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Glossary

We are solely responsible for the contents of this dictionary. The definitions contained herein are gathered from a variety of sources including our opinion which we regard as being highly informative. Anyone taking offense to the contents should sit down, take a deep breath, and get a life. We accept suggestions for additions and will give the contributor credit if so desired.


A

Abuse of Discretion - a polite way of saying a trial judge has made a bad mistake during a trial or on ruling on a motion. You just can't call the judge an idiot even though you want to. A court of appeals usually refers to abuse of discretion when reviewing a case.

Actionable - when enough facts or circumstances exist to meet the legal requirements to file a legitimate lawsuit. The lack of facts doesn't stop corporate lawyers from filing lawsuits.

Actual Malice - the very difficult standard that must be met to prove defamation when challenging protected speech, such as a newspaper, etc.

Affidavit - a legal document that purports to set forth facts supporting claims made in court. Corporate lawyers are very good at crafting them so that they evade the truth while setting forth details that appear to support the claims of their clients.

Affirmative Defense - is a defense used in civil litigation or criminal law by the defendant. Affirmative defenses can be classified as either a justification defense or an excuse defense. These defenses excuse, or seek to avoid, a defendant's liability even though the factual allegations of the plaintiff's claim are proven. For example, self-defense is an affirmative defense in criminal trials. Most affirmative defenses must be timely pled by a defendant in order for the court to consider them, or else they are considered waived by the defendant's failure to assert them.

Agent for acceptance of service - Most States require that a corporation doing business (incorporated) in that State name an actual person or company who is authorized to accept service of any lawsuit or claim against the corporation. This information is usually available on-line by going through the state's Secretary Of State web pages.

Alleged - a word used to avoid being sued. Even though fifteen people saw the arrested individual rob the bank, he still is “alleged” to have robbed the bank. A great example of being politically correct and inherently stupid. In some cases, convicted criminals are still alleged to have committed the crime. That's going way too far. It is moral cowardice by the dominant mass media.

American Bar Association - The largest organization of American lawyers, which has no official standing, but is active in protecting the practice of law so non-lawyers cannot bring down fees. Each state, and some cities, have their own Bar Association. Complaining to the bar is like talking to the wall except that the wall at least might talk back. The ABA is like any other professional organization whose only purpose is to protect its members. They try to present the view that they are concerned about the public they are representatives first of lawyers.

American Civil Liberties Union - An organization founded in 1920 supposedly to defend and protect "the rights of man set forth in the Declaration of Independence and the Constitution." The ACLU takes on whack jobs cases and often goes overboard causing local governments to look silly trying to avoid stupid lawsuits filed by the ACLU. We would not contribute to their efforts.

Auction - the original method of sales on eBay. Once eBay was an online auction where everything ended after a specified time. Later eBay introduced fixed price sales, also called eBay Stores, which may be indefinite in nature. The auctions ran for 3, 5, 7 or 10 days and ended at a set time regardless of bidding activity. See listing.

Auction Bytes - and internet oriented newsletter that covers on-line auctions and internet sales sites and developing trends. The editor is Ina Steiner and the URL is www.AuctionBytes.com. Email subscription is free and it is published frequently.

Authorization - a favorite intimidation word used by corporate lawyers when engaging in trademark abuse. Using a trademark without “authorization” was gleaned from the Lanham Act and really refers to counterfeiting but corporate lawyers use it in such a manner as to make the alleged infringer believe even using the trademark for authentic sales is illegal.


B

Bar - 1) a place which a lawyer cannot pass without stopping for a drink. They meet other lawyers to brag about their fees and perks; 2) a professional association of lawyers whose primary goal is to protect lawyers, keep fees high and not allow non-lawyers to practice law.

Bar Exam - test conducted by the bartender to determine if the lawyer has had too much to drink.

Bottom-Feeder - an opportunist who seeks quick profit usually at the expense of others or from their misfortune (e. g., corporate lawyers)

Branded Goods - generally a European court term for goods bearing trademarks.


C

Case Law - A good court decision will cite relevant case law (statutes) pertaining to the issue. Many court opinions are determined by past decisions. The judge cites these past decisions and case law when presenting the reasoning behind the court opinion. Case law is routinely followed by the courts.

Cease and Desist Letter - a device used by corporate lawyers to scare the beejezus out of unsuspecting people. Often called a C&D. A C&D cannot be used as the sole basis for a lawsuit. Many corporate lawyers send C&Ds upon request from their clients without regard to the law and the facts of the case. These letters are often intended for intimidation rather than results.

certiorari - [Latin] an order from a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court's decision.
Pronounced - sersh-oh-rare-ee, it is most often used in reference to the Supreme Court.

China - a mythical place far, far away, where an eBay seller can list for free (or deeply discounted listings) without fear of having auctions terminated for trademark or copyright violations. A place where the eBay listing rules don't apply because eBay wants to encourage developing markets regardless of the counterfeits.

Code Of Ethics - a set of rules that are publicly given lip service by the profession in order to make the public believe that the profession is really interested in the well being of the public and not just themselves. Lawyers, doctors and politicians are the usual suspects here. The common thread here is these three occupations are self-regulating, self-defining, self-policing and self-important. The police and the military have civilian oversight: why not these three?

Darren B. Cohen - a corporate bottom-feeder who sent Tabberone a lovely cease and desist letter claiming we had defamed Sy Garfinkel of Sykel Enterprises. He tucked tail after being contacted by Greg Beck of the Public Citizen Litigation Group.

Collateral Estoppel - [legal] Where a judgment in one case prevents (estops) a party to that suit from trying to litigate the issue in another legal action. In effect, once decided, the parties are permanently bound by that ruling. There are many different types of estopple but they accomplish pretty much the same thing.

Complaint - usually the first step in a legal action. The complaint sets forth jurisdiction and the laws violated and then a basis for the complaint. Federal service on individuals can usually be satisfied by mailing a summons to the last known residence while businesses must be served through their designated agent. In federal courts the complaint must be served upon the defendant(s) within 120 days of filing.

Computer glitch - term used when a company spokesperson blames the computer software for failure when the actual failure belongs to the programming department and the management team that approved the flawed programming change without adequate testing. Somewhat akin to blaming the boogeyman.

Congress - A collection of elected representatives who really only represent the desires of their constituents during the few months prior to the election. The rest of the time they raise money for reelection while pandering to the media.

Congressman - a Representative or Senator, whose job is to:

1. Get re-elected
2. Raise funds to pay for the re-election campaign
3. Vote accordingly to accomplish #2
4. Learn how to evade answering questions while looking innocent and sincere
Contract of Adhesion - [legal] a contract (most often a signed form) so imbalanced in favor of one party over the other that there is a strong implication it was not freely bargained. Courts have found that contracts such as “take it or leave it” contracts are contracts of adhesion because a real contract requires an opportunity to negotiate. In the case of eBay, since eBay overwhelmingly dominates the on-line auction segment of the internet, the eBay User Agreement is a “take it or leave it” contract because there are no viable alternatives. See also unconscionable.

Copyright - often mistaken for copyright protection. Copyright is nothing more than a personal interest in the work. Federal laws grants “copyright” to original works but a work must be registered to acquire actual protection, e.g., filing a federal lawsuit for infringement or seeking an injunction. Far too many people believe “copyright” gives them automatic rights that they can enforce as they please. And, many copyright registrations are refused so a person's belief that they have “protection” is sadly misplaced. The fault for this lies with Congress and their anal attitude.

Copyright Abuse - a term often misused for copyright infringement. Copyright abuse is where the copyright owner, or the party who believes they have a valid copyright, uses the perceived copyright to stifle competition and inhibit legitimate use.

Copyright Certificate - issued by the Copyright Office once the application has been approved. While a certificate of registration is considered prima facie evidence by the court for a complaint to go forward, federal courts often invalidate copyright registrations upon trial. Also see prima facie and complaint.

Copyrighted - a term that implies the material was registered with the copyright office when often it was not. While federal law stupidly bestows “copyright” to all original ideas once they have been fixed, many companies and people believe their works are “copyrighted” when in fact they only qualify for copyright registration.

Copyright Misuse - an equitable (fair) defense to copyright infringement. Copyright misuse is where the copyright owner uses the copyright to “secure an exclusive right or limited monopoly not granted by the Copyright Office”. Generally it involves restraint of trade in some manner but since it is a doctrine applied by the courts and not the law, the definition is constantly expanding. See also equitable defense.

Copyright Protection - what many people mistakenly believe federal law bestows upon original works have once they are fixed. Copyright protection really requires registration with the Copyright Office and then it may have to be upheld by a court. Many registered copyrights are cancelled by the courts.

Copyright Registration - the act of formally registering a work with the Copyright Office. A work must be registered before a rights owner can lawfully file a federal lawsuit alleging infringement or to seek an injunction. If the work has not been registered, i.e., a certificate of registration was issued or the registration was refused, the copyright owner cannot initiate a federal lawsuit. Not all works submitted are accepted for registration.

Corporate Law Firms - fancy offices, lots of partners, and humongous legal bills. According to one report, as of May 2009, the downturn in the economy has resulted in an increase in unemployed lawyers by 50%. Make one want to root for a really bad economy, doesn't it?

Corporate Lawyer - where 98% of the profession gives the other 2% a bad name. See also bottom-feeder.

Counter Notice ("CN") - 1) a remedy for alleged copyright infringement under the DCMA. It gives the copyright claimant two weeks in which to file a federal lawsuit or allow the alleged infringer to continue what they were doing. 2) Something eBay abhors and makes very difficult for a seller to find and file. eBay improperly attempts to put restrictions on a CN over and above those set forth in the DMCA because eBay believes every notice of claimed infringement (NOCI) is legitimate and every accused eBay seller is an infringer. eBay also demands the seller provide proof of identity, something that is not required by the DMCA. See also notice of claimed infringement.


D

de facto - [Latin] means "in fact." Often used in place of "actual". Legalese in full of these Latin terms used to confuse the non-lawyer. We only list the least confusing ones. If federal courts are so enamored with Latin, why do they not demand trials are held using only Latin?

Defamation - the modern term that combines slander and libel into one tort.

de minimis, Latin adj. - means "of minimum importance" or "trifling." For example, some copyright use is considered de minimis, therefore not infringement and undeserving of damages or injunction.
pronounced dee-minnie-miss

Derivative - an expressive creation that includes copyright-protected elements of an original, previously created first work. Under the copyright law, the original work must be "recast, transformed, or adapted" in some way to be a derivative. The federal courts have held that for a work to be a derivative it must be copyrightable. Trivial or small changes to not qualify.

Detailed Star Ratings (“DSRs”) [eBay] are closely related to the eBay feedback system. This simplistic but very misused rating system allows the buyer to rate the seller in four areas:

Accuracy of Item Description
Satisfaction With Seller's Communications
How Quickly The Item Was Shipped
Reasonableness of Shipping and Handling Costs
DSRs are given on a scale of one to five with five being the highest. The score received for each category is shown as an average of total points received divided by number of sales, all from the last 12 months. eBay requires sellers to maintain at least a 4.3 average for each DSR by punishing sellers with lowered standing in search results or restricting sellers from listing. The problem is not with the stars but with the way eBay defines them. Generally a 4 rating is satisfactory but a 4.0 average will get a seller suspended. Great logic, eh?, Also, sellers think this system sucks.

Digital Millennium Copyright Act (“DMCA”) - enacted in 1999, sets the rules for the infamous Notice Of Claimed Infraction (“NOCI”), as well as a number of other provisions, aimed at the internet. Passed by Congress to address the issues of copyright infringement in the age of the internet it is heavily tilted in favor of the rights owners. The major flaw is the low threshold for alleging infringement and not enough civil penalties for falsely alleging infringement. It appears far too many of the congressional representatives were smoking something during the Age Of Aquarius.

Discovery - a phase in civil lawsuits whereby the parties exchange documents and answer questions related to the case and the defense of the case. Discovery is provided for under Rule 26 of the Federal Rules Of Civil Procedure ("FRCP"). The parties in civil cases are entitled to "discover" evidence and answers that the other side has. This comes in three forms. Interrogatories are questions submitted for answers. There is also a request for documents. And there are affirmations. Both sides are expected to fully comply but few corporate lawyers do without threats of a motion to compel. Typically abused by many lawyers and rarely are the corporate lawyers sanctioned by the court.

Victoria Doyle - a lawyer formerly with Fitzpatrick, Cella, Harper & Scinto, the New York law firm that represented M&M/Mars when they sued Tabberone in 2002. She was our second C&D. We have fond memories of Vicki. We call her Bitch 2 and Leslie Mitchell we call Bitch 1.


E

Easter Egg - In computer programming, special code hidden in the program that does unexpected things. In legalese, weasel-wording embedded in a contract that produces results unexpected by the signer. "Not that we would ever actually use this", said one eBay lawyer, trying to hide his smirk.

eBay - had a virtual monopoly on the internet auction market but is slowing losing ground to boutique auction sites, Amazon and eBay's own stupidity. Who needs enemies when you have eBay on your side?

eBay-hamas - (as in Bahamas) the mythical land to which eBay message board posters are banished when they get pink-slapped for violating one of the many yet incomprehensible ebay message board posting regulations. The duration of the eBay-hamas vacation fluctuates depending upon how many pink-slaps one has acquired, the phase of the moon and if the pink is having a bad hair day. The phrase was came into popular use on the eBay message boards in the mid-2000s when the pink bus pulled up to the Power Sellers Board and hauled off a whole slew of sellers to eBay-hamas to work on their tans.

eBay Staffer - we believe is a minimum wage, under-trained person (there is some question about whether they are trained at all) who is expected to understand and implement the myriad of eBay rules, regulations and policies that even eBay's lawyers don't comprehend. That of course assumes that English is the staffer's primary language, not Hindi. And we don't believe that those are their real names on the emails. We're betting they have multiple names (and perhaps multiple personalities) and they rotate through the names as they belatedly respond to the emails that interfere with their daily soaps.

Embroidery Software Protection Coalition (“ESPC”) - a coalition that we regard as a boiler-room scam owned and operated by the president of Bernina USA, Martin Favre, and his less-than-ethical attorney, Carole A. Faulkner. Their office “address” is a rent-a-box address in Bedford, Texas and they prey on the weak and helpless using copyright extortion tactics. ESPC's favorite targets appear to be work-at-home-moms (“WAHM”), aunts and grandmothers.

End User License Agreement ("EULA") - When these form licenses were first developed for software, it was, in large part, to avoid the federal copyright law first sale doctrine" thus the intent of EULAs after 1990 were to preempt federal statutes using contract law and that they serve no purpose besides to attempt to preempt consumer rights in other statutes.

Equitable Defense - [legal] means a “fair” defense under the law. Some defenses are not considered “fair” and are not allowed (makes a court sound like a game, doesn't it?). “The Devil made me do it”, is not an equitable defense whereas the fact the parking meter was broken is a defense. While the “dog ate my homework” might work in high school, the courts demand certain defenses. Failure to claim a defense in a timely manner can result is the forfeiture of that defense.

Equitable estoppel -When a court will not grant a judgment or other legal relief to a party who has not acted fairly. Making false representations or concealing material facts from the other party qualifies.

Equitable Servitude - [legal] an agreement or contract between two or more parties that limits their use of property, usually real estate. It is basically an agreement about terms of use and one party cannot impose these terms upon the other without their consent. For example, the restrictions printed on licensed fabrics is a unilateral equitable servitude, and therefore illegal, placed upon the use of the fabrics by the rights owner. See also licensed fabrics.

Estoppel - An impediment (obstruction) which precludes a person from asserting a fact or a right or prevents one from denying a fact. An example was Precious Moments attempting to tell Tabberone to cease & desist using their fabric when they had already lost a very similar case concerning their fabric in 1997.

Etsy - a web site that caters to crafters seeking to sell their hand made items. Etsy appears to have fallen into the same CYA tactic as eBay concerning takedowns of listings. It is sad when a company lacks the fortitude to defend its paying customers rather that seeks the easy solution.

European Community (“EC”) - the political alliance of many different people who dislike each other but have realized they must unite politically in order to compete economically globally. They still don't like each other.

European Court of Justice (“ECJ”) - the court system for the EC.

European Union (“EU”) - the economic entity designed to unite Europe into one big market with free trade and economic stability. Good luck there.

Exclusive rights - those rights reserved under law solely for trademark, patent and copyright owners. Far too many rights owners think that this means they have the exclusive right to use whatever is registered in any manner they wish. Corporate lawyers feed off this ignorance like piranha after a rotting carcass. These rights have exceptions commonly referred to as “fair use” and the "first sale doctrine" which are ignored by corporate lawyers when they threaten alleged infringers. (See fair use and first sale doctrine).

Extortion - Obtaining money or property by threat, intimidation, or false claim of a right. Some corporate law firms and some cyber cops are using extortion to collect monies based upon threats of legal action and exaggerated claims of liability in trademark infringement and copyright infringement. They demand money for alleged minor offenses while they threaten to sue. From what we have seen the money demanded has little relation to the damage alleged or the amount of time and effort expended by the extortionist.


F

Fair Use - generally an affirmation defense (like "Not Guilty, your Honor" but more complex) to copyright infringement and trademark infringement. Federal law allows fair use of copyrights and of trademarks but you'll never get a rights owner to admit that these exemptions exist. Corporate lawyers always claim that any use is infringement regardless of the circumstances. They do not care if they hurt your feelings; you do not pay their bills.

False Positive - in eBayLand, this is when a seller uses the mandatory positive feedback to leave a negative statement, such as, “ Good buyer if you don't mind waiting 42 days for payment”. We believe eBay has done this because the feelings of buyers are so sensitive. Sellers cannot say anything that might hurt the feelings of buyers. eBay has forgotten that it is the sellers that pay the commissions to eBay.

First Sale Doctrine - a recognized limitation to the exclusive rights of IP owners. It is written in as part of copyright law and is also recognized by the courts concerning patents and trademarks. Basically it says that once the IP owner sells the item the IP owner relinquishes any further control over how the item is used or resold barring material alterations. Some misinformed lawyers will tell you that the first sale doctrine applies to copyrights only but that is not true. Courts have long applied the first sale doctrine to the resale of genuine trademarked goods.

Fitzpatrick, Cella, Harper & Scinto - New York law firm that represented M&M/Mars when they sued Tabberone in 2002. Our first C&D letters came from them. Leslie K Mitchell and Victoria J.B. Doyle (we call them Bitch1 and Bitch2) launched the attack that began the fight. Our first federal lawsuit which ended after the firm saw our counter claims which included a challenge to the validity of the M&M/Mars trademarks for using child slave labor.


G

Good Faith Belief - the basis for a rights holder issuing a notice of claimed infringement ("NOCI"). It is a standard that is so low (how low is it?) you could not slide a piece of paper under it; lower than the ethics of a corporate lawyer; lower than the winter temperature in the South Park (-25º f) where we live.

Gray Goods - genuine goods that are imported into the country usually without the permission of the manufacturer. It is perfectly legal in the U.S. as long as the goods are not materially different from those being sold in the U.S.


H

Hall Of Shame - The Tabberone Trademark & Copyright Abusers' Hall Of Shame lists those we have, in our never to be humble opinions, found to be abusers and liars according to our definitions. We started the Hall Of Shame in 2003 to publicize the growing list of trademark and copyright abusers we were encountering. Not every one nominated for the TTCAHOS is admitted. We require what we deem to be reasonable proof. While we have received several cease and desist (“C&D”) letters concerning the TTCAHOS, we have yet to be sued concerning what we have said. Dang. See also cease and desist.

Handle - an assumed nickname under which people buy and sell on the internet. While many people prefer to remain anonymous when on the internet, we have no problem letting people know who we are.


I

id - [Latin] an expression see in many case quotes. It refers to a previous refeference.

Intellectual Property (“IP”) - generally includes copyrights, trademarks, and patents.

Interrogatories - [legal] part of the discovery process. They are a set of written questions to a party to a lawsuit asked during the discovery process. The answers will often be long and verbose, claiming to be unlikely to provide usable evidence, and often do not answer the original question until after Motions To Compel is filed. Corporate lawyers are found of making a simple request for information into a complex proceeding. But then, they bill by the hour, don't they? What we find galling is that the courts rarely take any firm actions concerning discovery abuses until after they have been occurring for a while, and then the remedies are mild rebukes.

Internet - also called the “World Wide Web”, was discovered by Al Gore as he descended Mount Sinai with two large stone tablets containing the outline of “Love Story” that he was commanded to give Erich Segal. In return, Segal made a generous contribution to Gore's re-election. The internet was a revelation by Gore as he walked across the water to deposit Segal's check in the First Bank of Global Warming.

Internet provider - a company, like eBay, Twitter, or Face Book, that allows other to use the computer space they provide, either free or for a fee.

Initial interest confusion - in trademark law that is the act of diverting traffic from a genuine trademarked item or web site to another for the purpose of diverting sales. It is defined as using meta tags (in the HTML) to attract potential customers. Corporate lawyers like to claim initial interest confusion in other areas and some courts are inclined to let them but the statute is specific. See keyword.

Intellectual Property ("IP") - generally includes writings, art work, musical compositions, computer code, inventions, etc. Anything creative. For example, the many cartoon characters belonging to Disney are intellectual property under copyright law and under trademark law.


J

Joke, noun - see Corporate Lawyers and Congressman


K

Keats McFarland & Wilson - the Hollywood law firm that defended MGA Entertainment when we sued them. Partner Larry McFarland strutted around like a pompous jerk during the deposition in Colorado Springs, billing MGA for his stay at the very pricey Broadmoor Hotel, the most expensive hotel in Colorado. The two-day deposition, less than seven total hours combined, was nothing more than a reason for a quick vacation in Colorado Springs for Larry. Of course he billed it all to MGA Entertainment.

Keyword - a word used to direct attention. Keywords are often embedded in meta tags to alert search engine robots to use those words as identifiers when someone is seeking information. Improper use of keywords, such as using trademarked names, to divert traffic for commercial purposes is called initial interest confusion and is infringing. eBay's rules concerning keywords is so confusing eBay's supervisors cannot understand them.

Keyword spamming - [eBay] a method of using words to divert traffic. Some sellers will include in their listing a phrase like, “See my other auctions for more fine items made by Gucci, Chanel, Winston Cup and Jack Daniel” while selling an American Widget. eBay will cancel listings found to contain keyword spamming or imagined keyword spamming. Virtually any word can be claimed to be keyword spamming depending upon the stupidity of the eBay staffer who reads it. We have had it happen to us.

Kinsella Weitzman Iser Kump & Aldisert LLP (“Kwimp”) - the law firm representing Merle Norman Cosmetics that committed perjury when it claimed reselling unopened Merle Norman cosmetics violated FDA regulations. Attorney Jennifer McGrath is guilty of perjury in particular but the principles at Kwimp know what is happening. We have repeatedly stated that this knowingly false accusation is perjury by Jennifer McGrath. Her law firm has explicit knowledge of her lies. But the Bar Association will never take action. Lie, lady, lie.

Klutz, noun - see Corporate Lawyers and Congressman


L

Laches [legal] - the legal doctrine that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party (hurt the opponent) as a sort of "legal ambush." In other words, if a party waits too long to advance a claim against another. Similar to a statute of limitations.

Lanham Act - passed by Congress in 1947. The Lanham Act was supposed to bring U.S. trademark law into the post-war economic world and has done well until the advent of the internet. The trademark laws of fifty years ago fail to meet the modern internet needs of the global economy.

Law School - where student lawyers learn the technique of proper client billing, weasel wording and how to lie in legal jargon. Constitutional Law is not mandatory although while sleeping through legal ethics is.

Legal fees - what a lawyer charges in order to cover such expenses as his boat, mistress, country club membership, etc. Consider this: a new, color television set in 1960 cost considerably less than a new, HD flat-screen color TV does today and the TV sets of today have larger screens, better color, and many more advantages. That is called technology. Yet lawyers fees continue to climb in an era of computers where documents no longer are required to be typed, spell check is automatic, paging and inserts are routine, and there are templates for these documents and for many arguments. Legal references are computerized which eliminates the tedious hours of reading one legal volume after another to make a case. And, lawyers can file on-line without having to set foot in the courthouse. And yet lawyer fees continue to spiral out of sight. Why? Because the costs of boats, mistresses and country club memberships keep getting higher.

Libel - to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. The truth is an absolute defense to libel. Libel is a civil tort and the burden of proof of the truth is upon the party who made the allegedly libelous publication. As such, the party claiming libel does not have to prove the statements (publication) was false, the party making the statements must show they are true and/or that they had reason to believe them to be true. In many states libel has been incorporated with slander and is now called defamation. Do not, like M James Zendejas, Esq., did, call it liable, especially in a court filing.

Libel per se, [legal] - broadcast or written publication of a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis) or dishonesty in business. Covers most of the bad things, does it not?

Licensed Fabric - licensed fabric means the fabric is licensed by the rights owner to be manufactured and sold. It does not mean the fabric is licensed at the time it is sold nor does it mean it is sold with a restriction (license) on the use of the fabric.

Likelihood Of Confusion - the benchmark of trademark infringement. This very low standard is being abused by many trademark owners to unlawfully prevent others from using certain words and to control the secondary markets. Congress need to change it. See Trademark Abuse and Trademark Misuse.

Listing - offering something for sale, usually on eBay or another internet sales site. eBay expanded its site by offering sellers “internet stores” where they could sell items for a fixed price with an indefinite listing (once called “good till canceled” or “GTC”). Since the store format was successful, eBay began to tinker with it until did was not.


M

Magistrate Judge - appointed by a majority vote of the federal district judges of a particular court and serves terms of eight years if full-time, or four years if part-time, and may be reappointed. Their duties vary from district to district. Considered by some to be a judge-in-training.

Material Alteration - changing an item in such a way as to make it more desirable to a potential buyer. It can invalidate the first sale doctrine protections provided to the purchaser if the alteration is significant enough to influence the potential purchaser.

Material Difference - the difference between imported items (gray goods) and those being sold in the U.S. A material difference can be grounds for blocking the importation of the items. The standard is ridiculously low.

Matter of Law - [legal] whereby an issue is decided by the court as opposed to being decided by a jury. For example, whether or not something is a parody is an issue decided by the court and not subject to a jury's interpretation.

mens rea - [Latin] Most serious crimes require some degree of mens rea. This holds that one's actions are not criminal unless one has a "guilty mind." In other words, one must appreciate to some degree that one is committing a legal wrong while engaged in that wrong. This willfulness can be a factor in penalties if found guilty.

Meta Tags - embedded web page code that provides information to your browser about that web page. Meta tags are generally invisible to you but are used by the browser to determine page title, contents, author, etc.

Leslie K. Mitchell - formerly with Fitzpatrick, Cella, Harper & Scinto the New York law firm that represented M&M/Mars when they sued Tabberone in 2002. She was our first C&D. We have fond memories of Les. We call her Bitch 1 and we call Vicki Doyle Bitch 2.

Moral Rights - an idiotic concept recognized in Europe concerning copyrights. The artist or author retains “moral rights” in the work which gives them certain control over the work even after they have sold it. In our opinion, a foolish thing to allow.

Morrison & Foerster LLP (“MoFo”)- a law firm with whom we have tangled several times. Major League Baseball Properties were represented by them.


N

Notice Of Claimed Infringement (“NOCI”) - Under the DMCA the way a copyright owner informs IP that certain content or that a product is allegedly infringing. One study estimated that as many as 30% of all NOCIs are fraudulent. As used by eBay, and some other sites, an NOCI is the means by which anyone can have anything removed from the web site anytime with no repercussions should the claim be fraudulent. Any questions?


O


P

Parallel Imports - see Gray Goods

Passing The Bar -something no lawyer can do during "happy hour".

Patterns - A pattern can be a template, or set of templates, for manufacturing an item, be it a bird house or a dress. Templates are not copyrightable. A pattern can also be drawings accompanied by instructions for knitting, crocheting or quilting. A method or procedure is not copyrightable. While the drawings themselves could possibly qualify for copyright protection, the actual instructions are not copyrightable. The only other aspect of patterns that could possibly qualify for copyright protection would be the artwork and that would only be if its intrinsic properties allowed it to be separable from the design, which very, very few designs can do. And to be enforced a copyright must first be registered.

PINK - Posting Board slang for eBay employees who are readily identified by their PINK banner. They have unlimited power to make decisions and never have to justify them. PINK also stands for "Powerful Individual with No Klue". Their favorite word is "proprietary", as in "that information is proprietary". It is their catch-all escape clause wherein they avoid answering questions and having to supply logical answers. Most use a pseudonym rather than give the sellers a klue as to what their real name might be. Since they almost always only sign just a first name, why use a pseudonym?

Pink Bus - a slang term that has developed on the eBay message boards for a very contentious thread that has had many posters pink-slapped. It is used to denote a large number of posters being hauled of to eBay-hamas at one time.

Politically Correct - The act of being nice to people you cannot normally tolerate. It is also used by minority groups to accuse majority groups of being insensitive, racist and unethical while they are indulging in those same acts.

Power Seller - [eBay] a constantly changing status symbol created by eBay as a form of recognition for higher producing sellers. The standards have been reduced to the point just about anyone can be a Power Seller.

Precious Moments - Precious Moments v La Infantil, 1997, (D.P.R.) 971 F.Supp. 66. The only federal decision we have found that addresses the use of licensed fabrics to make and sell items. Precious Moments sued to stop La Infantil from buying their fabric, sewing it into bedding and then selling it in their store. The court ruled the first sale doctrine prevented Precious Moments from taking action. We consider finding this case to be the turning point in our fight with M&M/Mars.

prima facie (pronounced pree ma face ee), [Latin] an expression meaning on its first appearance, or by first instance; at first sight. In law, it denotes evidence which on its face would be sufficient to prove a particular proposition or fact. Courts require that a complaint state enough facts that on its face appear to be sufficient to support the action.

pro bono - [Latin] means "dig me I did this case for free", without charge. Large corporate law firms like to brag about their pro bono work because it makes them look important. One law firm represented the Gitmo Terrorist Detainees pro bono and then used that as an example of how they are concerned about the community. The fancy law firms never take pro bono cases representing the little guy fighting the corporations because it is these same law firms that defend the corporations. There are a million deserving pro bono cases out there for every one publicized by the big law firms as being defended. These firms do not want to spend resources fighting other large firms and lose so they take just enough cases to look like they really care. The real purpose of publicizing that a really large law firm takes pro bono cases is in hopes that unsuspecting clients will contact them in hope of being pro bono and then converting them into cash clients.

pro forma [Latin] - "as a matter of form". For some unknown reason, the legal system seems to like the Latin phrases that begin with a "P".

pro hac vice [Latin] - "this time only". Why in Latin? See above.
pronounced proh hock vee-chay

Progressive - another word for liberal. Modern liberals labels themselves as "progressives" because they lack the fortitude to tell voters what they really are. Most progressives are borderline communists.

pro per and pro se - [Latin] short for "I," which is Latin for "for oneself". It means representing oneself in court instead of using a lawyer. Judges and lawyers hate this. While it is ones right, the judges and lawyers would rather you support the legal system by hiring a lawyer. Seen any poor judges or lawyers lately?

pro rata , [Latin} - "in proportion".
pronounced proh rat-ah or proh ray-tah

pro se bias - what judges have against those persons who represent themselves in court. Virtually all judges were practicing attorneys at one time and they sympathize with the attorneys, whether intentionally or not. While court rules claim that being pro se cannot be held against a person, few judges really accord pro se litigants any credibility. One reason for this bias is that the great majority of pro se pleadings come from inmates who are often just taking up the court's time and resources. The bias then extends to all pro se persons, regardless.

Proprietary - The dictionary meaning for proprietary is something that is secret or privileged. When this term is used by the eBay staffer it means “we have no idea what we are doing and you want us to tell you?" When the eBay staffers are asked to justify a statement or decision that is contradictory to eBay rules, practices, or common logic, they declare that information to be proprietary. eBay staffers use it to evade the truth: there is no logical or legal basis for their answer because the answer they gave was pulled out of their collective ass. Corporate lawyers use the expression in attempts to limit discovery.

Putrid Plecostomus Award - given by Tabberone to those lawyers and law firms who have sunk to greater depths below and beyond the norm for the profession.


Q


R

Reed Smith - New York law firm who, through attorney Darren B. Cohen, represented Sy Garfinkel and Sykel Enterprises in February 2005 when they sent a C&D to Tabberone. We are still awaiting the threatened lawsuit. Darren? Where is it?

res adjudicata [Latin] - a thing (legal matter) already determined by a court.

Retainer - 1) a device used by teenagers to straighten teeth, 2) something a corporate lawyer uses as a down payment on his next sports car.

Rights Owner - owner of a trademark, patent or copyright.


S

Safe Harbor - a provision in the DMCA that protects internet providers from liability for infringing material provided the internet provider complies with the rules as outlined.

scènes à faire, doctrine of - [Latin] The phrase “scènes à faire” is French for “scenes that must be done.” Originally used by French drama critics to mean “obligatory scenes,” or those scenes that the audience must have, that if left out of the drama would cause major disappointment or plot failures.

The doctrine of scènes à faire has evolved from an obscure tenet of dramatic criticism into a legal theory under which courts may hold that certain expression is not entitled to copyright protection. Specifically, courts understand scènes à faire to mean scenes that are “necessary” or “must” be included in a given context, scenes that are “standard” or “stock,” or scenes that “flow naturally” from an unprotectable basic plotline. This doctrine goes beyond writings and plays and encompasses scenes in ordinary life where there is only one or a few ways to show something.

scienter [Latin] - means "having knowledge."

Secondary Market - this covers many internet sales, flea markets, collector's meets, and newspaper want ad listings. It has two components: unused and used. The unused are people selling products from bankruptcy, gifts, purchases and close out sales. The used are crafters, collectors and people selling items they no longer want. Many companies interfere with the secondary market even though they have already received fair compensation for the item. Generally the corporate purpose is to push potential purchasers to an unsold product so they can have more profit. They collectively deny their purpose usually by falsely claiming they are trying to protect the public.

Secret Agent Man (SAM) - Down Under nickname for Glenn Harris, the once director of the Embroidery Designers Gruop which took a big hit after being added to the Tabberone Trademark And Copyright Abusers' Hall of Shame. He was given this nickname "due to his childish fantasies of being a big time spy."

Selvage - the unfinished edge of fabric. On this edge manufacturers print copyright statements and other information. Many manufacturers falsely claim the fabric is sold for non-commercial home use only in attempt to discourage home crafters. These restrictions on the selvage have no legal status and cannot legally restrict the use of the fabric. These comapnies lack the legal power to impose the pretended servitude upon their fabrics. See licensed fabrics.

Service Of Process - after filing a lawsuit, the opposing side must be served with a copy in a timely manner so they can respond or know what has been filed. Rules differ from state to state. Companies must be served either through their lawyer or their corporate agent while individuals are served in accordence with state law.

Snitch Program - unofficial name for eBay's self-reporting program. eBay internally refers to snitches as a trusted reporter (we kid you not). We believe most snitches are competitors or some one who is holding a grudge. The acronym for this program is SniP. If your eBay listings are terminated because of a snitch, i.e., SniPPed, eBay will not tell you the name of the person who reported you nor will eBay give you the exact reason your listing was terminated. eBay will tell you that you must get a subpoena for that information and then eBay will fight the subpoena. Can you see why we love eBay so much?

Steptoe & Johnson - a Washington, D.C. based law firm that represented Major League Baseball Properties when we sued MLBP.

Strategic Intellectual Property Information ("SIPI") - an India-based cyber cop that appears to represent mostly European clients. We do not consider them very reliable as their web site was infected with a virus that was transmitted to browsers and English is obviously their second language.

Subpoena - the original spelling of subpena, still commonly used. A court order to produce evidence or testimony. Not to be confused with a summons which is an order for an individual to appear in court.


T

Tabberone (tab-ber-won) - The wife & husband in Hartsel, Colorado, who wrote this. Any one deciding to sue us, please spell our names correctly.

Takedown -usually where the rights owner tells the internet provider (eBay, Etsy, etc) that a listing violates their rights. The internet provider then usually terminates the listing or orders the seller to remove it or it will be removed for them. Increasingly, eBay is removing listings on its own when under-trained eBay staffers somehow determine a listing violates one of the hundreds of eBay rules. We really believe the method of determination by the eBay staffers involves a dart board, blindfold and various intoxicants.

Tortious - referring to an act which is a tort (civil wrong).

Trademark Abuse - a situation where the trademark owner falsely claims infringement where there is none. An example is where the trademark owner claims their name cannot be used to resell their genuine product. That is expressly allowed in trademark law, it is called "fair use", but the trademark owners do not care.

Trademark Extortion - the threat of legal action for alleged trademark infringement unless the alleged infringer pays a fine and costs. This tactic usually involves a threatening letter that makes over-reaching claims of liability and penalties followed by demands that include sending a sum of money to the company, the lawyer, or some cyber cop. Usually the recipient is a small business or individual that cannot afford a court fight and many times they pay the extortion demand. However, trademark cases rarely award legal fees or enhanced damages in small infringements, mainly because they do not involve willful infringement, so for the company to sue would likely result in large legal fees with no return. We consider this tactic to be similar to a mob enforcer threatening to "breaka you leg" if you do not pay protection.

Trademark Misuse - where the trademark owner uses trademark law to prevents others from legitimately using a similar but unconfusing name. Monster Cable, a California based company, is the poster child for trademark abuser. Monster Cable sued Disney over the use of the word "monster" in the motion picture, "Monsters, Inc.", against the Boston Red Sox for using "the Green Monster" and against the Chicago Bears for using "Monsters of the Midway". We believe that Joel Lee, owner of Monster Cable, has a monster ego and is compensating for a not-so-monster pee-pee.

Trusted Reporter - an official eBay snitch whom eBay will not identify and will rarely acknowledge even exists. They are accepted by eBay as "experts" in their fields but they appear to be competitors as well.

The Truth, The Whole Truth, And Nothing But The Truth - something corporate lawyers could not find even with GPS.


U

Unaltered Goods - See material alteration

Unauthorized Use - See authorized.

Unconscionable - referring to a contract or bargain which is so unfair to a party that no reasonable or informed person would agree to it. In a suit for breach of contract, a court will not enforce an unconscionable contract (award damages or order specific performance) against the person unfairly treated, on the theory that he/she was misled, lacked information or signed under duress or misunderstanding. It is similar to an "adhesion contract," in which one party has taken advantage of a person dealing from weakness. The eBay user agreement, with its required acceptance of all eBay polices and conditions, is an example of what we would call an unconscionable contract. The user "agrees" to abide by the hundreds of rules and polices, which eBay can, and does, change at any time. In addition, the uneducated and unsupported decisions of eBay staffers are part of the user agreement.

UnPaid Item (“UPI”) - a complaint where the buyer has not responded to requests to pay for the item. The present resolution process requires the seller to wait weeks before getting fees and commissions credited to their account. After a seller files a UPI, it is not uncommon for buyers to leave negative feedback or reduced star ratings on the seller.

Upgrade - In the world of eBay, upgrade means to take a feature that is working perfectly fine and break it. This is usually followed by eBay denying any upgrade has been made and therefore eBay is not responsible for any screw-ups. Sellers annually ask eBay not to make any "upgrades" just before the fall holiday shopping season. eBay, of course, waits until then to roll-out "enhancements".

Urban Myth - common but not factual beliefs. Most are based upon gullibility. In many cases the "lie" is somewhat believable and in other cases people simply want to believe it is true when common sense tells them otherwise. One such urban myth that we hear often is the claim that Disney went into a woman's home, seized her sewing machine, and made her pay $75,000 in damages for making and selling something with Disney fabric. That never happened.


V

Verified Owners Rights Program (“VeRO”) - the original policy started by eBay to conform with the Digital Millennium Copyright Act (“DMCA”) and to cover eBay's collective ass (“CYA”). The name is misleading as eBay does not actually “verify” if the person or company actually owns the rights they claim. One study claims as many as 30% of DMCA takedowns may be bogus, i.e., not infringement or from a competitor attempting to interfere with another's sales. In a court filing in New Zealand, Yahoo claimed a higher percentage rate of takedowns were not infringing or from competitors.

Vulcan - the home world of Vulcans, the most well-known of which is Mr. Spock, First Officer of the Starship Enterprise (Star Trek). Known for being very logical and unemotional. Inherently honest, Vulcans would not make very good corporate lawyers.


W

Weil, Screu, Yoo & Moore - our favorite international corporate law firm. Closely affiliated with Dewey, Cheatum & Howe.

We Say So! - An award given to those companies who want you to do what they say to do, because “you don't know any better”. They want you to do it because “we say so”, not because you have to do it.

Willfulness - a qualifier under the law that applies to the penalty one receives for infringement. Willful infringement means you knew, or reasonably should have known, you were infringing. “Should have known” is generally liberally applied by the courts in favor of the non-rights owner. The burden of proof falls to the rights owner.

Without Authorization - See authorized

Work At Home Moms (“WAHM”) - a growing segment of small internet sellers who are home-based, trying to earn a living or extra income from the internet. A favorite target of cyber cops and extortion threats because they lack the ability to fight back. The Embroidery Software Protection Coalition ("ESPC") likes to target WHAMs, aunts and little old ladies.

24/7 - the score of the last Redskins - Dallas game.


X Y Z

General
Articles | Cease and Desist Letters | Federal Court Cases | FAQs & Whines | Glossary | Hall Of Shame | Contributions

Corporate Lawyers
Cartoons | Code Of Ethics | Courtroom Remarks | Definition Of A Lie | Jokes | Lawyers | Lying | Who Have Lied

eBay - Land The Game

Definitions

Trademark Definitions
Blurring   |   Confusion   |   Damages   |   Dilution   |   History   |   Initial Interest Confusion   |   Likelihood Of Confusion   |   Material Difference Standard
Parallel Imports   |   Post-sale Confusion   |   Puffery   |   Secondary Meaning   |   Subsequent Confusion   |   Trademark Abuse
Unauthorized Use   |   Unfair Competition   |   What is a Trademark?
Copyright Definitions
Angel Policies   |   Contributory Infringement   |   Copyrightability   |   Copyright Extortion   |   Copyright Misuse Doctrine   |   Derivative   |   The Digital Millennium Copyright Act
EULA   |   Fair Use   |   First Sale Doctrine   |   Product Description   |   Registration   |   Registration Denied   |   What is a Copyright?   |   What is not Copyrightable?
Other Issues
Embroidery Designs   |   FAQs & Whines   |   Image and Text Theft   |   Licensed Fabric   |   Licensing & Licenses   |   Patterns   |   Patterns Index   |   Profit   |   Quilting
Selvage   |   Stanford School of Law Case Outline   |   Tabberone Disclaimer   |   Trademark Extortion   |   Urban Myths   |   What To Do If You Are Veroed

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

Federal Lawsuits
Filing A Federal Lawsuit
Setting Up | Standing. | Joinder of Parties. | The Complaint | Their Answer | Default Judgment
F.R.C.P. 12(b) Motion | F.R.C.P. 12(f) Motion | Your Reply | Summary Judgment Motion | Affidavits | Time Extension

Defending Against A Federal Lawsuit
The Complaint | Your Answer | Denials | F.R.C.P. 12(b) Motion | F.R.C.P. 12(f) Motion | Affidavits | Time Extension

VeRO (Verified Right's Owner Program)
VeRO Commandments | VeRO-Verified Rights Owners Program | Counter Notice Letter
Counter Notice (pre-2003) | Counter Notice present | On-Line Survey from 2004 | Articles about VeRO | What To Do If You Are Veroed

Original material by Karen Dudnikov & Michael Meadors is © 1999-2016