GOLIATH SUES DAVID

TrialGraphix takes The Graphic Witness
to federal court over two words in this web site

GW CHALLENGES THE GIANT'S TRADEMARK AND
PUBLISHES THE ENTIRE LAWSUIT ON THE INTERNET

DOCUMENT INDEX

FORT LAUDERDALE -- Miami's TrialGraphix Inc. claims it is being irreparably harmed by two words in this web site, so it's suing The Graphic Witness Inc. in U.S. District Court.

The contested words make up the phrase "trial graphics," which The Graphic Witness uses to describe graphics made for trials. The phrase appears on the "services" page at http://www.graphicwitness.com/services. No other use of the phrase is cited in TrialGraphix's 12-page suit, 14-page memorandum of law, or three-page motion for an injunction filed Sept. 9, 1998.

TrialGraphix, which has offices in New York, Chicago, Atlanta and Los Angeles, claims that the use of the phrase is trademark infringement "intended to trade on TrialGraphix's reputation" and "likely to ... deceive" customers into thinking the companies are connected. TrialGraphix claims the "unfair competition" and "deceptive trade practices" are unlawful and causing them "serious and irreparable injury."

The company demands an accounting of all profits derived from the use of the phrase and wants treble and punitive damages, attorney's fees and costs. It seeks a permanent injunction to stop The Graphic Witness from using the two words, plus the destruction of all ads, promotional materials, invoices, etc. that contain the offending phrase.

In a response filed Oct. 5 by attorney Kevin P. Crosby of Malin, Haley, DiMaggio & Crosby, P.A. in Fort Lauderdale, GW says the phrase "trial graphics" is a widely used generic phrase that cannot be trademarked. It has asked the court to declare TrialGraphix's trademark "invalid for fraud on the U.S. Patent and Trademark Office for Plaintiff's failure to apprise the PTO examiner of the use of the term 'trial graphics' by a substantial number of third parties." It says the trademark was abandoned "by virtue of widespread, unchallenged third-party use" before the phrase was used by The Graphic Witness.

The lawsuit -- including letters, motions and exhibits --  has been published by The Graphic Witness on the Internet at www.graphicwitness.com/lawsuit. [Go to the documents.]

"People can decide for themselves whether this is a mean-spirited, heavy-handed attempt to crush a small competitor, a principled stand to defend a valuable trademark, or something in between," says GW owner Cal Deal. He launched his one-man trial exhibits firm late last year and runs it from a house a few blocks south of the Broward County Courthouse.

Deal is a former editor at the Sun-Sentinel and The Herald, former graphics director of The Miami News and former deputy news editor of the New York Daily News. He was recently featured on the cover of the Sun-Sentinel's Monday business section.

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