Tabberone Logo

Tabberone is pronounced tab ber won
not tay ber own

Tabbers Temptations     www.tabberone.com/Trademarks/ Home | Site Index | Disclaimer | Email Me!
"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke


Dudnikov v Chalk & Vermilion Fine Arts, 514 F.3d 1063 (10th Cir. 2008)

PLAINTIFF: Karen Dudnikov sells fabric under the eBay ID of Tabberone. She listed some licensed Betty Boop fabric for sale that depicted Betty Boop in a variety of gowns.

DEFENDANT: Sevenarts claims to own the US copyrights to Erte, a designer and artist. Through its US agent, Chalk & Vermilion Fine Arts ("CVFA"), Sevenarts routinely orders eBay to terminate auctions of this Betty Boop fabric manufactured by Shamash & Sons. Sevenarts has never taken court action against Shamash & Sons concerning this fabric.

After terminating two auctions by Tabberone (a.k.a. Karen Dudnikov), Sevenarts and CVFA refused to reinstate the items and said to Tabberone, if you don't like it, sue me. So she did.

Scoundrels who don't want to litigate the merits of their case seek procedural avenues of escape. Sevenarts and CVFA filed a motion to dismiss alleging lack of jurisdiction. The Magistrate Judge denied the motion but was overruled by the district court judge. This appeal followed. CVFA attempted to rely upon the rational that the NOCI was a result of the illegal acts of the Plaintiffs and therefor jurisdiction belonged not in Colorado but elsewhere. The court rejected this argument.

The Court of Appeals for the Tenth Circuit ruled that an NOCI (Notice Of Claimed Infringement), unlike a cease & desist, was grounds for jurisdiction and reversed.

"We believe that the NOCI can also fairly be considered the proximate cause of plaintiffs’ claim. In the NOCI, defendants swore under penalty of perjury that they had a good faith belief that plaintiffs’ auction infringed their rights. The merits of plaintiffs’ declaratory judgment action addresses the exact same question, and their claim for injunctive relief seeks to prevent future interference with plaintiffs’ business, interference which defendants have threatened. More specifically, plaintiffs argue that defendants’ infringement claim contained in the NOCI is incorrect, and that therefore their auction was improperly cancelled and their sales record erroneously smeared. The NOCI is thus at the very core of plaintiffs’ suit."

counter for iweb