Civil Action No. 03-WM-0571 (PAC)

        Pro Se Plaintiffs,


        Major League Baseball Properties, a Delaware Corporation


P.O. Box 87
Hartsel, CO 80449

pro se Plaintiffs





(end cover page)





Nature of the Action 1
The Parties 1
Jurisdiction and Venue 2
Background Facts 3
        Plaintiffs Business 3
        Defendant and Defendant's Unlawful Acts4
            Perjury 5
            Tortious Business Interference 5
            Negligent Misrepresentation 5
            Fraudulent Misrepresentation 5
            Outrageous Conduct 6
            Communications 7
Arguments 7
        I. Copyrights 7
                A. First Sale Doctrine 7
                B. Derivative Works 8
                C. Quality Exception 13
        II. Trademarks 14
                A. Trademark Infringing Activities 14
                        1. Fair Use 14
                        2. Confusion 17
                                a. Sophistication of Buyers 17
                                b. Disclaimers 18
                        3. Unauthorized Use 19
                        4. Initial Interest Confusion 20
III. Other Arguments 21
        A. MLBP Compensated 21
        B. Unclean Hands 21
        C. Not Competing With Licensee 22
        D. VeRO Program 22
        E. No Commercial Benefit Restriction 22
        D. Subsequent Confusion 23
IV. Conclusion 25



(end table of contents)



Cases page
Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 12-13 (2d Cir. 1976) 15
L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir.) (en banc)0, cert. denied, 429 U.S. 857, 490-92 (1976) 9
Car­Freshner Corp. v. S.C. Johnson & Son, Inc., 70 F.3d 267, 270 (2d Cir. 1995) 16
Dowbrands, L.P. v. Helene Curtis, Inc., 863 F. Supp. 963, 966-69 (D. Minn. 1994) 16
Feist Publications, 499 U.S. at 348 9
Holzwarth v. Hulse, 14 N.Y.S.2d 181, 181 (Sup. Ct. 1939) 15
Johnson & Johnson v. Seabury & Johnson, 67 A. 36, 38 (N.J. 1907) 15
Kellogg Co. v. National Biscuit Co., 305 US 111 (1938) 18
2 McCarthy, supra, §10:14 at 10-26 17
Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F. 2d 1341. 11
New Kids on the Block v. News Am. Publ'g, Inc., 971 F.2d 302, 308 (9th Cir. 1992) 17
Precious Moments vs La Infantil, 1997, (D.P.R.) 971 F.Supp. 66 11
Quality King Distributors, Inc. v. L'Anzaresearch Int'l, Inc (98 F.3d 1109, reversed) 10
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) 10
Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F.3d 1055, 1058 (7th Cir. 1995) 15
United States Shoe Corp. v. Brown Group, Inc., 740 F. Supp. 196, 198-99 (S.D.N.Y. 1990) 15
U.S. Shoe, 740 F. Supp. at 198-199 12
White-Smith Music Publishing Co. v. Apollo Co., 209 U.S., at 19 8


Declaratory Judgment Act, 28 U.S.C. § 2201 1
Lanham Act 15 U.S.C 1
Lanham Act Sections 32, 39, 43 (a), and 43 (c)(1) 2
15 U.S.C. §§ 1114, 1121 and 1125 (a)(c)(1) 4
15 U.S.C. Section 1114 11
15 U.S.C. § 1115(b)(4) 15, 16
Copyright Act 17, U.S.C. § 101 et seq 1, 2
section 109 of the Copyright Act of 1976 7
Section 101 of the Copyright Act 9
17 U.S.C. § 103(b) 9
17 U. S. C. § 102(a) (1982 ed.) 10
Digital Millennium Copyright Act, 17 U.S.C. Section 512 5,7,23,26
Digital Millennium Copyright Act, 17 U.S.C. Section 512(g)(3)(D) 1
Judicial Code of the United States, 28 U.S.C. §§ 1331, 1338 (a) and (b) 2
28 U.S.C. § 1367 2
28 U.S.C. § 1391 (b) 1
28 U.S.C. § 1391 (b)(2) 2

Other Authorities

1 Nimmer on Copyright § 3.03 9
1 Nimmer § 3.01, at 3-3 10
Restatement (Third) of Unfair Competition § 28 (1995) 15, 16
3A Louis Altman, Callmann on Unfair Competition, Trademarks and Monopolies § 21.24 (4th ed. 1983) 15
Margreth Barrett, Intellectual Property 760-61 (1995) 16



(end table of authorities)



1. Letter from MLBP to Sherry Smith dated September 15, 2002 1
2. Email from Bryan Day dated April 1, 2003 3
3. Email from eBayŽ dated March 31, 2003 5,22
4. Second Email from Bryan Day dated April 1, 2003 7
5. Counter Notice faxed to eBayŽ April 3, 2003 7
6. Email from Joe Ogni dated March 19, 2003 8,12,14,19
7. Precious Moments vs La Infantil, 1997,
(D.P.R.) 971 F.Supp. 66
8. Ebay page showing feedback for Tabberone 14
9. Sample of terminated listing 17,19,20
10. Email from exnavyvet dated March 31, 2003 17,18,19
11. Copy of eBayŽ rules showing binding contract 22



(end of attachments)




(main body of complaint)


        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:


        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.


        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,

        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.


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,, 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.


        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.


        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.



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.


        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.


        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).


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).


        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" .


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.


        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




(end of complaint)


Certificate of Service

        I HEREBY CERTIFY that on this 3rd day of April, 2003, a true and correct copy of the Complaint was mailed, with a Notice of Lawsuit and Request for Waiver of Service of Summons, postage prepaid, Priority Mail with delivery confirmation to:

Bryan Day
Major League Baseball Properties
245 Park Avenue
New York, NY 10167
fax 212-949-5697

                Michael Meadors