[HPforGrownups] The "Stuff-it" lawsuit, more legal input

[heidi]

No: HPFGUIDX 5813



Suzanne Burns wrote:

> I have been following up on my quest to dig up every single absurdity
> that exists (the list is endless) in Stouffer's claims against Rowling.
> I found a lawyer/writer who keeps a journal on the web, and who
> apparently actually managed to get his hands on Stouffer's text. He
> published a short rant about what an opportunistic hag she is (albiet he
> used more legally acceptable language than I am), and confirmed what is
> pretty much obvious to us all, that there is no similarity.
>

What's the link? I would love to see this!

> "The U of I Education Library is where I found them--there's a special
> kids' books collection. They're long out of print, which just makes the
> problem that much worse. As a matter of trademark law, it's arguable
> that
> (even if she had a case at all) she abandoned the mark by not taking
> action the instant the book hit the shores here--she waited for a movie
> deal to be announced. There's another abandonment argument in the
> failure
> to continue exploitation since the books went out of print several years
> back.

As a matter of law, abandonment of a trademark can be presumed by a court if
you have not used the mark for three consecutive years (i.e. 36 months) and
don't have a good reason to have done so. She who must not be named CLAIMS
that she has a good reason - purportedly, there werebusiness problems with
her company/the licensing company who she'd given the rights to, and they
weren't able to secure any deals. I have litigated over the issue of
abandonment before, and there is caselaw to support her position in
MINNESOTA but I have never seen any in New York (although something could've
been reported in the past 18 months that I don't know about). Nonuse of a
mark for 36 months, which she more or less has admitted to, and the ability
to show NO good reason for such nonuse make what's called a prima fascie
case of abandonment, which means the court would presume that she had
abandoned the mark - and an abandoned trademark is not a trademark at all.
Trademarks, as I've said before, indicate the source of a good or service.
If there are no goods or services being sold or provided under a mark, there
is no trademark usage, and thus nothing to protect. Voila - no trademark
ownership, and no trademark infringement. You can't infringe on something
that doesn't exist!

> Two things:
>
> 1.)  First of all I want to obtain the texts and put together a document
> in which I really examine Stouffer's claims-- according to this
> gentleman, she is massively stretching things to claim that there is ANY
> similarity at all. Legally how much can I quote from the text without
> running afoul of "fair use"?

Depends on where you're doing it. None of this is legal advice, mind you,
but if you are quoting from something for education purposes, or for
reporting on it, and NOT for commercial purposes (i.e. you don't want to
create your own version of The Legend of RAH and the Muggles) then you can
use slightly more of a work, but still not so much of the work that you're
reducing the market for the work you are copying. I can't give you a
definite number of words or paragraphs, though. But if you want to put
together the document, and Penny's interested, and I can vette it, maybe we
can incorporate it into the FAQ.

>
> 2.)  What do our legal experts here on HP for Grownups think about what
> Jon says above about "abandonment"? I was wondering about this earlier
> because all the records I found indicated that Stouffer NEVER had a
> trademark at all, and right now only has a trademark pending.

Correct. She has a trademark pending, and I have the applications AND the
office action, which means the trademark office will NOT register it until
she comes up with some explanation as to why her mark isn't likely to be
confused with some prior registrations for marks containing the term MUGGLE,
including one for dolls and one for a piano bar.