Plaintiffs Karen Dudnikov, and Michael Meadors, pro se, (referred to collectively
as "Tabberone") complains of Defendant Major League Baseball Properties ("MLBP"),
and alleges as follows:
NATURE OF THE ACTION
       
1. This is an action for Declaratory Judgment under the Declaratory
Judgment Act, 28 U.S.C. § 2201. The claims for relief are covered by the Lanham Act
15 U.S.C., and through the Copyright Act 17, U.S.C. § 101 et seq. Additionally, this
court has jurisdiction under the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C.
§512 (g) (3) (D) wherein jurisdiction is established in this court as part of the counter
notification procedure. Venue is also proper in this judicial district pursuant to 28 U.S.C.
§ 1391 (b) in that a substantial part of the events or omissions giving rise to this law suit,
as well as injury to the plaintiffs, have occurred or will occur in this district, as a result of
the unlawful acts of the defendant as outlined below.
THE PARTIES
       
2. Plaintiffs Karen Dudnikov, a/k/a TABBERONE, and husband Michael
Meadors, are Colorado residents who run a unincorporated home-based business
that primarily does business on the eBayŽ internet auction site as well as through a web
site, www.tabberone.com
       
3. Using the eBayŽ seller name of Tabberone, the plaintiffs manufacture
fabric items from lawfully acquired copyrighted fabrics and then sell these fabric items
on the web site as well as through eBayŽ.
       
4. Upon information and belief, defendant Major League Baseball Properties
is a Delaware corporation with it's headquarters located at 245 Park Avenue, New
York, NY, 10167.
       
5. Upon information and belief, MLBP has authorized the manufacture and
sale of a large variety of fabrics bearing copyrighted images belonging to the defendant
(see attachment #1). These images include, but are not limited to, the logos of the
thirty Major League Baseball teams (collectively referred to as the "MLB Marks").
       
6. Upon information and belief, MLBP has actively engaged in threatening
and intimidating persons who have manufactured and attempted to sell fabric items
from the above mentioned copyrighted fabrics. These actions include threats of litigation
through cease and desist letters as well as terminating eBayŽ auctions featuring fabric
items made from the above mentioned copyrighted fabrics.
Jurisdiction and Venue
       
7. This Court has jurisdiction over the federal claims in this action under the
Trademark Laws of the United States, Lanham Act Sections 32, 39, 43 (a), and 43
(c)(1), 15 U.S.C. §§ 1114, 1121 and 1125 (a)(c)(1), the Copyright Act 17, U.S.C. § 101
et seq. and the Judicial Code of the United States, 28 U.S.C. §§ 1331, 1338 (a) and (b).
This Court has supplemental jurisdiction over any common law and state statutory
claims under 28 U.S.C. § 1367.
       
8. Venue is proper in this district pursuant to 28 U.S.C. § 1391 (b)(2), in that
a substantial part of the events giving rise to the claims occurred in this judicial district
and plaintiffs are doing business within this judicial district.
       
9. This action arises out of defendant's improper use of
the eBayŽ VeRO Program to terminate auction listings by the
plaintiffs. The defendant alleged in an affidavit to eBayŽ
that the fabric items made by the plaintiffs was infringing
because the plaintiffs used copyrighted fabrics distributed
by the defendant. A spokesperson representing the defendant
stated the items were infringing because the defendant
considered them to be "unauthorized" and that they were
"derivatives" (see attachment #2).
       
10. By this complaint, plaintiffs seek a Declaratory Judgment affirming the
right under law to continue making and then selling fabric items from copyrighted fabric
without further interference from the defendant. Plaintiffs seek a Declaratory Judgment
affirming the right to a fair use of the copyrighted materials in conjunction with these
sales.
BACKGROUND FACTS
Plaintiffs' Business
       
11. The plaintiffs manufacture a wide variety of fabric items from a selection
of fabrics lawfully purchased through a variety of national outlets. These national outlets
include, but are not limited to, Wal-Mart Stores, Joann Crafts & Fabrics, Hobby Lobby,
and Hancock Fabrics. It is estimated these stores alone represent some 10,000 outlets
throughout the United States. The overwhelming majority of these fabrics are
copyrighted and many portray recognizable copyrighted images belonging to a variety
of sources such as Disney, M&M/Mars, Warner Brothers, etc.
       
12. The plaintiffs offer these fabric items for sale using the eBayŽ internet
auction site using the seller identification of Tabberone. They have been selling fabric
items and collectibles on the internet auction since 1999.
       
13. The plaintiffs also maintain a web site, www.tabberone.com, through
which fabric items and collectibles are also sold. This web site has been in continuous
operation since 1999. The plaintiffs have not sold on the web site any fabric items made
from MLBP fabrics.
The Defendant and The Defendant's Unlawful Acts
       
14. The defendant has claimed it is the holder of internationally recognized
copyrights on a large number of logos as noted in paragraph 5. The defendant
markets directly, and through licensees, a large number of items that portray these
copyrighted logos.
       
15. Based upon information and belief, the defendant aggressively protects
the copyrighted images. These actions include policing of internet auctions sites. On the
auction sites, the auctions featuring similar fabric items have been terminated at the
request of the defendant.
       
16. Based upon information and belief, MLBP counsel knows, or reasonably
should know, the fabric items are not derivatives as defined by federal courts, federal
law and recognized authorities on copyrights. MLBP counsel knows, or reasonably
should know, that under the Lanham Act, the term "authorized" refers to the
counterfeiting of a mark or trademarked product and does not apply to lawfully acquired
trademarked material. The intimidation tactics used by MLBP are therefore illegal and
immoral. They rely on the fact people can't fight back because of the potential enormous
legal expense.
Perjury
       
17. Based upon information and belief, on March 31, 2003, the
defendant requested eBayŽ terminate three auction listing by
Tabberone, falsely alleging to eBayŽ in an affidavit that the
articles offered on these auctions were infringing items.
(see attachment #3). The false affidavit filed by the defendant
constitutes perjury under 17 U.S.C Section 512.
Tortious Business Interfreence
       
18. Offering an item on eBayŽ and receiving a bid constitutes a binding
contract to sell and to buy. The defendant reasonably knew contracts were in effect
because the defendant had to look at the listings to affirm information used to terminate
the auctions. The defendant instructed eBayŽ to terminate the auction listings
effectively and unilaterally canceling the contracts that existed. This action resulted in
loss of future revenue to Tabberone. The action by the defendant constitutes tortious
business interference under Colorado law. See details in Paragraphs 86 through 88.
Negligent Misrepresentation
       
19. Defendant made representations to eBayŽ that plaintiff was engaged in
an unlawful activity and violating federal laws.
       
20. The aforementioned representations to eBayŽ were made in the course
of business, profession and employment of the defendant as representative of MLBP.
       
21. Such representations were false.
       
22. Defendant failed to exercise reasonable care and competence in
communicating said information to eBayŽ.
       
23. Defendant should reasonably have expected that eBayŽ would rely on
said representations.
       
24. These representations have cost the plaintiff future sales.
Fraudulent Misrepresentation
       
25. The aforesaid representations by the defendant, described in Paragraph
19, were false.
       
26. At the time said representations were made, the defendants knew that
they were false or was indifferent as to their truth or falsity.
       
27. Said representations were material to eBayŽ in deciding whether or not to
terminate the auctions.
       
28. The defendant made said representations with the intent of inducing
eBayŽ to rely on them to terminate the auctions.
       
29. eBayŽ did in fact, rely on the representations, and acted in accordance
therewith in terminating the auctions, and such reliance was justifiable.
Outrageous Conduct
       
30. Defendant has threatened plaintiffs with legal action.
       
31. Defendant's conduct towards plaintiffs, as described in paragraphs above,
is so extreme in degree as to go beyond the bounds of decency and is regarded as
atrocious and intolerable in a civilized community.
       
32. Defendant's acts were extreme and outrageous and were done with the
intent to cause Plaintiff severe emotional distress.
Communications
       
33. Subsequent contact with MLBP resulted in their notifying
the plaintiffs that the auctions were terminated because they
felt the manufacture and sale of fabric items using fabric
licensed by MLBP was "unauthorized" and were "derivatives and
therefore infringing (see attachment #4).
       
34. Based upon the threatening demeanor of the communication, and the
previously established aggressive manner of the defendant, the plaintiff felt further
communication would be fruitless. It was apparent these actions would continue. On
April 3, 2003, plaintiffs filed a counter notice with eBayŽ pursuant to 17 U.S.C. §512
(see attachment #5).
       
35. MLBP does not maintain an eBayŽ VeRO "About Me" as do many other
corporations.
ARGUMENTS
I. COPYRIGHTS
A. First Sale Doctrine
       
36. The common-law roots of the first sale doctrine allows
the owner of a particular copy of a work to dispose of that
copy. This judicial doctrine was grounded in the common-law
principle that restraints on the alienation of tangible property
are to be avoided in the absence of clear congressional intent
to abrogate this principle. This doctrine appears in section
109 of the Copyright Act of 1976. Section 109(a) specifies
that this notwithstanding a copyright owner's exclusive
distribution right under section 106 the owner of a particular
copy or phonorecord that was lawfully made under title 17 is
entitled to sell or further dispose of the possession of that
copy or phonorecord.
       
37. The defendant, directly and through licensees, has released innumerable
different copyrighted fabrics in the last few years through an estimated ten thousand
national fabric outlets including Wal-Mart, Hancock Fabrics, and Joann Fabrics. It was
the intention of the defendant that the fabric be cut, shaped, and sewn into fabric items
such as pillows, bedding, wearing apparel, accessories, etc. There is no other purpose
for selling uncut fabric.
       
38. The Plaintiffs lawfully purchased the copyrighted fabric from retail outlet
sources. Since the plaintiffs use of the copyrighted fabric was consistent with the
intended purpose of the sale of the fabric, the subsequent sales of the fabric items falls
wholly under the First Sale Doctrine.
       
39. The assertion by the defendant that only by purchasing a
"roll" of fabric would someone fall under the First Sale
Doctrine is ludicrous. Probably 99% of all fabric sold at
conventional outlets is cut from the "bolt" in measurements of
from one-quarter yard to several yards of fabric. Few
purchasers buy the entire "roll", or bolt. (see attachment #6).
       
40. The only way for this action not to fall under the First Sale Doctrine would
be for the Court to consider the fabric items "derivative works". But the fabric items fail
to meet the required definition for derivative works.
B. DERIVATIVE WORKS
       
41. The primary standard for a work to qualify as a
derivative work is that it be copyrightable in it's own right.
No one would suggest that an apron or a pillow made from the
copyrighted fabric would qualify as copyrightable. Laying a
pattern on a piece of fabric, cutting it out, and then sewing
it together, lacks any "originality" which is a requirement of
the statute for a work to qualify as a derivative.
       
42. Section 101 of the Copyright Act defines a derivative
work as:
   
a work based upon one or more preexisting works, such as a
translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording,
art reproduction, abridgment, condensation, or any other form
in which a work may be recast, transformed, or adapted. A work
consisting of editorial revisions, annotations, elaborations,
or other modifications which, as a whole, represent an
original work of authorship, is a "derivative work."
       
43. The fabric itself is not copyrighted, only the images
on it are. These images are not "recast, transformed, or
adapted" in any manner. The fabric is modified into an end
product consistent with the intended use, the images are not.
       
44. The copyright "extends only to the material contributed
by the author of such work, as distinguished from the
preexisting material employed in the work, and does not imply
any exclusive right in the preexisting material." 17 U.S.C.
§ 103(b); see Feist Publications, 499 U.S. at 348
("[C]opyright protection [in a factual compilation] extend[s]
only to those components of a work that are original to the
author.").
       
45. A derivative work is copyrightable if it is sufficiently
original. 1 Nimmer on Copyright § 3.03. The law requires
more than a modicum of originality. This has been interpreted
to require a distinguishable variation that is more than merely
trivial. L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486
(2d Cir.) (en banc) (requiring some substantial, not just a
trivial, variation), cert. denied, 429 U.S. 857, 490-92 (1976).
As the Court of Appeals for the Second Circuit said in
Batlin:
   
Originality is . . . distinguished from novelty; there must be
independent creation, but it need not be invention in the
sense of striking uniqueness, ingeniousness, or novelty, since
the Constitution differentiates "authors" and their "writings"
from "inventors" and their "discoveries." Originality means
that the work owes its creation to the author and this in turn
means that the work must not consist of actual copying.
       
Id. at 490 (citations omitted).
       
46. Indeed, if the secondary work sufficiently transforms
the expression of the original work such that the two works
cease to be substantially similar, then the secondary work is
not a derivative work and, for that matter, does not infringe
the copyright of the original work. See 1 Nimmer
§ 3.01, at 3-3 (stating that "a work will be considered a
derivative work only if it would be considered an infringing
work" if it were unauthorized).
       
Permission to use the fabric to make fabric items is implied
with the retail sale of the fabric. Indeed, it was the intent of copyright holder the fabric be made into
some sort of usable object.
       
47. In Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417 (1984), the Supreme Court stated that copyright
protection "subsists . . . in original works of authorship
fixed in any tangible medium of expression." 17 U. S. C.
§ 102(a) (1982 ed.). This protection has never accorded the
copyright owner complete control over all possible uses of his
work. (White-Smith Music Publishing Co. v. Apollo Co.,
209 U.S., at 19)
       
48. In Quality King Distributors, Inc. v. L'Anzaresearch Int'l,
Inc (98 F.3d 1109, reversed), Justice Stevens noted for a
unanimous court:
   
"The whole point of the first sale doctrine is that once the
copyright owner places a copyrighted item in the stream of
commerce by selling it, he has exhausted his exclusive
statutory right to control its distribution."
       
49. In Precious Moments vs La Infantil, 1997,
(D.P.R.) 971 F.Supp. 66, the First Circuit Court specifically
rejected the copyright claim where La Infantil was being
accused with unauthorized use of copyrighted fabric, saying
that "bedding items manufactured with lawfully acquired,
authentic fabric with copyrighted design were not infringing
derivative works." (see attachment #7)
       
The Court also said "The copyright owner's right to distribute
the work is limited by the "First Sale" doctrine, which
permits the owner of a legally acquired lawfully made copy of
a work to sell that particular copy without the consent of the
copyright holder".
       
The Court argued that previous decisions had omitted the
qualification that a derivative work must show originality. It
held that merely using a pattern to sew fabric into a design
was not "original" and it does not make the item a derivative
work. The Court rejected the reasoning in Mirage properly concluding Mirage had not placed
enough emphasis on "originality". Many law scholars also disagree with Mirage (Mirage
Editions, Inc. v. Albuquerque A.R.T. Co., 856 F. 2d 1341.
       
50. Likewise, since the fabric was intended to be cut, and
shaped, and sewn, no "material difference" exists from the
original product. Indeed, the fabric images would have to be
altered before the First Sale Doctrine could be refuted under
15 U.S.C. Section 1114. One does not buy a yard of fabric,
toss over their shoulder, and walk down the street showing it
off. The fabric must be cut and shaped and sewn to complete the
use for which it was intended.
       
51. The defendant's assertions that "mutilating MLBP's
copyright-protected fabric" makes the resulting items
derivatives contradicts the federal court standards for
derivatives. By their definition, cutting the fabric into 5"
squares for quilting would be mutilation and expose the lawful
purchaser to legal action. (see attachment #6).
       
52. If someone were to take a Disney fast food toy
portraying an animated character and mount the toy on a PEZ
dispenser, would that qualify as a derivative? PEZ has a
patent on the dispenser but not the final shape. Would the
"fantasy" dispenser be copyrightable? No. The material change
is not enough and the requisite "originality" is absent.
       
53. Under the First Sale Doctrine, the plaintiffs do not
need, nor require, permission from the defendant to make the
fabric items or to sell the fabric items. Since no authorization
is required, the claims of the plaintiffs selling "unauthorized"
goods is baseless. When M&M/Mars sells a candy dish, they do
not require the purchaser only fill the dish with "M&M's"Ž.
They cannot place a restriction upon the use of the item. Nor
can the defendant stipulate that a certain piece of fabric
only be sewn into certain items, such as an apron or a vest.
Unfinished fabric is intended to be finished by the purchaser.
That completes the sale. Likewise, they cannot restrict the
use of fabric sold at retail to "home-use only".
       
While the use of a disclaimer on the fabric may deter some,
the disclaimer itself is not binding upon the purchaser. The
wording is specific that the use is intended for home use, not
that this use required for purchase. Disclaimers of this
nature are limitations on use to which the original owner
desires but has no legal claim under the First Sale Doctrine.
Owners and manufacturers can limit future use only as far as
their on-going responsibility, such as a warranty. An
automobile manufacturer can stipulate that using the vehicle
for stock car racing invalidates the warranty but they cannot
prohibit the purchaser from racing. A bicycle manufacturer
cannot claim the bike is for recreational home-use only and
cannot be ridden to work or used in a work environment, such
as bicycle messenger.
       
The purchaser of a coloring book is encouraged to "finish" the
book by coloring the pictures offered in any way the purchasers
deems fit. If the seller attempted to dictate what characters
had to be what colors, no one would reasonably purchase the
coloring book, The same applies to fabric. It must be
"finished" to have any real value to the purchaser.
       
54. Commercial sewing operations rarely purchase fabric at
retail. It's not cost effective and it's too time consuming.
Additionally, the 100% cotton fabric is unsuitable for most
commercial sewing operations. 100% cotton wrinkles badly and
makes a poor fabric for commercial sales as it is considered
less desirable than blends which make better clothing.
Commercial sewing operations rarely make items to order.
Commercial sewing operations are assembly line businesses that
turn out up to thousands of duplicate items a week. A small
home-based business making perhaps ten to twenty hand-crafted
items a week from the licensed fabric does not qualify as a
commercial sewing operation any more than a lemonade stand
run by kids qualifies as a restaurant.
C. QUALITY EXCEPTION
       
55. Nor can the defendant claim an exception to the First
Sale Doctrine citing quality issues.
       
56. EBayŽ has a feedback system that attempts to insure
that bad sellers and bad buyers are weeded out of the auction
system. For every transaction, it possible for each side to
leave feedback of one type: either positive, neutral, or
negative. Tabberone has over 3875 positive feedback messages
in the last four years with an overall positive satisfaction
rating of 99.8%. Indeed, the defendant did not cite any
complaints being received about the quality of the workmanship
or complaints about being confused as to origin of the
products, only that the items were derivatives. The quality
of Tabberone's work is more than excellent. (see attachment #8).
II. TRADEMARKS
A. Trademark Infringing Activities
       
57. "MLBP once again demands that you cease and desist from
manufacturing, offering for sale, selling, advertising,
marketing and/or promoting any unauthorized products bearing
MLB Marks. " (see attachment #6).
1. FAIR USE
       
58. Fair use of trademarks in conjunction with selling or promoting the sale of
goods made by the mark holder is acceptable. MLBP is contending that using the name
of a baseball team to sell a fabric item is a violation even when the fabric plainly display
the team name and logo.
       
59. It is a fundamental principle marking an outer boundary
of the trademark monopoly that, although trademark rights may
be acquired in a word or image with descriptive qualities,
the acquisition of such rights will not prevent others from
using the word or image in good faith in its descriptive sense,
and not as a trademark. See Abercrombie & Fitch Co. v.
Hunting World, Inc., 537 F.2d 4, 12-13 (2d Cir. 1976);
Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F.3d
1055, 1058 (7th Cir. 1995); United States Shoe Corp. v.
Brown Group, Inc., 740 F. Supp. 196, 198-99 (S.D.N.Y.
1990); Holzwarth v. Hulse, 14 N.Y.S.2d 181, 181 (Sup.
Ct. 1939); Johnson & Johnson v. Seabury & Johnson,
67 A. 36, 38 (N.J. 1907); Restatement (Third) of Unfair
Competition § 28 (1995); 3A Louis Altman, Callmann on
Unfair Competition, Trademarks and Monopolies § 21.24
(4th ed. 1983); Margreth Barrett, Intellectual Property
760-61 (1995). The principle is of great importance because
it protects the right of society at large to use words or
images in their primary descriptive sense, as against the
claims of a trademark owner to exclusivity. See U.S. Shoe,
740 F. Supp. at 198-199. This common-law principle is codified
in the Lanham Act, which provides that fair use is established
where "the use of the name, term, or device charged to be an
infringement is a use, otherwise than as a mark, . . . which
is descriptive of and used fairly and in good faith only to
describe the goods or services of . . . [a] party, or their
geographic origin." 15 U.S.C. § 1115(b)(4).
       
60. One could hardly sell a used automobile in the
classified ads or other mediums without telling prospective
buyers the make and model of the vehicle. The use of pictures
of the fabric used to make the item as well as a picture of
the finished product does not violate fair use. Having
pictures available of the possible fabric selection does not
violate fair use.
       
61. Regardless whether the protected mark is descriptive,
suggestive, arbitrary, or fanciful as used in connection with
the product or service covered by the mark, the public's right
to use descriptive words or images in good faith in their
ordinary descriptive sense must prevail over the exclusivity
claims of the trademark owner. See Dowbrands, L.P. v.
Helene Curtis, Inc., 863 F. Supp. 963, 966-69 (D. Minn.
1994)
       
62. In short, fair use permits others to use a protected
mark to describe aspects of their own goods, provided the use
is in good faith and not as a mark. See 15 U.S.C. § 1115(b)
(4). That is precisely the case here. The "offending" use
described by the defendant in paragraph 41 is merely fair use
to describe the product(s) offered for sale.
       
63. The fair use doctrine permits use of a protected mark
by others to describe certain aspects of the user's own goods.
See CarFreshner Corp. v. S.C. Johnson & Son, Inc.,
70 F.3d 267, 270 (2d Cir. 1995).
       
64. The Restatement (Third) of Unfair Competition
adopts as a relevant factor the "physical nature of the use
in terms of size, location, and other characteristics in
comparison with the appearance of other descriptive matter or
other trademarks." Restatement (Third) of Unfair
Competition §28 cmt. c. (1995).
       
The Restatement also observes that the scope of the fair use
should be related to the degree to which the descriptive
meaning is relevant to the goods with which it is associated
in the alleged infringement, and whether there are other terms
available to describe the pertinent characteristic. See id.
Where a mark incorporates a term that is the only reasonably
available means of describing a characteristic of another's
goods, the other's use of that term in a descriptive sense is
usually protected by the fair use doctrine. See New Kids on
the Block v. News Am. Publ'g, Inc., 971 F.2d 302, 308
(9th Cir. 1992); 2 McCarthy, supra, §10:14 at 10-26
("Since the use of a descriptive title cannot serve to prevent
others from using the title in a descriptive, nontrademark
sense, others may be able to use the title as the only term
available.").
       
65. As Justice Holmes clarified,
   
"A trade mark[sic] only gives the right to prohibit the use of
it so far as to protect the owner's good will against the sale
of another's product as his. . . . When the mark is used in a
way that does not deceive the public we see no such sanctity
in the word as to prevent its being used to tell the truth. It
is not taboo."
2. Confusion
a. Sophistication of Buyers
       
66. Persons buying from Tabberone off of eBayŽ are not your
average mall shopper. These people are seeking certain
products. They are knowledgeable about the products they seek.
A shopper in a mall might casually stroll into a store and
pick up an item and be confused as to the origin because in
most cases they must base their opinion on the item as they
look at it and any markings and/or tags. A shopper seeking
to buy something on eBayŽ, first must pass by several
disclaimers as to affiliation and sponsorship, as well as
direct and indirect statements that the fabric items offered
are hand-crafted and not licensed products
(see attachment #9). They have to read the description of the product
because they cannot handle the item to inspect it
(see attachment #10). Someone who is considering buying
a product they cannot first hold in their hands tends to be a
lot more cautious about the purchase. They carefully read
the offering.
       
67. The mere use of the defendant's marks is not enough to
cause confusion. Modern shoppers aren't as stupid as the
defendant would have the court believe. There is a television
commercial that shows an ice breaker getting stuck in the
arctic ice. The ship lowers a Ford 4x4 truck onto the ice.
The truck then tows the ship to safety, providing the power
and muscle the ship obviously lacks. How many viewers really
believe the truck is capable of pulling that ship? They
realize it's advertising. The buying public is not stupid.
       
68. The US Supreme Court as recognized that the junior user
does not have an obligation to avoid all possibilities of
confusion. The junior user has the obligation "to use every
reasonable means to prevent confusion"
(see attachment #10). The Supreme Court limited the
scope of protection afforded trademark rights, recognizing a
right to share in another's goodwill when there is no evidence
of passing off or deception. Kellogg Co. v. National
Biscuit Co, 305 US 111 (1938).
       
69. Passing off occurs when a party is making a form of false representation
that causes consumers to believe that the party's goods or services come from the
mark holder. To prove passing off a mark holder must first show that a party is
duplicating or simulating the plaintiff's distinctive mark. The plaintiffs clearly made no
false representations in their eBayŽ listings. The fabric was lawfully acquired. There
was no duplication or simulation of any kind.
b. Disclaimers
       
70. The plaintiffs liberally use disclaimers in their eBayŽ
auction listings. Such use is prima facie evidence of lack of
intent. The lack of positive statements indicating an
affiliation affirms there is none in the mind of the buyer.
The presence of a statement saying there is no affiliation
solidly reinforces that fact to the buyer
(see attachment #9).
       
71. Indeed, the defendant has admitted that the use of a
disclaimer similar to that used by the plaintiffs: "it would
become apparent to most consumers that your product is not
licensed" consumers
(see attachment #6). Actually, it is apparent to
all consumers (see attachment #10).
       
72. Every time, the browsing shopper must go through several
disclaimers in the eBayŽ auction listings. No one is being
misled. No reasonable person would believe that the items
being offered for sale were anything other than hand-crafted
from licensed fabric. No reasonable person would conclude that
Tabberone was connected with MLBP in a business relationship.
No reasonable person would be confused (see attachment #10).
3. Unauthorized Use
       
73. The Lanham Act plainly refers to someone who, without
authorization, uses or imitates another's mark in such a way
as to possibly cause confusion. Confusion is the benchmark of
Trademark Infringement. Without confusion there is no
infringement. The plaintiffs have not counterfeited any
products or marks. Use of the fabric is covered under the
First Sale Doctrine. No further authorization is required and
since there is no confusion or counterfeiting of product or of
marks, there is no violation of the Lanham Act.
       
74. Court after court refers to "counterfeiting" and "knockoffs" when applying
the Lanham Act. The use of lawfully acquired copyrighted fabric does not fall under the
Lanham Act's restrictions.
4. Initial Interest Confusion
       
75. This is an evolving concept that is drawn by inference from the Lanham
Act and is not a stated doctrine such as the "Fair Use Doctrine" which is part of the
Lanham Act. In most cases, this concept is only applied to the use of META tags on a
web site or to improperly drawing browers to a web site through the improper use of a
name and/or trademark. The plaintiffs argue that the "initial interest confusion" concept,
if valid, does not apply here for several reasons.
       
76. To prove likelihood of confusion, defendants must show that "consumers
viewing the mark would probably assume the product or service it represents is
associated with the source of a different product or service identified by a similar mark."
The "mark" belongs to MLBP and is being used consistent with the First Sale Doctrine
and the intended use of the product sold by the copyright holder.
       
77. The eBayŽ listings very plainly displayed the titles,
"Atlanta Braves Fabric Tissue Box Cover, Arizona Diamondbacks
Fabric Tissue Box Cover, and New York Yankees Fabric Tissue
Box Cover". (see attachment #9) The titles stated exactly what the items
were: tissue box covers manufactured from a baseball team's
fabric. Fair use of the trademark under the Lanham Act. One
cannot sell an item without attracting the attention of a
buyer. The titles and descriptions did not misstate the
product or mislead the prospective buyers.
       
78. One small picture of the item being sold was displayed. Again, fair use of
the trademark under the Lanham Act.
       
79. A detailed disclaimer was included in the listing where it was readily
noticeable.
       
80. The Fair Use Doctrine was incorporated into the Lanham Act to provide a
legitimate basis for the use of a mark, albeit minimal. The "initial interest confusion"
concept cannot be allowed to override the right of fair use except by statue, not by
inference. Congress never intended absolute trademark restriction.
       
81. Since there was no deception, there is no Lanham Act violation, and
therefore there cannot be any "initial interest confusion" .
III. OTHER ARGUMENTS
A. MLBP Compensated
       
82. MLBP presumably has received, pursuant to its respective licensing
agreements, royalties from the fabric manufacturer and distributors for the initial sale of
the fabric. Having been compensated for the fabric and the implied license that goes
with the sale of the fabric, the plaintiffs had permission to use the fabric in manner used.
That permissions also carried with it reasonable use of the baseball trademarks and
characters.
B. Unclean Hands
       
83. Based upon knowledge and belief, MLBP knew, or reasonably should
have known, that by releasing large quantities of licensed fabrics into the market place
they were enabling the very circumstances they now claim is "unauthorized".
       
84. Conclusion: MLBP's own marketing techniques have contributed to what
MLBP now perceives to be a problem.
C. Not Competing With Licensee
       
85. There is no marketing conflict with any existing licensee. All licensed fabric
products are made from other copyrighted fabric therefore the fabric items lawfully
manufactured by the plaintiffs do not compete with any licensee.
D. VeRO Program
       
86. eBayŽ has a Verified Rights Owners program called the VeRO
ProgramŽ that allows verified rights owners to terminate
auctions listings when the verified rights owner submits an
affidavit stipulating the auction is "infringing" upon their
copyright and/or trademark rights. The decision to terminate
rests solely in the hands of the VeRO member. This gives the
VeRO member the ability to cancel auctions even when the
"offending" party, is in fact, within their legal rights to
sell. Instead of being compelled to sue in federal court, the
VeRO member can intimidate through auction cancellations and
the threat of possible suspension from eBayŽ should the
offending activity continue. (see attachment #3).
       
87. Parties seeking to use the VeRO Program become members of
eBayŽ and are therefore subject to the rules and regulations
of eBayŽ. As such, MLBP accepted and recognized that offering
an item for auction is a pending contract to sell. When an
item receives a bid, there is a binding contract to buy
(see attachment #11). Terminating an auction without
cause, as alleged in this complaint, constitutes tortious
interference with business on the part of MLBP.
       
88. Additionally, the MLBP VeRO representatives knew, or reasonably should
have known in their capacities as legal or quasi-legal representatives for intellectual
property, that the items on auction that were terminated were not infringing, and
therefore they willfully and knowingly committed perjury as defined in the Digital
Millennium Copyright Act, 17 U.S.C. Section 512.
E. No Commercial Benefit Restriction
       
89. Commercial benefit only becomes a factor where there is a copyright
infringement or a trademark infringement. Someone who sells a collectible that has
increased in value is seeking a commercial benefit. There are no restrictions under the
First Sale Doctrine prohibiting commercial benefit. The fact the defendant objects to
someone obtaining a commercial benefit from the fabric is not relevant and is not a legal
basis for terminating auctions.
       
90. The sale of such items is not averting sales from MLBP since they do not
market these items. Even if they did, they have received compensation for the sale of
the fabric and therefore have not been injured.
F. Subsequent Confusion
       
91. The defendant may attempt to argue a concern about subsequent
confusion should the fabric items reenter the stream of commerce at a future date, e.g.,
the fabric items lack identifying tags and could cause potential future purchasers to be
misled into believing the items are licensed products when in fact they are not. This type
of claim is self-defeating.
       
If someone's aunt decided to make a baby comforter out of some of the licensed
fabric and then present it as a gift, she has done nothing wrong. The fact she has not
attached an identifying tag to the item is of no consequence. A couple of years later, the
recipient of the comforter decides the child is too big for this item and decides to sell it at
a flea market. Is she doing something wrong? There's no tag attached to the product?
Suppose John Doe buys the comforter and later sells it to a collector. Where does it
stop and to whom belongs the "blame"? This kind of activity cannot be regulated nor
has it ever been the intent to do so.
       
Someone purchasing a licensed product with identifying tags is not prohibited
from removing those tags should they desire. Does such an action then prohibit that
person from selling the item in the future? There is a potential for future confusion and
misrepresentation once those tags are removed.
       
The possibility of future confusion is relevant when a party is counterfeiting
another's mark or product. That does not apply to fabric items made from licensed
copyrighted fabric or variations that are not derivatives.
       
MLBP created it's own monster when it released the fabrics. Jane Doe is walking
a dog that is wearing a bandana made from MLBP fabric. MLBP would have the court
believe there is a difference if Jane Doe purchased the bandana from Tabberone than if
Jane Doe made it herself. If Jane Doe decides to later sell the bandana, there is the
same problem as to origin: was this originally a licensed product? But subsequent
confusion only applies to counterfeits and knockoffs under the Lanham Act.
       
MLBP also deliberately misstates liability under trademark laws. Deception
creates confusion. Without confusion there is no trademark violation. The Lanham Act is
specific about the need of the likelihood of confusion.
IV. CONCLUSION
       
Based upon the above arguments, the plaintiffs firmly believe that the actions of
MLBP are calculated, improper, unethical and illegal and will continue unless stopped.
MLBP has also used the threat of legal action to extort monies from persons involved in
perfectly legal activities. MLBP, like many other companies, is using the threat of
federal court action to interfere with businesses conducting business legally and within
the applications of federal law. The actions of MLBP has caused harm, present and
future, to the plaintiffs.
       
Therefore the plaintiffs request the court issue a declaratory judgment affirming:
       
1. Persons selling copyrighted items are allowed reasonable "fair use" of
images and descriptions that pertain to the items being offered without interference and
threats from the copyright and trademark holder.
       
2. Persons selling fabric items made from lawfully acquired copyrighted
fabric are protected by the "First Sale Doctrine" because the fabric items do not qualify
as derivatives as defined in Copyright Law.
       
3. Persons selling fabric items made from lawfully acquired copyrighted
fabric do not need "authorization" to make and subsequently offer for sale these fabric
items.
       
4. "Cease and Desist" letters (or emails) that reference the above items (1 &
2 & 3) are illegal and a violation of professional ethics.        
5. Auctions terminated for reasons stated in 1, 2 and 3 constitute tortious
interference with business.
       
6. Auctions terminated for reasons stated in 1, 2 and 3 constitute perjury
under 17 U.S.C Section 512.
       
7. Previous agreements coerced by MLBP for reasons stated in 1, 2 and 3
are invalid and unenforceable. Monies collected from same should be refunded.
       
8. Plaintiffs request the court grant legal costs and any other reimbursements
deemed to be appropriate.
       
9. Should the issues go to trial, the plaintiffs request a jury trial.
       
Respectively submitted this 3rd day of April, 2003
 
 
_______________________________ ________________________________
Tabber's Temptations
Karen Dudnikov
Michael Meadors
3463 Maskoke Trail
P.O. Box 87
Hartsel, Colorado 80449
PRO SE PLAINTIFFS
303-913-4702
303-913-6075
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