Neutrik v. Switchcraft relevant case for A. Hayatt controversey

[Jerry W]

Sometime in 2001 or thereabouts, a case between Neutrik and Switchcraft came before the District Court in the Southern District of New York. It involved at least one relevant issue with respect to the Alan Hyatt/PMI v. TFPro controversey.

In the Neutrik case, Neutrik basically sued Switchcraft for making a simialr type plug and that "Switchcraft's advertising infringes Neutrik's SPEAKON (r) trakemark".

The found that there was no infringement because Neutrik could not establish that the particular design was non-functional and there was no secondary meaning.

In other words, courts will not allow one manufacturer to own a functional design that is so basic it allows for a monoply of a particular item. However, if a certain design element becomes so recognized as to take on identification aspects, copying of a non-functional design could have infringing significance.

Relevant to the Hayatt claim that Neutrik must take down all banner advertisements mentioning trademark's or design elements Hayatt claims to own was the following: "Advertisers are permitted to mention another's trademark for the purpose of describing an aspect of thier own product or to indicate that their product is a legitimate copy of another's. See 15 U.S.C.section 1115(b)(4);Mattel, 724 F2d. at 361. Such use constitutes a "fair use" so long as it is truthful an does not confuse consumers about the source of the advertiser's product..."

Although the foregoing is relevant, I think the question as to what exactly each party "owns" and the post above wherein a consumer claims he was confused as to source are factors that need further investigation before any infringement could be claimed.

As almost anyone at this site knows, anyone can make any claim anytime they wish, that is a first amendment right (with exceptions that don't need to be brought up here). What counts is what you can prove in court. I believe in the film "Training Day" the character played by Denzel says matter of factly "Its not what you know its what you can prove". That is certainly true in criminal matters but to varying degrees it is also true in civil matters. Sometimes what you know is what you can prove if the court believes what you know and say.

In the end, simply sending cease and desist letters that deem your actions infringing if you do not respond accordingly are, besides being notice in legitimate cases, self-serving statements and in and of themselves prove nothing. In a case such as the Hayatt v. TFPro, it is along way frm such a letter to actually proving infringement, particularly if documentation is not provided to back up the claims.

Just a few thoughts and some limited insight into the matterI though I would share for whatever it is worth. It seems people are interested in the subject and for those of us that regularly purchase audio equipment much of which is supposed to do something like some other vintage or popluar piece of gear, what advertisers can legitimately say can have an effect on all of us.

[DJL]

Thanks Jerry W... that's good info.

[Jerry W]

By the way, anyone interested, the citation (where to find the case) for the Neutrik case is 99 Civ. 11931 (S.D.N.Y. 03/22/2001). I do not see the official cite anywhere and that is the best cite I can find for now.

[acorec]

Originally posted by Jerry W
Sometime in 2001 or thereabouts, a case between Neutrik and Switchcraft came before the District Court in the Southern District of New York. It involved at least one relevant issue with respect to the Alan Hyatt/PMI v. TFPro controversey.

In the Neutrik case, Neutrik basically sued Switchcraft for making a simialr type plug and that "Switchcraft's advertising infringes Neutrik's SPEAKON (r) trakemark".

The found that there was no infringement because Neutrik could not establish that the particular design was non-functional and there was no secondary meaning.

In other words, courts will not allow one manufacturer to own a functional design that is so basic it allows for a monoply of a particular item. However, if a certain design element becomes so recognized as to take on identification aspects, copying of a non-functional design could have infringing significance.

Relevant to the Hayatt claim that Neutrik must take down all banner advertisements mentioning trademark's or design elements Hayatt claims to own was the following: "Advertisers are permitted to mention another's trademark for the purpose of describing an aspect of thier own product or to indicate that their product is a legitimate copy of another's. See 15 U.S.C.section 1115(b)(4);Mattel, 724 F2d. at 361. Such use constitutes a "fair use" so long as it is truthful an does not confuse consumers about the source of the advertiser's product..."

Although the foregoing is relevant, I think the question as to what exactly each party "owns" and the post above wherein a consumer claims he was confused as to source are factors that need further investigation before any infringement could be claimed.

As almost anyone at this site knows, anyone can make any claim anytime they wish, that is a first amendment right (with exceptions that don't need to be brought up here). What counts is what you can prove in court. I believe in the film "Training Day" the character played by Denzel says matter of factly "Its not what you know its what you can prove". That is certainly true in criminal matters but to varying degrees it is also true in civil matters. Sometimes what you know is what you can prove if the court believes what you know and say.

In the end, simply sending cease and desist letters that deem your actions infringing if you do not respond accordingly are, besides being notice in legitimate cases, self-serving statements and in and of themselves prove nothing. In a case such as the Hayatt v. TFPro, it is along way frm such a letter to actually proving infringement, particularly if documentation is not provided to back up the claims.

Just a few thoughts and some limited insight into the matterI though I would share for whatever it is worth. It seems people are interested in the subject and for those of us that regularly purchase audio equipment much of which is supposed to do something like some other vintage or popluar piece of gear, what advertisers can legitimately say can have an effect on all of us.

OK. Very quickly, civil cases are about money. Pure and simple. They are not about look-a-likes or anybody's hurt feelings. Fender sued everybody in the world and spent $$$ to try to stop all the strat copies. They won battles but lost the war. The main reason is that you have to show that you lost potential sales and were harmed as a corporate entity to win. The letter is a great way to see how the waters lie. If the letter of threats works, then great, they got their way easily and cheaply. The civil suit way is so much tougher because you have to PROVE that you were harmed by getting affidavids from people who bought the offending product and were fooled as to what they really bought. You need alot of people to make a case. Then you have to asses the actual $$$ damages and fill out a mountain of paperwork to file to the court. Then, wait up to a year for a hearing. Then a trial, pick the jury, etc. $$$$$$$$$$$$$ to both sides lawyers.
Then >>>>>>>>Maybe you win Hey!!!!
The sued party files bankruptcy and >>>>>>>>the lawyers get the $$$$ You get squat.

Maybe you lose. Nay!!!
You owe the same lawyers all the $$$$$

The jury are morons, could go either way.


See? Civil suits are such a bag of worms where lawyers are the only ones who win.........................everytime.

Hence, the leatter idea looks sooooo much better.

[freshmattyp]

That's an interesting read.

Thanks for doing the research. Is it noted anywhere in the case whether or not Neutrik contacted any of the sites where Switchcraft ran the ads?

[Jerry W]

No, and specifically, the advertisement issue was directed at Switchcraft. By the way, Neutrik instituted the lawsuit because they believed they were being infringed and sought a preliminary injunction. In other words, a judical cease and desist. They lost. Based on that, Switchcraft brought an action for a declaration of non-infringement which they won.

One thing that comes through in the case is that the court understood what Neutrik connectors were about and how they were used in scores of electronic products that had to be interconnected. Thus, if only Neutrik could make a certain connector they would monopolize and, if other manuracturers could not say their devises were compatible, Neutrik would benefit financially.

Imagine if companies were infringing by referring to devices, hardware or software with which thier product was compatible in this day and age where compatibility is all the rage.

[DJL]

Check it out... http://www.studioforums.com/6/ubb.x?...1&m=9116097954

[TexRoadkill]

That case is completely irrelevant. It has no bearing on the liability of publishers who carry adds that violate trademarks.

It isn't even relevant to the PMI suit against TFPro because the suit isn't about TF's right to make compressors it's about the trademarked names and the look of the gear.

If Ted Fletcher started a company called XYZ audio and made a compressor that looked nothing like a Joe Meek there would be no lawsuit. If TF wanted to retain his name as a business trademark he shouldn't have sold it.

If Ralph Lauren decides to sell his company he can't just turn around and start another one with the same name and logo.

[DJL]

Ted Fletcher didn't sell his name to PMI.

[TexRoadkill]

Originally posted by DJL
He didn't sell his name to PMI as a trademark.

That's the whole fucking point of the lawsuit.

[DJL]

Exactly!

Sorry, for the above edit... I didn't think you'd be that quick.

[TexRoadkill]

lol

[riotshield]

Just curious...off-topic perhaps...but why didn't Neutrik patent their plug design? Wouldn't it provide more protection to them then arguing under a trademark or copyright theory? I was reading some opinions recently on the Mackie v. Behringer case some years back and Mackie claimed Behringer infringed their copyright on the mixer diagram, through reverse engineering. The judge ruled against Mackie, but if Mackie had patented their design, I think Behringer would have lost. Are companies just not willing to put up the $$ to get a patent, or is it something else?

Thx

[ozraves]

No one has been sued. There is no lawsuit by AMH Sales, Inc., (Alan Hyatt's company) against Ted Fletcher. I would suggest to both of them that they enter into a binding arbitration which could get their disputes over with in 30 days and save a lot of attorney fees and costs.

[DJL]

Originally posted by ozraves
No one has been sued. There is no lawsuit by AMH Sales, Inc., (Alan Hyatt's company) against Ted Fletcher. I would suggest to both of them that they enter into a binding arbitration which could get their disputes over with in 30 days and save a lot of attorney fees and costs.

Humm, well I have a feeling it's because it's now more about blood than money.

[MISTERQCUE]

Good read J.Dubya which makes this thread a fine conversational piece but who actually cares!

Matter O' fact, A Hyatt did rite by me when he posted a thread in the Cave a way while back offering his line of mics for a deep discount (he even jacked an addtl $20 off the price when I told him how d@mn broke I was ) and for that fact Home-boy Hyatt
is down in my book!


Now it would be really interesting if you post some sh#t involving
that jack-@ss, Truly-Uli Behringer rippin' off some original Massenburg designs!!!

[regebro]

Originally posted by DJL
Ted Fletcher didn't sell his name to PMI.

Nope, just his signature.

[DJL]

Originally posted by regebro
Nope, just his signature.

Are you 100% sure about that? Alan said he owns Teds name and signature... but, Ted said that's not ture. So how do you know?

[Jeroleen]

Cases are not considered relevant only when they involve exactly the same fact patterns. Often there is some need for interpretation and thought to reach a given conclusion. I would certainly like to know anyone would think the Neutrik case is not relevant to a debate where an equipment manufacturer is claiming he owns either a design or mark or trade dress and is requesting that another cease from any advertisement mentioning the gear or mark allegedly owned. When offering such an opinion, it is customary to include the reasoning used to reach your conclusion. That way, it is a matter or debating the subject rather than displaying a personal need to always be right or the one that knows the most. A need that is usually satisfied by gratuitously scoffing at the thoughts and opinions of others as if nobody else could possibly understand as well as they do. Nevertheless, to be fair there may be a valid point or reason for the disagreement or contrary opinion although in this case I have not seen it yet.

It is not unlike saying a particular piece of gear if no good without expllainimg why you think it is no good. People often do this because they believe others will think they are smart and well informed because the voiced a strong and contrary opinion. Those that think that also never think to ask the person why they said this or thåt. On the other hand maybe all one has to do to be an elitist is appear as an elitist. I suppose if that is the case, it pretty much says everything necessary about elitists. But I digress and digression is bad...quite possibly, even irrelevant. The point is, if I say Behringer sucks, I can appear like I know a great deal about audio gear but only to someone that cannot think for themselves. Thos that can think for themselves can either dismiss the comment or, waste thier time and energy responding. Usually, they will respond once or twice at most and then realize that by being drawn in_and responding, they are giving the speaker more credibility than the speaker deserves at which point they cease to say anything further.

But hey, that is just my opinion and whose to say I am not the elitist that really does not know what he is talking about? But we try, we just try.

[DJL]

Humm, well I think Fender Squier guitars suck... and I think it's because of the pickups and maybe something else too but I'm not sure... so because their guitars sound like crap and I'm not really sure why... I just say "I think Fender Squier guitars suck".

And like you said... that is just my opinion and whose to say I am not the elitist that really does not know what he is talking about? But we try, we just try.

[DJL]

I hope Mr. Paul doesn't get bitten by PMI like Ted.

[Jeroleen]

Well, I might have gone a bit too far in that last post. I am no expert on the circumstances but, I do see a legal connundrum of sorts with all the sound-alike look-alike technology that we have nowadays. Yeas ago nobody thought to make a knock off of an 1176 since there was no market for it. Now there is a huge market for products that allegedly give the look, feel, sound, vintage sound, bragging rights, etc. of tried and true pieces of audio gear.

What is really interesting is how the market came to be what it is and whether or not, in the end, there is a sum total benefit to the art of recording as a whole. Restrictions on advertisement rights as opposed to First Amendment rights.

For consumers or more accurately prosumers that have a vested interest in keeping up on technology, these issues seem important to a degree. For instance, if a manufacturer says their product is every bit as good as the old vintage model or even better because it give you the same exact sound without the maintenance issues, it would help to know what standard is being applied to what the manufacturer can legally say.

Anyway, enough of that.

[DJL]

There are two sides to a coin and an edge too... and I see your point.

[Rev E]

quote:
--------------------------------------------------------------------------------
Originally posted by DJL
Ted Fletcher didn't sell his name to PMI.
--------------------------------------------------------------------------------

Originally posted by regebro
Nope, just his signature.

Legally, his "name" and "signature" are two different things. The law has a presumption that persons have the right to use their name in commerce. Contracts purporting to take away that right may not have legs to stand on. I agree with Ozraves on this one. This "dispute" is ripe for binding arbitration. No one will will win with a protracted and uncertain court battle.

[DJL]

PMI doesn't have a leg to stand on with the crap they're trying to push on Ozraves and others (removing Ted's ad) until it's settled either... and the court should be told about what PMI and their attorneys are doing. Plus, IMO arbitration is for the birds.