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C. Summary Judgment Should Be Denied Because No Relief Can Be Granted on the Copyright Claim, As a Matter of Law.

The final reason why summary judgment should be denied is that the evidence in the record demonstrates, as a matter of law, that there is no relief that can be granted in this matter. There is no possibility of injunctive relief because the alleged infringement was discontinued several months before the action was brought, and there is no evidence that there is any likelihood that the infringement will begin again. Indeed, Mishkoff's counsel advised Taubman's counsel, when they sought his consent to their motion of leave to amend the complaint, that Mishkoff would not return the copyrighted graphics to the Internet even if he won the trademark claims in this case. Nor is there any claim for statutory damages, because the copyright was registered after the infringement had ceased. Although a copyright owner may bring an action for infringements of a copyright committed pre-registration, only actual damages may be obtained. Finally, there is no possibility of actual damages, because Taubman has forsworn any claim for its own lost profits, and because Mishkoff has averred in his sworn responses to interrogatories that he derived no revenues and no business from the infringement. Answers to Interrogatory Nos. 1 and 7 (attached). Nor has plaintiff submitted any evidence to contradict that evidence. And, in the absence of gross revenues, there cannot be any profits for plaintiff to recover. Consequently, this is a claim on which no relief can be granted, and summary judgment for plaintiff would therefore be improper.


Consideration of the motion for summary judgment should be deferred until Mishkoff has been able to complete his discovery from Taubman and third parties, or, in the alternative, summary judgment should be denied outright.

Respectfully submitted,

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

    Paul Alan Levy
    Allison M. Zieve
    Public Citizen Litigation Group
    1600 - 20th Street, N.W.
    Washington, D.C. 20009
    (202) 588-1000

    Attorneys for Defendants

July 18, 2002

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