GOLIATH SUES DAVID
TrialGraphix takes The Graphic
to federal court over two words in this web site
GW CHALLENGES THE GIANT'S TRADEMARK
PUBLISHES THE ENTIRE LAWSUIT ON THE INTERNET
-- 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
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
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