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[Jive Turkey]

I hate this thread. Every time it gets bumped I spend the next couple of hours reading.

 

[inky]

As I've said a couple of times (but hey, I'm a helluva patient guy) he won't get fines/jail/gaol from this court. Wrong sort of court.

Oh, I know that -as I've read all your posts with utmost delight. I wasn't really clear, but I just meant eventually, when he's done wasting everybody's time and he finally gets called out on the most serious bullshit you pointed out. By this point I think no one is really worried about his "trademarks" anymore, but him.

 

[phisheep]

I hate this thread. Every time it gets bumped I spend the next couple of hours reading.

Means I spent the previous couple of hours writing - fair's fair!

 

[BobTheFork]

Fine wine. It just keeps getting better the longer it goes.
If I had gotten a male hedgehog last week I was going to name it Langdell. I got a female though and didn't feel the need to saddle her with it.

 

[phisheep]

This bloody document I am working through feels like a kiss of death for Langdell, even though he wrote it and, apparently, seeks to get some benefit or at least some delay out of it.

Let me just quote you one paragraph, paragraph 28, from the middle of this enormous rant which appears to have very little to do with the legal issues it is supposedly trying to address.

28. In Binns paragraph 13, he deliberately seeks to mislead the District Court into
believing that the specimen that Edge filed in 2004 to support the Combined Declaration of Use and Incontestability was not “genuine” – clearly wanting the Judge to believe he was saying the specimen was a fake. Binns was deliberately stating that the specimen was not of their own UK magazine called “Edge” and putting his statement in such a way as to mislead the Judge into thinking that there would have been only one such genuine item in 2004, and that would have solely been the Future UK magazine. What Binns omits to say, deliberately so as to mislead the Judge, is that Future did not have the right to print US versions of its Edge magazine at that particular time in August 2004 (they gained that right a few months later in October 2004). He deliberately fails to mention that in August 2004 Edge Games had the sole right to publish such printed matter as is depicted in the specimen in question, and that the specimen was an entirely genuine copy of Edge’s printed matter goods and not the “fake” that Binns (and Electronic Arts) clearly wanted the Judge to falsely believe.

I should explain that 'Binns' was a representative of Future Publishing at the District Court trial that Edge Games brought against EA. Paragraph 13 refers to a submission to the District Court in the case we all thought was over.

Now, for those of you (probably all of you) who have been following this saga, this is Langdell trying to say that he had the right to publish the magazine in the US subject to his agreement with Future Publishing, but carefully avoiding presenting any evidence that Edge Games (or, for completeness, Edge Interactive Media, or Tim Langdell, or BAIAS Ltd or Edge Europe or KILLEREDGERACING) actually wrote/designed/published/sold anything of the sort. Ever. And therefore hoping to avoid accusations that the fake he presented to the USPTO was a fake of anything in particular, and skating over the fact that he never ever published anything of the sort. It's a bad argument. And horribly badly expressed.

There are 29 fucking paragraphs like this. Spouting meaningless junk that is irrelevant to the point in issue.

Eventually we get to para 30 which says something like therefore Future's motion to (blah blah blah) should be rejected because of (no discernable reason).

The whole thing is a big old rant, and I'm sorry to say I shall have to read it again tomorrow (after the Rugby).

But it isn't like it is going to do Langdell any favours.

 

[Magna_Mixalis]

It sounds like he knows he's screwed and is now using the political/special interest fearmongering tactic of screaming lies repeatedly until people accept his view of events simply to shut him up.

I'm now torn between wanting him to finally be put out of his misery and wanting to buy some more popcorn and wait to see what insane, delusionary, and borderline illegal delay tactics he can come up with to prolong the madness.

Oh, and phisheep, once again major kudos for subjecting yourself to all of this for our edification and entertainment.

 

[phisheep]

I'm now torn between wanting him to finally be put out of his misery and wanting to buy some more popcorn and wait to see what insane, delusionary, and borderline illegal delay tactics he can come up with to prolong the madness.

Me too. I'm kind of hoping for the point at which he calls his wife as a character witness and she disclaims all knowledge. That's probably about 18 months away (well into the criminal stuff) since they have recently co-authored a book.

 

[Cosmo Clock 21]

It sounds like he knows he's screwed and is now using the political/special interest fearmongering tactic of screaming lies repeatedly until people accept his view of events simply to shut him up.

I'm now torn between wanting him to finally be put out of his misery and wanting to buy some more popcorn and wait to see what insane, delusionary, and borderline illegal delay tactics he can come up with to prolong the madness.

Oh, and phisheep, once again major kudos for subjecting yourself to all of this for our edification and entertainment.

Give an inch and Langdell will take a foot. The more leeway you give Langdell the harder he struggles to break free.

 

[phisheep]

Apparently Langdell made a mistake:

We inadvertently filed the wrong version of the files for our filings on September 28. We are thus submitting the corrected papers with our apologies for the error.

So there's a whole new set of papers submitted yesterday to consider.

Now, I really have to do some gardening right now, so analysis will have to wait for a bit, but the major change so far appears to be this:

As co-owners of several of the trademark registrations in question, Future was an indispensable party and necessary party to the District Court action: since Future was not a party to that suit, no valid final judgment could lawfully be made. Accordingly, the final judgment issued by the District Court was invalid and void on its face (not merely voidable).

(emphasis in the original)

That is something of a strange claim, since it was Langdell who brought the District Court action against EA in the first place then it is probably his own fault that Future was not joined in the action. I guess that if he had won the District Court case he would not then have claimed it as invalid because Future was not there?

Interesting approach.

Seems to me that counsel for Future might have (probably deliberately) provoked Langdell into unwise assertions. Though unwise is what we have come to expect.

I'll look more closely when I've got the gardening done.

 

[oracrest]

By gardening, do you mean munching on grass, and contemplating legalese?

 

[phisheep]

Langdell put in yet another motion yesterday, so I have four to go through. Here's the first two.

Lead Counsel

In which Langdell reveals that he doesn’t know what a lead counsel does – which scarcely improves his qualifications for acting as one. He’s getting it confused with joint counsel, which is definitely not going to happen in this case.

Really Langdell ought to concede this point now and let Future’s counsel take the lead. It is mostly an administrative role to be sure, but there are good reasons for having a proper attorney in the role, not least that the court has some control over attorneys in terms of their professional duties that it does not have over litigants-in-person.

Whatever happens, Future’s counsel will end up being lead counsel here and there isn’t anything that Langdell can do about it. It isn’t, because of an attorney’s professional duties which can be backed up by the court, particularly to Langdell’s disadvantage either.

Response to motion to cancel under Lanham Act

We now have the exhibits attached. Hi Tim.

This is by far the most important motion right now. You’ll remember that Future moved to just have the trademark(s) cancelled as a result of the court order in the District Court (see post #300 above). Langdell is trying to claim that the court order was void. That’s a tough call though.

The main thrust of his argument is in the bolded paragraph at the beginning:

As co-owners of several of the trademark registrations in question, Future was an indispensable party and necessary party to the District Court action: since Future was not a party to that suit, no valid final judgment could lawfully be made. Accordingly, the final judgment issued by the District Court was invalid and void on its face (not merely voidable).

As a general assertion, this is almost certainly false. All manner of valid judgments/orders could lawfully have been made in the District Court case. For example, if the District Court had granted an injunction against EA, that would not have been invalid, and it wouldn’t have needed Future to be involved either.

It isn’t quite so obvious that the particular order that was made for cancellation of the trademarks could have been made validly without Future’s involvement at some stage. But there’s a twist. It is at least arguable, and probably just plain true, that Langdell was throughout acting as Future’s agent in respect of the jointly-held trademark(s). Certainly there was some agreement between Edge/Langdell and Future in respect of managing the trademarks, and this contract was not repudiated until at the earliest June 2011 when the UK High Court gave judgment on it. Up until then, which includes the whole of the District Court proceedings and judgment (October 2010), it seems that Langdell had at least some authority to deal with these trademarks on Future’s behalf.

If so, and it is a convincing-sounding argument, then there was no need for Future themselves to be involved in the District Court proceedings at all and the final order will be valid, provided only that Langdell had the actual or ostensible authority to agree to cancellation of the trademarks.

Now, it would be very surprising if Langdell had actual authority from Future to agree to cancellation of the marks, but it is beyond doubt that he held himself out as having this authority (since he did in fact so agree).

Often the unauthorised acts of an agent cannot bind the principal (this is a complicated area of law, but that’s sort of roughly it) BUT – and here’s the second twist - the principal can retrospectively ratify such acts, which Future appears to have done in this case by agreeing to the cancellation of the marks.

If Langdell had taken this position earlier, before Future agreed to cancellation, and if he’d done so at the District Court, then he might just have got away with it (though possibly at the expense of having to face up to the fraud allegations, as he had nothing else to trade that would lead to a settlement).

But it is now too late for him to do this.

Unless he manages somehow to tackle this issue head on, he is very likely to lose this argument.

The rest of Langdell’s motion bangs on interminably about reasons why the judgment is invalid. Most of them rely on the claim that the judgment sought to bind a third party (Future) – these have no force if Langdell was acting as Future’s agent, and they have no force anyway since the judgment sought to bind the USPTO rather than Future. (but see also post #317 below)

In the attachments which we now have, Langdell shows some (redacted) emails from Future in 2009, which he seems to think support his cause, but only go to show just how exasperated Future were then becoming with their relationship with Langdell and with him personally. EDIT: Of course, what they also show - and which kind of scuppers some of Langdell's possible arguments - is that Langdell was in effect acting as Future's agent!

 

[Dead Man]

Thanks for the great updates for us laypeople, Phisheep.

 

[kinoki]

Just putting the mandatory "phisheep i <3 u" here so that you know you've got readers. (Write the book and I'll buy it.)

 

[Yagharek]

So is Langdell reading this thread and phisheep's analysis I wonder? Because if for example I was doing something related to my work, and people were critiquing me, it would be hard not to make changes should obvious flaws be made known.

 

[phisheep]

So is Langdell reading this thread and phisheep's analysis I wonder? Because if for example I was doing something related to my work, and people were critiquing me, it would be hard not to make changes should obvious flaws be made known.

Well, it is interesting to note that in the latest version of these motions all claims that the District Court judgment is void because it seeks to 'bind' a third party have been changed to say 'bind and/or impact', since I pointed out in post #296 above that the judgment was in no way binding on Future. And I don't imagine that anyone else is telling him that. It's not like he has a good lawyer because if so he would not have submitted the first version.

Of course, the new version is not good law - because probably the vast majority of court judgments and orders have some impact on third parties - but it is an instructive change.

 

[phisheep]

Here are the other two motions. Sorry, it’ll probably be a longish post.

EDIT: this post looks fucking awful in widescreen, because of trying to do one-liners on each individual point. It reads a lot easier if you shrink the width of your window. Still bloody long though. (made this point at the bottom, but probably a good idea to mention it up here before your eyes bleed off).

Reply to motion opposing Langdell’s attempt to withdraw surrender of two trademarks

This motion (along with the ones that preceded it) is a bit of a sideshow. Whichever way it goes it doesn’t bring an end to the case, and if Future wins the cancellation motion then all five marks will be cancelled anyway so this motion will be of no effect. Nevertheless, there is a significant amount of mudslinging and petulance here that makes it at least an interesting sideshow.

By way of background: Langdell had ‘voluntarily’ surrendered four of the five trademarks in issue, he then sought to withdraw two of the surrenders on the grounds that they too were co-owned with Future. Future opposed this move, and in the text of their motion bluntly characterised and interpreted Langdell’s activities – in the sort of terms that GAF readers will understand. This seems to have triggered an intemperate and probably dangerous response from Langdell. It is actually quite difficult to pin down just what this document is hoping to achieve, since so much of it consists of barely-coherent accusations. I'll try to pull out the main themes, but you'll have to read the document yourselves to get the full flavour and the juicy quotes.

Paras 1-3 push back rather vehemently at Futures characterisation of Langdell's actions, and para 4 complains that Future is not acting properly as a defendant but colluding with EA to squeeze Edge.

It looks like Langdell's strategy here is to portrayy Future as the evil puppetmaster and himself as the innocent dupe. He's half right on the last one.

Para 5 claims that because Future were co-owners of some of the trrademarks, they too should have be accused of fraud and abandonment. That's just bizarre. Nobody at all has suggested that Future perpetrated any fraud or abandoned anything. On this logic if I jointly owned a car with my brother and he ran someone over in my absence, I should be liable for negligence of GBH or whetever. Ownership alone proves nothing here.

Besides, it is entirely up to EA who they level their case at - that's the way the civil courts work.

Paras 6-12 are the old stuff about the District Court judgment being void because Future weren't involved. I've gone over that ground enough already. It isn't void.

Para 13 says that the District Court had an obligation to add Future as a defendant. Hmmm. Remember who brought the case in the first place? Langdell. It is his business to get the right people in court.

Paras 14-16 claim that the Board does not have to comply with the court order even if it is valid, because it didn't give a reason for cancellation. That's just wrong - Lanham Act - I posted about it somewhere up above.

Paras 17-19 go on about the terms of the settlement agreement and the recent shenanigans about EA first requesting entry of judgment, then withdrawing it, then asking for voluntary surrenders.

EA made some tactical mistakes both here and in the settlement agreement. But they aren't fatal mistakes, because the court judgment trumps the settlement agreement.

Para 20 quite rightly (!) points out that nobody has previously filed a motion to just get the court order complied with. Quite right too - it should not have needed a motion, the USPTO should have just cancelled the things.

Paras 21-26 is all about the divided registration. I'll cover that off in talking about the next motion, else I'll get all repetitive.

Paras 27-32 (which I recommend the masochists among you read!) cast some quite specific aspersions of perjury on EA, Future and (I think) Marvel in respect of the District Court case.

Now, there's a time and a place for doing this sort of thing. The time is at cross examination and the place is before a jury. Not in an unrelated preminary motion before an inferior court.

Of course, this raises a key question. If we are to believe what Langdell says here then why did he settle the case, on terms ENTIRELY to his disadvantage, when it was open to him to rebut the opposition witnesses? There's no good reason. None at all.

Paras 33-34 seek to draw the conclusion out of this lot that Langdell should get to withdraw his surrenders of two trademarks. Beats me how they are meant to do that.


Now, if you were to read all this on its own - and were willing to ignore the legal fallacies - you might indeed get the impression that Future was the evil puppetmaster and Langdell the innocent dupe. To a conspiracy theorist it all kind of makes sense. And certainly some of Futures recent actions and changes of stance might look suspicious if there were no alternative explanation.

But there is an alternative explanation. It is that Future - rather belatedly but at the same time as the rest of us - started to cotton on that they were in the grip of a glib and persuasive but ultimately incompetent fraudster rather than the master IP tactician that they thought they had. Plus, this guy had about a quarter million of their money.

I don't blame Future for this. They weren't the first but are certainly the biggest of Langdell's victims, and they are fully entitled to change their minds about him - as did the IGDA, National University and probably a few more to come.

I would prefer it, though, if Future came right out and said "look, we were duped by this guy - and maybe it was our money that set him up to do what he's been doing. Sorry folks, we know it doesn't look good but that's the way it is." It's a hard thing to do, but it would disarm some of Langdell's potential tactics going forwards.

On the other side, I would love to see what it was that Langdell redacted from the emails he has put in attachments.

Motion to undivide a registration

http://ttabvue.uspto.gov/ttabvue/ttabvue-92051465-CAN-58.pdf

This one is new (though it also crops up in paras 21-26 of the above motion).

What happened was, BEFORE any of the cases between EA and Edge started, Future (probably having got wind of either what EA was up to or what Langdell was up to or both) applied to get their shared part of the EDGE trademark divided off from Langdell's.

That got finally processed and confirmed in November 2009. That's AFTER the TTAB case started, but BEFORE the District Court case. Sorry for all the caps, but timing is important on this one.

What Langdell is keen to do is to keep Future involved (and implicated) in this as much as he possibly can. So he is applying to either have this division of trademark reversed, or to have the Future trademark brought into the case.

For starters though, this motion is out of order, since proceedings are suspended pending the outcome of the other two motions. So it's not gonna happen.

Even if it could be considered, the outcome would be considered AFTER the two current motions. And if the motion to cancel the trademarks goes ahead they will be just plain cancelled, and that will affect Langdell's part of the EDGE mark but not Future's.

And there's no argument (as Langdell seems to be sort of trying to make out) that the District Court judgment refers to the undivided registration, as it had been divided before that action started.

So the only argument that Langdell has left is not based on what actually happened, but on what the USPTO "ought" to have done. And that's an argument that Langdell makes both here and in the previous motion.

It is a very dangerous argument for Langdell to make.

Because once it is admitted that you can have recourse to what "ought" to have been done, the door is open to show that the USPTO "ought" to have rejected Langdell's false claims of trading and use of marks, and "ought" to have rejected some of the wilder claims of infringement that he made and "ought" to have acted more precipitately on allegations of fraud.

"Ought" is dangerous ground indeed for Langdell to be lying on.


That's enough for tonight. Took me enough time to get through those two docs. I'm hoping tomorrow or the next day to putting up a post on what I think are the current and optimum strategies for the three players in this game.

EDIT: Goodness. That's the most eyewrenchingly horrible post I have ever put up about anything. Yuk. Best I could do this time of night, sorry. (EDIT AGAIN: it is a lot less eyewatering if you shrink the window to half of a widescreen - fullscreen is still horrible).

 

[Magna_Mixalis]

@phisheep:

I skimmed the thread, but didn't see if you have already answered this question:

If the USPTO was ordered by the courts to cancel any trademarks, etc; why haven't they? I wasn't aware they had the authority to tell the courts to go to hell. It seems that a lot of this mess could have been taken care of simply by the USPTO doing what they were told.

Also, how much longer do you think this farce will continue? It sounds like Timothy is grasping at straws now. Is he doing all of this in hopes of delaying the inevitable criminal charges?

 

[SapientWolf]

I don't see how these two motions help Langdell in any way. They're only going to give Future incentive to take legal action against him, if they haven't already.

 

[Clever Pun]

Thanks as always phisheep

 

[Erigu]

they are fully entitled to change their minds about him - as did the IGDA, National University and probably a few more to come.

?
Another anecdote I missed, there?

 

[Puppet Shadow]

?
Another anecdote I missed, there?

Maybe it's when National University found out he's still saying he's associated with them?

...About the Author
TIMOTHY LANGDELL is Clinical Psychology Professor and Chair of the Media Department at National University.

 

[gabbo]

My only real question this far along is why haven't the USPTO actually cancelled the trademarks as they've been ordered to do? Is it that busy a place?

 

[Azure Dream]

Just putting the mandatory "phisheep i <3 u" here so that you know you've got readers. (Write the book and I'll buy it.)

This is actually a great idea. Call it:

Over the Edge

Seriously, Langdell's brand of crazy is entertaining to even a layman. Then again, I don't know if your sanity could take writing a full book about the man.

 

[phisheep]

If the USPTO was ordered by the courts to cancel any trademarks, etc; why haven't they? I wasn't aware they had the authority to tell the courts to go to hell. It seems that a lot of this mess could have been taken care of simply by the USPTO doing what they were told.

Beats me too, see post #99 above.

Also, how much longer do you think this farce will continue? It sounds like Timothy is grasping at straws now. Is he doing all of this in hopes of delaying the inevitable criminal charges?

Time for a look at what happens next.

There are three motions on the table in this case. I expect that Future's motion to get the marks just plain cancelled pursuant to the court order will succeed, it is founded on good solid law, and Langdell's defences to it are pitifully weak and unsupported by authority. Since the logic applies to all five trademarks in issue and not just to the one the motion is about, then all five should then be cancelled. It therefore doesn't matter which way Langdell's motion to withdraw a couple of voluntary surrenders goes, since the marks will be cancelled either way. I suspect it might be granted (on the same grounds his previous withdrawal was granted) but that won't stop the cancellation. Langdell's motion to undivide a trademark between him and Future is out of order and will not be considered (a) because proceedings are suspended and (b) because it is not the Board's call which marks are the subject of the case, it is EA's call as the plaintiff - and EA haven't called for it.

It seems to take the Board a couple of months to make decisions, so there may be some delay. And after the decisions there is usually a 30-day appeal period just in case. So don't hold your breath for it.

IF all that happens, there's then the question of what happens with this case. I guess it will be dismissed without prejudice, since it is a cancellation case and there will be nothing left to cancel. That would leave all the allegations of fraud and abandonment undecided, but it would also mean that nobody has to agree to who is going to be lead counsel.

From the point of view of everybody except Langdell, that's an OK outcome to this case, as criminal charges are likely to follow fairly swiftly. Big advantage doing it that way round as (a) the state, rather than the other parties bears the cost of investigating/prosecuting and so on, (b) criminal cases tend to move faster than civil ones, and (c) a criminal finding of fraud will make future civil cases pretty well a walkover.

I've been a bit bemused as to why Langdell over the last few months has been so keen to keep this case open. I think that what he is trying to do is get Future implicated in at least the fraud part of the fraud-and-abandonment allegations, hoping that that will muddy the waters for any prosecutor trying to make a criminal charge stick. Either that or he is just doing delaying tactics. I really don't know. Depends to an extent how smart the guy is (and I do sometimes wonder that he can't actually be as stupid as some of his actions make him appear). Certainly his comments to Eurogamer - I'll put a link up if I ever find it again - suggest he thinks it is a big advantage to him having Future as co-defendant, and I don't imagine for a minute this is for altruistic reasons. There are all sorts of other ways he could delay the case without doing things that - if they succeed - would mean he would have to answer to the fraud allegations, which makes me think that he believes, now that Future is on board, that he has at least a partial defence.

 

[Magna_Mixalis]

Thanks for the update. I think he knows he's screwed, and like you said, is trying to get Future to take some of the blame for his insanity.

Will that work, though? It seems like Future can make a credible claim that they were conned/blackmailed.

...And I second the suggestion that you write a book about all of this. Lord knows you've already put a phenomenal effort into keeping tabs on all of this and deserve a little compensation.

 

[phisheep]

Future filed a motion today.

It seeks to have the board dismiss all of Langdell's most recent submissions (except for the stuff about lead counsel and the new, and plainly out-of-order, motion to reverse the division of the EDG mark between Future and Edge), on the grounds that they are variously (a) filed too late (b) too long (exceeding the 10-page limit for a reply) or (c) improper in that they reargue something that has already been argued.

That's neither here nor there in terms of the eventual outcome, but is a pretty firm shot by Future to stop Langdell spinning the process out by bucking procedure.

Over here, litigants-in-person are often given some leeway on procedure - after all it is only fair, and I guess it is the same over there. But Langdell is no stranger to the courts and in the circumstances it is entirely fair for Future to try to shoot him down.

Note that this is still defendant versus defendant and EA is noticeable by its absence. Reminds me of tag team wrestling.

Thanks for the update. I think he knows he's screwed, and like you said, is trying to get Future to take some of the blame for his insanity.

Will that work, though? It seems like Future can make a credible claim that they were conned/blackmailed.

I'm sure they could, but I'm equally sure that Future is embarrassed enough about all this stuff without wanting to wash more of its dirty linen in full view of the internet.

...And I second the suggestion that you write a book about all of this. Lord knows you've already put a phenomenal effort into keeping tabs on all of this and deserve a little compensation.

I've considered it. But I doubt it would sell well enough to pay back the time involved. It would be tough to keep it free of libellous statements as well - I should have to exercise considerable self-restraint. Besides, in order to get the full story I'd probably need either or both of Future/Langdell on-side and I really don't see that happening.

 

[phisheep]

Just when we thought they had gone to sleep, EA has gone and filed a motion.

It's a very simple one. They've taken the case away from their external lawyer and pulled it in-house.

There might be nothing significant in this, but it suggests to me that either (a) EA don't think this will come to trial (inhouse lawyers aren't usually big on trial litigation) or (b) they were unhappy with their external lawyer.

I suspect it is both. Future's motion to just get the damn trademarks cancelled looks likely to win and there would be no point in a trial if it succeeds. And EA's external counsel should have spotted that line well before now - months ago - and it would all have been over without Future needing to get involved.

Otherwise, we're just sitting tight waiting for a decision.

I'm pretty certain, though, that this shows EA does not have the appetite to continue the trial process to the bitter end.

 

[chubigans]

Bah, I hope EA does stick with it. Would be a shame if they didn't.

 

[phisheep]

EA filed a motion yesterday, opposing Langdell’s attempt to drag Future’s Edge trademark into the proceedings.

In fact, they seem to have filed it twice, either that or the TTAB processed it twice or something.

It makes two main points:

1) this is EA’s petition to cancel, and it is up to EA not anyone else (and certainly not Edge Games) to decide what’s included
2) some detailed analysis of the sequence of events to show it is not an accident that Future’s mark is not included in the proceedings

Both are sound points.

There are two slightly odd things though.

First is that, despite EA’s motion a few days ago to change lawyer, this motion carries the old correspondence address (this might just be because TTAB hasn’t acknowledged the change of address yet).

Second is that, like Langdell’s recent motions, this one is strictly speaking out of time to respond. Don’t know what the Board will do about that. More importantly, it presents Langdell with something of a tactical conundrum. He could of course, seek to get this motion suppressed as being out of time – but that would be to tacitly support Future’s argument that Langdell’s own motions should not be considered on the same grounds. Or he could let it go and cross his fingers that the Board suppresses it anyway. Or he could try to argue against it – so potentially bringing both this and his own motions into play – but the trouble is that though this might buy him some time it is pretty hard to find a way of arguing these points, so he could end up looking an idiot.

I’m guessing on past performance he will go for the third. I can think of only one good-ish way of arguing the motion (that is, not a solid point but potentially a persuasive one and importantly not dick-ish), but I think I will leave Langdell to try and work that one out for himself.

 

[zero01101]

i've personally seen it mentioned repeatedly, and rightly so; ergo, i shall accompany the many voices. phisheep, your incredible summations and ability to convey these proceedings to the layperson are nothing short of astounding. i doff my hat to you and would sheepishly like to ask for your autograph. :3

 

[BobTheFork]

I have to imagine this whole case will end of as a study of future students. Just the tactics and tricks envolved are amazing. The whole fiasco with the fabricated evidense disc was the most interesting legal preceeding I've rad.

 

[Tylahedras]

Man I hope this guy ends up in jail. The only thing I hate more then a cheating SOB is one that makes everyone jump through hoops to drag things out when he's caught red handed.

People like this are leaches and you have to burn them off.

 

[H.Protagonist]

I've been a long-time lurker of your thread until today (I am approved!), phisheep, and I just wanted to say thanks for all the updates, info and making it possible for us to enjoy this epic saga from the sidelines. Your thread is one of my favorite lunchtime reads.

 

[phisheep]

Thanks guys.

Things seem to be hotting up now, as we get closer to the Board making a decision - at least I hope so, we can't possibly be getting further away can we (not unless we are filing motions faster than the speed of light, which we most certainly aren't).

Langdell has just filed a motion in response to Future's attempt to shoot him down (see post #328).

It's the old 'lost in the post/dog ate my homework' stuff all over again. He claims that either Future never sent the original response he was replying to or that he never received it - only becoming aware of it through checking the TTABVUE system in mid-September. So he should have more time. Unfortunately, the rules say that "The time for filing a reply brief will not be extended" and courts are usually sticklers for the rules. Thing is, Tim should know this stuff. He's been involved in, what, 30 proceedings before the Board previously? He should have known when Future's response was due, and pounced as soon as it didn't arrive (if it didn't, that is).

He also claims that he should have been allowed more than 10 pages to reply (a) because he was replying to two responses, so should have twice as many pages and (b) that Future's response was 100 pages and needed a lot of replying to. Again, though, the rules are pretty strict. And Langdell seems not to understand the difference between the rules for a motion, a response and a reply.

He claims not to know that surreplies are not permitted (that is, replies to replies) and seeks the boards indulgence on that, saying that they contain important legal arguments (they don't).

And, very very belatedly, he asks the board to rule out Future's original motion on this matter (see post #262) on the grounds of it not being properly served because it says it was served by email and did not contain a proper service certificate. Actually the motion says it was served by email AND first class post, and though Tim may by technically right, he is on dodgy ground, as he has been caught out for improper service a few times in these very proceedings.

I don't think that any of this will fly. There's a slim possibility it could give grounds for appealing a judgment BUT as I think I mentioned before, I don't think that there will be a judgment in this case, so there will be nothing to appeal against here. And there can't be an appeal against the District Court judgment either, because Langdell stipulated to it.

He hasn't (yet) responded to EA's latest motion (see post #331). I think he might be struggling with that one a bit.

 

[Magna_Mixalis]

@phisheep:

I have a question. During all of this, has it been the same judge/judges who have been overseeing the proceedings? And if so, why would they continue to allow this? I will admit to my ignorance of court procedure, but it seems as if the judge would get sick of Langdell's repeated violation of court rules and hold him in contempt. I 'm pretty sure that if I tried half of this crap in a civil trial I'd be crushed like an ant almost immediately. Or am I completely off base?

Anyway, thanks for the updates. I'll be stocking up on the carrots and chipotle dip and wait breathlessly for the next round of madness.

 

[someguyinahat]

phisheep, knowing that Langdell pulls the old "I never received it" trick, why don't Future and anyone else send him things via registered mail, forcing him to sign for them as a mark of receivership?

 

[gabbo]

phisheep, knowing that Langdell pulls the old "I never received it" trick, why don't Future and anyone else send him things via registered mail, forcing him to sign for them as a mark of receivership?

Doesn't First Class Post include this?

 

[someguyinahat]

Doesn't First Class Post include this?

Apparently not.

 

[phisheep]

I have a question. During all of this, has it been the same judge/judges who have been overseeing the proceedings? And if so, why would they continue to allow this? I will admit to my ignorance of court procedure, but it seems as if the judge would get sick of Langdell's repeated violation of court rules and hold him in contempt. I 'm pretty sure that if I tried half of this crap in a civil trial I'd be crushed like an ant almost immediately. Or am I completely off base?

No Magna, you are completely on-base. But the TTAB's hands are tied by the applicable law. Here, that is specifically 37 CFR 2.127 (f)

(f) The Board will not hold any person in contempt, or award attorneys’ fees or other expenses to any party.

No, I don't know why that provision is there either. And I bet the interlocutory attorney handling all this stuff (yes, it's been the same one all the way through - might send her a bunch of flowers when this is all over) is just as frustrated as we are. In any normal civil trial you would indeed be crushed like an ant.

phisheep, knowing that Langdell pulls the old "I never received it" trick, why don't Future and anyone else send him things via registered mail, forcing him to sign for them as a mark of receivership?

Good question. Probably because his address for service is not his home or place of business, but a maildrop in Pasadena. So he's never there to sign for anything.

 

[Magna_Mixalis]

Thanks fpr the response, phisheep. It was honestly starting to irritate me as I went back through the thread that Langdell could keep doing the same stupid crap and get away with it. At least there's a reason for it, even if it's an incomprehensible legal loophole.

 

[phisheep]

I suspect the idea is to keep to a minimum the costs/complexity and financial risk for honest people trying to protect their business interests. If so, that is admirable, but it isn't well geared to dealing with fraudulent wankers.

 

[phisheep]

Langdell filed his reply to EA’s opposition yesterday.

I’m pretty sure this is Langdell’s last possible submission before the Board’s decision, since he is all out of other things to reply to. It certainly reads like it too – he has dropped a lot of kittens in the pond here.

It’s worth revisiting the broad outline of how motions work. Someone makes a fully-argued motion, then the other side gets to make a fully-argued response, then the first guy has the opportunity to reply to tidy up any loose ends. That should be it. As an indication of how much overboard Langdell has gone here, his original motion was 5 paragraphs. This reply runs to 26 paragraphs over 10 pages. This suggests that either Langdell didn’t argue his motion fully, or that he has put a load of irrelevant guff in his reply. As usual, it’s both.

Just to recap, Langdell is trying to drag into the case Future’s interest in the EDGE mark by either (a) bringing Future’s mark directly into the proceedings or (b) by reversing Future’s division of the then part-owned mark into one bit for Langdell and one bit for Future. It is really quite unclear to me what he hopes to achieve by this. Seems that he is hoping to drag Future into a defensive position on the fraud/abandonment allegations so that he can then attempt to cast the blame wholly on Future and so avoid findings of fraud against himself personally. In other words, he’s gunning for a trial – which seems like awfully bad tactics when the evidence is weighted so heavily against him.

At this late stage it’ll be worth going through this document in some detail to try to pin down where Langdell thinks the hotspots are (and to have some fun along the way). I’ll try to do that tomorrow, and then follow up with my assessment/prediction of what the Board is going to decide on all these motions flying around. Before that there is room for one more submission from Future and one from EA in response to this document, but I think their contents are fairly predictable.

If you want to read the thing yourself, pay particular attention to para 22. It contains the germ of a good idea for a defence of sorts, but hasn't been worked up in nearly enough detail to make a good argument.

 

[phisheep]

Hallowe’en interrupted. Let’s go through this latest reply of Langdell’s. I’m going to take it out of sequence to make it easier to see what the arguments are and to try to knock them over.

A) Langdell claims that Future supports his motion (para 26)

Edge notes Future (which is most impacted by the Motion) did not oppose this Motion and thus presumably agrees with it.

Unfortunately for Langdell, Future has since opposed (yesterday)Langdell’s motion. http://ttabvue.uspto.gov/ttabvue/ttabvue-92051465-CAN-65.pdf

B) Langdell bases claims on EA’s original petition, rather than the amended one (paras 2-10)

The timing is important here. EA’s amended petition was filed after the EDGE trademark was divided. If Langdell can make the original petition stick, then he might have a chance to claim that Future’s portion of the trademark should be included in the proceedings. But there’s a catch.

Petitioners refer to having filed an Amended Petition to Cancel, however these proceedings were suspended immediately after that Amended Petition was filed. As far as Edge is aware, the Board has not yet ruled on whether it will permit the Amended Petition to be considered. It is thus at this point possible that the Amended Petition will be rejected.

Hmm. Langdell really ought to actually read some of the stuff that is going on in this case, because in the very ruling he mentions (the one suspending the proceedings pending the District Court action) there’s this line:

petitioner’s amended petition to cancel filed March 24, 2010, which is now the operative pleading in this proceeding

So anything that depends on only the original pleading won’t work.

So, so far, Langdell has slam-dunk lost the argument in 10 paragraphs out of 26. But we’re not done with all those paragraphs just yet.

C) Langdell tries to stick it to Future (para 9)

by becoming joint owners of this registration Future became equally liable with Edge in respect to all allegations of at least fraud pertaining the obtaining, maintenance and renewal of the mark – even where such actions predated Future becoming a part-owner

Well, you can see where Langdell is going with this. If he’s going down he wants to take Future with him, and hope that the prospect of that scares them off, or at least scares them into being on his side.

Trouble is, there’s no legal basis to this claim. The mere fact of joint ownership of something doesn’t make you liable for whatever the other owner does with it. If we jointly own a kitchen knife and you stab someone with it, I’m not liable in any way. Not at all. It’s a rubbish argument.

D) Langdell claims the Board has discretion to decide the subject matter of the case (para 1)

]Just as it was the Board’s decision which entities should be a party to these proceedings, it is the Board’s decision which registrations are at issue

No it isn’t. The Board has no discretion to amend pleadings of its own volition. That’s quite different from adding parties, which the Board is required to do under certain circumstances (Fed rules 19(a)(2)).

E) Langdell claims (again) that the District Court order was void and need not be followed (paras 16-20)

I’ve rehearsed this argument before, so we don’t need to spend too much time on it here. Basically a court order can be void if it seeks to bind a non-party. Langdell claims that both the settlement with EA and the resulting court order are void because they sought to bind or impact Future’s interests in the EDG mark.

But, the order did not seek to bind Future and it fact it did not impact them either, because by the time of the settlement the registration had already been divided. So there’s nothing wrong with either the settlement or the order. And the Board has no discretion to not follow the order anyway (37 CFR sect 1119).

F) Langdell claims EA has been lying (paras 13-14)

EA said that the settlement and the court order were explicitly about Langdell’s trademark and not Future’s. Langdell gets in a tizzy about this, pointing out in bold underlined text that there was no mention of Future’s mark anywhere. Er, what?

There’s no requirement for EA, in expressly attacking one mark to expressly exclude every other trademark. It can’t be done.

G) Langdell claims the amended petition doesn’t not include Future’s trademark (paras 11-12)

even if the Amended Petition is accepted into these proceedings, it does not successfully elect to not seek cancellation of the ‘604 Registration

In its Claims for Relief in its Amended Petition, Petitioners still allege … with no reference at all to not including the ‘604 Child Registration

All these double negatives are a bit of a giveaway. The petition says what it says, and there’s nothing Langdell can do to bring in Future’s registration by implication.

H) Langdell claims that Future laid claim to sole ownership of the EDGE mark (para 25)

So far as I remember, Future did do this. I think it was an error based on misunderstanding of the extent and scope of the court order. But it is not relevant to the current proceedings, so it doesn’t bear any weight here.

I) Langdell complains that the USPTO just accepted Future’s word for part-ownership of the EDGE mark (para 23)

This is a very strange stance for Langdell to take. He says that because Future did not submit a copy of the part-assignment document with their request to divide the registration, the USPTO should not have proceeded just by taking Future at their word.

Now, just how many times has the USPTO just taken Langdell’s word for things? Like fake evidence, mere assertions of trading etc etc?

What Langdell forgets is that the USPTO already had on file plentiful evidence of Future’s part-ownership provided by Langdell himself in correspondence! There are no grounds here for claiming the division to be invalid.

J)Langdell claims that he is not precluded from reversing his surrender (para 24)

He’s probably right on that. Well, to the limited extent that if a surrender is found to have been done owing to void court judgments, void settlements and so on. Which it wasn’t. Doesn’t matter anyway, because voluntary surrenders are not at issue here.

However, this does reveal the other aspect of Langdell’s strategy. It is important for him not only that Future is in the frame on the fraud allegations, but also that he is – because if he isn’t a party to the proceedings you can bet your boots that EA and Future will settle immediately. Strange but true, Langdell has got to try and keep both him and Future in the case to have any chance of pulling his apparent strategy off.

K) Three paragraphs left (paras 15,21,22)

Para 15 claims that Langdell’s voluntary surrender of the EDGE mark was invalid because the court order was void (it wasn’t) and the settlement agreement was invalid (it wasn’t). BUT it also claims that Future’s division of the EDGE mark was invalid, which is at least arguable – I’ll come on to that because it is the subject of para 22.

Para 21 claims that Future’s child registration was included in the district court action by implication, since if there was fraud/abandonment at some earlier date then obviously the child registration would be affected as well. That’s sort of arguable, but it won’t win because at the time of the settlement and court order the registration had already been divided. And it is up to the parties to agree any settlement, and it is Langdell’s own damn fault if he didn’t get it included – it doesn’t matter one tiny bit what the subject of the trial might have been had there been one, because the parties can settle on any basis whatsoever.

Para 22 is more interesting. I’d better quote it in full, since it is the only paragraph worth preserving out of the whole document:

Contrary to what Petitioners allege in their Opposition, Edge does dispute the assignment to Future and does dispute Future’s right to divide the original registration into parent and child in the manner that they did. If Edge had abandoned this registration prior to the partial assignment to Future – which Edge denies – then the assignment to Future would be invalid, and consequently any division would be invalid, too. Similarly, if Edge committed fraud in obtaining, maintaining or renewing the registration – which Edge denies – prior to the partial assignment to Future, then once again the assignment would be invalid, and any division would be invalid. Since all these allegations against Edge are part of Petitioners original and amended petition to cancel, it follows that the outcome of these instant proceedings will determine if there was a valid assignment to Future and whether a division should have occurred. It is precisely because the proceedings before the Board can impact any and all postregistration actions that usually no post-registration action is taken after Board proceedings have commenced – even if the request to take such action occurred prior to commencement of proceedings.

Langdell has got to hypothesise here about outcomes, and it is clear that he wants to bring Future into defence of the fraud/abandonment allegations, probably in order to sling mud at them. As I mentioned in an earlier post, there’s the germ of a good argument in this, but since it has been buried in 25 paragraphs of crap I shall be surprised if he gets away with it.

WHAT LANGDELL SHOULD HAVE DONE

Under the Federal Rules of Civil Procedure 15(c)(1)(B) EA’s amendments to their original cancellation proceeding relate back to the date of the original pleading.

At that date the EDGE registration had not been divided. So the cancellation proceeding refers to the undivided trademark.

Under 37 CFR 2.67

Action by the Patent and Trademark Office may be suspended for a reasonable time for good and sufficient cause. The fact that a proceeding is pending before the Patent and Trademark Office ... will be considered prima facie good and sufficient cause. An applicant’s request for a suspension of action under this section filed within the 6-month response period (see § 2.62) may be considered responsive to the previous Office action. The first suspension is within the discretion of the Examiner of Trademarks and any subsequent suspension must be approved by the Director.

So, arguably, Future’s attempt to divide the registration should have been suspended. Trouble is, it is still discretionary – so not guaranteed that Langdell would get the outcome he wants.

Now, this could be enough to get Future on the hook in the proceedings, but unfortunately for Langdell the settlement and court order from the District Court case can both only refer to the divided registration. So we’d end up with EA v Future over the remaining bit of the EDGE mark. And they'd settle like a shot.

Langdell needs to find a way of keeping himself in the proceedings as well, so he should have concentrated on the other two undivided marks that he claims Future have some ownership of.

Unfortunately for Langdell, it is now (I’m pretty sure) too late for him to do that.

 

[Dead Man]

Thanks again for taking the time to explain this for all us that don't have a legal background!

 

[phisheep]

Thanks again for taking the time to explain this for all us that don't have a legal background!

My goodness, you read that quickly! What, two minutes? If you followed all that you ought to go into law yourself, it's taken me hours to try and work it out.

 

[Dead Man]

My goodness, you read that quickly! What, two minutes? If you followed all that you ought to go into law yourself, it's taken me hours to try and work it out.

5 minutes. And no, I didn't take it all in yet, I got up to F when I posted. My brain needed a break.

 

[BiggStankDogg]

phisheep doin' work! I love reading your breakdowns.

Had Tim abandoned the trademarks in the first place, would he presumably have been better off rather than risking his neck with all his bullshit? I understand him fighting to NOT look like he really is a douche, but at what point does he realize that this is hurting him bad?

And not being a lawyer, is there a way he can go "Fine - you win" and walk away bruised but alive to scheme another day?

 

[wetflame]

I've even reading this thread since the beginning, before I was even approved. phisheep, you really are a gent for combing through all this and posting the highlights up here for us. It's really appreciated. Always a great read!

 

[phisheep]

phisheep doin' work! I love reading your breakdowns.

Had Tim abandoned the trademarks in the first place, would he presumably have been better off rather than risking his neck with all his bullshit? I understand him fighting to NOT look like he really is a douche, but at what point does he realize that this is hurting him bad?

He should have given up and abandoned the trademarks as soon as EA pressed for cancellation, and before they presented their amended petition that particularised the fraud allegations. Up until then he might have walked away. Now that the allegations are in public court records he is likely to be in pretty deep trouble whatever the outcome of this case is. He must know by now that it is looking very bad indeed for him.

If he wants some hard-nosed real-life advice, I'm not that hard to track down.

And not being a lawyer, is there a way he can go "Fine - you win" and walk away bruised but alive to scheme another day?

That is not likely now. Well, he's going to be bruised one way or another, it is now a matter of doing whatever he can to minimise his personal financial risks and jail time. I don't think he's got as far as thinking straight about that yet.

 

[mclem]

In the event that Future get away approximately unscathed, and Langdell has to forfeit all rights to the trademark, can Future then seek damages for the existing money claimed from them fraudulently? (Was it even arguably fraudulent?)