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  "The only thing necessary for the triumph of evil is for good men to do nothing"
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Last Updated November 2, 2010

Anatomy Of A LAwsuit

What is the American Pastime? Based upon the activities of one Brian Day and Ethan Orlinsky in 2003, and the most recent officious twit in the office of Major League Baseball Properties ("MLBP"), one Nicholas Eisenman, it is interferring with legitimate internet sales of small businesses and work at home moms ("WAHM"). We discuss the use of licensed fabrics in detail as well as the use of proper disclaimers. But the bottom-feeding corporate lawyers at MLBP still have their heads up their collective asses.

But we digress. Let us start with what happened in 2003. On March 31, 2003, Major League Baseball Properties instructed eBay to terminate three auctions by Tabberone that featured fabric items made from licensed MLBP fabric. These auctions featured an Atlanta Braves fabric tissue box cover, an Arizona Diamondbacks fabric tissue box cover, and a New York Yankees fabric tissue box cover. All made from lawfully acquired licensed Major League baseball fabric.

On the same day, we emailed MLBP asking for a reason the auctions were terminated. The next day, Brian Day, some nitwit at MLBP replied with a load of garbage about unauthorized use and that the items were derivatives.

The Tissue Box Covers you were selling on ebay use protected Major League Baseball-related trademarks without authorization. Therefore, they create a likelihood of consumer confusion and suggest some type of sponsorship or endorsement by Major League Baseball Properties in violation of trademark law. Furthermore, the Tissue Box Covers are derivative works based upon a preexisting Major League Baseball-related copyright-protected work in violation of copyright law.

Standard misleading weasel-wording from trademark abusers. The email contained an implied threat because of the claim. A letter was being sent to us as well. We immediately responded citing legal opinions as to why their actions were improper. We assumed, and we were proven correct, that we were wasting our time but we had to go through the steps anyway. Paper trail before action.

Responding quickly, Bryan Day was not impressed. He quickly dismissed our arguments with spaceous and dismissive remarks and threatened us with legal action..

Thank you for your response. Unfortunately, MLBP disagrees with your assertions. Another ebay user has forwarded us the article you quoted from in the past and it is not persuasive. For example, there are plenty of other cases that contradict your position regarding derivative works and disclaimers.

As stated in my previous e-mail, you should expect a more thorough letter from us in the coming days. In the meantime, please be advised that should you attempt to re-list the items at issue MLBP will consider your actions to be willful and, as a result, will be forced to take all necessary and appropriate action.

We were not impressed with Bryan Day's response. By the time this was over, MLBP found our arguments a lot more "persuasive". On April 3, having not received an adequate response from Bryan Day, we filed a complaint in the Federal District for Colorado. On April 8, 2003, the post office showed delivering the complaint to MLBP in New York.

On April 13, 2003, we were interviewed by Tammy Vigil of Fox 31 News, in Denver. The interview aired at the 5PM news and twice during the 9PM news. Pictures and description of the interview and the airing right here.

On April 19, 2003, we received a certified letter from MLBP indicating they were waiving physical service of the lawsuit, accepting the service we mailed to them. The letter was signed by Ethan G. Orlinsky, Senior Vice-president and General Counsel for MLBP. On May 22, 2003, we received a call from a Rosemary Tarlton, counsel for MLBP, requesting a twenty-day time extension to file a response. We agreed to sign the stipulation and faxed our signed copies to them on May 29, 2003. It would have been useless to oppose the request as courts almost always grant the first request for more time no matter how lame or inexcusable the request might be.

On June 23, 2003, the Denver office of Morrison & Foerster LLP, local counsel for MLBP, filed their Answer To Complaint And Counterclaims, a 29-page document that is a great example of legal weasel-wording. They admitted nothing, claimed everything, and offered no proof for their claims. for that they needed extra time?

On June 26, 2003, we filed a Motion For Summary Judgment. With the Motion we also filed our Memorandum Of Law Supporting Summary Judgment. The court requires they be separate papers. While our motion was a bit weak, it required MLBP to defend themselves adequately and in turn show us what little proof they posessed concerning the issues. On June 27, 2003, we faxed to the court our Answer To Counterclaims. It was supposed to be filed a day earlier with the Motion but we accidently left it behind in our hurry to get out the door. Denver is a 3-hour drive. Mike thought Karen had it and Karen thought Mike had it. As a good husband, Mike knew it was all his fault.

The Magistate Judge assigned to our case, Magistrate Judge Patricia A. Coan, harbored a pro se bias that we did not detect until later on.

On July 18, 2003, MLBP filed their Defendant's Opposition To Plaintiffs' Motion For Summary Judgment, a 21-page document that summed up their arguments. Not be outdone by a pair of amateurs, MLBP also filed their Cross Motion For Judgment, a document that attempted to get our state claims dismissed.

Really phony claims by MLBP (under Undisputed Material Facts):

9 - "MLBP's license agreement with the fabric manufacturer provides that all rights arising from use of the Clubs' trademarks and copyright inure to the benefits of MLBP or the Clubs.

So Steven M. Kaufmann and Brian N. Hoffman, exactly what federal or state law states that third parties are subject to any contract with which they have not signed? Basic contract law stipulates that non-signatory parties cannot be held responsible for contractual provisions to which they have not agreed. So how is this garbage relevant? To intimidate or are the two of you just plain stupid? Why do the courts allow this sort of lying drivel from lawyers?

11 - "Tabberone made its fabric tissue box covers by combining the MLB Club Licensed Fabric with other materials...".

Thread, interfacing and binding.. Thread to hold it together (which is almost impossible to see). Interfacing to give the fabric some strength (and it is invisible). And, as shown, red binding along the edges and the opening to prevent fraying. So, what is the point? These materials are common "materials" used when making something out of fabric. MLBP makes it sound as though something improper was used. And, they do not state how this is relevant but the inclusion of statements like this infer that it is.

12 - Tabberone's advertisement on eBay identifies the product by the Clubs' trademarked name, e.g., " Atlanta Braves Fabric Tissue Box Cover," in the listing and the heading (Orlinsky Decl. Ex.. E-F) and makes numerous references to the Clubs.

Three references are "numerous references"? The title, the description and the disclaimer? Numerous infers the club names were overused. Again, why do courts allow corporate lawyers to lie and misrepresent the facts?

More really phony claims by MLBP (from Opposition Motion Summary Judgment):

13 - "Tabberone's disclaimer is in a smaller typeface than the rest of the text. (Orlinsky Dec. Ex. E). The disclaimer can only be viewed if a consumer scrolls down the page on his or her computer screen. The product can be purchased without the disclaimer ever being seen."

The disclaimer was immediately below the description and one font size smaller and was repeated further down in the listing. They try to make it sound like a microscope and a roadmap was needed to see and read the disclaimer. As per eBay's format at the time, a prospective purchaser had to scroll down one time to begin to read the listing for every eBay listing. The only way the product could be purchased without reading either disclaimer would have been for as prospectiver purchaser to quickly scroll to the bottom to the "BUY" buttom and what idiot would do that without first carefully viewing what is was that they intended to purchase? Possibly a corporate lawyer?

Under Additional Disputed Facts MLBP made the following flimsey claims (from Opposition Motion Summary Judgment):

4/b> - "Whether "hand-crafted" means "home-made".

Pleeeese! This is an wxample of the lack of legal arguments on their side. "Whether "hand-crafted" means "home-made"? How stuoid does someone have to be to sleep through law school?

Having failed to properly prepare by reading the court rules for the Magistrate Judge, we filed a reply that was too long and we moved to have it stricken and submitted Reply #2 to Defendant's Opposition To Plaintiffs' Motion For Summary Judgment on July 28, 2003.

On August 5, 2003, we had a scheduling hearing in Federal Court in Denver. William Pecau, a partner in the law firm of Steptoe & Johnson, in Washington, D.C., flew to Denver for this ten-minute hearing in front of the magistrate judge. Steve Kaufmann, from the Denver office of Morrison & Foerster, was also there representing MLBP. Afterwards, we discussed a possible settlement over coffee.

After a little word shifting, we agreed to withdraw the law suit if MLBP agreed to a Tabberone Settlement Agreement whereby they agree to leave us alone. We indicated we would not accept any agreement that placed any type of limitations or requirements upon the use of their fabrics by Tabberone. We did verbally agree in principle to continue to communicate and minimize any subsequent misunderstandings. Click Here to read the settlement agreement. Nothing has been altered.

False Arrest Ordered By Major League Baseball

It seems Major League Baseball just hasn't learned. During the 2007 World Series, an unnamed representative of MLB had a woman arrested for selling home-made t-shirts outside the ballpark in Denver. That woman has received a financial settlement from Major League Baseball, the Colorado Rockies baseball team and the City of Denver because of the false arrest.

Ebay acted like an ass!

The symbol for eBay should be an ostrich with its head stuck in the dirt. Ebay tries to walk a very thin tightrope while maximizing profits where ever it can. This case with MLBP is a fine example of it.
Bear in mind that eBay is a virtual monopoly. While there are other auctions on-line, eBay dominates the market. We're not accusing eBay of doing anything wrong in achieving this monopoly. eBay was there first and did it the best. We tried using other auctions but the other auctions don't get the same traffic. Being the biggest doesn't mean they are faultless. eBay has taken the approach that rule changes and rule enforcement is primarily focused towards first protecting the interests of eBay.

On April 3, 2003, we emailed eBay to make sure there would be no problems with the counter notice we had filed challenging the terminated auctions.

The same day, we received a short email from eBay stating they wanted to talk to us about the situation. "Situation"? Turns out eBay was full into its weasel wording mode when we talked. Because the "notice of infringement" from MLBP did not say the infringements were copyright related, but were trademark infringements, it was now the position of eBay that there was no provision for a counter notice for alleged trademark infringement, and therefore, they would not forward the counter notice to MLBP.

eBay caught grief from Disney after we sued Disney. Disney complained about the counter notice and the fact their issues revolved around trademark use. From then on, eBay developed a new policy about non-copyright takedowns and from eBay's point of view, they would not forward, thereby not honor, counter notices for takedowns other than for alleged copyright infringement. There was no reason for eBay to take that stand other than eBay felt it was in the best interests of eBay.

As of 2009, eBay still has not developed a counter notice policy that allows non-copyright takedowns to challenge the removal. eBay is your basic greed-driven corporate coward. But not to worry. Considering the direction eBay has taken it will be ruined before too much longer. eBay's motto is, "If it ain't broke keep fixing it until it is."

It appears that Major League Baseball Properties ("MLBP") has a new clueless hack manning the telephones. Nicholas Eisenman, whose title is Counsel, Trademark Protection & Special Projects, a fancy way of saying he could not get a real job as a lawyer. Nicholas Eisenman recently ordered terminated a number of eBay listings where the seller was using lawfully acquired MLB fabrics to make and sell items. His claims are right out of the old play book used by Brian Day and the same ones from which MLBP backed off from when we sued them. Nicholas - did you attend Billy Bob's School of BBQ and Law? Your legal analysis stinks. The American Pastime is to shit on people who cannot fight back and you are batting .300.

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