Tabberone is pronounced tab ber won not tay ber own

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Tabberone's Analysis of CHARLES OF THE RITZ GROUP LTD

Lawyers often deliberately mis-quote Charles Of the Ritz when alleging that disclaimers are not to be considered as a viable method of avoiding consumer confusion. When a lawyer deliberately mis-quotes a case, it's called diligently representing a client. In the real world, it's called lying your ass off. The Courts pretend to care but they don't. Why? Because the lawyers and the Courts are in bed together. Lawyers make the laws, judges (former lawyers) administer the law, and lawyers defend you from other lawyers. An example of lying we have personally encountered was in Major League Baseball's Opposition to Motion For Summary Judgment, in a paragraph titled, Purchasers Likely Degree of Care, where they quoted:

"Sally Beauty Co. v. Beautyco, Inc. v. Marianna Im., 304 F.3d 964, 975 (10th Cir. 2002) ("[B}uyers typically exercise little care in the selection of inexpensive items.")"

The real quote from Sally Beauty Co, in full, was :

"This court has explained that "buyers typically exercise little care in the selection of inexpensive items that may be purchased on impulse."

See any difference? There's a lot if you are trying to obscure the real quote and present a false claim to the Court. Not only did MLB improperly quote, they should have shown it was not complete, they deliberately omitted relevant portions to alter the meaning. Sally Beauty Co is listed in full under Court Cases if you want to see it for yourself. What happens in Charles Of The Ritz is very similar. First, an overview. Charles of the Ritz makes the perfume "Opium". Quality King was marketing a perfume called "Omni". Omni smelled like Opium, the box looked like Opium, and Opium was referenced on the box. Charles sued for an injunction and got it. What is misleading is the statement "and (2) disclaimer was insufficient to prevent consumer confusion between trademarked "Opium" perfume and competitor's "Omni" perfume. Why was the disclaimer considered "insufficient"? Carefully read what is said. Not ALL disclaimers were deemed insufficient. Just this one. A modified slogan by Omni was rejected, "If You Like OPIUM, a fragrance by Yves Saint Laurent, You'll Love OMNI, a fragrance by Deborah Int'l Beauty,", because the Court found "it left the relationship between the companies and trademarks completely ambiguous." Note the Court DID NOT say disclaimers were not usuful or effective. It did find reasons why this disclaimer was not effective. The Court found the disclaimer "reserves its largest type size for the words Opium and Omni while the disclaimer is in smaller print. In addition, the evidence demonstrated that the manner of display--in one drugstore, the tab and box of Omni were placed on a shelf slightly above eye level--made it impossible for a consumer to read the disclaimer, which appears at the bottom of the tab. Finally, the court found the disclaimer inadequate because it failed to indicate that Opium and Omni are competing products. In it's discussion of the facts, the Court referenced arguments, pro and con, concerning disclaimers:

A growing body of academic literature has concluded that disclaimers, especially those similar to the disclaimer here, which employ brief negator words such as "no" or "not," are generally ineffective. See, e.g., Jacoby & Raskoff, Disclaimers as a Remedy for Trademark Infringement Litigation: More Trouble Than They Are Worth?, 76 Trademark Rept. 35, 54 (1986). See also, Radin, Disclaimers as a Remedy for Trademark Infringement: Inadequacies and Alternatives, 76 Trademark Rept. 59 (1986), 2 H. Nims, Unfair Competition and Trademarks § § 366f, 379a (4th ed. 1947). Disclaimers can often prevent consumer confusion. See Soltex Polymer Corporation v. Fortex Industries, Inc., 832 F.2d 1325 (2d Cir. 1987) (minimum to moderate amount of consumer confusion found by district court could be cured effectively by the use of a disclaimer). In this case of substantial confusion, however, the district court judge was well within his discretion in requiring that the disclaimer be prominent and also indicate that the two companies were competitors, rather than allowing the current ambiguous wording "not related to."

The first sentence is often the only quote taken from this case by corporate lawyers, giving the distinct impression that disclaimers are ineffective and therefore not a defense to consumer confusion. Also ignored, is the partial dissent by Circuit Judge Altimari, concurring, but concerned about the Court's statement: " Third, Deborah International failed to introduce empirical evidence that the disclaimer actually lessens consumer confusion as required to overcome such a previous finding." Judge Altimari states: "As the majority properly concludes, the district court was within its discretion to decline to accept what it felt was an ambiguous disclaimer." and "In the district court's judgment, nothing short of an obvious indication of the competitive relationship of the parties would suffice." Judge Altimari then states: "I am concerned, however, that district courts in this circuit faced with the task of considering disclaimer relief in trademark infringement cases may feel compelled by the majority's opinion to require empirical evidence of the effectiveness of a proposed disclaimer in alleviating consumer confusion. If that is what the majority intends, they will have created a per se rule which, in my judgment, represents a departure from this court's Polaroid decisions in which we simply have recognized that disclaimers are appropriate "when they are sufficient to avoid substantially the risk of consumer confusion." Home Box Office, Inc. v. Showtime/The Movie Channel Inc., 832 F.2d 311, 1315 (2d Cir. 1987). (citations omitted) I believe that requiring empirical evidence regarding the effectiveness of a proposed disclaimer overemphasizes the importance of such evidence and unnecessarily infringes upon the wide range of discretion we have accorded district courts in our Polaroid decisions. Cf. Centaur Communications, Ltd. v. A/S/M Communications, Inc., 830 F.2d 1217, 1230 (2d Cir.1987) (Sprizzo, J., concurring) (proper resolution of trademark infringement cases will not be "aided or enhanced by encouraging district court judges to perceive their function in [a] mechanistic fashion"); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 872 (2d Cir.1986) (eschewing "rigid formula" approach in trademark infringement actions)." "...we simply have recognized that disclaimers are appropriate "when they are sufficient to avoid substantially the risk of consumer confusion." Home Box Office, Inc. v. Showtime/The Movie Channel Inc., 832 F.2d 311, 1315 (2d Cir. 1987). (citations omitted)" EXAMPLES In Dudnikov V Major League Baseball Properties, 03-CV-0571, MLBP stated:

"Predictably, Tabberone points to its textual disclaimers to excuse its prominent unauthorized trademark use of MLB Clubs' trademarks. (See Tabberone Sum J. Mem. ¶ 28, 31). Disclaimers are notoriously ineffective to dispel confusion. Charles of the Ritz Group, Ltd. v. Quality King. Distrib., Inc., 832 F.2d 1317, 1324 (2d Cir. 1997) (referring to a "growing body of academic literature that disclaimers…are generally ineffective"). Also disclaimers many times are evidence of an intent to confuse where they are difficult to read or are ambiguous. Wichita Falls Sportswerar, Inc., 532 F. Supp. At 661; see Laite, 756 F. 2d at 1547; Dalls Cap & Emblem Mfg., 510 F.2d at 1013. The Tabberone disclaimer appears in a box in the middle of the text of the advertisement in a smaller font than the rest of the text. It seems to have been designed and placed so that it would be skipped and not make an impression on the public. A potential purchaser would have had to scroll down to have seen the disclaimers. Indeed, the products could be bid on and purchased without the consumer ever seeing the disclaimer. Further, the only identifying trademarks in the photograph of Tabberones' products are the Clubs' trademarks."

Here is the auction listing to which they referred. Immediately under the listing description was the disclaimer "This is not a licensed Major League Baseball product. It is however crafted from licensed MLB fabric. Tabberone is not affiliated with Major League Baseball or the New York Yankees. ". Did you find this hard to read or "ambiguous"? Was it in the "middle" of the text? Did you find it was "designed and placed so that it would be skipped and not make an impression"? Corporate lawyers lie their collective asses off and are never, ever, made accountable for it. Why does the public allow this to continue?