Tuesday, December 4, 2007

Following up on Hershey v. X-IT Activewear, Inc

I reported on this case here. Today, I finally got a look at the Complaint. Hershey caught everyone's attention by its using Indiana's Crime Victim's Statute as a basis for its Complaint. The following is the part of the Complaint utilizing the Crime Victim's Statute:

Count VII: Civil Action under the Indiana Crime Victims Act

69. Hershey incorporates by reference the allegations contained in all previous

paragraphs of this Complaint.

70. Pursuant to the Indiana Crime Victims Act, IC. 34-24-3-I, a person that suffers pecuniary loss as a result of a violation of IC. 35-43 et seq. may bring a civil action against the person who caused the loss for treble damages, costs of the action and reasonable attorneys' fees.

71. Defendants have violated IC. 35-43 by committing the following offenses:

a. "Criminal Mischief' as defined in IC. 35-43-1-2;

b. "Conversion" as defined in IC. 35-43-4-3 and/or

c. "Deception" as defined in IC. 35-43-5-3(a)(6) and (9)

72. Hershey is the victim of Defendants' criminal violations and, as a result of these violations, has suffered actual pecuniary damages.

73. Accordingly, Hershey is entitled to an award of those actual damages as well as statutory treble damages, corrective advertising damages, costs and reasonable attorneys' fees.
For those not knowing these criminal statutes, please let me introduce you to them:
IC 35-43-1-2 Criminal mischief; penalties
(a) A person who:
(1) recklessly, knowingly, or intentionally damages or defaces property of another person without the other person's consent; or
(2) knowingly or intentionally causes another to suffer pecuniary loss by deception or by an expression of intention to injure another person or to damage the property or to impair the rights of another person;
commits criminal mischief....
IC 35-43-4-3 Conversion
(a) A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion....

IC 35-43-5-3 Deception
(a) A person who:
(6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property;
(9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment....
This voice in my head keeps repeating that there is a thing line between brilliance and chutzpah. After all, what we would we think of Custer if he had lived through the Little Bighorn? Remember that the basis for the lawsuit is:
12. Hershey is the owner and1or licensee of multiple federally registered trademarks, state registered Irademarks and trademarks protected by common law including, but not limited to, the following (hereinafter, the "ALMOND JOY® Trademarks"): the collection of ALMOND JOY® related trademarks, including the famous "Sometimes you feel like a nut Sometimes you dont" slogan, which together have been used in commerce by Hershey or its affiliate companies and predecessors in interest for decades in connection with ALMOND JOY® brand candy and related products.

14. Hershey and its affiliate companies have extensively used and promoted the
LMOND JOY® Trademarks at considerable expense, and Hershey has acquired significant Goodwill and public recognition of such.

15. Authorized products bearing the ALMOND JOY® Trademarks are referred to collectively herein as "Hershey Products."

16. The ALMOND JOY® Trademarks have been used in commerce for many years. are immediate]y recognizable by consumers and are famous marks.

20. The ALMOND JOY® Trademarks are distinctive and/or have developed secondary meaning and significance in the minds of the purchasing public. Furthermore, Hershey's Products are recognized by the purchasing public nationwide and are immediately identified by the purchasing public with Hershey, its affiliate companies, and their high quality goods and services.

21. As a result of the goodwill and immediate recognition and as a result of extensive sales and advertising, the ALMOND JOY® Trademarks have become highly valuable.

22. Upon information and belief, Defendants have engaged in the business of
advertising, selling, and distributing certain infringing products including, without limitation, the product included in Exhibit I. attached hereto (the "Infringing Merchandise" and/or "Infringing Products"). Defendants' unauthorized use of the ALMOND JOY® Trademarks is a deliberate effort to trade on their value. Such unauthorized products infringe on Hershey's trademark and other intellectual property rights.
And a T-shirt that says "Sometimes you feel like a slut..sometimes you don't."

I do not see it. I do think that Hershey has stated a pretty good case for a parody but that is not quite what they wanted to do here.

But why did I say this might be brilliance? Because I have never heard of these statutes being applied to intellectual property. Personal property, yes. Applying these statutes to intellectual property is not something I would think of doing but then I do not think application will survive contact with defense counsel.