Pine Tar, Stealth Condoms and Dead Fish


I am falling in love.  The object of my affection is the prose of a judge from the Seventh Circuit named Terrence T. Evans who seems equally at home in the worlds of jurisprudence, hip hop and baseball.  My infatuation began with Judge Evans' opinion in United States v. Murphy, 406 F.3d 857 (7th Cir. 2005), an otherwise run-of-the-mill drug case in which he famously paused to drop a footnote correcting the court reporter's misspelling of the term "ho":

The trial transcript quotes Ms. Hayden as saying Murphy called her a snitch bitch "hoe." A "hoe," of course, is a tool used for weeding and gardening. We think the court reporter, unfamiliar with rap music (perhaps thankfully so), misunderstood Hayden's response. We have taken the liberty of changing "hoe" to "ho," a staple of rap music vernacular as, for example, when Ludacris raps "You doin' ho activities with ho tendencies."

If that footnote doesn't make you swoon, check out his latest opinion, Central Manufacturing, Inc. v. George Brett, et al. -- a trademark infringement case in which the lead defendant is indeed THAT George Brett, now enshrined in the Baseball Hall of Fame.  The Gods of Serendipity sent the appeal to a panel that included Judge Evans, and the resulting opinion will surely please them.

Because the case involved not merely George Brett but a dispute over use of the trademark STEALTH for baseball bats, Judge Evans starts the opinion with a five-paragraph introduction entitled "The Pine Tar Incident." In that introduction, he describes the events in 1983 surrounding Mr. Brett's most famous baseball bat -- from its use in his magical 9th-inning home run to Yankee Manager Billy Martin's appeal to the homeplate umpire regarding pine tar on the bat to the umpire's dramatic  "illegal bat" declaration nullifying the home run and ending the game to the "reversal and remand" of that ruling by the American League president to the replaying of that 9th inning three weeks later.  Judge Evans' prose would make a sportswriter envious.

But the real fun begins with his handling of the plaintiff, whose owner, Leo Stoller, in the Court's words, "is no stranger to trademark litigation. Indeed, one might say it is the essential part of his business strategy. In fact, were there a Hall of Fame for hyperactive trademark litigators, Stoller would be in it. And, like George Brett, he would have gotten in on the first ballot. Acting as a sort of intellectual property entrepreneur, Stoller has federally registered scores of trademarks with the U.S. PTO (Central lists upwards of 50 that are actual or pending for just the 'Stealth' mark), many containing everyday words that regularly pop up in commercial enterprise."  And this was hardly Mr. Stoller's first unsuccessful attempt to enforce one of those trademarks.

(One STEALTH registration Stoller missed was for condoms -- Reg. No. 2249512 --registered by a Texas company called John Hughes Ceramic Tile Contractor. The Stealth Condom was all black and allegedly marketed under the slogan: "They'll never see you coming.")

Turns out George Brett's company use of STEALTH for bats predated Stoller's registration.  Indeed, the plaintiff's claim was deemed so meritless by the trial court that it not only canceled its trademark registration but awarded fees and costs to the defendants.  On appeal, the Seventh Circuit upheld that award under the "clear error" standard which, as Judge Evans explained (quoting yet another colorful Seventh Circuit jurist, William Bauer), permits reversal only if the challenged ruling "strikes us as wrong with the force of a 5-week-old, unrefrigerated dead fish."


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