M3Girl Designs - Court Of Appeals

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OFF TO THE COURT OF APPEALS

Last updated - May 19, 2013

On May 14, 2013, m3 girl designs filed an appeal in the Fifth Circuit Court Of Appeals. The appeal is some 71 pages of whining by the Dallas Town Clown, D Scott Hemingway. Not only is the brief grasping at straws, it makes false assertions about this web site. It was a jury trial. The jury found for the defendants, Blue Brownies, on all counts. ALL COUNTS. Hemingway is trying to fabricate grounds for appeal. To say he is beating a dead horse is putting it mildly. The non-issues he raises were addressed by the trial court in a reasonable and professional manner. We are going to deconstruct the flimsy arguments of the Dallas Town Clown and show you why his appeal will fail. As a reminder, the party claiming trade dress has the burden to prove trade dress. Any part of the claimed trade dress that is "functional", or necessary for the operation of the item, cannot be claimed as protected.

Blue Brownies also filed an appeal but on other issues. You can read the full appeals using links at the bottom of this page.

Hemingway writing appeal brief

Appeal from the United States District Court for the Northern District of
Texas in Case No. 3.09-CV-2390, Judge Royal Furgeson
This brief contains 13,650 words. 1,110 of the words complain about this web site. The DTC Hemingway attempts to use this web site as a major reason for a new trial. Good luck there.

[page 4] On July 19, 2010, Ms. Charlotte Liles agreed to a settlement with the Plaintiff; and, as part of the settlement, she agreed to the entry of a Consent Decree by the Court. CR 34, 35, 360-66, ER 14. Pursuant to the entered Consent Decree, Ms. Liles affirmatively stated that the Plaintiff's claims of trademark and trade dress infringement, as well as other claims, were viable claims that asserted valid intellectual property rights. The District Court excluded the use of this Consent Decree, as entered, from the evidence at trial. CR 185, 2881.

Charlotte Liles was a co-defendant. She preferred to settle rather than litigate. That was her right. The settlement agreement required Charlotte Liles to admit that she was wrong and that m3 girl designs was right. That is typical of settlements of that type. The trial was about Blue Brownies and whether or not Blue Brownies was guilty of trademark infringement. The fact Charlotte Liles admitted fault in the settlement had NOTHING to do with Blue Brownies having the right to defend against the charges and there could be no presumption based upon her settlement. Hemingway tried very hard to get her admission on the record so he could prejudice the jury. The judge properly denied his efforts. Hemingway repeats this flimsy claim on page 17 and again later on page 36.

[page 5] The Defendants filed pleadings in the proceeding that included prejudicial evidentiary admissions, such as the Defendants' Answer that acknowledged the fact that the Plaintiff's trade dress protection existed as identified in the Plaintiff's trade dress definition, as well as affirmative admissions that the Defendants engaged and profited from acts of unfair competition.

As the court pointed out to Hemingway, the Defendants' "admission" was a typo which occurred doing a routine cut-and-paste and was not actually an admission that the Plaintiffs were correct. But like the Charlotte Liles settlement, Hemingway wanted the typo admitted into evidence as proof that trade dress claims were lawfully enforceable. Again the Dallas Town Clown wanted to prejudice the jury with "evidence" that was not evidence. Hemingway repeats this flimsy claim on page 15 and 16 and again later on page 36.
Our trial notes show that Hanor immediately objected and pointed out to the court that the response had been corrected in a subsequent filing because the paragraphs shown were obviously typographical errors. Hanor claimed that the Plaintiffs were improperly attempting to influence the jury with what was obviously typos. Judge Royal Furgeson stated the dispute would be resolved that evening. Move on. The next morning, before court, the judge flatly told Hemingway that we was not going to allow him to continue with his attempt to use flawed pleadings to discredit the Defendants. Hemingway looked visibly frustrated.

[page 6] During the proceedings and at trial, the Plaintiff presented extensive evidence regarding the non-functionality of its trade dress and trademark infringement.

They did not. Their entire case revolved around fabricated testimony that emphasized the words "trade dress". Fabricated is accurate. The witnesses for the Plaintiffs were carefully coached in their testimony to say "trade dress" often. The Plaintiffs never mentioned trade dress in the legal proceedings until after they realized their copyright claims were doomed.

[page 7] Plaintiff's bottlecap jewelry designs were, likewise, found to be "non-functional" by the United States Patent & Trademark Office. P-269, P270, ER 12, Exh. 6 to Resp. MSJ. (Office Action response shows position that claims directed to bottlecap jewelry designs are considered to be non-functional).

A lie that was shredded at trial. m3 girl designs submitted a two-part patent application covering the bottle cap jewelry and also a web-based computer program that would allow users to design their own bottle cap jewelry. The application was improper because a patent application is supposed to cover one article at a time, not two as theirs did. The "quote" about being "non-functional" was included in the rejection portion for the computer program, not the bottle cap jewelry. Hemingway dredges this misdirection up again in page 34.

[page 7] The Defendants' expert, Ms. Haab, also provided testimony that confirmed the non-functionality of the Plaintiff's trade dress. When Ms. Haab testified, she indicated that if parts of the Plaintiff's trade dress could be "rearranged, changed, or left out entirely" without affecting the ability of the bottlecap necklace to function as a bottlecap choker necklace, then the Plaintiff's trade dress non-functional. CR 287, Vol. 5, June 25, 2012, Tr. 35:7-45:2 (Tr. 42:4-6, Haab: "If the parts were arbitrary or ornamental, the parts could be rearranged, changed or left out entirely without affecting the product itself.").

Notice she said, "If the parts were arbitrary or ornamental..." But the parts being discussed were not arbitrary or ornamental. They were fundamentally necessary for the assembly of the jewelry. A magnet that holds the bottle cap to the choker necklace is arbitrary or ornamental? Hardly. The bottle cap certainly is not arbitrary or ornamental nor is the metal washer. Her testimony did not confirm non-functionality. Perhaps Hemingway was distracted by those voices in his head that kept insisting non-functionality.

[page 11] One of the Defendants' witnesses created an Internet website that was dedicated to disparaging and insulting the Plaintiffs, and the creation and maintenance of this website was knowingly used by Defendants' counsel to unfairly prejudice the jury against the Plaintiff.

[footnote]
See CR 201 (3069), Motion Exclude Late Designated Witness, June 5, 2012, p. 3-4 (Defendants' witness Meadors was author of Tabberone website); CR 214, Response to Motion to Exclude, June 9, 2012, p. 7-8 (3255) (acknowledges desire to present witness testimony from Tabberone website author, Meadors); ER 11-12, Website Print-Outs for www.Tabberone.com, Exhibit 9 to JMOL, CR 275, (disparaging and unfairly prejudicial Internet materials directed at Plaintiff's principals created by one of Defendants' witnesses), Exh. 8 to CR 96, Resp. to Summary Judgment Motion.

Yes, Hemingway is as dumb as he looks. The Tabberone web site has been on the internet since 1998. The Trademark Section of the Tabberone web site, which was started in 2002 and includes the Hall Of Shame in which resides m3 girl designs, is not "dedicated" to any one entity. In general, it covers a broad spectrum. The pages for m3 girl designs were added before the Blue Brownies lawsuit. The Defendants' counsel had no input into the creation of this web site and certainly has no part in the maintenance of it either. Another outstanding LIE by the Dallas Town Clown, D Scut Hemingway. While we admire Charles Hanor, he has NO INPUT over what we say, how we say it, or what is not said. Nor does Blue Brownies. This characterization by Hemingway is a LIE. By a desperate liar. And it is per se, defamatory to Defendants' counsel. And we are "disparaging and insulting" to a lot more people than just m3 girl designs.
As for being on the witness list, Mike volunteered to testify regarding the Comparison Art pages he put together to show the sources of the links that showed Maddie Bradshaw was lying when she claimed she created ALL of the art work used in their bottle caps. That was the extent of any testimony by Mike. But since the cowardly Plaintiffs withdrew their perjurous copyright claims and the court refused to allow the art work to be mentioned, no testimony was required.
Hemingway repeats this outlandish lie on page 20 and again on page 26. And again on pages 27-28.

[page 11] During the trial, the Defendants repeatedly invited jury to search the Internet, on their own, as a means of leading the jury to discover these disparaging Internet materials and prejudice the jury against the Plaintiff (with Plaintiff's objections)...

[footnote]
CR 267, Vol. 1, June 18, 2012 Tr. 57:8-58:18, Defts: "They are all over the internet. If you look at Esty. I don't know if you look at Esty is, but it's an online store." Plaintiff's counsel: "I object, your Honor. I think you instructed the jury not to look at the internet." Defts: "These right here are on sell right now in toy stores. You can buy them. I bought these on Amazon.com.", Plaintiff's counsel: "Object, your Honor. Now he's instructing people to go to stores and buy things."; CR 288, Vol. 6, June 26, 2012, Tr. 35:4-5 (Defts: "You saw when you looked at their web site the you buy them separately, . . ."); Tr.36:13-15 (Defts: "You have seen their web sites. You know that."); Tr. 41:11-14 (Defts: "You look on the web site."); Tr. 50:25 (Defts: "Look at the Blue Brownies web site."); Tr. 52:23-25 ("Look at what we did regarding our site.").

Charles Hanor did not once tell the jury to search the internet for their own information. Hemingway's own quotes show that. And just because Hemingway asserts that Hanor did does not make it fact. The footnotes included in the appeal show how far he is stretching the facts. The first one about Etsy, in Hanor's opening statements, refers to Etsy but there is no suggestion the jury actually ignore the court order to not use the internet for information. Notice Hemingway does not include the court response to his objection. But we have it. Our trial notes show Hemingway: Counsel is suggesting the jury look at the internet. Hanor: Not at all. Just referencing it. Court: The judge repeats to the jury that no internet is allowed.
The second reference was to a FACT that bottle cap necklaces are on sale everywhere, including Amazon. There was NO suggestion the jury go out there for themselves. Our trial notes show Hemingway: Counsel is again suggesting the jury look at the internet. Court: The judge repeats to the jury that no internet is allowed.
You will note that Hemingway voiced NO objections to the next five examples given about the internet. That is because Hanor was referencing exhibits Hemingway had introduced concerning the web sites of both parties. We consider this a deliberate attempt to mislead the Appeals Court. Judges do not read every page of every transcript submitted in an appeal. That is the purpose of court clerks. Judges only see the highlights. If the clerk misses the misdirection the judge might be influenced by the lie. There was no suggestion to use the internet but rather a reference to exhibits of web sites introduced by Hemingway himself.

[page 12] Defendants' counsel, "Mr. Hanor[,] displayed Ms. Bradshaw's unredacted personal tax return to the jury despite the fact that it was not admitted into evidence," misled the Court about a non-existent Schedule C on that return, and engaged in deceptive and unprofessional conduct. CR 302, p. 3-4, ER 9 (8371-72).

[footnote]
CR 268, Vol. 2, June 19, 2012 Tr. 222:22-226:17 (after displaying the tax returns on the video display, Defts: "Now, this is your tax return for 2006?", not admitted into evidence, still displaying tax return on video display, Defts: "Well, let's look at the return and let's look at the schedule.", Court: "Let's look only at the schedule, not the entire personal tax return." Plaintiff's Counsel: "Your Honor, now we're scrolling through the entire thing." Defts: "We're going to the schedule." Court: "Can't we just get to the schedule." Defts: "There is no Schedule C, and that's the point I'm trying to make." Plaintiff's Counsel: "Your Honor, could we have it off the screen until we figure this out?, Court, "If there is no Schedule C, please take it down." Court: "The 2006 and 2007 personal tax returns of Ms. Bradshaw will not be admitted into evidence" with further conversation to counsel and jury.).

Our trial notes for that exchange:
Exhibits were put on the projection screen. Hanor points out to [Diane Bradshaw] that there is no mention of bottle cap jewelry sales, just lap desks. She claims that 2006 and 2007 sales figures were not lap desks but bottle cap jewelry. He then asked why there was no Schedule C on her 2006 and 2007 tax returns. [Note - Schedule C is for business deductions]. The income was not enough to separate out. It appeared that Hanor was trying to establish that the bottle cap jewelry business started in late 2007. The judge said the tax returns would not be admitted as evidence.
In his brief, Hemingway attempts to portray this episode as a deliberate act designed to display improper evidence. The scrolling through the displayed tax return was too fast and too jerky for any of the information to be read. Hanor was attempting to show that the start dates for the bottle cap business given by Diane Bradshaw were not true and the lack of a Schedule C on her tax return was evidence the dates were false. Hemingway repeats this false mantra in more detail on pages 29-30.

[page 12] The Court's jury instruction regarding "trade dress functionality" included a list of possible evidence that would show "functionality," but did not include an equally-balanced listing of evidence that would show "non-functionality." CR 254 (4078), p. 8 (3 prong listing).

What? If the "functionality" test failed then the conclusion is non-functional. No test for non-functionality is needed. This was a desperate attempt by Hemingway to get conflicting instructions in front of the jury in hope that they would buy his misdirection.

Read the full appeal briefs

Hemingway seeks to get a new trial by lying about the jury being prejudiced by this web site and the court not allowing him to have his way. They had no case and they knew it. No date has been set for the hearing.
Click here for the full 71-page brief filed May 14, 2013. It is in PDF format.
Click here for the full 192-page "Record Excerpts" filed with the brief.

On April 24, 2013, Blue Brownies filed an appeal in the Fifth Circuit Court Of Appeals. The appeal is some 63 pages and the Record Excerpts are 105 pages. If you compare the two appeals, you will see the appeal by Blue Brownies is professional and clearly states the issues and supporting court decisions. The appeal filed by m3 girl designs is full of unsupported accusations, lies and innuendo.
Click here for the full 63-page brief filed April 24, 2013. It is in PDF format.
Click here for the full 105-page "Record Excerpts" filed with the brief for Blue Brownies.

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