An analysis of Stouffer's lawsuit....

[rainy_lilac]

Original Yahoo! HPFG Header:
No: HPFGUIDX C4962
From: rainy_lilac
Subject: An analysis of Stouffer's lawsuit....
Date: 7/23/00 11:54 pm  (ET)

By a rather interesting lawyer who also reviews books on the web! He
has looked at this case in some depth, and I thought you guys might find
it interesting:

http://www.crosswinds.net/~jsavage/journals/j9912.html#99Dec01

He follows this article up with the following update on one of his other
pages. Thoughts?:

"... And now, the outrage. Some readers may recall my rant against
Nancy Stouffer--or, rather, the greedy bastards advising her--and her
misapprehension of trademark law.
 Further research has confirmed that, in the Second Circuit (which
 includes New York),
 her position is dead meat. So, what does she do?

 Well, if Dad denied you the use of the car, you went and asked Mom,
 right? First, she filed
 a motion in the declaratory judgment action in New York, brought by
 the publishers to
 have the court rule that J.K. Rowling's muggles don't infringe Nancy
 Stouffer's muggles
 (see Scholastic, Inc., et al. v. Stouffer, No. 99-CV-11480 (S.D.N.Y.,
 pending)), to have
 that action thrown out because the New York court doesn't have personal
 jurisdiction
 over her. What's irritating is that an objection to personal jurisdiction
 is supposed to be the
 first formal filing made by a party--and Stouffer's lawyers waited
 until six days before the
 pretrial conference, three months after the declaratory judgment action
 was filed, to file
 their motion.

 Stouffer then turned around and filed her own infringement action
 in Philadelphia
 (Philadelphia being in the Third Circuit, which hasn't ruled on the
 issue at hand before),
 while the New York case was still pending. That's a no-no akin to asking
 Mom about the
 car while Dad is still in the room. In theory, the Phildelphia case
 should be immediately
 transferred to New York and consolidated; if Judge Schwartz in New York
 rules that the
 New York court does not have personal jurisdiction over Stouffer,
 which is actually
 possible (although probably inappropriate), the case would then be
 transferred back to
 Philadelphia. The interesting issue is whose law would apply--a far
 from trivial question.
 In theory, the law applicable to the first-filed case (Second Circuit)
 should apply under the
 transfer statute. Nonetheless, there's an argument that since that
 first-filed action was
 dismissed under Rule 12, it's not really consolidated anymore.

 Of course, this is only a thumbnail sketch; procedurally, it's a lot
 more complicated. But it
 appears to be an unanswered (or at least not clearly answered) question
 in choice of law.
 It would be much plainer in a diversity suit where state law applies,
 because there's
 Supreme Court precedent on the issue. But there's also Supreme Court
 precedent saying
 that the rule is different in purely federal cases--but not specifying
 what the rule is. Thus,
 Harry Potter may end up meaning more to legal history than a footnote
 in some judge's
 opinion when he or she is trying to be cute."