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 Civil Action No. 01-72987
 District Judge Zatkoff


  1. This is an action for trademark and copyright infringement. Following the entry of preliminary injunctions against defendant Mishkoff's two web sites, the parties engaged in discovery on the trademark issues, which was terminated on February 15. On April 4, the Court granted a motion to amend the complaint to add a copyright infringement claim, and reopened discovery limited to the copyright issue. On September 4, after Magistrate Judge Komives granted a motion to compel discovery on the copyright claim, the Court granted a joint motion to defer the trial, moving it from the October trailing docket to the January trailing docket. The parties will soon complete discovery on the copyright issue.The pretrial conference is scheduled for December 18.

  2. Defendants have appealed the preliminary injunctions, contesting both whether the Court has personal jurisdiction over them (which may be raised on an appeal from a preliminary injunction) and the substantive trademark and First Amendment issues. The Court of Appeals granted a motion to stay the amended injunction against the "taubmansucks" site, and expedited the appeals. Oral argument was held on October 16, 2002.

  3. In the course of oral argument, it became apparent that the Court of Appeals is contemplating issuing a ruling on the merits of the substantive claim, as part of assessing plaintiff's likelihood of success on the merits in the context of the Court's review of the injunctive relief ordered by this Court. Any such ruling will likely affect the law that will have to be applied to the evidence admitted at trial. The ruling may also affect the evidence that the parties wish to present. An unofficial transcript of the oral argument, prepared from the official tape recording of the oral argument purchased from the Sixth Circuit, is attached. A copy of the tape recording will be provided upon request.

  4. Although the copyright claim is not before the Court of Appeals, if that court reverses based on lack of personal jurisdiction, the copyright claims as well as the trademark claims would have to be tried in a different district, under the law of a different circuit.

  5. Moreover, because this case is set for a jury trial, if the Court of Appeals decides the appeal after the jury is instructed, but assesses the law differently than as stated in the jury instructions, a new trial would be necessary.

  6. Moreover, both the individual defendant and his trial counsel live a considerable distance from Detroit. Although the Court has ruled that it has personal jurisdiction in this case (and that the issue has been waived as to the trademark claims), it is nevertheless true that requiring defendant to face two separate trials would substantially increase the hardship of having to defend the case in this forum. It is respectfully submitted that, out of respect for the Court of Appeals' primary position in determining the law governing this case, given the fact that the appeal has been expedited, and because of the great hardship that would be imposed by requiring defendants to stand trial twice in this forum, the Court should remove the case from the trial docket, with a view to resetting the trial date promptly after the appeal is complete.

  7. Last winter, in response to defendants' motion to postpone for one week the deadline for cross-motions for summary judgment on the trademark issues, plaintiff moved the Court to stay all proceedings indefinitely. Because, at the time, the appeals had not been expedited, and it was not clear when the Court of Appeals would rule, defendants opposed that motion, and the Court denied it. Now, however, all discovery is about to completed, and the Court may hold the parties' cross-motions for summary judgment pending a ruling from the Court of Appeals.

  8. In addition, the parties have submitted cross-motions for summary judgment on the trademark issues, and plaintiff has moved for summary judgment on the issue of copyright. Defendants opposed summary judgment, in part, based on their need for discovery. Based on that discovery, defendants will likely want to move for summary judgment on the copyright claims, although counsel decide for sure until depositions are completed later this month. Deferring the actual trial date will permit the Court to consider that motion.

  9. Accordingly, the Court is respectfully requested to stay the trial schedule in this case, pending a ruling for the Court of Appeals on the appeals from the preliminary injunctions.


The motion to defer trial on the merits should be granted.

Respectfully submitted,

    Barbara Harvey (P25478)
    Suite 3060
    Penobscot Building
    645 Griswold
    Detroit, Michigan 48226
    (313) 963-3570

    Paul Alan Levy (DC Bar 946400)
    Allison M. Zieve (DC Bar No. 424786)
    Public Citizen Litigation Group
    1600 - 20th Street, N.W.
    Washington, D.C. 20009
    (202) 588-1000

    Attorneys for Defendants

November 4, 2002

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