Friday, January 14, 2011
Defending a federal trademark lawsuit pro se
Our first concern for anybody new to litigation is that they will miss a deadline and lose the case or get penalized just because they weren't paying attention. So mark due dates at the time you learn of them and use a calendaring system that provides alerts. And of course, stay organized, document all proof, and save the paperwork. Also, look into why you're being sued as an individual. One purpose of an LLC is to shield you personally from such lawsuits.
How do you start? You're being sued in the Western District of North Carolina. If you haven't already done so, get a copy of the local court rules. You will need to follow those rules along with the Federal Rules of Civil Procedure. Your goal is to learn the basic principles of civil procedure and try to steer the case to a quick resolution. Unless you can afford to buy some of the guides mentioned here, you'll need access to a local law library. You will also need access to trademark books like these that provide sample responses. (Beyond law libraries, your local library may have our book on trademarks and Nolo has free information at its website.)
Electronic tracking of the case. Although pro se parties can't use the court's electronic filing service, you should track the documents that are filed in the case. You may be able to do that via the federal ECF system or Justia's Docket's and Filing service (a screenshot is shown below). Fill out the opening form with the names of a party, choose your court and the type of dispute as shown, and periodically check this site to see if anything has been filed that you weren't aware of.
What papers should you file? Since the case was filed in August, 2010, we assume you filed an Answer. That's a document that looks like this in which you walk the court, point by point, through the Complaint and deny or admit the truthfulness of each statement (or deny a statement because you lack information as to its truthfulness). In the answer you would also provide affirmative defenses -- arguments that say, "Okay, maybe what you say is true, but I have a defense that excuses me." At the time you file your Answer you should also state claims, if you have any, against the party who filed the lawsuit (the "plaintiff").
What are your defenses? Typical defenses in a trademark case might be: (1) There is no likelihood that consumers will be confused (here's a summary); or (2) The plaintiff's trademark is invalid. As for this latter defense, take a look at the Boston Ducks Tours case. That's not exactly on all fours, as lawyers say, but it's close. One tour company sued another for using "Boston Ducks" and the defendant argued successfully that "Duck" was the generic term for amphibious tours. That made it generic and generic terms cannot be trademarks.
How can you end it? You have a few possible paths to resolution: (1) settlement, (2) court-supervised alternative resolution such as arbitration or mediation, (3) you end the case with paperwork -- usually by filing a Motion for Summary Judgment, (4) you're dragged through discovery and proceed to trial. The last choice is the least likely as judges and magistrates pressure litigants to resolve things.
Where can you get more help? We're a fan of lawyers for the arts groups but we're not sure if the North Carolina group is operational. You can try writing here.
Parting suggestions. Don't try to talk or write legalese. And if you have business insurance check with your agent to see if you're covered for this type of "advertising injury."