Central Mfg., Inc. v. George Brett, __ F.3d __, Slip Op. (7th Cir. Jul. 9, 2007).
The Seventh Circuit upheld Judge Coar’s cancellation of plaintiff’s "Stealth" mark for use with baseball bats. The result is not that surprising in light of the fact that plaintiff had not been able to provide any evidence that it used the Stealth mark for baseball bats prior to defendant, and Hall of Famer, George Brett’s and his company Brett Brothers Sports International’s first sale of a Stealth bat in 1999 (plaintiff filed a mark application for Stealth in connection with baseball bats in 2001). Additionally, according to the Seventh Circuit plaintiff is controlled by Leo Stoller who is, according to the Seventh Circuit, a "hyperactive trademark litigator." The Seventh Circuit also discussed the frivolous nature of most of Stoller’s cases:
In fact, Stoller’s cases have generally proven so frivolous and wasteful of court resources that since this appeal was filed the Northern District of Illinois has enjoined him or any of his companies from filing any new civil action in the district’s courts without first obtaining the court’s permission.
Stoller has appealed the Executive Committee’s injunction, and the Executive Committee has already denied Stoller’s first request to file a new case in the Northern District.
But the result is not what is most interesting about the Seventh Circuit’s opinion.** What is most interesting, is that the opinion is written in a manner that makes it sufficiently interesting and understandable for non-lawyers to read. First, it starts with a two page discussion of George Brett’s famous "Pine Tar Incident," in which a Brett home run that was the go-ahead run for his Kansas City Royals was canceled and the game lost for the Royals when Yankees manager Billy Martin pointed out to the umpire that Brett’s bat had pine tar extending more than 18 inches, against Major League Baseball’s rules. The Seventh Circuit even cites YouTube clips (which have since been removed at the MLB’s request) of broadcasts of the game. And at page 13 of the opinion, the Seventh Circuit takes the rare, bold step of using an exclamation point in explaining that Central’s actions in filing suit were "oppressive" and, therefore, warranted awarding attorneys fees and costs:
Central’s actions qualify on all counts!
I am generally not a fan of the exclamation point in legal writing, but used in moderation it can be both effective and powerful. And it creates an informality that makes the opinion more accessible to those without legal training, which Blog readers know I think is very important.
** You can read more about the substance of the case and the baseball connection (including the fact that MLB took had the YouTube clips cited by the Seventh Circuit taken down) at the FileWrapper, the TTABlog, the Technology Law Update, and the Technology & Marketing Law Blog.