Tabberone's Major League Baseball Properties Lawsuit.

Tabberone is pronounced tab ber won
not tay ber own

Tabbers Temptations www.tabberone.com/Trademarks/ Home | Site Index | Disclaimer | Email Me!

Tabberone Logo

The latest Hartsel weather.

"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

Settlement! We have signed a Tabberone Settlement Agreement with MLBP whereby they agree to leave us alone and we agree to drop the lawsuit. Details below.

The MicroEnterprise Journal has printed an article titled "Fighting Back (and Winning) in Trademark-land" about Tabberone's fight with Major League Baseball Properties. CLICK HERE to read the article.

Sometimes, a story is just too good to keep to yourself. Our conflict with MLBP attracted the attention of Denver's Fox 31 News in May and we figured, why not let everyone know? So, we've prepared the first in a line of press releases designed to get some attention. The first release has been posted on www.PRWEB.com, a web site that specializes in press releases. Under "Select An Industry Release", we filed it under Sports. To see the press release without going to PRWEB.com, Click here. Our thanks to Derek at Monsterpatterns.com who alerted us to this web site.

TABBERONE
STRIKES BACK AGAIN!

Not wanting to wait and spar to no end with the lawyers for Major League Baseball Properties, Tabberone decided to take the action to Federal Court for Declaratory Judgment.

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.

To see the "offending" auctions:

Atlanta Braves fabric tissue box cover

Arizona Diamondbacks fabric tissue box cover

New York Yankees fabric tissue box cover

On the same day, we emailed MLBP asking for a reason the auctions were terminated.

The next day, MLBP replied, with a load of garbage about unauthorized use and that the items were derivatives.

We immediately responded citing legal opinions as to why their actions were improper.

Responding quickly, Bryan Day was not impressed. He quickly dismissed our arguments and threatened us.

We were not impressed with Bryan Day's response. On April 3, having not received an adequate response from Bryan Day, we filed a complaint in the District of Colorado. CLICK HERE to see the entire complaint in a format that closely resembles the original.

On April 8, 2003, the post office shows 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 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.

On June 2, 2003, we received an unsolicited email from someone named Ashley, who, we're not sure, appears to have emailed MLBP with an eBay auction number that was using licensed fabric. Their response was interesting. Seems like for the time being, they are not going to terminate any more eBay auctions using licensed fabrics. What happened to their certainty of infringement?

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.

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.

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. I thought Karen had it and Karen thought I had it. As a good husband, I know it's all my fault.

On July 2, 2003, the Magistate Judge assigned to our case, Magistrate Judge Patricia A. Coan, signed an order giving MLBP until July 18, or before, to respond to the Motion For Summary Judgment.

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 DEFENDANT'S CROSS MOTION FOR JUDGMENT ON THE PLEADINGS OR FOR SUMMARY JUDGEMENT OF PLAINTIFFS' STATE LAW AND PERJURY CLAIMS, a document that attempts to get our state claims dismissed.

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.

Stay tuned for more details as they happen.

Ebay is acting 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've 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, and therefore, they would not forward the counter notice to MLBP.
On April 4, 2003, we received a short email from eBay basically telling us to go through their counsel.
On April 11, 2003, we sent them a letter outlining our position and where their position failed to comply with federal intent.
On May 1, 2003, we received a short email from eBay basically telling us to go to hell. They were sticking to their (flawed) interpretation of the Lanham Act.

Rebuttals
In an effort to provide a balanced view, we make the following offer to anyone who feels they have been wrongly accused on this web site.
If you, or your company, have been referenced on these pages, and you would like the chance to post a rebuttal, we will post your rebuttal (provided it is in good taste) so others can read it. The rebuttal must be submitted in a format that can easily be converted into HTML. We reserve the right to alter the rebuttal to make it more readable. However, we will not alter the content (unless there is offensive material to be removed). We also reserve the right to comment on any rebuttal received. Emails protesting the content of this web site may be treated as rebuttals by us at our discretion.

Federal Court Cases
Alphabetically | by Federal Circuit | by Subject | by Court Quotations

Federal Statutes
Copyright Act 17 U.S.C. 5 | Digital Millenium Copyright Act 17 U.S.C. 12 | Lanham Act 15 U.S.C. 22