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Last updated - July 26, 2012

M3Girl Designs LLC v. Blue Brownies LLC et al

Trial began Monday, June 18, 2012, concluded June 25 and the verdict came in July 27, 1012.

Court trials are not as they are portrayed on television and in the motion pictures. They are preceded by volumes of filings, cross filings, exhibits, witness lists, evidence lists, motions and court decisions before the trial actually begins.

Unlike television and motion pictures presentations, trials are very procedural and surprises are not permitted. The Perry Mason television programs gave viewers the impression that witnesses sat in the courtroom during the trial. Even in civil trials this is not allowed. All witnesses must remain outside of the courtroom during testimony. Surprise witnesses and newly discovered evidence simple do not exist in real courtrooms.

Each side submits a witness list far in advance of the trial to allow both sides the opportunity to question them thoroughly. Evidence lists are likewise submitted to allow the sides to either accept the individual evidence article or object to it. Each item of evidence at trial must be accepted by the opposing counsel and/or introduced through a witness who can identify the item for the court.

And neither counsel approaches the bench or the witness without first getting permission from the judge. Many exhibits were presented on a large screen in the coutroom. I will not attempt to recreate all exhibits shown. Only those, in my opinion, that are helpful to those reading this.

The courtroom in Dallas was on the 13th floor. All persons entering the courthouse have to go through security on the ground floor: scanners, metal detectors and being wanded if the metal detector beeped at the guards. The same happened on the 13th floor upon exiting the elevators with the additional step of showing a picture ID. But here one had to relinquish cell phones and any other recording devices, to be held until exiting.

Testimony was broken into two time frames because of the infringement claims. To prevail on the trade dress claims, the Plaintiffs had to establish that their choker bottle cap necklace had acquired seconday meaning BEFORE the Defendants entered the market. That is, before February, 2009. Testimony about sales and such after that cutoff would go to confusion and other claims. That is why there will occasional mention of January 2009 and before.

In my opinion, Judge Royal Furgeson did a fine job with what was a difficult analysis case.

The Plaintiffs last name is "Dudte" and it is pronounced "Doot", as in "boot". Charles Hanor pronounces his name with a long "A", "hay-nor" as opposed to "han-or". While Hemingway apologized to the Dudtes if he mispronounced their names, Hemingway made NO effort to correctly pronounce Hanor, repeatedly pronouncing it with the short "A", "han-or". Perhaps Charles Hanor should have referred to opposing counsel as Ham-ingway. Or perhaps, Loser?

Please bear in mind that this account is from notes taken during the proceedings and that mistakes likely will occur in transcribing the notes into this account. As I am not what you could call an impartial observer, my views are well-noted on this web site, there will be editorial comments about the conduct of the witnesses, attorneys and the judge. My bias is towards the Defendants in this case. I tell you where I sit so there is no misunderstanding about where I stand. The events are as factual as I can recall. I am not impartial but I am trying to present a fair account of the events. The different days have been divided into their own pages to make the pages more managable. The narrative is very long. I hope not too boring. It was not easy taking detailed notes and listening to the next question and trying to figure out what I wrote later. And notes are notes.

I am not a stenographer. So the events are not word-for-word. And in some, cases the wording is to make sure that the reader has a better idea of details. That may require inserting a word or phrase for reference. I have no need or desire to distort what happened.

Brackets. [ ] , denote clarification comments. Parenthesis ( ) denote my personal comments. In my opinion, Diane Bradshaw and Maddie Brashaw lied and, both of them being very intelligent, they had to reasonably know they were lying to protect their business. Evading answers and rote responses are not in themselves evidence of lying but to me they are a good indicator. Their original claims of copyright infringement were not defensible so they fell back to trade dress rather than admit they had no case.

DAY 1 : Monday, June 18, 2012
Preliminaries, Jury Selection, Let The Trial Begin, Opening Statement by D Scott Hemingway for the Plaintiffs, Opening Statement by Charles Hanor for the Defendants, First Witness for the Plaintiffs: Diane Bradshaw.
Day 1 Details is 4,400 words according to Word. Click here for Day 1 Details.

DAY 2 : Tuesday, June 19, 2012
Pre-trial hearing, Continuation of First Witness for the Plaintiffs: Diane Bradshaw, Cross of Diane Bradshaw
Day 2 Details is also 4,400 words according to Word. Click here for Day 2 details.

DAY 3 : Wednesday, June 20, 2012
Continuation of Cross of Diane Bradshaw, Cross of Diane Bradshaw, Re-cross of Diane Bradshaw, Second Witness for the Plaintiffs: Maddie Bradshaw, Cross of Maddie Bradshaw, Re-cross of Maddie Bradshaw, Third Witness for the Plaintiffs: Christa Dudte, Cross of Christa Dudte
Day 3 Details is 6,140 words according to Word. Click here for Day 3 details.

DAY 4 : Thursday, June 21, 2012
Pre-trial hearing, Continuation of Cross of Christa Dudte, Re-cross of Christa Dudte, Expert Witness for Plaintiffs: Dr Ward, Cross of Dr Ward, Re-cross of Dr Ward, First Witness for Defendants (Taken out of order) Josh Kinny, Cross of Josh Kinney, Fouth Witness for the Plaintiffs: Robert Dudte, Cross of Robert Dudte, Re-Cross of Robert Dudte, Fifth Witness for the Plaintiffs: Margo Bradshaw, Post-trial conference
Click here for Day 4 details, in par. Complete Day 4 details not ready yet. They are being prepared.

DAYS 5 & 6 : Monday, June 25, 2012 and Tuesday, June 26, 2012
I was unable to remain in Dallas for the last two days of the trial.

To read the the jury's verdict where it rejected all counts and found in favor of Blue Brownies, CLICK HERE [in PDF format], entered June 27, 2012. Court documents are not protected by copyright so feel free to download this if you wish.

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