Protecting Unjust defendants Through Attorneys’ Eyes Only
Noting French philosopher Voltaire’s observation that “The law is known by the people, not the lawyers,” U.S. Magistrate Judge Paul Grewal of California granted an injunction requested by plaintiff’s counsel requesting that Ford Motor Company label its cars with a logo of a hammer and sickle. Judge Grewal did not; his ruling was based on a contention that Ford has a First Amendment right to use the hammer and sickle logo as a trademark. The Ford Motor Company has rejected the contention that it should be free to use the symbol, instead preferring to pay royalties for usage of the hammer and sickle logo. So, the plaintiff’s counsel is appealing the Court of California’s denial of its request. (Plaintiffs’ counsel: Tom Camp, Pte. Camp, Orange County)
The Ford Motor Company, in rejecting the request for an injunction, noted that its cars are already labeled with the hammer and sickle logo by a distributor in Mexico.
The complaint then goes on to charge that defendants did not have a legitimate interest in avoiding the potential confusion concerning the Ford Motor Company logo and/or design. Plaintiffs argue that defendants violated the First Amendment and unjustly punished millions of concerned consumers with the perception that the Ford name and logo would somehow cause confusion regarding the existence of a car. The District Court granted the defendants’ motion granting a preliminary injunction, however, the preliminary injunction was later lifted upon review by the United States Supreme Court. On Dec. 7, the Court of Appeals for the Second Circuit affirmed the denial of the preliminary injunction and ordered that the parties must pursue their suit in Federal Court.
According to plaintiffs counsel, the defendants violated the FDCPA by failing to provide adequate notice to the plaintiffs that it intended to use the hammer and sickle symbol to identify its vehicles.
Further, plaintiffs contend that defendants did not have a legitimate need to prevent the use of the hammer and sickle combination to avoid confusion in the marketplace as most vehicle brands have done so in the past. However, attorneys’ eyes only see potential harm from the defendants’ conduct, not actual damage or injury. Nevertheless, the Eleventh Circuit panel reversed the panel’s decision in holding that Ford Motor Company abused the symbol by requiring employees to wear Ford shirts featuring the hammer and sickle. The Eleventh Circuit Court of Appeals panel cited a number of cases in which courts have held that a company’s choice of apparel constitutes direct consumer infringement when it comes to encouraging certain conduct.
At the time of filing its suit against Ford, the Ford Motor Company had already received a number of protective orders in anticipation of this lawsuit.
Although the complaint in this case is not entitled to such an order, the Ford Motor Company surely could receive one if it is found liable in the future. Attorneys’ eyes only see potential harm in a case in which defendants fail to obtain a protective order, but not actual damage or injury until such a time that such an order is obtained.
It should be noted that a protective order was not an option that the plaintiffs voluntarily pursued.
Without such an order, the plaintiffs did not stand a chance of prevailing with their lawsuit. In fact, their only opportunity to receive damages in this case would be to obtain an a document. An aeo document is a temporary restraining order, which bars defendants from doing anything that they are required to do under the terms of the protective order. If the court finds that the Ford Motor Company deliberately violated this order and caused damage to the plaintiffs, the Ford Motor Company could face severe monetary sanctions.
Plaintiffs argue that such measures are designed to protect the consumer from “shoplifting,” which is a term used to describe illegal practices in which one party gains access to and uses goods or services that are offered by another without authorization or payment.
While ea documents are certainly important for protecting consumers from being charged with shoplifting, the underlying concept is much more complex. To put it simply, a plaintiff cannot use the documents to ban a defendant from manufacturing, selling, or trading its products. The court found that the Ford Motor Company violated the Act because it placed factory production vehicles on a “lockout” schedule, which meant that once production stopped at any point, owners of these vehicles were required to sign a non-assignable master document, known as an a document, in order to access the vehicle. Essentially, the Ford Motor Company was preventing the owners of these vehicles from using their cars and holding them hostage until the end of the manufacturing schedule, in what amounted to an illegal lockout.
Not only are attorneys increasingly using protective orders to obtain discovery, but so too are the attorneys who represent the victims of these acts of piracy.
The reality is that while these protective orders may prevent a party from releasing proprietary information or otherwise preventing a competitor from selling products, the opposite can often happen. In other words, even if an ea or protective order is wrongly entered, the opposing party may still be able to release the information or else can refile the complaint. What is more, there is often a wide range of remedies available to the attorneys handling this type of case. For example, they may be able to request a new temporary restraining order, which would bar the infringer from producing or distributing a product until the complaint has been resolved.
In short, it is absolutely critical that attorneys retain experience, knowledge, and an understanding of their statutory and common law defenses to properly assess the validity of protective orders.
If they are not well-educated about the laws that they’re interpreting, then the protective order will likely be considered null and void. This could open the door for the party seeking protection to defeat the complaint, thereby leaving them with no lawful remedy. Hence, attorneys eyes only should be trained to look for defects in the underlying legislation.
