Wrong Way

 
 

We Seek to

Care enough to Speak Honestly;

Be Aware enough to Speak Kindly; and,

Be Wise enough to Speak Persuasively.


Balanced Counsel—

for Smart Clients®



About KeganLaw

Since 1940, Kegan & Kegan, Ltd. has provided its clients personalized strategic advice, preventative guidance, and when needed crisis counseling and defense.

We identify, develop, and protect intangible business assets—trademarks, copyrights, patents, trade secrets, contracts, websites—and counsel other professionals on legal issues.


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Notice—Laws Change

The law is constantly changing. Moreover, no general discussion can incorporate all the specific facts of your particular situation. Consult an attorney for particular legal questions.

 
 

Wrong Way–Learning from Others Errors


Bad Advice, Bad Judgment, Bad Ethics

Humans make mistakes. Sages from Hannah Arendt (The Human Condition) to Twelve Step programs recognize that, and suggest making amends and being responsible.


Early consultation with appropriate counsel can reduce problems and pain; Preventative intellectual property audits build a strong foundation for new business ventures and help established enterprises recognize and protect their intangible business assets.

Click to hear someone who took the wrong path.


If Sanctioned Once, Try Again


Defendant's attempt under Fed.R.Civ.P 60 to set aside a 365-day old judgment for trademark infringement, issued after defendants were sanctioned under Rules 37 and 41 and the Court's inherent powers, was denied, both on the merits and also on purely procedural grounds.


Earlier decisions, by Judge Denny Chin, in this Southern District of New York case were the 29 May 2007 preliminary injunction opinion (84 USPQ2d 1519, 2007 WL 1536934), 22 June 2007 preliminary injunction order (84 USPQ2d 1519, 2007 WL 1839379), 30 March 2009 default sanction (2009 WL 807725) and 1 June 2009 permanent injunction, monetary damages, and attorneys' fees award (2009 WL 1514469).


On the deadline day, defendant moved the Court under Rule 60 for relief for judgment. Judge Chin had been appointed to the Second Circuit court and Judge Colleen McMahon was assigned the motion. Judge McMahon denied defendant's motion. Defendants had shown no basis for relieving them from the effects of a judgment that was entered because of their repeated failure to comply with court orders.  The Court found "inescapable [the conclusion] that Defendants have resorted to this motion--at the last possible moment--because they failed or neglected to take a timely appeal from the judgment. Defendants may even have waited until Judge Chin was elevated to the Court of Appeals in the hope of shopping this case to a more sympathetic jurist. They will get no comfort from this court."


The Court found it "plain enough, from reading Judge Chin's thorough and measured opinion, that the only misrepresentations and misconduct used to procure the default judgment were [defendant's] misrepresentations and misconduct," and denied the Rule 60(b)(3) motion. In addition to denying the Rule 60(b)(5) motion on the merits, the Court also denied it on the purely procedural basis that it was not filed within a "reasonable time" after grounds therefor were discovered.


Regarding Rule 60(b)(5) catch-all grounds, it should only be invoked when there are extraordinary circumstances that work an 'extreme and undue hardship.' However, the 1 June 2009 default "judgment was entered as a sanction for defendants' litigation misconduct. Nothing the TTAB can or will do in the future could possibly call into question Judge Chin's conclusion that [defendant] repeatedly flouted orders of this court, refused to cooperate with legitimate discovery demands, and made misrepresentations to the court."


Ptak Bros. Jewelry, Inc. v Gary Ptak & G Ptak, LLC, 2011 WL 253424 (SD NY 25Jan11).   Ptak-R60-Opn25Jan11.pdf



Careless Trademark Selection


Selecting, and clearing, a potential new trademark is not easy. Many good trademarks balance distinctiveness for exclusive source identification with suggestiveness for marketability. But with diverse and increasing multi-lingual consumer communities, locally and globally, a new name should not be a casual decision.


Umbro, United Kingdom based sportswear and equipment supplier, introduced a new running shoe, the Zykon, meaning cyclone in German. However, Zyklon B was also the name of the cyanide-based pesticide used in Auschwitz and other Nazi concentration camps to kill people. Umbro withdrew the product, August 2002.


Using Clear, Simple English—The Entabulator



Bud Haggert, a late 1970s leading voice-over for technical films presents the Entabulator, in a film presented by Dave Rondot, director, with John Choate as Director of Photography.



<http://www.youtube.com/watch?NR=1&feature=endscreen&v=Ac7G7xOG2Ag>  (1:50 min)



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