although their 'group' has become a lot more close-mouthed and paranoid lately.

What you get here is my side of what is filed, why it is filed, and why we are taking the positions that we have taken. Everything is in the public record, so it is accessible to anyone who registers. However, there is a fee to view the actual documents. So, if anyone ever wants to read the raw legal documents, just drop me a note and I will email them to you.

On October 6, Ms. Koehler filed a motion to dismiss for lack of personal jurisdiction. No great surprise, I had anticipated it. It is a typical rookie move and I had the subject well researched before I had even filed our case. And even if, for some reason, the motion is granted it is always granted 'without prejudice' and I am free to refile the case in another jurisdiction. So, this motion, even if granted, does not end the case.

So far, my opponents, with the exception of the malicious and frivolous bar complaints, have reacted exactly as I anticipated. However, my opponent should have taken notice of the fact that I didn't file this very same motion when American Plastic sued us in Missouri. It wasn't because I didn't think of it. It was because I knew I would probably lose and didn't bother with it. Again, unless the facts are egregious [ie - using a website to establish jurisdiction for a car wreck], the motion is typically a loser.

Lack of personal jurisdiction is very difficult to prove and usually only prevails when the plaintiff either, didn't know what they were doing, or were really stretching their facts. Well, I firmly believe that I do know what I am doing and the facts in this case are dead-on with a famous and landmark Kansas case regarding trademark infringement on a website.

My opponent failed to properly research the case law and, instead, pulled out a couple of cites that have nothing to do with jurisdiction based on the internet. Even one of the cases she cited said, "Plaintiff's burden is light . . . " and I believe I met the burden.

My second defendant, Mr. Bone, is now asserting the same motion, using pretty much word-for-word, the same brief as Ms. Koehler. Coincidence? I think not.

So, the law wasn't the hard part. Professional preparation of legal documents is quite the task. My brief is 19 pages long with 90 pages of exhibits, affidavits and other information supporting our position. The formatting, printing, collating, indexing, scanning, and other technical work is arduous. I also mail a copy, not only to the movant, in this instance Ms. Koehler, but to all of the other defendants. I treat them with every courtesy. It all can be a royal pain, but professionalism in brief writing is critical. Defending my own family company is a privilege and no burden is too great.

In law school, I majored (as much as you can major in law school) in brief writing and motions practice. I coached two moot court teams on brief writing and told them that if they ignored my advice, they would lose. They did, and they lost. So, I take a lot of pride in my legal documents. Yes, there will be the occasional typo or formatting error created in the upload, but the legal arguments will be the very best I can present.

So, I am expecting two more motions from the defendants. Noah and I have a bet when they will come in and what they will say. So far, I am two for two. We'll see what the next batch brings.

So, whatever you hear, remember, there are two sides to the tale. Feel free to ask me anytime and if I can answer it, I will.

Terri

#30 . . . The TTAB . . . The Beat Goes On . . .

2008-10-13T07:46:00.000-07:00

I hope everyone is enjoying a day off of school and work this Columbus Day. The county courthouse may be closed, but the electronic courthouses of the federal system and the administrative courts of the government never sleep.

Over the weekend, Ms. Koehler filed a motion to disqualify me to represent my own family company before the TTAB. To support this contention, she parroted a case cite from one of the Kansas cases. She wants the United States administrative court to follow a local Kansas practice rule . . .

Enough said, I have a lot of work to do today. For those following the paperwork, the motion and my response can be found here. Documents #20 and #21 can speak for themselves.

You can email me with any questions you have or leave a comment on the blog. As always, anything overly obnoxious or vulgar will be moderated. Otherwise, all comments are welcome. Thanks again everyone! Terri

#29 . . . The TTAB Continues

2008-10-08T07:32:00.000-07:00

A quick post this morning. Ms. Koehler has now filed an impermissible surreply with the TTAB, claiming it is an 'answer to a counterclaim.'

Read the rules Ms. Koehler, surreplies are not permitted in TTAB proceedings.

I also said I was qualified to practice patent law by virtue of my education. I did not say I was registered to practice patent law. Until I submit my registration and sit for the patent bar, the OED has no authority over me. Even then, this is a trademark case, not a patent case.

I am in receipt of the motion to dismiss and am working on my reply. I researched the law before I filed the complaint. Your reliance on Sunlight Sauna is misplaced. I'll be submitting my brief before the due date.

This litigation is far from frivolous. If, for some reason, you prevail on the jurisdiction claim, I will refile it in Ohio.

To read the public records in the TTAB case, the link is in the post below.

Have a great day one and all and thank you for your support. Terri

#28 - The TTAB Proceeding

2008-10-04T13:09:00.000-07:00

Hi Gang! Just thought I would file a quick update on what is going on at the trademark authority and Jill's petition to cancel three of our trademarks.

First, you can read all of the pleadings in the public record here. I recommend you read for yourself. The first one and the last four or five are the most important.

We finally got the service issue ironed out. No more 'gotcha' filings from Ms. Koehler. However, my opponent is now onto a new litigation tactic.

She is filing ethics complaints against me with every organization she can think of. To date, the tally is 2 bar association complaints and one complaint with a federal agency that doesn't have any jurisdiction or authority over me or my legal license.

She wants to take the issues of the case out of court and litigate them in front of the ethics committee. Every complaint has to be investigated, so I met with the investigator yesterday.

The first complaint involves Ms. Koehler making complaints on behalf of Kirby Jonas, Robin Bone, Mike Kosowski, and apparently Jay Horowitz. The investigator took my side of the story and Jill will get to give her side. No problem, that's how it works. Approximately 6 months from now, the board will decide if there is sufficient probable cause to file charges on me. The complaint has no effect whatsoever on the civil cases. There is ample case law showing that the legal disciplinary authority is not a party in civil proceedings [except for those relating to disciplinary proceedings], cannot influence or affect cases in any way, and their decisions have no affect on the outcome of civil cases.

The second complaint is evidently a bale of paperwork showing what a fraud I am. Instead of waiting for discovery and the adjudicatory process, Ms. Koehler has submitted all of her 'evidence' to the bar association. Ms. Koehler evidently thinks the bar has never seen this tactic before. They will do their investigation, that is what they do, but not make any comment, recommendation, or anything in any way, shape or form that will affect the courts in any way. Ms. Koehler and her complaints will not win these lawsuits for her.

For the moment, Ms. Koehler has immunity to do as she pleases. The way it is set up, you can say anything you want about an attorney. If you can think it, you can complain about it. While a LOT is required to convict and sanction an attorney, very little is required to file a complaint. However, that immunity is not without limits and I will deal with it when the time comes. Again, there is very little new under the sun when it comes to the legal system. The courts have looked at this type of situation before.

So, ethics complaints as a litigation tactic is obviously just a way to attempt to distract and discredit me. I do admit, I had to give up some of my free time to research the issue before writing my documents. But, I love research, so its no big deal. I never file anything that is not thoroughly researched and supported by law to the best of my ability.

It doesn't change the fact that Jill, Mike, Robin, and now Jay Horowitz, have deadlines coming up in federal court and Jill has a deadline coming up in the TTAB.

Talk to you later and thanks to everyone for their support!

Terri

#27 - Why We Haven't Responded

2008-08-26T06:42:00.000-07:00

Good Morning!

It has been commented on that the Ranch has not responded to Jill Koehler's petition for cancellations before the Trademark Trial Board.

The answer to that is simple - we haven't been served. No service, no response. I found out about the proceeding when I got the standard scheduling order in the mail about two weeks after she filed the petitions.

Despite Jill signing her name to the following statement:

“The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address record by USPS Express Mail Post Office to Addressee on this date.”

She evidently forgot the most important part, putting the 'this paper' in the mail with my address on it. So, even if I hadn't gotten notice via the back door, I wasn't required to file a response. Any default judgment wouldn't have stood. No service. No lawsuit. It's that easy.

Jill should know that. She was served with a lawsuit on August 4, 2008.

I called her on it and she claims that she misunderstood and thought that the Trademark Board would be mailing it to me. Instead of conferring with me as she is required to do by law and practice rules, she went straight to filing a response to a sanctions motion that hasn't even been filed yet.

So, I filed the motion. That same link that Rhonda is passing around will take you to all of the new documents. For anyone not on their mailing list, you can find it all here.

What part of that statement about service she signed was so difficult to understand?

In the response she filed on 08/25/08 with the TTAB, Jill neglected to attach a certificate of service and I can only assume that she will fail to serve this document on me as well.

So as a public service, I am making the following statement:

::cue the public service announcement warning tone::

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

JILL - EVERY DOCUMENT YOU FILE VIA THE TTAB SYSTEM MUST CONTAIN A CERTIFICATE OF SERVICE AND MUST BE SERVED ON THE RESPONDENT. THERE ARE NO EXCEPTIONS.

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

End public service announcement.

She also neglected to follow TTAB rules by not reporting that the trademarks are the subject of a federal lawsuit. Jill claims that she doesn't think the two proceedings are related. She doesn't get to decide what does and doesn't get reported. It all gets reported - that's very clear in the TTAB rules.

This is going to be a long ole hard slog. I anticipate it taking at least a year just to get the pleadings in order. When you file a lawsuit in any court, especially a federal court, you are bound by the same rules and standards as every other practitioner.

Gotta get to work now. Terri

#25 - Mosquitoes Buzzing Around My Ears

2008-08-24T19:00:00.000-07:00

Good Evening Everyone! The blog has been quiet for quite some time, but that doesn't mean that things have been quiet. I will be posting regularly over the next few days, but for the moment, I'll give a quick recap of recent events.

1. Between August 4 - 8, 2008 Jill Koehler, Robin Bone and Michael Kosowski were all served summons in the next phase of the lawsuit. We are suing them for trademark infringement, cybersquatting and unfair competition. We had to do this because even though the federal court has ruled in our favor on all trademark related counts, these three licensees refused to face reality. Even though I gave them an extra 30 days as a courtesy, the first thing all three of them did was file for a continuance instead of filing their answer to the lawsuit. Basically, what American Plastic did in the early days of the first lawsuit, his privies are doing in the second phase of the lawsuit - delay, delay, delay . . .

2. On August 8, 2008, Jill Koehler spent $900 in filing fees to file three half-baked and incredibly lame petitions to cancel our federally registered trademarks. I've heard that the Corral is all abuzz as Jill holds forth in her little closed and captive audience about how she has 'got us against the wall.' Whatever . . .

Those were the poorest excuse for legal documents I've ever seen. I printed them out and handed them out to all of my legal friends as the biggest joke we've seen in a while. They were the hit of our last local Bar meeting. On Monday, Jill will receive my first request for sanctions. She has 21 days to respond to my contentions or I will file the motion with the administrative court. Her response is due on September 15, 2008.

Jill also says that I have defaulted on her petitions. I received the scheduling order in the mail last week and the response date is September 20, 2008. I know I've been busy lately, but the last time I checked, it was still August. So, all you folks will just have to settle in and get comfortable, for the next three years, at least. The USPTO moves at its own pace and always gives way to the courts. Our lawsuit was filed before the cancellation, it will take precedence. So all the folks hanging around, hoping for our demise, you are sadly premature. Jill Koehler is not going to cancel our registrations. Especially not with what she filed with the USPTO. Jill, despite playing one on the internet, is not a lawyer.

I'll write more in the next couple of days with links to various documents and petitions so you can read it all and decide for yourselves. This is a public posting in a public forum for anyone to read. It's not locked up behind a wall of password protected paranoia. Feel free to comment. Feel free to email me. Feel free to ask anything you desire.

Terri

#24 A Quick Post - The Federal Court Opinion

2008-06-03T15:52:00.000-07:00

Hi Gang!

I've had several people ask me specific questions about our victory over American Plastic Equipment regarding the Marx and Johnny West related trademarks in Federal Court.

The opinion is pretty technical, but I posted a quickie copy of it here.

Court opinions are public documents. You can print it, email it, or share the link with anyone who might be interested.

More to come, hopefully soon! Terri

Y'all Like Apples? #23

2008-05-19T05:30:00.000-07:00

Hello everyone, I thought it was time to update the law blog. Sorry for the lag between updates, things have been pretty hectic.

However, I thought it was time for a report after Noah received an email from someone saying they ‘hadn’t seen any credible evidence’ that American Plastic didn’t own all of the trademarks from the long dead Louis Marx & Co.

That statement told me that the disinformation and propaganda machine has been churning out more of the same, with no regard toward the facts and what’s been happening in the lawsuit. I’m surprised what has really happened hasn’t leaked out. However, there is no reason for those on the ‘other side’ would want this information made public.

The email writer may not have seen anything ‘credible,’ but a Federal District Court Judge thought differently. After reviewing our motion to dismiss counts II - IX [all the trademark related counts], the court dismissed all of those counts with prejudice. That means that American Plastic and all those in privity (such as those who claim to be licensees and ‘permission holders’) are forever barred from bringing suit against us regarding these trademarks. A dismissal ‘with prejudice’ is the most severe ruling a judge can make.

This judgment is dated March 31, 2008. Basically, the Federal Court for the District of Kansas affirmed and confirmed the judgement entered in the Bourbon County state court in August 2007. The Bourbon County judgment said that American Plastic had no ‘protected or actionable interest’ in the disputed trademarks. Even though the judgment was based on state law, the constitution says that judgments of a state court will be respected and applied by a federal court.

The hyperbole about American Plastic and its ‘cease and desist’ letter and all the discussions about shutting us down are immaterial. Everyone has always said that we all just needed to wait while the ‘court sorted it out’ and the ‘legal red tape’ was cleared up and then the truth would be told.

Well, the court has sorted it out and the legal red tape has been unsnarled and the truth has been told. American Plastic does not hold any rights or interests in the trademarks “Johnny West”, “Johnny West Adventure”, “Best of the West”, “Circle X Ranch”, “Fort Apache Fighters”, “Marxman” and “Marxman Bros.” Furthermore, the court refused to overturn our judgment which cancelled the American Plastic registration for “Marx.”

In the meantime, the Ranch (recently reincorporated as Marx Toys Co., Inc.) has received a federal registration for our trademark ‘Jed Gibson’ and approval for registration of ‘Magic Marxie’.

This is getting long, so I will finish with one last comment. If a company, in this case, American Plastic does not have any legally protected or actionable interest in a trademark, then any ‘permission’ or ‘license’ issued to another party is just a piece of paper with no force of law. It is not a contract and not a license. What anyone who claims to have ‘permission’ to use the trademark is doing is just churning out customs, scans, and copies. After all, anyone can claim to have permission to collect tolls on the Brooklyn Bridge. . . . .

A final word about PlastiMarx. This is a quote from a book written by Jay Horowitz, the director of American Plastic:

“In 1988, American Plastic actively negotiated for the purchase of Plastimarx. . . When it finally appeared to have reached an agreement . . . international complications set in. A Mexican group received preference and purchased the company. . . [and] was liquidated by 1991.”

Hmm, American Plastic never owned Plastimarx. Yet, scanned and copied boxes are being offered for sale claiming to be ‘official reproductions’ licensed by American Plastic. Sounds pretty Brooklyn Bridge to me . . .

There is one remaining count in the lawsuit and I have filed a dispositive motion. The other side has a couple more weeks to respond and then we’ll see what the judge says about that subject. However, the final count has nothing to do with trademarks. That question is settled.

Thanks to everyone who has hung in and offered their support. Long live Johnny West!

It's up to each of you individually to decide how you like these apples. Thanks again!

PS: The motion posted on someone's website will all of its 'supporting documents' has been dismissed by the court, again, with prejudice. So, that motion is meaningless.

#22 - The Truth Will Out . . .

2007-09-25T18:16:00.000-07:00

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

2007-09-25T07:55:00.000-07:00

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

2007-08-11T05:54:00.000-07:00

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

2007-07-25T06:56:00.000-07:00

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

2007-06-21T09:51:00.000-07:00

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

2007-06-21T05:51:00.000-07:00

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

2007-06-06T06:30:00.001-07:00

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

2007-06-06T06:10:00.000-07:00

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

2007-02-07T08:34:00.000-08:00

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

2007-01-14T14:28:00.000-08:00

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 . . .

#12 The Voyage Of Discovery . . . .

2007-01-13T07:13:00.000-08:00

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

The Marx Filings Updated Index . . . .#11

2006-10-11T06:02:00.000-07:00

Several people have emailed me or posted messages at the CXR asking about the progress of the case and if we had a court date yet. This seemed like a good time to update the "Marx Filings" index to show what the actual activity has been.

This is a continuation of post #6. This information is taken out of my latest pleading and is a detailed and accurate rendition of the timeline since July 19, 2006.

Plaintiff = Toytrackerz [Noah & Terri Coop] Defendant = American Plastic [Jay Horowitz]

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

1. Plaintiff’s Motion For Partial Summary Judgment was filed on July 19, 2006.

2. On August 2, 2006 , Defendant’s original attorney, Jan P. Helder Jr. filed a Motion to Withdraw citing his federal legal troubles as good cause.

3. As of August 14, 2006, Defendant had not filed an Answer and Plaintiff filed the first Motion For Default Judgment.

4. On August 14, 2006 , Defendant’s present attorney, David E. Herron II filed an Entry of Appearance.

5. Later in the day on August 14, 2006, Mr. Herron filed a Motion for Extension of Time citing Jan Helder’s sudden ‘tragedy’ as grounds.

6. On August 16, 2006, Judge Waxse issued an order allowing Jan P. Helder Jr. to withdraw as Defendant’s attorney.

7. On August 18, 2006 , Terri Coop and David E. Herron II participated in a telephone status conference with Magistrate Judge David Waxse. Mr. Herron verbally addressed the Motion for Extension of Time and asked for thirty days. Terri Coop consented to fifteen days. Defendant, again, cited Jan Helder’s ‘troubles’ as reason for the extension. During the telephone conversation, Judge Waxse set the day for Defendant to respond to Plaintiff’s Motion for Partial Summary Judgment as September 5, 2006. [Judge Waxse also directed parties to file a supplemental brief on the remand question by August 25, 2006].

8. On August 21, 2006, Judge Waxse issued a written order stating: "Defendant’s Motion for Extension of Time to file a brief in response to Plaintiff’s Motion for Partial Summary Judgment is granted and the deadline before which Defendant must file this response is extended to September 5, 2006."

9. On August 29, 2006 , Jan Helder entered into federal custody and is currently housed at the Bates County Missouri Correctional Center. This information was confirmed by Plaintiff by telephone with the Bates County Sheriff’s Department on October 5, 2006.

10. On August 30, 2006, the case was remanded back to the District Court of Bourbon County.

11. As of September 6, 2006 , Defendant had not filed an Answer or other responsive pleading, nor had Defendant requested additional time. Defendant did not contact Plaintiff regarding this issue.

12. On September 6, 2006, Plaintiff filed a second Motion for Default Judgment with this court.

13. On September 18, 2006, Plaintiff received a copy of a “Motion For Enlargement of Time To Plead or Respond.” Defendant cited Jan Helder’s incarceration as a reason to be granted more time to respond.

14. On September 19, 2006, Plaintiff filed a Response in Opposition to Defendant’s motion for enlargement of time.

15. On October 4, 2006, Defendant filed an “Application For Extension of Time To Respond To Motion For Summary Judgment.” [Motion has been pending since July 19]

16. On October 5, 2006, Plaintiff filed a Response in Opposition to Defendant's motion for extension of time.

17. [On October 5, 2006, Judge Waxse awarded legal fees to Plaintiff for Defendant's meritless and frivolous removal of matter to federal court]

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

So, as you can see, the Defendant has filed nothing except requests for more time to answer a motion that has been in court since July 19, 2006. We continue forward, confident in our position and will continue to answer everything that comes our way.

Thanks to everyone for their support - Terri

Objectively Reasonable . . . #10

2006-10-07T07:34:00.000-07:00

Good Morning! Not too much going on in the lawsuit as it continues in its glacial pace towards a resolution.

However, there was one development that merits comment. I told you last time that our case was remanded from federal court back to state court. Based on that remand, I filed a motion for attorney's fees based on the work I had to do to get the case back where it belonged.

Thursday, the Judge ruled on that motion and granted us a fair and reasonable award of attorney's fees, stating:

"The Court concludes that Defendant [American Plastic] lacked an objectively reasonable basis for seeking removal. Plaintiff [Toytrackerz] was required to devote time and resources to a facially meritless removal proceeding.

"Thus, the Court will require Defendant to pay Plaintiff's attorney's fees and costs expended in this frivolous removal litigation.

"The fees and costs shall be paid to the Plaintiff within twenty (20) days of the filing of this Order."

Hope to have some more announcements soon! Stay tuned - this is where you will hear the truth, taken from the public record, about this case. Thanks to everyone for their support. Terri

Back To State Court . . . #9

2006-08-31T07:47:00.000-07:00

Post #9

Good Morning Everyone!

Had some activity in the case between Toytrackerz [better known as Circle X Ranch] and American Plastic Equipment.

Yesterday, the Federal judge remanded the case back to state court. He found that there was no jurisdiction in Federal Court and that the case should have never been removed in the first place.

So, it's back to Bourbon County, Kansas where we started back in January 2006.

This decision is important to us. It vindicates how we presented our case. We framed it as a simple question of state law and had every intention of litigating it that way. The questions are simple: the right to use a set of trademarks in commerce. The other side tried to control, expand, and cloud the issues by making it into a big dramatic federal case. It's not . . . and the judge agreed with me.

So, now the whole file gets shipped back to Bourbon County and we'll see what happens next. I'll keep you posted.

Terri

Jay's Former Attorney . . . . #8

2006-08-07T08:38:00.000-07:00

Post #8

I received several emails asking why Jay's former attorney seems destined for federal prison. Instead of going through the mountain of details, I decided to post these two links. It handles the subject with as much tact and sensitivity as it could be handled with. You can decide for yourselves if the punishment fits the crime.

Link #1 [Click Here]

Link #2 [Click Here]

Thanks to everyone for their support! Terri

Default or not Default . . . That Is The Question #7

2006-08-06T05:57:00.000-07:00

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

An Index Of The Marx Filings . . . #6

2006-07-21T18:01:00.000-07:00

Post #6

Noah suggested I do a brief timeline and index of what has happened in our ongoing battle and then fill in the details as needed. So, here goes:

1. December 2005: The Cease & Desist letter from Jay Horowitz and APE

2. January 2006: Toytrackerz files for Declaratory Judgment - seeks no damages, just a decision of trademark status from the judge.

3. February 2006: Jay's attorney removes to federal court and asks for his first time continuance. Receives 30 days.

4. February/March 2006: Toytrackerz' trademark applications are published for opposition.

5. March 2006: Jay's attorney files Answer & Counterclaim, seeking six-figures in damages.

6. March 2006: Toytrackerz files motion to remand the case to state court.

7. March 2006: Jay's attorney files for his second continuance to answer remand motion.

8. March 2006: Toytrackerz files a pair of preliminary procedural motions.

9. March 2006: Jay's attorney files for extensions of time on the trademark applications.

10. April 2006: Jay's attorney files for third and fourth continuances on the procedural motions.

11. May/June 2006: Back and forth responses/replies on the procedural motions.

12. June/July 2006: Time limit on trademark oppositions expires and opposition period terminates on CXR, JWA and BOTW. Applications are put back in the queue for registration.

13. July 2006: Toytrackerz files a motion for Partial Summary Judgment regarding those three trademarks. Decision is pending.

That's it in a nutshell. Any questions? Drop me a note via the blog, the Ranch or leave a comment. It's been a long frustrating haul with a lot of delays. However, we've withstood every blow so far and have no intention of changing our strategy.

Thanks - Terri

The Mushroom Cloud Over Ohio . . . . #5

2006-07-21T07:02:00.000-07:00

Post #5

If I look to the east, I can see the faint outline of a mushroom cloud over Ohio. I've heard from several sources that the radioactive fall-out and waste is also pouring through the other message boards.

I, apparently, am a scumbag . . .

What you won't see in the blog or on the Ranch is name-calling. The person who owned those eBay listings has made herself a direct combatant in the lawsuit and now can't sit on the sidelines whining and moaning about what big bad Terri did to her. What I 'did' was made a business and legal decision. I can't allow my actions to be dictated by what someone might say.

Thanks to everyone who is coming to our support. It means the world to us. Terri

An Aside . . . . Trademarks and VeRO . . . #4

2006-07-21T05:50:00.000-07:00

Post #4

This is an aside based on things that have happend in the last 24-48 hours.

Last summer [yup, a year ago] we filed for Federal registation of three trademarks:

1. Circle X Ranch
2. Johnny West Adventure [red/black logo]
3. Best of the West [the swoopy dark orange/brown logo]

With a couple of small amendments, all three applications were approved for 'publication for opposition.' This means your marks are published in a governmental catalog for the world to see and anyone who thinks they could be damaged by your use of the trademark can file what's called 'an opposition.' This is a short legal document [1 - 2 pages] that starts a miniature lawsuit at the federal level over the validity of the trademark and application.

It was kind of cool seeing our marks published! But, now it was time to wait for 30 days.

Jay's attorney, stepped in and filed on all three marks. Did he step up and file an opposition that we could stand up and fight? Nope, he filed for a continuance . . . A delay . . . Per the rules, he got an additional 30 days to file his opposition.

So, we wait . . .

At the end of the thirty days, he files again. Did he file his opposition so we could answer and get this thing moving towards a resolution? Nope, he filed another continuance and got 60 days this time.

These delays were pretty frustrating. We could use the trademarks, but couldn't really claim them as our own. We believe that was the other side's intention all along. To delay and irritate.

During this time, they offered us a settlement that was completely insulting. We declined and continued to wait.

Fortune rewards the patient . . . .

At the end of the sixty days [90 days total - 120 if you count the 30 we waited during publication], Jay's attorney let all three filing deadlines expire . He made a half-hearted attempt to get more time on JWA, but was denied and told that they had no additional remedies. We believe he didn't file the oppositions because he didn't have the necessary grounds.

As a result, American Plastic has given up all rights to oppose our registrations at the federal level. The time for anyone else to step up and try and oppose us has passed. These trademarks will mature into registrations [ya know, the 'R' inside the circle] after the paperwork finishes getting through the federal maze.

As a result,

Circle X Ranch [TM]
Johnny West Adventure [TM]
Best Of The West [TM]

are trademarks of Toytrackerz LLC. That's Noah and I.

One of the responsibilities of trademark ownership is that you have to police how the marks are used. As a result, we have had eBay and CafePress listings removed for someone who makes reproduction boxes, t-shirts and posters bearing the JWA logo. Failure to do so could result in damage to our trademark rights. It was a business decision and a legal decision and I would do it again tomorrow and will continue to do so.

I want to remind people who started this fight. It wasn't us. Instead of contacting us and discussing an amicable resolution, they sent us the Cease & Desist letter. We also received copies of emails and messages that our opponents were saying things like 'we were headed for a brick wall' and 'we would be brought down'.

Well . . . I'm not going to cooperate by ceasing, desisting and so far every brick has bounced off of us like it was made of foam rubber. A law review article put it best, 'Be careful when you send a Cease & Desist letter . . . it could be you that is made to stop'.

More later - Terri

And So We Waited . . . #3

2006-07-21T05:43:00.000-07:00

Post #3

After we served the lawsuit, American Plastic had 30 days to file a response. We waited and we waited. On the 28th day, we got a phone call from an attorney in Kansas City saying he had entered the case on behalf of Jay Horowitz and APE.

Enter Jan P. Helder Jr. . . .

But more about why that's important later . . .

Noah took the message and agreed for him to call back later. In the interim, I got on Google and learned a few things about my opponent. In an odd twist of fate, it turned out we had come from the same hometown. No big deal, until you realize we were both born in Marysville, California! Even turns out we went to the same elementary school, I was about 3-4 years ahead of him.

Trivia aside, there were two important things that came out of the phone call.

1. He'd filed a notice to remove the case to federal court. An annoyance, but not a fatality. I didn't particularly appreciate his statement 'You are registered to practice in Federal Court . . . aren't you?' Oh pleeeeeze . . . . That was my first indication that my advesary didn't take me seriously.

2. Second, he wanted to know if I would consent to a continuance in time for him to file his paperwork. I consented because it is the polite thing to do when a new attorney enters a case. Little did I know that filing for endless continuances would be his primary strategy.

Terri

Toytrackerz Declares Itself . . . #2

2006-07-15T12:00:00.000-07:00

Post #2

After talking it over with our lawyer, I decided to file a 'Declaratory Judgment' action in Kansas state court. This type of action, in a nutshell, is to ask a judge to decide the dispute as to whether or not we were infringing on any protected rights held by APE.

A Declaratory Judgment is sort of backwards from a typical lawsuit. Usually, you go to court and say someone did you wrong. [Ya know, 'You got your peanut butter in my chocolate]. In a Dec Judgment, you ask the judge to rule that you HAVEN'T done anything wrong. This is a common lawsuit after when someone sends a Cease & Desist letter.

I served the original petition with a summons on APE via their registered agent right after the first of the year.

On the day the lawsuit was served, all of our eBay auctions were pulled by someone calling themselves 'marxtoysip@yahoo.com'

On that same morning [January 9th I do believe], the Circle X Ranch and Trading Post sites on Yahoo! went dark for several hours. I don't have proof, but I believe the same people tried to bring our sites down. Yahoo! has a high standard of proof required for intellectual property violations and I don't think they met the standard.

That same morning, I got a Restraining Order from the judge preventing interference with our internet businesses during the pendency of the case.

Terri Coop

PS: I intend to make all the public record legal documents available when I figure out how to make .pdf hotlinks.

It All Began With An Email . . . #1

2006-07-15T06:04:00.000-07:00

Post #1

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. . . .

Terri Coop