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Miche Handbags Hall Of Shame Member Added April 30, 2011

Last updated - May 1, 2011

Miche Bag's Patents Are Not Valid

Miche Bag has gone after several handbag manufacturers claiming patent infringement and won in cases where the competitor has been unable to successfully attack the patent claims. But when confronted by a solid defense, Miche Bag runs away and hides. A federal court in Utah stated that the so-called Miche Bag Patents are very likely invalid and could be declared invalid. When that ruling came out, the lawyers for Miche Bag quickly dismissed the complaint. We think to avoid a legal challenge to the Miche Bag patents. Why else?

At the September 24, 2010 hearing, both parties were present and, after the parties argued their respective positions on the pending motion, the Court orally denied the preliminary injunction because Plaintiff failed to demonstrate irreparable harm and Defendant had brought forth sufficient evidence to call into question the validity of the `201 Patent. Miche Bag v Thirty One Gifts, Case No. 2:10-CV-781, United States District Court, D. Utah, Central Division January 5, 2011

We discuss this case and others in more detail below. Our opinions about the direction of Miche Bag and its corporate attitude are based upon the many court documents we have obtained as well as documents on policies and procedures, etc. We not only reference them but we attach them so you can see from where we obtained our information. And, unlike the lawyers for Miche Bag, we are not paid for our services. Later we will a page listing some of the forced settlements foisted upon hapless sellers by Miche Bag as well as the lawsuit they appear to have won based upon a claim of trade dress infringement. That case, against the Marshall Group was heard in Indiana.

Cookie Cutter Complaints

Many of the complaints filed in federal court claiming trademark infringement were of the "cookie cutter" variety. They were virtually identical. Which we believe means the attorneys for Miche Bag probably billed Miche Bag a fee that was based upon the attorneys having written the complaint from scratch when they actually did a quick cut and paste and and a few alterations such as changing the name and state of the defendant. We are guessing that Miche Bag was over charged a lot for these Complaints by the law firm. And, it is not just the complaints that are almost identical. Briefs filed in Opposition To Motions To Dismiss are virtually the same. And we will show you. Those briefs give the law firm even bigger billing.

What was the terrible crime committed by Rebecca Cook? She admittedly created fabric covers that fit MICHE purse shells and offered the same for sale on the online auction website operated by eBay, Inc. Miche Bag sued Rebecca Cook in Utah claiming trademark infringement. Cook filed a motion to dismiss claiming a lack of jurisdiction. Miche bag opposed the Motion to Dismiss but lost when the court ruled in favor of Rebecca Cook on June 17, 2009. It seems that Miche Bag, through their lawyers, James B. Belshe and AmberB.Leavitt, formerly of the Miche Bag corporate law firm of Workman Nydegger, said one could not utter the words "fits Miche Bags" (or something similar) while selling a handmade product that, well, DID fit Miche Bags. And guess what? Federal court decisions support that right to say what one is selling is compatible with the product of another and one has the right to use the name of the company. But, federal law and federal court decisions do not apply to Miche Bag according to James B. Belshe and AmberB.Leavitt, formerly of the Miche Bag corporate law firm of Workman Nydegger. In their Complaint, (in PDF format), filed in Utah,

17. On information and belief, Defendant has utilized advertising and/or marketing which used Plaintiff's MICHE mark. Defendant has otherwise conducted business utilizing the MICHE mark. 18. Defendant's acts set forth above constitute trademark infringement of Plaintiff's '628 Registration under 15 U.S.C. § 1114, in that these designations create a likelihood of confusion among the consuming public as to the source, origin or association of the parties.

Using the company name to sell something that fits their product is not a trademark violation. The Lanham Act, 15 U.S.C., deals with counterfeiting trademarks and trademarked products and false advertising. Not legitimate competition. Miche bag does not want the competition. And we are not assuming the issue is fabric bag covers that fit Miche Bags. From Miche bag's Memorandum In Oppostion Motion To Dismiss (in PDF format):

[page 3] Defendant admittedly creates fabric covers that fit Plaintiff's MICHE purse shells and offers the same for sale on the online auction website operated by eBay, Inc. ("eBay"). (See Declaration of Rebecca Cook ["Cook Decl."], ¶¶ 3, 10, Exh. A; Docket No. 7.) Defendant boasts on eBay that her fabric covers "fit[] Miche [purse] shells." [page 6] Similarly, in the present Action, Defendant offers her infringing fabric covers, that she claims fit Plaintiff's MICHE purse shells, for sale on the interactive online auction website operated by eBay.

The first problem facing the corporate attorneys for Miche Bag was the simple fact that not one court has stated that selling articles through on-line auctions was grounds for jurisdiction, even if some of the articles were sold and shipped to the "forum state" (in this case Utah). Yet the corporate attorneys for Miche Bag spent page after page presenting that avenue of attack as though it was a routine procedure for establishing jurisdiction. An absolute waste of time but very productive for billable hours. And in the Complaint, there is NO mention of Rebecca Cook making or selling counterfeits. Not one word or suggestion. NONE. ZERO. NADA. ZILCH. Yet in the Opposition brief, the bottom feeding lawyers for Miche Bag introduced the claim through innuendo. In our opinion, this was borderline defamatory.

This Court found specific personal jurisdiction in a counterfeiting and federal trademark infringement matter where a defendant sells its product on interactive websites, provides customers "with a shopping cart feature that allows them to select multiple products for purchase" and allows customers to "purchase items over the website using Google checkout or a number of major credit cards," and "offers to sell its products into Utah" through the interactive websites. Id. at *5. As this Court stated, "[g]iven its efforts to sell into Utah counterfeits of a product produced by a company located in Utah, [the defendant] should have reasonably anticipated begin haled into this Court to answer for its activities." A.L. Enterprises, 2008 U.S. Dist. LEXIS 70177, at *7. [emphasis added]

What was also so very laughable was some of the outrageous claims made by Miche Bag, through their lawyers, James B. Belshe and Amber B.Leavitt, formerly of the Miche Bag corporate law firm of Workman Nydegger, to support their Opposition:

[page 10] While Defendant "will have to engage in litigation in another state, traveling a mere five to six hours from [Virginia to Utah], where the same federal substantive and procedural law applies, where the same language is spoken, and where there will be no need to pass through customs, the inconvenience created by exercising jurisdiction falls short of being unconstitutional." Stomp, [page 10] Plaintiff is a small Utah limited liability company with its principal place of business in Riverton, Utah, and Plaintiff has been injured by the out-of-state Defendant's infringing sales activities. [page 11] While Defendant is located in Virginia, all other witnesses, including employees of Plaintiff and the attorneys involved in the prosecution of Plaintiff's trademark application, are all located in the State of Utah.

Rather dismissive of them. The "mere" five to six hours of travel is a lie. First she has to travel to Dulles Airport to get a flight to Salt Lake City. That travel is a short trip but from a practical point the trip will have to be the day before the hearing and/or trial. And she has to be at the airport two hours before the flight to insure TSA does not mug her into a delay. Then, in Salt Lake City she would need transportation and a hotel for the time there. Toss in the possibility the hearing/trial may last more than the predicted amount of time and she has to remain in Salt Lake City another day. What if the hotel is booked solid? And what about her return flight reservations? The dismissive claim of a "mere five to six hours" is not only a distortion but we find it overly insulting. Miche Bag was not a "small Utah limited liability company" in the summer of 2009. Since it is a privately-held company we cannot locate any revenue numbers with which to refute that statement but a look at the Distributor Agreement and the Policies and Procedures agreement certainly gives the impression of a large company. Perhaps James B. Belshe and AmberB.Leavitt were trying to claim "small" based upon the number of employees as opposed to the national sales figures? And the third claim is just pure garbage. What witnesses? She was selling on the internet. No one saw her. So the only witness would be someone, one person, who could testify to certain information contained in the opposition. And she was not denying she was selling the bag covers. It is common practice to hire an out-of-state attorney to prosecute a case when jurisdiction is in another state. No big deal for Miche Bag. The corporate attorneys for Miche Bag knew that on-line auction sales were not grounds for jurisdiction. And if they claim that they did not then they are admitting they are idiots. In the ruling dismissing the case the judge stated:

But the cases discussed by the Plaintiff involved situations in which the defendant maintained an interactive commercial website, not where the user had an account with an online auction site. The question of whether an eBay seller is subject to personal jurisdiction in any forum where a buyer might reside has not been considered by the Tenth Circuit. Most courts to consider the question have concluded that eBay users are not analogous to the operators of independent sites. Rather, these courts have held that any contacts that might be made from sales of the product to the forum case are too "random," fortuitous," and "attenuated" to give rise to personal jurisdiction. Action Tapes, Inc. v. Weaver, "Courts that have looked at the question of personal jurisdiction based on eBay transactions have uniformly held that the usual online auction process does not rise to the level of purposeful conduct required to assert specific jurisdiction." United Cutlery Corp. v. NFZ, Inc., (concluding defendant who exercised no control over the ultimate winner in an internet auction did not direct activity into the forum state); Winfield Collection, Ltd. v. McCauley, 105 F. Supp. 2d 746, 748 (E.D. Mich. 2000) (finding that seller who had an eBay site that had made sales to the forum state did not purposefully avail herself of the privilege of doing business in the forum). [emphasis added] FN1 There is no evidence that Ms. Cook made any sales to Utah. But even assuming that she had made such sales, the analysis here would not be different. See Winfield Collection, Ltd. v. McCauley, 105 F. Supp. 2d 746, 748 (E.D. Mich. 2000).

Note that this case was filed less than four weeks before the Cook case dismissal. That is important to notice because the court not only agreed with Cook, it also felt the corporate attorneys for Miche Bag had lied to the court by omission. Allie Compton, a resident of Florida, was selling genuine Miche Bags on eBay. Miche bought one of the bags that Allie Compton was selling and admitted it could not determine if the bag was genuine or counterfeit. What? How hard can that be when one has the product in-hand? And a warehouse full of genuine product to which the article can be compared? Is everyone at Miche Bag an idiot? They must be, along with their corporate attorneys because even while admitting they could not show Allie Compton was selling counterfeits, that was the supposed "basis" for their complaint. The Complaint (in PDF format), filed by James B. Belshe and Seth W. Black, of the Miche Bag corporate law firm of Workman Nydegger, makes no allegation of counterfeiting. That came after Compton filed her Motion To Dismiss (in PDF format) because of a lack of jurisdiction, just like Rebecca Cook did. Her filing was five days after the court ruling in Cook. It appears that Miche Bag was sure that Allie Compton was getting her merchandise from a Miche distributor and Miche Bag wanted to know the source. Compton refused to provide that information without certain assurances of non-liability. Miche Bag then used that stance to further its claim of Tortious Interference With Contract. But, Miche Bag made the claim without any proof because Miche Bag could not track its merchandise to a distributor. In its Opposition To Motion To Dismiss (in PDF format) the corporate attorneys for Miche Bag make the first claim, without physical proof, that Allie Comption was counterfeiting and selling Miche bags:

[page vi] Plaintiff brought this action based on Defendant's sale of apparently counterfeit goods and the unauthorized use of Plaintiff's registered trademark in connection with the sale of these accused products. [page vii] Defendant has sold at least 143 products on eBay using Plaintiff's MICHE Mark and which claim to be genuine Miche products. (Exh. A). Plaintiff purchased one of these products via eBay, but was unable to determine whether or not it was counterfeit. (Exh. C). On information and belief, these products are either counterfeit or are being sold in violation of one or more of the contractual agreements Plaintiffs have entered into with its authorized distributors. [emphasis added] [page viii] In a correspondence dated May 17, 2009, counsel for Defendant alleged that the at least 143 products that Plaintiff had sold on eBay were genuine Miche products. (Exh. A). To verify this claim, counsel for Plaintiff requested that Defendant identify the source of these allegedly genuine products. (Exh. C). Defendant, however, refused to provide this supposed evidence that its product were genuine until it received a letter indemnifying her for any present or future legal action. (Exh. E). Accordingly, Plaintiff believes on information and belief that the products Defendants have sold and are selling in connection with the MICHE Mark are counterfeit. (Exhs. C, F). [page viii] Regardless of whether the products Defendant has sold and is selling are genuine Miche products, Plaintiff alleges that Defendant's distribution of these products via eBay and Defendant's use of Plaintiff's MICHE Mark infringe on Plaintiff's intellectual property and interfere with the distribution agreements Plaintiff has entered into with its authorized distributors.

In this rant filed by the corporate lawyer for Miche Bag, filed almost three weeks after the Cook decision, by James B. Belshe and Seth W. Black, of Workman Nydegger, they rehash virtually the identical arguments from the Memorandum In Oppostion Motion To Dismiss (in PDF format) filed in the Cook case which was dismissed. What? Are they stuck on stupid? And, remember this point because it will come up again, in the over ten exhibits attached to this filing, notably missing is a copy of the "distribution agreements Plaintiff has entered into with its authorized distributors" to support their claims. We wonder why? But fear not. We have a copy of the Distributor Agreement and will happily show you the missing paperwork. The problem confronting Miche Bag is proving that Allie Compton induced a distributor into selling her Miche Bags with the distributor knowing she was going to resell the Miche Bags on the internet. And, since Miche Bags acknowledges in its Distributor Polices and Procedures, it sells its own merchandise to QVC ("Qwap Very Cheap") and at special events, etc. They dump their old stuff and then complain when it is being sold cheaply? Right. On July 29, 2009, the court issued an order dismissing the Complaint and ordering the corporate lawyers to show cause why they should not be sanctioned. Excerpts from the Order Dismissing:

The Court agrees with Defendant that it lacks jurisdiction over her and will dismiss this action Additionally, because Plaintiff "fail[ed] to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel,"[1] the Court will issue an order to show cause, directing Plaintiff's attorneys to show cause why they have not violated Fed.R.Civ.P. 11(b) and why they should not be sanctioned. The Court finds that this matter is indistinguishable from Miche Bag, LLC v. Cook.[2] In Cook, the same Plaintiff (represented by the same counsel) brought suit against another individual who had sold allegedly infringing products on eBay. In that case, as here, the defendant, filed a motion to dismiss arguing a lack of personal jurisdiction. In response, Miche raised the same arguments that it raises here. This Court, through the Honorable Chief Judge Campbell, rejected those arguments and granted Defendant's Motion to Dismiss. The Court finds that the reasoning in Cook is equally applicable to this case. The only difference between Cook and the case before the Court is that Defendant actually sold an accused product in Utah in this case. This sale occurred after Plaintiff's attorney purchased the item on eBay. However, as recognized in Cook, the result is no different because of this sale.[3] For the same reasons set out by the Honorable Chief Judge Campbell in Cook, the Court will grant Defendant's Motion to Dismiss. The Court is greatly concerned that Plaintiff, in its response to Defendant's Motion, failed to mention, let alone address, Cook. The Utah Supreme Court Rules of Professional Practice provide that a lawyer shall not knowingly "fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." It appears to the Court that Plaintiff's attorneys have violated their ethical responsibilities to the Court as set out in Rule 3.3. Clearly Plaintiff's counsel knew of the Cook decision, as it involved the same plaintiff and the same attorneys as are involved in this case. Cook is legal authority in this jurisdiction that is directly adverse to the position taken by Plaintiff in this case. Plaintiff's counsel failed to disclose this adverse precedent to the Court. As a result, the Court directs Plaintiff's counsel to show cause why they have not violated Rule 11(b) and why they should not be sanctioned.

It is not often that a court orders an attorney to show cause. In their Brief (in PDF format) answering the judge's order, James B. Belshe and Seth W. Black, of Workman Nydegger, attempt to claim that because of the differences between Cook and Compton, namely the claim of Tortious Interference With Contract, they felt justified in fighting the Motion To Dismiss. In the Brief they claimed it was their failure to better prosecute the tortious interference claim to the fullest that lead to the misunderstanding by the court. A lot of smoke and mirrors: complaining about Allie Compton not really being pro se, distracting references to other cases, especially similar cases where a small seller was intimidated into settling, the tortious interference claim with no proof, the false claims of counterfeiting. Waaaaaa! But, as is the norm, the court let them off.

Miche bag sued Thirty One Gifts ("TOG") for Patent Infringement under 35 U.S.C. § 271. The main patent upon which Miche bag relies is U.S. Patent No. 6,186,201 (the “’201 patent”). The Complaint (in PDF format) was filed by James B. Belshe, Charles L. Roberts and James T. Burton of WORKMAN NYDEGGER. But handbags with interchangeable exteriors have been around under patent since the 1930s. The timeline is interesting. Miche Bag filed the complaint on August 11, 2010. On September 3, 2010, The corporate attorneys for Miche Bag filed a Motion For A Temporary Restraining Order ("TRO"). The hearing on the TRO was set for September 10, 2010. Per court instructions, the corporate attorneys for Miche Bag were responsible to inform the defendant, TOG, of the hearing and file a notice with the court that TOG had been served (Docket entry #9). On September 9, 2010, one day before the hearing on the TRO, those same corporate attorneys for Miche Bag filed with the court the Return Of Summons (on the Complaint) which gave TOG until September 27, 2010, in which to respond (Docket entry #11). The hearing was held without TOG being present and according to TOG, they had no knowledge of the hearing because the attorneys for Miche Bag had not notified them of the hearing. The hearing was held September 10 and three days later the court approved the TRO. The attorneys for Miche Bag notified TOG three days later. On September 21, 2010, TOG filed its Oppostion To TRO (in PDF format) which explained how and why TOG was not present at the hearing.

[page 3] TOG was not present at the Temporary Restraining Order hearing because it was not aware of the hearing. Though Plaintiff's counsel had previously written to TOG at its corporate offices in Johnstown, Ohio, the Amended Complaint, Motion for the Temporary Restraining Order and the Notice of Hearing were served on a registered agent in New Jersey, wherein TOG is a registered foreign corporation. The delay caused by serving the agent New Jersey resulted in TOG not receiving the documents until the day before the hearing and not seeing the Notice of Hearing until after the hearing had occurred. (The summons served with the Amended Complaint indicated that TOG had 21 days to response). TOG has filed a motion to increase the security posted by MICHE and is also filing concurrent herewith a motion to dissolve the temporary restraining order. [emphasis added] [page 22] IV. SUMMARY AND RELIEF REQUESTED In summary, MICHE filed for a Temporary Restraining Order without informing the Court that there was multiple pieces of prior art that would invalidate its patent, and that a critical claim limitation in the patent-in-suit represented a term of art with a very special meaning. The Court granted the TRO hearing with seven days notice and expressly ordered MICHE to notify Defendant of the upcoming hearing. MICHE waited a total of four out of the seven days of the notice period before serving Defendants, and then, despite knowing Defendant's location and principal place of business, directed its service to a statutory agent 600 miles from Defendant's location, in a state where Defendant is only a registered "foreign" corporation. In this "service," the only Notice provided to Defendant, unrepresented by Counsel at the time, was a single-page print-out of a PACER entry that MICHE had received from the Court, stuck in the middle, without explanation, of a more than 100 page stack of documents. This package was accompanied by a Summons that clearly indicated that Defendant's had 21 days, or until September 28, 2010, to Answer. [emphasis added] At the TRO hearing, which Defendant had no way to know of, MICHE made false representations to the Court that Defendants was not a major (and long-standing) competitor, who was profiting at the rate of more than $ 1,000,000 per month, and on the basis of these false representations, induced the Court to wrongfully enjoin defendants and to set a security bond of only $ 10,000 under F.R.Civ.P. 65(c), vastly less than Defendant's potential damages and costs. The facts, at best, strain the outer boundaries of ethical practice and fair notice to litigants. Accordingly, in full recognition of the spirit and letter of F.R.Civ.P. 65, this Court should: [page 23] 1. Dissolve the Temporary Restraining Order; 2. Deny the Motion for Preliminary Injunction; 3. Order the forfeiture of MICHE's security bond to Defendant, and 4. Order such other relief to Defendant as justice may require, with due attention to the misleading and duplicitous manner in which the TRO was obtained. [emphasis added]

In the Reply In Support Of TRO (in PDF format), filed pn September 23, 2010, the unholy trio of corporate lawyers, James B. Belshe, Charles L. Roberts and James T. Burton of WORKMAN NYDEGGER, did not once address the above allegations of unethical conduct on their part. Why not? One can only assume that the allegations were correct and accurate which means they are a trio of liars. Opps. Calling a corporate lawyer a liar is redundant. Sorry. FYI - three days after TOG filed, Miche Bag dropped the complaint. Could it be they did not want the patents litigated? From the damages order:

At the September 24, 2010 hearing, both parties were present and, after the parties argued their respective positions on the pending motion, the Court orally denied the preliminary injunction because Plaintiff failed to demonstrate irreparable harm and Defendant had brought forth sufficient evidence to call into question the validity of the `201 Patent. [emphasis added]

Considering their actions in court with Cook and Compton, followed by TOG, it is very easy to believe that WORKMAN NYDEGGER does not employ reputable attorneys. But, you can decide for yourself. On January 5, 2011, the federal court awarded TOG the $10,000 bond posted by Miche Bag but declined to award other requested damages.

Ever since Thirty One Gifts handed it to Miche Bag, there have not been any lawsuits filed by Miche Bag in Utah. That does not mean that Miche Bag has not gone after other hapless sellers in other states. If we find any we will add them to this web page.

Not all is fun and games in the Land of Miche bag. On November 22, 2011, one Emily Lowry and Kenna Ellis filed a lawsuit against Miche Bag, the present owners and the CEO. The 81 page complaint does make a lot of sweeping allegations and the court tossed out the original complaint and told Lowery and Ellis they had until May 21, 2012 to file an Amended Complaint. We will be looking to see what happens. The original complaint was claiming relief under federal copyright law, and federal patent law, and Utah law relating to partnership accounting, fraud, misrepresentation, breach of fiduciary duty, breach of contract, breach of the covenant of good faith and fair dealing, unjust enrichment and interference with economic relations. Talk about a mouth full. All that follows comes from the Complaint. It seems Kenna Ellis is claiming that she is the author and/or co-author as well as the inventor and/or co-inventor of the Miche bags. She is also the mother of Emily Lowry who is also claiming that she is the author and/or co-author as well as the inventor and/or co-inventor of the Miche bags. Lowry says she and Michelle Romero started a partnership to develop the Miche Bags. Lowry says that Romero is a co-author and/or co-inventor of a few of the features making up the Miche bag. Romero is listed on the copyrights and patents held by Miche Bag and those filings do not mention Ellis and Lowry. The partnership became contentious and as you have already guessed, it fell apart. Stay tuned for more details as we find them.