Free Notice (Other) - District Court of California - California

Case 3:07-cv-02391-JAH-POR

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RONALD MARTINETTI, ESQ. State Bar No.106 898 KAZANJIAN & MARTINETTI 520 East Wilson Avenue Glendale, California 91206 Tel.818-241-1011 FAX 818-241-2193 E-Mail [email protected] Attorneys for Defendants Lee's General Toys, Inc., and John Lee

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) vs. GEORGIA-PACIFIC PRODUCTS partnership, CONSUMER limited ) ) ) )

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

CASE. NO.07 CV 2391 (JAR POR)
DEFENDANTS BRIEF RE EARL y NEUTRAL EV ALUA TION

LP, a Delaware

Plaintiff.

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LEE'S DOES

GENERAL JOHN 1-10,

TOYS,

INC., a California) and ) )

corporation,

LEE, an individual;

Defendants.

Date: March 18, 2008 Time: 10:00 am Judge: Ron. L. Porter

Defendants Lee's General Toys, Inc. and John Lee respectfully submit their Brief Re
Early Neutral
III

Evaluation, 6

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Case 3:07-cv-02391-JAH-POR
Dated: March 10, 2008

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KAZANJIAN & MARTINETTI RONALD MARTINETTI, ESQ. By ~ f\J\ M\\< ~ .

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Ronald Martinetti Attorneys for Defendants

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MEMORANDUM A. OVERVIEW

OF LA W

This case is an extension of the long sorry history of railroads in the Deep South and in
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the state of Georgia. Very often Southern railroads were built or maintained by convict
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labor; after Reconstruction, they were rigidly segregated for decades.

In

Georgia

the

railroads were so hated by the legislature and common people that the Georgia Central Railroad was forced to seek outside capital to survive and sold its facilities to E. H. Harriman, one of the great New York robber barons. Harriman promised to spend ten million dollars to save the line "If the State will cease to be antagonistic to the railroads' interests..." Maury Klein, The Life & Legend of E.H Harriman, University of North

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Carolina Press (2000), p. 427 Not even the great robber barons and an infusion of Wall Street capital could save the railroads from mismanagement and the advance of technology. By the 1940s great aviation
pioneers like Howard Hughes and his brainchild TW A had displaced the antiquated railroads with a swifter form of passenger travel; a decade later, long haul trucking had cut

into the market for delivery of commercial goods.
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By the 1960s many rai11ines faced bankruptcy or were forced to diversify into other
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enterprises such as Georgia-Pacific and its apparent entry into the bathroom tissue market.

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Case 3:07-cv-02391-JAH-POR

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B. PLAINTIFF'S

ANGEL

SOFT TRADEMARK

IS A SIMPLE DESCRIPTION RRANDS

ONE THAT APPEARS TO TRADE OFF RETTER KNOWN

SUCH AS CHARMIN AND IS NOT ENTITLED TO TRADEMARK
PROTF,CTTON Plaintiff has admitted in a footnote in papers filed with the Court that the ,
rademark

Office refused to grant it a trademark for the word "soft." However, it appearsthat Plaintiff has also failed to attach this statutorily required disclaimer to its advertising and promotional efforts. Plaintiff does not elaborate as to why the word "soft" was rejected by the Trademark Office; presumably, the term "soft" was rejected as purely descriptive. However, the term Angel Soft is merely another way of describing the tissue as "soft as an angel," and our circuit has long held that "Purely descriptive terms. are not so
protected." Carter-Wallance, Inc. v. Procter & Gamble Co., 434 F.2d 794, 800 (9th. Cir.

1970 ( e.g., "shredded wheat") (Citation omitted.

Plaintiff's packaging and use of the word "soft" is similar to that of a far more
popular market brand (Charmin) (Exhibit 1) and like the generic bathroom tissue sold at

Ralph's. (Exhibit 2) Yet, Plaintiffhas the nerve to accuseDefendants of trademark infringement. In fact, Defendants sell their superior product to swap meets in largely Latino areas. Although Plaintiffs web site lists Texas and Arizona as Latin markets it targets, there is NO listing of California. Defendants intend to explore this omission through formal discovery
and to vigorously oppose Plaintiff's obtaining a pennanent injunction.

Moreover. Defendants have held a valid California trademark since 2003 in the name

Angelite. This lawstlit is nothing more that a naked grab for that valuable intellectual property, and Defendants feel confident in their position that Georgia-Pacific's attempt to
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establish trademark protection for its generic descriptive marks will fail and that the company will be found to be a "Johnny come lately" to the Latino market whose efforts are not entitled to monopoly protection. Defendants respectfully request that Plaintiff immediately dismiss its lawsuit and
enter into an equitable resolution of this matter. Dated: March 10, 2008 KAZANJIAN & MARTINETTI RONALD MARTINETTI, ESQ.

By

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Ronald Martinetti Attorneys for Defendants

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PROOF OF SERVICE BY MAIL -(1013a, 2015.5 C.C.P.) STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the county of Los Angeles, State of California. I am over the age of eighteen years and not a party to the within above-entitled action; my business addressis 520 E. Wilson Ave., Suite 250, Glendale, California 91206.
On March II, 2008 I served the foregoing DEFENDANTS BRIEF RE EARL y NEUTRAL EV ALUATION on all the interested parties in this action as follows:

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..,

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StephenP. Swinton, Esq. Adam A. Welland, Esq. Latham & Watkins LLP 12636 High Bluff Drive, Suite 400 San Diego, CA 92130-2071 Fax No.: (858) 523-5450 x
a true copy

an original MESSENGER;

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BY PERSONAL DELIVERYNIA

-XBY ELECTRONIC FILING: I am familiar with the United States District Court, Southern District of California's practice for collecting and processing electornic filings. Under that practice, documents are electronically filed with the court. The court's CM/ECF system will generate a Notice of Electronic Filing (NEF) to the filing party, the assigned judge, and any registered users in the case. The NEF will constitute service of the document. Registration as a CM/ECF user constitutes consent to electronic service through the court's transmission facilities. Under said practice the above mentioned parties were served. -PREP AID POST AGE: I deposited such an envelope in the mail at Glendale, California. The envelope was mailed with postage thereon fully prepaid.

u. S. MAIL: I am "readily familiar" with our finn's practice of collection and processing correspondencefor mailing. It is deposited with the U.S. Postal Service on that same day on the ordinary course of business. I am aware that on motion of any party served, service is presumed invalid if postal cancellation date or postagemeter date is more than one day after the date of deposit for mailing affidavit. x BY FACSIMILE: On the interested parties in this action pursuant to C.R.C. RULE 2009 (b). The telephone number of the facsimile machine I used was (818) 241-2193. This facsimile machine complies with Rule 2003 (2) of the California Rules of Court. The transmission was reported as complete and without error. The facsimile machine printed out a record indicating that the transmission was successfully completed.