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Act 70: Success!!

This morning (March 11, 2002), the Court of Appeals overruled the trial judge and allowed me to put this TaubmanSucks.com site back online! (For the legal eagles among you, I guess that a more accurate description would be that the Court of Appeals granted my motion for a stay of the preliminary injunction pending appeal.) Of course, the fight isn't nearly over yet, I've simply been allowed to put the site back online while the legal proceedings... proceed. I'm still scheduled for a trial in August, and I'm still appealing not only this injunction but the injunction that forced me to remove my original site. So while I'm trying not to get too excited (it ain't over till it's over), it's more than a little gratifying to have a decision go firmly in my favor. I should mention that I owe this victory to Paul Levy of Public Citizen, who first suggested that I appeal and then agreed to represent me on the appeal as well. (And he's also been representing me on the main case since last month.) I enjoyed representing myself, but I lost every motion I submitted, and my opponents won all of theirs. So even though having a lawyer is less fun than representing myself, winning is a lot more fun than losing, so I don't have a problem with the trade-off. Here's what the Court of Appeals had to say. Nos. 01-2648/2725 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT THE TAUBMAN COMPANY, Plaintiff-Appellee, v. WEBFEATS, a Texas Company and HENRY MISHKOFF, an individual, Defendants-Appellants. O R D E R Before: KENNEDY, BOGGS, and DAUGHTREY, Circuit Judges. The defendants in this trademark infringement case appeal district court orders granting the plaintiff's motions for a preliminary injunction and to amend the preliminary injunction. The preliminary injunction was entered on October 11, 2001, and is the subject of the defendants' appeal in Case No. 01-2648. The amended preliminary injunction was entered on December 7, 2001, and is the subject of the defendants' appeal in Case No. O1-2725. The cases have been consolidated for briefing and submission on the merits. The defendants now move to stay the December 7 amended injunction and to expedite their appeals. The plaintiff has filed a response in opposition. The defendants have filed a reply. The district court has denied a similar request for a stay. The factors to be considered by this court in determining whether a stay pending appeal should issue are: 1) whether the applicant has demonstrated a likelihood of success on the merits; 2) whether the applicant will be irreparably injured absent a stay; 3) whether issuance of the stay will substantially injure the other interested parties; and 4) where the public interest lies. Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). These are the same four factors the district court should consider in deciding whether to grant or deny a preliminary injunction. Rock and Roll Hall of Fame and Museum, Inc. v. Gentile Productions, 134 F.3d 749, 753 (6th Cir. 1998). The defendants' appeal in Case No. 01-2725 raises issues of first impression in this circuit concerning the "Internet phenomenon known as 'cybergriping.'" Lucent Technologies, Inc. v. Lucentsucks.com, 95 F.Supp.2d 528, 535 n.9 (E.D. Va. 2000). There is case law which appears to supports the defendants' arguments on appeal. See Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658, 674-675 (5th Cir. 2000); Better Business Bureau of Metropolitan Houston, Inc. v. Medical Directors, Inc., 681 F.2d 397, 404-405 (5th Cir. 1982); Ford Motor Co. v. 2600 Enterprises, 177 F.Supp.2d 661, 664-665 (E.D. Mich. 2001); Bihari v. Gross, 119 F.Supp.2d 309, 318 (S.D. N.Y. 2000); Northland Ins. Companies v. Blaylock, 115 F.Supp.2d 1108, 1117-1122 (D. Minn. 2000); Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp.2d 1161, 1163-1167 (C.D. Cal. 1998). In view of this circumstance, and having weighed the injuries to the parties that will result from granting or denying a stay, we conclude that a stay is warranted. The defendants' motion to stay the amended injunction on appeal in Case No. 01-2725 and to expedite these appeals is GRANTED. ENTERED BY ORDER OF THE COURT Leonard Green Clerk View the Original Order (in a separate window)

©2002 Hank Mishkoff
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