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Trademark Infringement Update – Minor Victory

22 Oct

As readers of my blogs are aware, I have a sordid history with the Ninth Circuit Court of Appeals.  They have acted in defense of corrupt officials in the United States District Court, District of Montana for close to a decade of my personal dealings with these courts, and have made some considerable inroads to block my own legal efforts to expose the problems in Montana itself (See U.S. Political Prisoner Since 2004 for a primer of my personal legal struggles with this state).

Back in July, the U.S. District Court of Missoula dismissed my trademark claim, and I filed a notice of appeal (Glick v [X], et al., Cause No. 15-35587, 9th Cir – note: though this is a public legal citation and not an unauthorized use of the appellee’s name, I am still barred from using her name which, as I have said elsewhere, is a clear unconstitutional abuse of power) because their decision was, yet again, based on an effort to quash my personal claims and not on law.  The Ninth Circuit responded by soliciting an order out of the District Court to declare my appeal frivolous, a way of blocking it altogether.  The District Court, of course – who wished to avoid their own malfeasance being looked into – readily accepted the Ninth Circuit’s invitation and issued a new order declaring the appeal was frivolous.  However, in the District Court’s reasoning, it declared my appeal would be frivolous because I had never sold anything using the trademark.

This however is not what the law says.  The statutory pre-requisite of law set by Section 45 of the Trademark Act is the use of the mark in commerce, not the “use of mark in sale of goods or services” as erroneously represented by the District Court, and is satisfied by use of the mark “on documents associated with the goods or their sale”.  Since my posting on this very blog on August 6, 2013 was the first document associated with the mark’s solicitation in public for the novel in question, the rightful claim to the first use in commerce is mine.  Therefore, the District Court’s conclusions that my appeal was frivolous were based on a deliberate suppression of part of trademark law, which in and of itself was a deprivation of equal protection under the law guaranteed by the Fourteenth Amendment.

With the interpretation clearly in error, I filed a second notice of appeal on July 23, 2015.  Yesterday, the Ninth Circuit ruled on the issue.  Once again, it took the appellate court far longer than it should have to make a simple determination, but – in this instance – they actually sided with me, so I cannot fault them too badly.

The relevant language of the order is thus:

“The district court has certified that this appeal is not taken in good faith and has revoked appellant’s in forma pauperis status. Our review of the record indicates that appellant is entitled to proceed in forma pauperis, and we grant the motion. See 28 U.S.C. § 1915(a). The Clerk shall amend the docket to reflect this status.”

For those who are unaware, “in forma pauperis” is a waiver of court fees based on poverty – in real life, I am disabled.  And as much as I would love my writing to break me free of it, the sad truth is that I live on Supplemental Security Income, and thus cannot afford legal fees.  Had the collaboration between the Ninth Circuit and District Court stood, I would have been barred from proceeding on my trademark claim (see again equal protection of the law, re: Fourteenth Amendment), but under the present ruling, I am now set to file my brief by December 2, 2015 – with no allowable response from anyone else.  In essence, I am being given an uncontested window to put my argument before the Ninth Circuit, which – though scary – is nevertheless better than I could have hoped for.

With what I will confess is more than a little shock and surprise, the Ninth Circuit’s order essentially ruled against the District Court.  Though the order does not outright say so, reading between the lines makes a pretty clear statement:  The District Court ruled that my appeal was frivolous, ie, not presented in good faith, based upon a deliberate misrepresentation of Section 45 of the Trademark Act and used this to quash my in forma pauperis status, while the Ninth Circuit stated that a review of the record indicated I was entitled to in forma pauperis status.  In essence, the Ninth Circuit agreed that my appeal was not frivolous, which is to say, the Ninth Circuit recognized that my trademark claim has merit, which in and of itself largely crushes the District Court’s position.

Now, this is clearly not a judgment in my favor on the trademark.  It by no means is a prelude to any future rulings in my favor, either.  It is a minor victory, at best.  But it is the first positive direction exhibited by the Ninth Circuit I have seen in a decade.  If the Ninth Circuit has made the determination that my appeal is not frivolous, that means they are open to striking down the District Court’s obstructions.  I do not wish to be too optimistic, but this is most definitely a good sign.

As always, I will keep you all posted…

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Posted by on October 22, 2015 in Uncategorized

 

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