--- Date: Mon, 29 Sep 2003 15:57:40 -0400 From: "Paul Levy" <PLEVY@private> To: <declan@private> Subject: Encouraging IP lawyers to stop and think before they sue...... My colleague Amanda Frost has had a nice development recently in a case filed in federal court in Alabama against a Tom Ballock, a consumer who established a web site about a local car dealer. http://www.crownpontiacnissan.com/ The dealer rushed into court and got a preliminary injunction against Ballock, who defended himself pro se. Amanda then got involved and persuade the judge to lift the preliminary injunction. After taking Ballock's deposition, the plaintiff gave up and dismissed the suit. There is an account of the progress of the litigation on Ballock's site: http://www.crownpontiacnissan.com/lawsuit.shtml#settlement_filed Lat week, the judge granted our motion for an award of damages against the preliminary injunction bond that was wrongfully issued against Ballock. The judge explained why the injunction should not have been granted -- although Ballock uses the dealer's name in his domain name, there is a very strong disclaimer of affiliation at the top of his site, so nobody could be confused, and the site was completely noncommercial. Consequently and then gives Ballock $766.45 in out of pocket expenses, $4000 in mental anguish damages, and $2000 for the injury to his free speech rights. (The judge was also quite complementary to Amanda, making clear that Ballock's ultimate victory was due to his securing "highly competent representation" after he received the preliminary injunction). The case stands as yet another reminder to IP attorneys to stop and think before they bring questionable trademark claims against individual dissenters in the hope that they can smash them before they can get a lawyer. Sometimes, even a win on a quick preliminary injunction can come back to haunt their clients! Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation/litigation.html _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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