comments.
FRAP. 3 (c)(1)(A).
22, 2009, filed on June 23, 2009 does comply with FRAP 4(a)(4)(A)(i) and
1
since it refers to the one Jury Verdict that was entered on January 30, 2007
which is the “Clerk’s Judgment in this Civil Case”. The Conclusion does
challenge the Jury Verdict, and does properly challenge the issues appealed,
Based on the above, and in contrary to Grigor’s claims in her Brief, all
Grigor’s jurisdictional claim that the Rubens’ have not filed a timely
appeal on the interlocutory decision of Judge Hurley dated February 17, 2004,
which was docketed and entered by the clerk on March 2, 2004, (A-18, Docket
97) which dismissed their counterclaim, is erroneous. The case given by Grigor
Kennedy, stated. “…that the trial court, when it rendered the interlocutory
decision to dismiss all FirstTier’s claims, though not necessarily a final decision
appropriate to talk in terms of finality in the case before us because the bench
claims." Ante, at 277. I would add, however, that the saving provision of Rule
2
4(a)(2) applies as well to the announcement of an ‘order,’ and that some orders
are appealable even though they do not possess attributes of finality. See 28
U.S.C. § 1292(a). In such cases, operation of the saving provision would not be
controlled by whether or not the trial court's announcement was in the nature of
a final judgment”.
Richard, Barbara and Darrell, acting Pro se, at that juncture, filed their
interlocutory appeal on March, 11, 2004 within the requisite 30 day time limit of
the March 2, 2004 entry of judgment by the clerk on the docket, (A-18, Docket
97), along with the requisite filing fee of $255.00, (A-18, Docket 98). The Court
Rubens’ had reason to believe that the dismissal of their counterclaims was a
final decision and therefore, was appealable at the end of this case.
under FRAP, 59(e), or to move to correct a clerical error in the judgment under
FRAP, 60(a) or to request that the District Court review the dismissal of their
valid. After the final determination of the case at bar the Rubens did an
Amended Notice of Appeal which merged the Appeals as one, and this
3
Amended Notice was filed within 30 days of the final decision of the Court
which disposed all issues in the case, and therefore, the Rubens’ Appeal
guidelines and should not be dismissed since procedure was timely and proper.
Trial testimony and the record do not support Grigor’s false accusations
demands and or events that involved Darrell prior to the Cease and Desist letter
sent to Darrell.
support, that it was Grigor’s husband/attorney who refused to accept the domain
Griffith admitted such at trial, Court Trial Exhibit (2), (Darrell’s Brief p. 44).
This statement, however, has nothing to do with Darrell or are there any claims
4
now or then that Darrell demanded any money from anyone for the alleged
that the attorneys that Darrell consulted with when he answered the Cease &
when she was presented with her opposition to Rubens’ Motion for Summary
Judgment in which she attested to and submitted her ‘card file folder’ (Exhibit
182 (E-56), (A-276-282) that; “…she immediately made up this folder on May
22, 2000…” after taking photos of the Rubens house, (Darrell’s brief p.48).
ARGUMENTS
POINT I
or case law that Darrell has presented which proves that Hamptons Locations
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is a ‘functional’ term that is ‘generic’ and cannot be monopolized as a mark,
company, in which she is the sole employee, located in her home in a small
term’ and ‘generic term’ and cannot be monopolized by her as a mark. Even
though the names of these airlines are made up of common words, both
American Airlines, who registered their service mark in 1934 and U.S.
Airlines who registered their mark in 1949, are world renowned, depict the
Grigor cannot compare some of the world’s largest airlines, which are public
companies that have been established decades ago and have tens of thousand
(A-242), Darrell’s Brief p. 27-28, (E-59), At least 129,000 others, that are
listed in Google and Yahoo find it necessary to use the identical term to
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Trademark law seeks to provide a producer neither with a monopoly over a
The fact that Grigor, in her brief, p.36, ¶3, refers to her competitors,
that are in the same exact business as her, who use the exact term Hampton(s)
and in trade publications, the same exact location services, in the same
name to describe his parent’s Hampton Location was lawful and ‘fair use’.
predated her declaration of first ‘use’ (Darrell’s main brief p. 33-35) and her
husband’s testimony that; when they go to dinner all the restaurant owners
know his wife, (A-265), along with her conflicting, unsupported and
inconsequential sales figures are certainly not what the courts have
determined is proof for Secondary Meaning. For the Jury to have decided that
such lack of evidence, it had to be based on pure conjecture and surmise. For
1
Grigor has not attempted to stop any of her competitors from using her mark.
7
Judge Hurley to go against all prior decisions of the Second Circuit, in
POINT II
that a person may not be liable for “using” a domain name unless that
Judge Hurley in his decision dated September 30, 2005, (A-66, A-67), states
that; “The only evidence before the Court is that, “…one of Darrell’s friends
purchased this name through DSNY”. Judge Hurley goes on to say, “…that
link and before any registration of any alleged infringing domain name and
the fact that Darrell helped his parent’s in the design of their website is not
‘bad faith’. In Judge Hurley’s September 30, 2005 decision, (A-68), on the
Rubens’ Motion for Summary Judgment he refers to the affidavits the Rubens
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James, (Jimmy) Wang, and Christopher, (Chris) Spuges. Jimmy attests to
being an attorney since 1996 and knowing Darrell for fifteen years. Chris,
attests to being an attorney since 1997 and knowing Darrell for over nineteen
years. They both attest that the alleged infringing name was obtained for a
business venture they were pursuing to offer discount Hamptons rentals over
good faith”. Judge Hurley goes on to state that “the Court agrees that this
and Richard explained this innocent and ‘fair use’ and there was absolutely
Darrell never testified that he “thought up DSNY”, Darrell testified, “…at that
time the only way to register through Network Solutions is you needed…a
corporation…we had a couple of attorneys in the room and they were saying
there’s no need to file for a corporation right now…I mentioned …my dad
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had an corporation…I know it went under DSNY…”,(A-198-199), (Trial
was selected with the advice of counsel and the correct contact information
was provided.
Grigor is being very coy on p.39 ¶2 of her brief, she wants this Court to
believe Richard had prior knowledge of this registration when she states,
The fact is that Darrell consulted with his attorneys when he received the
Cease & Desist letter and did not immediately tell his father, but as soon as he
Grigor in her brief, on p.39 ¶1 makes statements for the first time that
are not in the record and draws her own conclusions and says that Darrell
house for profit. The record does not support this, but instead shows that
Darrell is a full time real estate agent working for Winick Realty in New York
City. The record shows that all contact information on the ‘location’ page of
There was never any claim or any evidence presented that Darrell
demanded any money for the alleged infringing domain. Grigor tries to
10
confuse the facts, as she did at trial and on p. 39 tries to instill blame on
husband/attorney which Grigor has always been aware of. The allegations
that Richard demanded money for the domain address were cleared up at trial
with testimony from both Richard and Griffith. Griffith’s testimony and Court
Exhibit 2, clearly shows it was Griffith, who threatened and demanded money
from Richard (not conversely). Court Exhibit 2 clearly shows that it was
Griffith who refused to accept the domain name without Richard paying
hypothetical conclusions which are not part of the record. P 42 ¶2, Ms. Weiss
misleading, deceptive, coy and sassy and that DARRELL had every intention
three attorneys and ended by stating to Roomian, “If you have any questions,
please feel free to call me”.(A-50), Roomian did not reply or contact Darrell
2
There was a tape recording made by Richard Rubens of Griffith’s demand and threats
when he spoke with Darrell over the phone.
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(A-233). Even in light of no response from Roomian, (which Darrell rightly,
within 30 days after receipt of this letter and prior to any litigation.3 The Jury
should have determined that it was Roomian and Grigor that acted in ‘bad
faith’ not Darrell. The undeniable facts are that Darrell did not ignore
Roomian’s letter, Darrell consulted with attorneys prior to sending his reply,
(3 days of receiving it). Darrell ceased any ‘use’ within 30 days of this letter,
even though Darrell believed he had the ‘lawful’ right to this ‘fair use’. This
is ‘good faith’ and for the Jury to have construed otherwise was the result of
surmise and conjecture. It was clear error that Judge Hurley did not vacate the
Jury’s Verdict.
262 F. 3d 101 and Hamil America, Inc. v GFI, 193 F. 3d 92, (two copyright
law means a "reckless disregard". Both cases are not on point, nor do they
Darrell, nor did Darrell act with ‘reckless disregard’. Neither case had a
3
Justice Court action for trademark violation commenced after there was no use of the
domain and this action at bar commenced more than one year after any use had been
discontinued.
4
In Yurman the Court of Appeals reversed judgment and vacated plaintiff’s claims of
violation of the Lanham Act and Unfair Competition.
12
defendant that should have been protected by the ‘Safe Harbor’ clause of the
Lanham Act, neither had a defendant that believed his ‘use’ of the domain
address was ‘lawful’ and ‘fair use’. Neither case had a defendant that stopped
all use within 30 days after receiving and replying to a Cease & Desist Letter.
Here again Grigor’s analogies fail. As shown in Desert Beauty, Inc. v. Fox
568 F. Supp. 2d 416 S.D.N.Y. (2008). Judge Chin even states; “failure to
completely abandon the use after receiving a Cease & Desist letter is
Lemme v. N.B.C., Inc. 472 F. Supp. 2d 433 E.D.N.Y., Judge Hurley, in a case
more, does not create an inference of bad faith”, (p. 42-43 Darrell’s brief)
Ms. Weiss states again, which is not part of the record, (p. 43 of
Grigor’s brief) and ironically says that Darrell “did not consult with any
“qualified” intellectual property counsel (in responding to the Cease & Desist
letter), and therefore, DARRELL was acting willfully and recklessly…” Ms.
Weiss continues these inappropriate remarks and draws more of her own
that his conduct was ‘willful’ and thus engaged in ‘bad faith’. Ms. Weiss has
13
wrongfully inferred to this Court that there must be some law, somewhere,
order to ‘help’ or represent a client and that ‘friends’ who are attorneys should
not offer their services without formally being hired. In this case, who could
be better ‘qualified’ to assist Darrell with a Cease & Desist letter than
attorneys who knew Darrell and his parents for over fifteen years and that
have personal knowledge and were part of the intended business venture.
Even though the basis of this fanciful argument could not possibly lead any
faith’, Ms. Weiss is not coming to this Court with clean hands. She fails to
law and admittedly did not know anything about the action he personally
brought forth for his wife against Darrell and Richard in Justice Court for
appears to have only been involved in one intellectual property case and that
The Pacer Dockets of Eastern & Southern District Courts and the second
Circuit show that Ms. Weiss is extensively involved in just Civil Rights
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claims and little more 5 . Therefore, it is clear that Grigor’s attorney’s
POINT III
immediately replied to Roomian’s Cease and Desist letter and Darrell acted in
good faith when he discontinued the ‘link’ to his parent’s interior design
name Design Quest, tells about the interior designers Richard and Barbara
Rubens, and has portfolios of the corporation’s design projects and a location
page with a modern house and contact information for Richard Rubens at the
corporation’s phone number. No purchases of any kind can be made from this
5
Civil Rights actions and Trademark actions provide ‘attorney fee’ awards and do not
follow the “American Rule” where each litigant bears its own expense. It seems as Ms.
Weiss seeks to obtain these fees from the opposing parties rather than her own clients.
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Court agreed that Grigor failed to offer any evidence that anyone was
confused, deceived or that there was any loss of good will, nor did Grigor
even attempt to show any loss of business, or lost profits. Anyone viewing the
Design Quest web site would know that it was Design Quest. No reasonable
person and certainly not the specialized type of scout that wished to look for a
Hampton location for their client would by any stretch of imagination confuse
“believed and had reasonable grounds to believe that the use of the domain
Chatam Int'l, Inc. v. Bodum, Inc., 157 F.Supp.2d 549, 554 (E.D.Pa.2001)
Darrell indisputably had reasonable grounds to believe that any ‘use’ of the
domain name was ‘lawful’ and ‘fair use’, Darrell’s brief, (p. 38-51) The
record establishes that the vast majority of factors listed in ACPA favor a
finding of no bad-faith.
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Jury had to be based on pure conjecture and surmise and the finding of Judge
Laser Institute P.A. v. Sanderson 573 F. 3d 1186 (11th Circuit 2009) as to how
statutory damages act as a punishment. For Ms. Weiss to compare the actions
surgeon, under the employ of St. Lukes, pirated the hospitals web site,
changed the internet hosting company and directed the hospitals domain
names into a new hosting company under his sole control without any
someone to make some minor changes and shortly after he resigned from the
hospital and opened up his own practice and relaunched the web site and
directed the domain names to his own internet hosting company’s server.
analogy of what ‘willful behavior’ and ‘bad faith’ is proves that there is
Grigor has not produced one case on point. Darrell’s brief, Joint and
Special Appendix and Exhibits, supported by trial testimony, case law and the
17
entire record makes it clear error for any Jury or Court to determine that
Richard, Barbara and Darrell still argue that this is a ‘junk lawsuit’,
concocted to harass and retaliate against the Rubens. Darrell believes that his
‘use’ of the alleged infringing mark was a mere token use that was ‘lawful’,
‘innocent’ an in ‘fair use’. Darrell has put forth clear and concise arguments
and case law that the term Hampton Locations is ‘functional’ and should be re
classified as generic or at the least be determined that Grigor’s mark has not
contradict all the law established by the various Appellate Circuits as well as
U.S.C. 15 ¶1117 of the Lanham Act and U.S.C 28 ¶1927 provides that
the Court in ‘exceptional cases’ may award reasonable attorney fees to the
prevailing party. Grigor has failed to tell this Court that Richard, Barbara and
Darrell have a motion pending in the District Court for their attorney fees.
The Second Circuit has held that the standard for the award of attorney’s fees
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to a prevailing defendant is the same as to a prevailing plaintiff. Conopco,
Inc. v. Campbell Soup Co., 95 F.3d 187, 194-95 (2d Cir.1996), “Nothing ...
indicates that a different standard should apply for prevailing plaintiffs and
multi-claim case which includes both Lanham Act and non-Lanham Act
prosecuting or defending the Lanham Act counts.” However, “if the claims
are so ‘intermingled’ that the factual basis and the legal theories are
essentially the same; the court may award all of the prevailing party's attorney
fees, making no deduction for the Lanham Act counts.” The Rubens’ motion
in District Court is based on the fact that all of Grigor’s five ‘intermingled’
claims were summarily dismissed against Barbara, three of the five claims
were summarily dismissed against Richard and Darrell and the Jury dismissed
the remaining two claims as to Richard, and one of the remaining claims as to
Darrell which left only the one claim against Darrell, which is now before this
Court on appeal.
The District Court’s attorney fee motions are not before this Court nor
has any decision been rendered. Upon the resolution of this Appeal, or as
soon as this Court requests, Darrell, Richard, Barbara Rubens will move this
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Court to determine that this is an ‘exceptional case’ based on the
vexatious, and meritless lawsuit and for the oppressive conduct of Grigor and
her husband attorney and Ms. Weiss for the having knowledge of and the
orchestration of threats on the Rubens’ family and their witness Mr. Lee
Davis. And based on the fact that this ‘junk’ lawsuit was initiated for
retaliation and for the sole purpose of harassing the Rubens’ and tying them
POINT IV
Grigor’s argument, that because Darrell did not present any defense
case the Jury verdict is hardly surprising. This argument fails. There was no
need to burden the Court or the Jury with repetition of the main case. Grigor
and her witnesses were adequately cross examined and impeached. Darrell
and Richard, were called as witnesses in the main case, entered exhibits into
evidence and adequately refuted any and all claims. Grigor failed to present a
Prima Facie Case, and Defendants made a proper 50A Motion. It was clear
20
POINT V
The Jury Verdict was based on such a lack of evidence that it had to be
based on pure conjecture and surmise. For a Jury to find that Grigor’s mark
that they could not have understood ‘the heavy burden’ of proof that Grigor
needed to show. It had to be error for Judge Hurley to rule that Hamptons
Locations is a descriptive mark and not generic and it must be clear error that
Judge Hurley did not reverse the Jury’s determination that Hamptons
Locations had acquired Secondary Meaning as of July 8, 1999 nor vacate the
Jury’s Verdict that found that Darrell violated 1125(d). Judge Hurley’s
including the finding of Judge Hurley himself in Lemme v. NBC, Inc. 472 F.
Summary Judgment on February 1, 2007, just a few days after the Jury
findings in this case at bar, (Darrell’s brief p. 42-43), To uphold the Jury’s
Verdict and the denial of Darrell’s 50B Motion would turn this ‘junk’ lawsuit
21
into one of the most important and adverse decisions the Circuits have seen
and would defy the legislative intent of the ACPA. It would open up the
to slaughter the innocent with and would totally change the necessary and
enterprise.
POINT VI
As stated in the Rubens’ brief, p. 53-60, there are good and valid
Grigor and her agents were able to continue to use the judicial system in such
an oppressive way and not let the Rubens family have their day in Court.
Grigor and her agents abuse of process continues to this day and certainly this
abuse conforms to the necessary three elements that are to be pled. The
Rubens’ were Pro Se litigants when they pled their counterclaims and when
22
they were dismissed, and now this Court has the option to afford some degree
CONCLUSION
Court to reverse the January 24, 2007 decision of Judge Hurley that classified
mark and upon such classification order the cancellation of the registration of
such mark. In the event that this Court finds that the mark is not generic then
Darrell respectfully requests this Court to find that Hamptons Locations has
further respectfully requested that the one Jury Verdict that was decided on
January 29, 2007 and entered as the Clerk’s Judgment in a Civil Case on
January 30, 2007 that determined that Darrell violated §1125(d) and awarded
Grigor a statutory award of $1,000.00 be reversed and vacated and for this
Court to reverse the denial of Judge Hurley’s 50B Motion, along with such
23
further relief as this Court deems just and proper including award Rubens’
attorney fee motion for the undertaking of this appeal and grant Rubens
Respectfully Submitted:
_____________________________
Michael B. Ronemus
Ronemus & Villensky
112 Madison Avenue
New York, NY 10016
212-779-7070
E-mail: mikeronemus@ronvil.com
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