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Act 29: Taubman Replies to "Show Cause"

When it rains, it pours: On Friday, November 9, 2001, I received an envelope from Ms. Greenberg containing responses to not one, not two, but three of the documents that I submitted to the court a couple of weeks ago. (It's true, good things do come in threes!) The first document was a brief in response to the brief I had filed in response to the Court's "Order To Show Cause" – and I have to admit that the very existence of this document has me puzzled. I've been assuming that we were each permitted to submit one document on each issue – they submit a Complaint and I submit an Answer, I submit a Motion and they submit a Response, and so on. I've also assumed that we were not allowed to keep responding to these documents, in what could become a never-ending spiral of competing paperwork. (Which also leads me to wonder: why do these documents have to be submitted via multiple paper copies? Why can't they be submitted electronically?) And yet, we now have this sequence of events: Ms. Greenberg submitted a motion to amend the judge's preliminary injunction. The judge, in an Order To Show Cause, ordered me to respond to Ms. Greenberg's motion. Ever obedient, I responded to Ms. Greenberg's motion in strict accordance with the judge's instructions. Ms. Greenberg submitted a Reply to my Response! What's next? Do I get to submit a Response to her Reply to my Response? Where does it end? At things stand, it really doesn't seem fair, as she has managed to "bracket" my Response, and thus has somehow managed to effectively get in both the first word and the last word. Anyway, before I proceed, a couple of quick notes are in order: I'm no longer going to post notes about pieces of auxiliary documents that do not appear on this site. For example, I may not post Certificates of Service, Tables of Contents, and exhibits that consist of documents that appear elsewhere on this site – and I'm no longer going to include notes to let you know that those pieces are missing. I will not omit anything of substance – every word of every brief and every motion (mine and Taubman's) will appear on this site. If you're really interested in seeing the missing pieces of legal minutia, you'll be able to view some of them by selecting the "View the Original [Document]" links that follow each document to see the scanned (and, often, more complete) version of that document. Beginning with this document, I'm going to intersperse my comments with the text of the document itself. I'll use formatting techniques to make it very easy for you to distinguish between the original documents and my commentary. But if you do find this technique to be confusing, you can always "View the Original [Document]," as I suggested above. Which brings us to the first of the three documents that I just received from my personal nemesis, Ms. Julie Greenberg. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION THE TAUBMAN COMPANY LIMITED PARTNERSHIP, Plaintiff, v. WEBFEATS and HENRY MISHKOFF, Defendants. Civil Action No. 01-72987 Honorable Lawrence P. Zatkoff Magistrate Judge Komives PLAINTIFF'S BRIEF IN REPLY TO DEFENDANTS' RESPONSE TO SHOW CAUSE As a preliminary objection, Plaintiff points out that the Court expressly limited Defendants to ten pages in which to respond to the Show Cause Order. Defendants have filed a "memorandum" (two pages), a "brief" (ten pages) and late yesterday, Plaintiffs received a "response" (another five pages). These seventeen pages obviously exceed, and violate, the Court's order. [Man, does this chap my butt. (Excuse me, I should be using more formal, legal terminology: Man, does this cause a contact rash to appear on my derriere.) What happened is that the judge issued his Order To Show Cause on October 22; however, I did not receive it until October 26. On October 25, I submitted a response to Taubman's request to amend the preliminary injunction. As I said, I received the judge's order the very next day, and I responded to it on November 1. Ms. Greenberg is saying that my response to her motion was actually a response to the judge's order, which would mean that I had violated the judge's order by submitting two responses. I'm constantly surprised that lawyers are allowed to submit accusations that they know to be false. In this case, for example, my response to her motion was clearly labeled as a response to her motion, and my response to the judge's order was clearly labeled as a response to the judge's order. I know that she's not confused, but she's clearly hoping that the judge will be. Not only is she trying to confuse the judge, she must think that he's an idiot, or else there's no way she could believe that he'd fall for such a simple ruse.] Substantively, few points merit response. First, Defendants state they are not "proven infringers." In response, Plaintiff would point out that the Court has had the opportunity to consider Defendants' actions, and has determined that injunctive relief is appropriate. This brings Defendants squarely into line with defendants in other cases subjected to the well established "safe distance rule." [Geez, do they teach this kind of subterfuge in law school? What incredible nonsense. In other cases where defendants have been subjected to the "safe distance" rule, those defendants have either been convicted or have been restrained based on a preliminary finding that the plaintiff could be harmed and/or that the plaintiff's case was likely to succeed on its merits. As Ms. Greenberg points out, Judge Zatkoff had opportunity to consider my actions, and he ignored Ms. Greenberg's arguments in their entirety, issuing a preliminary injunction on the sole ground that I would not be "harmed" by it (as I'm not making a profit from the site, which is non-commercial). I don't get it – does Ms. Greenberg think that the judge won't remember his own rulings?] Second, Defendants attempt to show that they are not using Plaintiffs marks in their other domain names. Obviously, Defendants are not familiar with what constitutes a mark. Certainly there can be no real dispute that TAUBMAN is an extremely valuable trade name to Plaintiff, in use for many years, and is entitled to protection from Defendants' hijacking of same. Similarly any other site which lures customers in based on their initial impression, from viewing the domain name that is related to Plaintiff, is an attempt to trade off Plaintiff's mark and should be enjoined under the "safe distance rule." This would extend, in addition to the Taubman site, to Willow Bend, Willow Bend Mall, Shops at Willow Bend, and The Shops at Willow Bend, all of Defendants' other domain names. [There's "no real dispute that TAUBMAN is an extremely valuable trade name to Plaintiff"? In spite of the fact that Plaintiff has introduced absolutely no evidence to that effect? Why is that? Is Taubman such a force in Michigan that they don't have to bother to present any evidence?] Plaintiff respectfully submits that Defendants' ongoing use of its trademarks, in the face of an injunction based on trademark infringement, and with a history of willful and deliberate trademark infringement, justifies a modified injunction. Nothing in the proposed modification would have any bearing on Defendants' right to speech or expression. Such expression, however, is not entitled to be posted on sites bearing Plaintiff's marks, in view of Defendants' position as a trademark infringer. Respectfully submitted, Julie A. Greenberg (P38299) GIFFORD, KRASS, GROH, SPRINKLE, ANDERSON & CITKOWSKI, P.C. 280 N. Old Woodward Ave., Suite 400 Birmingham, Michigan 48009 (248)647-6000 Attorneys for Plaintiff Dated: November 6, 2001 View the Original Brief (in a separate window)

©2001 Hank Mishkoff
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