Tabberone is pronounced tab ber won
not tay ber own

Tabbers Temptations     www.tabberone.com/Trademarks/ Home | Site Index | Disclaimer | Email Me!

Tabberone Logo
The latest Hartsel weather.

 

  "The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke


Really!
At the bottom of this page are Cease and Desist letters we have received concerning a variety of "crimes" we are alleged to have committed. Some are reformatted but content has not been altered. We take every Cease & Desist demand we receive very seriously.
We do!

Last Updated October 28, 2011


Cease and Desist Letters

Lawyers love cease and desist letters. It gives them an opportunity to lie on paper without fear of finding their fannies in a sling. You see, a cease and desist letter, which is nothing more than a legally protected threat, not only is easy money for a lawyer since they have it as a template and their client pays the bill as though it was written from scratch, but they can say just about anything they want without fear of it being used against them. A cease and desist letter cannot be the sole basis of a lawsuit. The courts have said that when someone threatens you with a cease and desist letter that you must have more than just that threat in order to go to court to protect yourself. So, a cease and desist letter is a license to lie. And that is what attorneys are paid to do: Lie. And they do it often.

In our opinion most cease and desist letters are nothing more than early attempts at extortion. They make over blown claims of infringement, exaggerated claims of liability, and outrageous claims of damages and monetary compensation. Granted, many cease and desist letters are generated in real cases of infringement. But even many of those over state the facts and potential outcomes.

We're going to go over the terms in the bogus cease and desist letters and explain them and why they do not apply. Bear in mind, we are not lawyers nor have we attended law school, but we have seen every episode of Boston Legal, so our opinions here should not be construed as legal advice but more along the lines of what we have learned over the last years fighting these companies while representing ourselves many times in federal circuit court, state circuit court and the Colorado Court of Appeals. We have lost very few of these encounters.


Cyber Cops

In today's global economy, cease and desist letters have become the 24/7 internet equivalent of roaches except that cease and desist letters sometimes are written with legitimate concerns in mind. Sometimes. We have seen far too many cease and desist letters that are form letters sent out by cyber cops who get paid by the victim as opposed to getting paid because there is a real problem. To make more money, some of these cyber cops intice potential victims into "infringing activities" or they distort what is happening to make it appear there is infringement when there is no infringement. Cease and desist letters are becoming the legal profession's version of the organized crime tactic for demanding money for an alleged infringement, sometimes better known as "we gonna breaka you leg if you no pay", which we lovingly call trademark extortion.

These cyber cops and law firms often hide behind the requirement in trademark law that a trademark owner police and defend its trademark from unauthorized use by others. Using the all too vague trademark definition of the "likelihood of confusion", these unscrupulous hacks pad their resumes and their purses by sending over-reaching cease and desist letters to every allegedly infringing grandmother, aunt, work at home mom ("WAHM"), student and internet seller they can locate or fabricate. But the key word in the Lanham Act is "unauthorized". Many cease and desist letters ignore "fair use" because "fair use" in an inconvenient truth they want to ignore.

There are plenty of legitimate cease and desist letters being mailed to real infringers every day. There are a lot of infringers on the internet. The overwhelming majority of counterfeits are being imported either directly or indirectly from Asia and many of these counterfeits are very good imitations. However, an alarming number of American companies have voluntarily opted to move their manufacturing facilities to overseas locations in Asia and at the same time supplying these facilities with manufacturing secrets, code numbers and other information used by the counterfeiters who are, in many, many cases, the same people who are manufacturing the genuine products. These companies have created their own problems and want to toss the baby out in the bath water.


Extortion

There are a variety of companies and law firms that interfere with the legitimate operation of small home-based businesses and internet sellers. These companies use legal jargon and various maneuvers to illegally shut down mom and pop businesses that have not violated any laws. These small businesses are easy targets because they lack the expertise and resources to effectively fight back. This allows cyber cops and bottom-feeding corporate lawyers to bill their clients by showing them how many "bad guys" they have stopped. The term "bad guys" being relative since the client has no way of confirming the allegations beyond the stack of signed agreements being placed on the desk along with the hefty bill for services.

In an email to us, one of these cyber cops denied our assertion that their cease and desist activities were designed to " 'rack up' billable hours" but we discounted her claims since in the same emails she was denying she worked for the Cyber Cop while the web site listed her as an owner. If the activity is not profitable, then why are there so many companies getting into the business? And law firms? The mark-up is fantastic. Did you know that the $6.00 bag of popcorn at the movie theatre costs the movie theatre 5 cents? That soda has a 400% markup. Imagine the markup for trademark extortion claims and copyright extortion claims.

On our trademark extortion page and our copyright extortion page we list some of the companies that we consider to be involved in these activities. We do not list them all because we have not come into contact with all of them, yet. We have received a variety of cease and desist letters over the years (see bottom of this page). Only one, from M&M/Mars, resulted in us being sued and that case was quickly settled in our favor after we filed our defenses and counter claims. No one else has taken us into court. Dang.

Also you need to understand the foundation of the real problem facing the modern-era internet seller: a lack of understanding of how the legal system really works coupled with virtually no understanding or education in trademark law and copyright law. Increasingly less-expensive and increasingly more powerful personal computers have turned the internet into an inexpensive, world-wide 24/7 "store front" for almost anyone. And almost none of these small internet sellers have any idea of what trademark law and copyright law is really about. They are sitting ducks just waiting to be picked off by cyber cops and corporate lawyers.


Enforcing trademark rights and copyright rights is generally a cost of doing business. Especially when the infringements are not criminal but rather civil and by non-willful infringers. What is willful infringement? Whether the alleged infringer, acting in good faith and upon due inquiry, had sound reason to believe that he/she had the right to act in the manner that was found to be infringing. Courts determine whether this test has been satisfied by examining the "totality of the circumstances." But, what is "due inquiry"? If you have a reasonable belief the item you purchased (or you were given), was legitimate, then there is no reason to inquire. So, any admitted suspicion can be used against you whether valid or not? You must remember that most infringement cases are civil, not criminal, so the burden of proof on the rights owner is 51%, not "beyond a reasonable doubt" or "moral certainty" as required in criminal cases.

Island Software and Computer Service, Inc. v. Microsoft Corp., 2005 U.S. App. LEXIS 12766 (2d Cir. June 28, 2005). The court of appeals reiterated that there are three ways to establish willfulness: actual awareness of the infringing activity, reckless disregard for the ...owner's rights, or willful blindness to them.

Plug the word counterfeit or replica into the Google search engine and you will be rewarded with 15 million hits for the former and 58 million for the latter. Many of these are for web sites that specialize in knockoffs. Shut down one of these and you have accomplished something. However, shutting down these web sites does not provide the cyber cops and corporate lawyers with extortion money, whereas the grannies, aunts, WAHMs, students and some internet sellers do pay the extortion demands. That is why they are the targets of these false claims.

Bogus C&D Letters

Generally, bogus, or form cease and desist letters, come in a similar format to this.

They begin with sweeping claims of ownership through use and registration with the appropriate government entity, be it federal and/or state. This is usually accompanied with claims of large amounts of monies spent promoting the product and how the product has acquired secondary meaning in the minds of the public. Not true necessarily, but then, lawyers are paid to lie to you.

Some Company, Inc., ("Company") is the owner of many valuable designs, trade dress, designs, and copyrights for the word Company, the Company logo, many other distinctive designs and words. Company has invested vast resources to establish their intellectual property portfolio and the goodwill associated therein. These marks and the Company brand name they represent are famous throughout the world. Because of Company's popularity, extensive demand exists for Company-related products. Consequently, the intellectual property of Company may not be used without its express written permission. Cyber Cop ("Cyber Cop") has been engaged by Company to help protect its valuable intellectual property.

This is what we call the "Chest Beating Opening". The alleged infringer is smothered by the assertions and left in awe to read the upcoming claims of infringement, or what we call the "Unsubstantiated Allegations" section. Here, the representative of the rights owner claims the alleged infringer has committed every heinous crime except human sacrifices on a pagan alter.

Cyber Cop has learned that you are involved in the distribution of merchandise violating the intellectual property rights of Company (the "Merchandise"). The Merchandise bears marks or designs that are either identical to, or clear imitations or derivations of Company's trademarks, trade dress and/or copyrighted material.

The unauthorized production or sale of merchandise bearing Company's marks and/or designs, or those confusingly similar thereto, without license is illegal. Such activities diminish the value of Company's intellectual property, cripple the effectiveness of Company's licensing programs and endanger Company's goodwill and reputation. Producing or distributing unlicensed merchandise also constitutes unfair competition. Such activities cause consumers to but such merchandise in the mistaken belief that it originates from Company, which siphons profits away from legitimate licensees and generates unjust profits for infringers such as your company. Consequently, the unauthorized use of Company's intellectual property constitutes infringement, counterfeiting and dilution, unfair competition, and violates a variety of federal and state civil and criminal laws.

That certainly scares us. Does it scare you as well? It should. However, notice the lack of specifics. In what actual manner was the infringement done? In what time frame did this infringement occur? The above paragraph, taken from a real cease and desist letter, says nothing of this sort. It is deliberately vague. And, a really legitimate C&D would be accompanied with proof, such as a picture of the infringing item(s) purchased by the firm sending the letter. So, you ask, what is next? The "Overblown Potential Damages" claims. Why do we say that they are they "overblown"?

Your activities with respect to Company place you in jeopardy of violating these various laws and the rights of Company. Any further sale of the Merchandise by you will be considered willful infringement. Willful infringements are subject to enhanced penalties, including but not limited to, treble damages. Furthermore, you may be subject to temporary or permanent court injunctions, impounding of all infringing materials without notice, liability for actual or statutory damages, and payment of attorney's fees.

Common Phrases

To begin with, while it is generally accepted that if an alleged infringer immediately ceases the infringing activity the alleged infringing activity will not be considered "willful" by a court, continuing to engage in the activity does not constitute willful infringement if the alleged infringers believe that they are in the right. "Willful" infringement has to be proven by the rights owner, not just asserted. Small sellers are rarely found to be willful infringers.

Trebel damages are very rarely awarded in trademark cases and attorney fees are also rarely awarded in trademark cases. In copyright cases the court has descretion as far as statutory damages are concerned. The large monetary claims are designed to frighten the recipient. Remember, lawyers are paid to lie to you.

Typically, they begin with a "Cease and Desist" letter in which they make their case. These letters are intended to intimidate the receiver into compliance. Your average lawyer will look at the letter and tell you to comply. Why? Because the cost of fighting them can run to $30,000 and up and there is no guarantee that you will recover legal expenses. Small home-based businesses cannot afford this sort of financial outlay, so, they cave.

In some cases, the company claims that the fabric item is a "derivative" and therefore violates the copyright held by the company. Numerous federal court decisions refute this as well as the federal court standard for determining if something is in fact a derivative.

Another approach is for the company to claim the use of the material in this manner is "unauthorized" and therefore a violation of the trademark. This falls short because the Lanham Act uses the word "authorized" in conjunction with counterfeit trademarks and/or products. They are attempting to use the term out of context. Remember, lawyers are paid to lie to you.

Most cases will revolve around either the derivative issue, copyright violations, or the "unauthorized use" issue, trademark violations. The other terms that are thrown in are done so to make the case look far more complicated and more serious. Dilution, unfair competition, likelihood of confusion, infringing merchandise, are often used. However for these to be relevant, there first has to be a copyright violation or trademark infringement.

You can protect yourself. Make sure you include the wording "hand-crafted" or something similar in your description. Refer to the items as being made from XYZ fabric. We suggest including a disclaimer, "This item is not a licensed XYZ product. It is however, made from licensed XYZ fabric. Tabberone is not affiliated with XYZ in any manner." Their lawyers will argue that this disclaimer is not adequate and does not protect you. However, remember that should the conflict go into court, it is not their lawyers who will determine what is adequate. The courts use the "reasonable person" rule. How would a reasonable person interpret this disclaimer? Would a reasonable person be confused?

Additionally, you are permitted under trademark law fair use of a company's trademark when selling an item made by them, or in the cases here, items made from their fabric. This means you have a right to a reasonable use of pictures of the item even if those pictures include copyrighted images. However, you cannot use images or pictures not directly related to what you are offering. Example: you cannot use an image of Mickey Mouse to sell a pillow that has Tinker Bell on it. But you can use pictures of the actual pillow.

Chilling Effects has some good FAQ's and advice about cease & desist letters.

Don't Post This Cease And Desist Letter Or Else.shtml , by Greg Beck, October 5, 2007.

Just because you have received a cease & desist letter and you do not want to stop your alleged infringemnt, your failure to stop is not always and indication of willfull infringement.


Purina Dog Chow, whose motto should be Your Pet, Our Passion®: Our Asshole Layers, is a textbook study in the type of cease and desist letters we mentioned here.


We take

every C&D

Cease & Desist Letters and Emails
Received By Tabberone

Keep 'em coming folks, we love them all.
Really! We do!

we receive

seriously!

Lawyers seem to love Cease & Desist Letters but they don't seem to put much research into the facts behind them. It seems their primary concern is the billable hour they get for the piece of fiction.

We have received Cease & Desist letters alleging defamation about postings on our website from lawyers representing Grand West Financial, Rocky Mountain Construction, Summit Crest Homes, Re-Bath, De Novo Legal, and Sykel Fabrics, to name a few. We include all of the cease and desist letters here because they are so similar. We also have a Colorado Court of Appeals decision directly concerning our website and how it falls under the First Amendment as protected speech. It seems that Barbara Robbins (now Barbara Asbury) did not like us saying her nickname was "peanut butter legs" and so she sued us for defamation. In the Kangaroo Court proceeding presided over by Judge Kenneth Plotz, Barbara cried on the witness stand and her lawyer, M James Zendejas, suborned perjury from his client. Judge Kenneth Plotz anounced his retirement two weeks after the decision by the Court of Appeals reversing his injunction.

 


 
Grand West Financial
Michael E. Hendricks
HENDRICKS, HENDRICKS & SHAKES, PC
2001

Letter from Grand West Financial, dated January 27, 2001. Neither Grand West, Kevin Marks, or his lawyer Michael Hendricks, have ever taken the issue to court.

Our First Reply to Grand West and their idiot lawyer, Michael Hendricks, dated March 15, 2001. The reply we received from Michael Hendricks was along the lines of "leave him alone".

Our Second Reply to Grand West and their idiot lawyer, Michael Hendricks, dated March 16, 2001. Unlike Kevin Marks and Michael Hendricks, we did follow-up our threat to take the issue to court, and we won.

 


 

Monica
Rocky Mountain Construction Lending
Jeffrey W. Ludwig
2001

Wasden

Letter from Jeffrey W. Ludwig for Rocky Mountain Construction, dated May 31, 2001.

Our 6-page Reply, to Rocky Mountain Construction, dated June 5, 2001. Neither Rocky Mountain, Monica Wasden, or her nitwit lawyer, Jeffery Ludwig, have ever taken the issue to court.

 


 
Summit Crest Homes
Beth Morrison Klein
Purvis, Gray & Gordon, LLP
2001

Letter from Beth Morrison Klein for Summit Crest Homes, dated October 12, 2001.

Our Reply, to Summit Crap Homes, dated November 5, 2001. Neither Summit Crest, or their dimwit lawyer, Beth Klein, have ever taken the issue to court.

 


 
Precious Moments
2002

How

Stupid
We received a cease and desist email from Precious Moments in 2002. They objected to us using their licensed fabrics to make and then sell items. We never heard from them again after we emailed them back pointing out that they had already lost that issue in 1997 in federal court in Precious Moments vs La Infantil, 971 F. Supp. 66 (D.P.R. 1997). Are

They?


Colorado Court of Appeals
Barbara Robbins, et al vs Meadors and Dudnikov

Barbara Robbins, a.k.a. NorthStar Builders, and her perjury suborning lawyer, M James Zendejas, sued us over web site content we had posted. After they won the first round and got a preliminary injunction, we appealed to the Colorado Court of Appeals, representing ourselves. On October 9, 2003, the Colorado Court of Appeals unanamously ruled in our favor concerning this website.

In Case 02-CA-1331, Barbara Robbins, et al vs Meadors and Dudnikov, the Colorado Court of Appeals stated:

"[Meadors and Dudnikov] contend that the website constitutes protected speech or press under the First Amendment. We agree."


Sykel Fabrics & Sy Garfinkel
2006

Who is Sykel Fabrics and their moron president, Sy Garkinkel? Sykel markets a variety of fabrics. They don't want their fabrics re-sold on the internet unless the re-seller uses a specific disclaimer and they, Sykel and Sy Garfinkel, hound and threaten re-sellers into complying. But, there is no legal requirement for anyone to comply with the outrageous demands of Sy Garfinkel and we have told him so. We also nomintated him for the Pompous Twit of the Year Award, which we are happy to report, he was the unanamous winner for 2005. We also put Sy and his company on our Trademark Hall of Shame. Sy had his New York lawyer threaten us.


Hey Darren
Kiss This!

Darren Cohen
Reed Smith
2006

Letter from Darren Cohen a lawyer at at Reed Smith, LLC, dated February 25, 2006, on behalf of this client, Sy Garfinkel, the nitwit President of Sykel. We were threatened with an immediate lawsuit if we did not comply by February 28, 2006. Guess what? There has been no lawsuit.

 


 
Re-Bath, LLC
David Rosenblum
David Rosenblum & Associates
2007

ReBath never contacted us after we complained to them but they did contact some nimrod, half-baked lawyer, David Rosenblum of David Rosenblum & Associates, P.C., based in some Pennsylvania town called Trevose. lawyer who sent us a threatening letter on January 23, 2007.

We do not know what we said in our response that bothered Davey, but we never heard from him again. We certainly hope we did not upset him.

 


 
Andrea Poole
TinyTotsNTeens
Adorable Decor
2007

Andrea Poole, a navy wife and whack job, last known address in Dan Diego, listens to the voices in her hear. She sold under the eBat handle AdorableDecor, whom we prefer to call Adora-BullDecor. Has since go to calling herself TinyTotsNTeens to market her cheap schlock. In 2007, Andrea Poole sent Tabberone a Cease & Desist email. Actually it was a series of emails during which she repeatedly expressed her lack of knowledge, her compulsive lying, and her lack of a firm grip on reality.

 


 
De Novo Legal, LLP
George Rikos, Esq
Law Offices of George Rikos
2008

Letter from George Rikos, Esq,, of San Diego, CA, representing De Novo Legal, LLP, member of the Tabberone Trademark & Copyright Abusers' Hall Of Shame, and Pollie Gautsch, whom we call a bottom-feeder, received on March 28, 2008.

Our Response to George Rikos, Esq,, on March 31, 2008. We have no idea why Geoge thought we would stop saying nasty things about Pollie. What we do not understand is why De Nove Legal hired this loser, George Rikos, Esq, when both Maria Johnson, Esq. and Pollie Alisa Gautsch, Esq., are lawyers? Do they consider themselves to be incompetent? We certainly do.

 


 
Marcus J. Ledergerber
Senior Analyst at Morgan, Lewis & Bockius LLP
2011

Marcus J. Ledergerber, Esquire, strikes us as a whack job extraordinaire. His name appears in the Trademark Office listing of Opposition Filings, in numerical order, and the alphabetical listing of same. Look for MONSTER BYTES.US. Seems Marcus J. Ledergerber wants his name taken off these reproductions of public documents. We declined.

His reasoning lacks credibility. So he sent us what we believe is a Cease & Desist letter. Probably the lamest Cease & Desist letter we have ever received. However, let us put this exchange into historical context.

 


 
Etsy Seller Paperika
Lauren Zerth
2011

The Etsy forums are lurking grounds for a variety of so-called "artists" who claim the high moral ground when they have no real concept of how the law and court decisions apply to copyrights and trademarks. We call these trolls Misinformation Mavens and devote a few pages to them.

Seems we quoted one seller named Paperika while we deconstructed a particular forum on licensed fabrics. She apparently took exception to our use of her Etsy seller name, Paperika, and sent us an email requesting the removal of her name and comments. We asked why and if we had misquoted her. She replied that we had not but that she was "asking nicely" that we remove all references to her and her company.

We declined, and then she sent us a threat of litigation if we did not comply by Monday, October 31, 2011. In our response we urged her to not wait until Monday but to see a lawyer immediately and to please "make sure both of our names are listed in the law suit and please make sure both names are spelled correctly." After all, it is the little things that matter. We imagine we will be waiting a very l-o-n-g time for her lawsuit.

General
Articles | Cease and Desist Letters | Federal Court Cases | FAQs & Whines | Glossary | Hall Of Shame | Contributions

Corporate Lawyers
Cartoons | Code Of Ethics | Courtroom Remarks | Definition Of A Lie | Jokes | Lawyers | Lying | Who Have Lied

eBay - Land The Game

Definitions

Trademark Definitions
Blurring   |   Confusion   |   Damages   |   Dilution   |   History   |   Initial Interest Confusion   |   Likelihood Of Confusion   |   Material Difference Standard
Parallel Imports   |   Post-sale Confusion   |   Puffery   |   Secondary Meaning   |   Subsequent Confusion   |   Trademark Abuse
Unauthorized Use   |   Unfair Competition   |   What is a Trademark?
Copyright Definitions
Angel Policies   |   Contributory Infringement   |   Copyrightability   |   Copyright Extortion   |   Copyright Misuse Doctrine   |   Derivative   |   The Digital Millennium Copyright Act
EULA   |   Fair Use   |   First Sale Doctrine   |   Product Description   |   Registration   |   Registration Denied   |   What is a Copyright?   |   What is not Copyrightable?
Other Issues
Embroidery Designs   |   FAQs & Whines   |   Image and Text Theft   |   Licensed Fabric   |   Licensing & Licenses   |   Patterns   |   Patterns Index   |   Profit   |   Quilting
Selvage   |   Stanford School of Law Case Outline   |   Tabberone Disclaimer   |   Trademark Extortion   |   Urban Myths   |   What To Do If You Are Veroed

Federal Court Cases
Alphabetically | by Federal Circuit | by Subject | by Court Quotations

Federal Statutes
Copyright Act 17 U.S.C. 5 | Digital Millenium Copyright Act 17 U.S.C. 12 | Lanham Act 15 U.S.C. 22

Federal Lawsuits
Filing A Federal Lawsuit
Setting Up | Standing. | Joinder of Parties. | The Complaint | Their Answer | Default Judgment
F.R.C.P. 12(b) Motion | F.R.C.P. 12(f) Motion | Your Reply | Summary Judgment Motion | Affidavits | Time Extension

Defending Against A Federal Lawsuit
The Complaint | Your Answer | Denials | F.R.C.P. 12(b) Motion | F.R.C.P. 12(f) Motion | Affidavits | Time Extension

VeRO (Verified Right's Owner Program)
VeRO Commandments | VeRO-Verified Rights Owners Program | Counter Notice Letter
Counter Notice (pre-2003) | Counter Notice present | On-Line Survey from 2004 | Articles about VeRO | What To Do If You Are Veroed

Original material by Karen Dudnikov & Michael Meadors is © 1999-2014

A Cup Of Joe For A Joe
by Green Beans Coffee Company
Karen and Mike, also known to you as Tabberone, have been actively participating in various troop support programs for a number of years. An important one we have discovered and supported is one run by the Green Beans Coffee Company of Larkspur, California. The Green Beans Coffee Company runs coffee houses in Iraq and Afghanistan, the Middle East and at other US military bases around the world. Your donations are converted into email chits that are randomly given to military personal who are based near these coffee houses. You are then sent an email by Green Beans Coffee telling at what location your donation(s) was distributed. The military recipient of your donation is also given the opportunity to email you a thank you with a message, which many of them do.

Modern military deployment has changed very much since WWII, Korea and Vietnam. Back then there was no internet or cell phones. A soldier very rarely could call home or even go home on leave. But modern deployment does not alter the dangers they face. Green Beans Coffee is one of the little pleasures they can enjoy. Any donation makes a service man or service woman smile. We contribute every month.

More information is available at http://www.greenbeanscoffee.com/coj/index.php
We rarely link to other sites. It is a really good cause.