Last updated January 21, 2012

And it appears that Heckler & Koch, through their bottom feeder Cyber Cop, Continental Enterprises, has gone on a feeding frenzy, suing everybody and their brother. They are going to have some real problems with this approach. Besides bad judgment and bad publicity, they will lose any court fight. First, they have known for years other companies have been making "replicas" for toys and paint ball use. Failure to prosecute in a timely manner is called "acquiescence" and that's what they are faced with here. Second, they will lose on trade dress. Their designs may be theirs originally but they must then acquire distinctiveness recognized by the public to have trade dress protection. Mere functionality does not qualify for trade dress protection.

Seems that a web site, GunBroker.com, received a cease and desist letter from Continental Enterprises and refused to pay the extortion demand. GunBroker.com decided not to wait to see what the wild and wacky Darlene Seymour would do and filed a complaint seeking a declaratory judgment on May 14, 2009. To see the entire complaint (8 pages in pdf format), click here. We have also downloaded the two exhibits filed with the complaint. To see Exhibit A (19 pages in pdf format), click here. To see Exhibit B (14 pages in pdf format), click here.

Parts of Exhibit B were taken directly from information posted on this web site about Continental Enterprises.

What we wonder about is the court standard that a cease and desist letter cannot be the basis of a lawsuit. Virtually every court has held that the recipient of a cease and desist demand cannot use that letter as the grounds to initiate a civil action. It will be interesting to see if Heckler & Koch is willing to fight the issues or if they will file a motion to dismiss citing the lack of jurisdiction based upon the cease and desist letter. We think they will take the cowardly route and either settle or seek to have the case dismissed. If they do seek dismissal, we will suggest they change their corporate color from red to yellow.

Continental Enterprises is making the ridiculous claim that the Heckler & Koch weapon design is famous and therefore any copy violated trade dress. For those who were in the military, the good old Colt .45 is distinctive, or the M-16 rifle, and for the old fogies, the M-1. But Heckler & Koch? They are distinctive only to the niche group of users and that just doesn't qualify under federal court definitions for trade dress. The trademark owner has the burden of proving the claim of trade dress infringement and the courts have a high standard for it for good reason.

Heckler & Koch, through their sorry-assed cyber cop, Continental Enterprises, is shooting blanks. Darlene Seymour is just making another threat to collect her blood money. The logical and unanswered question here is why doesn't Heckler & Koch go after the gun manufacturers on this issue if it is so important? Because the issue really is mo' money, mo' money, mo' money in the pockets of Continental Enterprises and Heckler & Koch. Plus, we believe Darlene Seymour has to get her broom refurbished after 50,000 cackles so she is stirring the cauldron for more victims.

In its answer to the lawsuit, the attorney for H&K made the unbelievable claim: "HK denies that Continental Enterprises has financial incentive to bring claims on behalf of HK. (¶ 28) Really? Who is kidding whom? John M. Bowler of the law firm Troutman Sanders in Atlanta Georgia made that claim. He lied. Continental Enterprises pays people to troll the internet looking for anything it can claim is infringing. They get a commission for every victim they find. So on what basis does Continental Enterprises get paid? Hourly? Not on your life. They get paid by the victim as well. And, according to the Indianapolis Business Journal, who interviewed Karl Manders and Continental Vice President Jeremiah Pastrick: