# Appendix — Gilbert v. Union Carbide Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1512%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 445 U.S. 911 ## Text 79-1057) “weet i YAN & 1980 No. | MICHAEL RODAK, JR CLER In the Supreme Court of the United States Octoper Term, 1979 MARK GILBERT. an individual Petitioners, VS, UNION CARBIDE CORPORATION, A Corporation, Respondent. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Marx Girpert, Petitioner, pro se 315 South Peoria Street Chicago, Illinois 60607 (312) 226-2100 January 6, 1980 a The Scheffer Press, Inc.—(312) 263-6850 iil INDEX TO APPENDIX . Denial of Petition for Rehearing by the U.S. Court of Appeals for the Seventh Circuit entered August 9, 1979 0... . Petition for En Bane Rehearing Filed PGs By. SP” cicnnndiinencinn . Order of the Seventh Circuit entered June 13, 1979. Unpublished Order— ek TO Te Ge siandintimmiins . Judgment Order on Remand entered March 3, 1977—George N. Leighton, District Judge “Injunction” ............ . Opinion—United States Court of Appeals, Seventh Circuit, and as Amended on Denial of Rehearing March 11, 1976 as Amended March 16, 1976 Including Amendments ...........csseeeeees . Memorandum Opinion—Prentice H. Marshall, District Judge—Entered PemOeary TG, Fe sictcnicsciccreictmsincine; . Rummler-Robertson Motion For Leave To File Brief of Amici Curiae: Also Proffered Brief as Accepted ..........cceee . Amicus Robertson Letter of May 6, 1978 to Chief Judge Thomas E. Fairchild .... . Committee For Equality of Citizens Before The Courts’ Motion to File PAGE Al A2-A23 A24-A26 A27-A29 A30-A72 A73-A95 A96-A111 A112 Amicus Brief, Also Brief as Accepted A113-A117 10. 11. 13. Chicago Daily Law Bulletin, April 5, 1977, “EVEREADY error overcorrected; sad plight of ‘Mr. Ever-Ready’ ”” ............ A118 Chicago Daily Law Bulletin, June 7, 1977, “Union Carbide does not deny lack of Gib SENIEE c.c.ccscicuaaanes A119 Chicago Daily Law Bulletin, July 28, 1977, “Turneoat Confesses: Surveys of trademarks can be illusions” .................. A120 Office World News, March 1, 1978, “Gilbert vs. Union Carbide: A _ fight for *vendly’” ccccluissuemee A121 PAGE Al APPENDIX UNITED STATES COURT OF APPEALS For the Seventh Circuit Chicago, Illinois 60604 August 9, 1979. Before Hon. THomas E. Faircnitp, Chief Judge Hon. Lutuer M. Swycert, Circuit Judge Hon. UNION CARBIDE CORPORATION, a corporation, Plaintiff -Appellee, No. 77-1378—77-2035 vs. EVER READY, INC., a corporation, and MARK GILBERT, an individual, : Defe*.ants-A ppellants. Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 71-C-3151 Judge Grorce N. LEIGHTON On consideration of the petition for hehearing (en banc consideration requested) filed in the above-entitled cause by counsel for the defendants-appellants, no judge in ac- tive service has requested a vote thereon*, and a major- ity of the judges on the original panel have voted to de- ny a rehearing. Accordingly, IT IS ORDERED that the aforesaid petition for re- hearing be, and the same is hereby, DENIED. *Honorable Philip W. Tone took no part in the con- sideration of the petition for rehearing en bane. A2 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Nos. 77-1378 & 77-2035 UNION CARBIDE CORPORATION, a corporation, | Plaintiff-Appellee, Respondent. Vs. EVER-READY INCORPORATED, a corporation, and MARK GILBERT, an individual, Defendants-Appellants. Petitioners. Appeal from the United States District Court on remand, for the Northern District of Illinois, Kastern Division. (71-C-3151) Georce N. LeicHTon, Judge. Appeal from the United States Court of Appeals for the Seventh Circuit. No. 75-1371 PETITION FOR REHEARING EN BANC CONSIDERATION REQUESTED Defendants-Appellants, Mark Gilbert, pro se Petitioners 315 So. Peoria Street Ever-Ready Incorporated and Chicago, Illinois 60607 Mark Gilbert. (312)) 226-2100 June 26, 1979 U.S.C.A.—7th Circuit Received in Clerk’s Office Jun 27 1979 Thomas F. Strubbe, Clerk A3 After 23 Years Ever-Ready Inc. Terminated by Union Carbide Corporation And Order Of The Federal J udiciary Mark Gilbert/Conservator Ever-Ready, ine. 315 South Peoria St. Chicago, Ill. 60607 Phone: (312) 226-2100 June 28, 1970 Re: Union Carbide Corp. v. Ever-Ready, Inc. & Mark Gilbert Nos. 77-1378, 77-2035 and 75-1371 Mr. Thomas F. Strubbe, Clerk U.S. Court of Appeals 219 So. Dearborn Street Chicago, Illinois 60604 Dear Mr. Strubbe: Pursuant to the rules of this Court, allowing fourteen days from date of its Unpublished Order, Not To Be Cited, dated June 13, 1979, I appeared in your office for timely filing of a Petition For Rehearing at 3:30 P.M. of June 27, 1979. Deputy Clerk, Naughton, rejected my petition on the ground that it did not contain a Table of Contents as re- quired, pursuant to revised Rule 28 (1) as it now appears in the Circuit Rules of the Seventh Circuit, Amended April 1, 1979. I pointed out that although the words Ta- ble of Contents were not used, the table was included, so arranged on pages 1-3 and asked that the petition accord- ingly be accepted. He stated that such was within the discretion of the Clerk’s Office and that he was rejecting the petition. Deputy Clerk Naughton then suggested that I return to my office and prepare a Table of Contents and return the following day to file my petition. I pointed out that if I did so, my petition woud be rejected by this Court because of untimely filing and requested use of a type- A4 writer in your office for timely preparation of the Table. Mr. Naughton advised that your office had no obligation to furnish me a typewriter and rejected my request. Thereupon, I proceeded to search the building for an available typewriter. I found one, prepared a Table of Contents, so entitled, and returned before your office closed. Deputy Clerk Naughton ran 30 xerox copies of the Table at a charge of $15.00 and accepted those copies to go with the 25 copies of the petition, as required for en bane consideration, and they were timely filed. The table of contents, hurriedly typed yesterday, while meeting the requirements of Rule 28 (1) contained typing errors and while identifiable did not completely reproduce the title page of the petition. To assist the Seventh Circuit in its search for justice, I am enclosing 25 copies of a revised table of contents and 25 copies of this letter, both to be directed to all of the Justices of the Seventh Circuit for inclusion with the petitions as filed. Sincerely yours, /s/ Mark Gilbert Mark Gilbert, Petitioner Defendant-appellant, pro se. Encl: 25 each, copies of this letter and revised table of contents Copies, Mr. John H. Morrison, 2 each ed A5 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Nos. 77-1378 & 77-2035 UNION CARBIDE CORPORATION, a corporation, Plaintiff-Appellee, Respondent. vs. | EVER-READY INCOR MARK GILBERT, an aibeieat i iia ia Die Defendants-Appellants. Petitioners. Appeal frum the United States District Court on remand, for the Northern District of Illinois, Eastern Division. (71-C-3151) Grorce N. Leicuton, Judge. Appeal from the United States Court of Appeals for the Seventh Circuit. No. 75-1371 PETITION FOR REHEARING EN BANC CONSIDERATION REQUESTED TABLE OF CONTENTS Pages Unresolved Argu- Issues ments 1. Limitations of Trademark — 1 3 2. Relief To All But Appellant 1 3-6 3. Facts In 75-1371 Created By Court Out Of Thin Air 2 6-7 4. “WITHOUT MERIT-WITHOUT EXPLANATION 2 7-8 5. Union Carbide’s “Unclean Hands” 2 8-9 6. Dismissal Of Corporate Defendant 2 10 7. Costs In 75-1371 Assessed In Error 3 10 8. Invalid Contempt Order 3 10 9. Unpublished Order Should Take Form Of Published Order 3 10-11 10. This Petition Should Be Fully Briefed 3. 11 11. En Bane Consideration Requested 3 11 A6 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Nos, 77-1378 & 77-2035 UNION CARBIDE CORPORATION, a corporation, Plaintiff-Appellee, Respondent. vs. EVER-READY INCORPORATED, a corporation, and MARK GILBERT, an individual, Defendants-Appellants. Petitioners. Appeal from the United States District Court on remand, for the Northern District of Illinois, Eastern Division. (71-C-3151) Georce N. Leicutron, Judge. Appeal from the United States Court of Appeals for the Seventh Circuit. No. 75-1371 PETITION FOR REHEARING EN BANC CONSIDERATION REQUESTED Ever-Ready Incorporated and Mark Gilbert, defendants- appellants, present this petition for rehearing in the above-entitled cause, and, in support thereof, respectfully submit: 1. This Court, by its questions on oral argument and by its Order of June 13, 1979, confirms that plaintiff’s rights to its mark are limited to the products in its trade- mark registrations, those limitations detailed in its Com- plaint in identical and minutely exact and very precise language, nowhere reaching beyond the products listed on the registrations held at the start of litigation. This Court, nevertheless, using or ratifying the use of such ambiguous terms as “mini-bulbs” and “lamps”, injudi- ciously failed to follow those limitations, and to properly AT narrow the mandate in No. 75-1371 and the consequential Remand Court injunction. Indeed, this Court’s narrowing of the scope of the injunction which resulted from the mandate in No. 75-1371 appears to be mere cosmetic sur- gery, which has no impact on the structural errors in the No. 75-1371 mandate giving the appearance of redress where no redress in fact has been made. 2. This Court’s Order while providing relief to all users of Ever-Ready on electrical products affords no relief to defendants on their electrica! products, namely desk lamps and high intensity replaceime. ‘ bulbs for high intensity desk lamps. Thus Ever-Ready lacorporated be- comes the only user of the term Ever-Ready on eelctrical products excluded from the relief granted to all other users. 3. This Court has never denied the false statements made by a panel of this Court in 75-1371, in clear contra- diction of the trial record, as incontrovertibly documented in appellants’ brief and reply brief and in the Robertson amicus curiae brief appearing as Foreward in appellants’ reply brief. 4. In affirming the remand court’s findings, this Court injudiciously failed to discuss the specific pleadings and evidentiary materials presented in defendants—appel- lants’ brief and reply brief, dealing with a) Confusion and likelihood of confusion; b) the affirmative defense of laches; c) the affirmative defense of misuse of mark in vio- lation of antitrust law; d) incorrect view of the law taken by this Court’s panel in No. 75-1371; e) erroneous assumption of facts by this Court’s panel in No. 75-1371, which erroneous assump- tion was central to the disposition of the case; f) the perpetration of fraud upon this Court by plaintiff-appellee ; A8 g) the violations of due process suffered by the defendants in the sua sponte determination of laches and in the proceedings of the District Court on remand, and an unfair trial where fraudulent, unauthorized stipulations giving away triable issues, previously argued in the Marshall trial, were used as the determinative findings of fact. Instead of judiciously discussing those issues, this Court rejected, out of hand, all of appellaats’ pleas under law and equity, turning to the blanket phrase “without merit”, the phrase relied upon by plaintiff-appellee which found itself unable to address those issues. 5. This Court rejected, without explanation, all evi- dences of plaintiff’s ‘‘Unclean Hands’’ as indisputably documented in appellants’ brief and reply brief, those evidences never addressed or denied or explained by plaintiff, other than by use of the phrase ‘‘without merit and without explanation of that phrase by plaintiff, in its brief or on oral argument, those same ‘‘ Unclean Hands evident on oral argument in continued false and deceptive distortion of facts. 6. If this Court’s Order means to suggest relief to appellants (where none has been factually granted), this Court did not address itself to the status of the corporate defendant, Ever-Ready, Inc., dismissed out in appellants basic appeal, No. 77-1378 by Order dated December 23, 1977 and restored by Order dated March 23, 1979 only as to 77-2035, an appeal from a contempt Order, (Reply brief, Motion For En Bane Consideration at 4). 7. This Court having ruled that the Remand injunc- tion is overbroad and therefore invalid, the contempt Order, appealed from under 77-2035, must be reversed as a valid Order cannot derive from an invalid Order. This Court has acted injudiciously in failing to strike down the contempt Order. A9 8. This Court, in its collateral Order of June 13, 1979, dealing in costs, in equity states: ‘‘Each party to bear its own costs.’”’ This Court in 75-1371 did not apply the same equitable consideration to costs. 9. This Court’s UNPUBLISHED ORDER OF JUNE 13, 1979 (NOT TO BE CITED PER RULE 35) should be revised taking the form of a published Opinion pur- suant to the same cited Circuit Rule 35(e) (1) (i), (ii), (iv) and (v). This request should be considered an ap- propriate motion for reasons as detailed below. 10. Consideration of this Petition should follow upon full briefing, permitting plaintiff-appellee to answer the issues raised herein and defendants-appellants to respond to that answer, so that the lack of due process which clouded the petition for rehearing in No. 75-1371 may be definitively remedied. 11. This petition for rehearing should be considered en banc as it is incumbant upon this Court to avoid even the appearance of bias and impropriety. I This Court, on hearing oral arguments on May 25, 1979, clearly perceived that Remand Judge George N. Leighton’s Judgment Order and Injunction had reached beyond the limitations imposed by plaintiff’s trademark registrations and beyond its complaint which scrupulously and most fastidiously avoided even a dot or a comma which might be interpreted as a departure from rights and prescribed lawful limitations which might be afforded by those registrations. This Court’s recognition of those lawful restrictions are clearly confirmed in this Court’s Unpulished Order of June 13, 1979 wherein on page 2, paragraph 2, after reciting its ‘‘not unmindfults’’ stated “‘Neither of these points, however, permit an injunction to go beyond the scope of appropriate relief’? and con- tinued in paragraph 3 of that page with ‘‘Thus the injunc- tion issued by the district court on March 3, 1977 was overbroad.’’ ee } ais aeenenntnaneiil A10 Il RELIEF TO ALL BUT APPELLANT In its Order this Court further stated: “There is no evidence to indicate that plaintiff’s trademark registration is so broad as to cover ‘any electrical product.’ ”’ (A) By its mandate, this Court has now relieved all other users of Ever-Ready with the sole exception of Ever-Ready Incorporated and Mark Gilbert from the op- probrious dictum forbidding the use of Ever-Ready on ‘‘any electrical products products not sold by or under the authority of Union Carbide Corporation’’. Thus GTE Svlvania Ine. is now free to sell their electrical wiring devices; thus Sears Roebuck and Co., may now market their Ever Ready electric motors, part of their Ever Ready water supply systems; thus American Safety Ra- zor Corporation is now free to sell their Ever-Ready electrical shavers and thus all others are equally free to market their Ever-Ready /Eveready electrical products. It is also reasonable to assume that any of them, even re- motely so interested, are free to market Ever-Ready desk lamps since they are as unlike Eveready batteries as any of the products they are now selling which likewise are not listed in Carbide’s certificates of registration; that any of them may also elect to market high intensity light bulbs since they are ‘‘large lamps’ as distinguished from Eveready ‘‘miniature light bulbs’’, ‘‘large lamps’’ not appearing in Carbide’s valid certificates of trademark registration. By this Court’s Order, the sole exclusion from use of Ever-Ready on electrical products remains appellants, Fver-Ready Incorporated and Mark Gilbert. (B) Nevertheless, this Court’s Order further states: ‘‘We have already noted that there is no evidence of con- fusion extending to all electrical products wherever and however marketed by defendants.’’ However having re- cognized the limitations imposed by trademark registra- tions and a complaint reciting claims within those limita- tions, this Court reached for the ambiguous language used All by the panel in Carbide’s appeal, 75-1371, 531 F.2d 366 (7th Cir.) at 389 which held that ‘‘an appropriate injunc- tion’’, might bar Ever-Ready from using its name in the trade ‘‘in connection with eletrical products such as mini- bulbs and lamps’’, without responding to defendants- appellants’ pleading that ‘‘mini-bulbs’’ is only a fanciful and arbitrary term used solely by appellants and not in any way synonymous with or descriptive of ‘‘miniature light bulbs’? (Appellants’ Reply Brief at 11) and that ‘‘lamp’’ itself has an ambiguous meaning (either light bulbs or receptacles for light bulbs) and that therefore the mandate itself was and is confusing and in need of clarification for the guidance of any remand court. This Court has not even taken the trouble to bring clarity to its own mandate, let alone to correct manifest injustice. (C) Further, this Court, in manner reminiscent of the earlier panel in 75-1371, wherein that panel grossly mis- stated the record (appellants’ Reply Brief at 18) to the benefit of Union Carbide, declares that the mandate ‘‘in connection with electrical products such as mini-bulbs and lamps’’ * * * ‘‘paralleled plaintiff’s prayer for relief in its complaint * * * covering ‘any products such as electric flashlights and accessories, lanterns, batteries and minia- ture lamp bulbs for flashlights, lanterns, lamps, toys, novelites, and automotive, aircraft, marine and related uses or services connected therewith’.’’ As defendants- appellants pointed out in their April 7, 1978 brief at POINT IX at 58-59, such parallei does not exist in fact or in language, and this Court has grievously erred in positing such a fictitious parallel. (D) Regarding the possibility that the remedies of the owner of a registered trademark may not be limited to the goods specified in the certificate, this Court cites Continental Motors Corp. v. Continental Aviation Corp., 375 F.2d 857, 861, 5th Cir. 1967, indicating that remedies may extend beyond the listed goods only to the extent that there is a likelihood of confusion. At no time has this Court distinguished between expansionable rights of a A12 strong mark (fanciful and arbitrary) and Fiveready, pos- sibly the weakest of all trademarks. Moreover, this Court has cavalierly ignored the weight of the evidence that the only likelihood of confusion deceptively presented in this litigation was advanced by bald fraud and suborned per- jury (defendants-appellants’ Reply Brief at 8 and 9, all of which were totally rejected by the finder of fact, the original trial Court. (1) The word lamps, as used in plaintiff’s trademark registrations and in its complaint, is limited to bulbs for lamps and the part not limited to bulbs does not men- tion anything that could reasonably be construed to in- clude lamps as desk lamps. The nearest word is lan- terns. A lantern is something which you carry not a plug- in device for the desk. Thus, if the word lamps is pertinent to desk lamps, its use was voided in the complaint except for the bulbs for lamps and those bulbs were ‘‘miniature lamp bulbs’’, specifically and properly limited to lamps which are battery operated devices such as a battery operated lamp attached to a coal miner’s cap. (2) Desk lamps apparently were not within the think- ing of the drafter of the 1976 decision denying laches or he could hardly have said that the products involved were not until 1971. It is difficult for anyone reading the record and viewing the exhibits to understand anyway, as the evidence as to the much earlier use of Ever-Ready on lamp bulbs negates ‘‘1971’’. Nevertheless, lamp bulbs could have been more easily overlooked by the drafter of **1971’’ than the preponderance of the evidence of widely advertised desk lamps since 1945, so that at the time he drafted that first draft of that decision he may have been thinking of lamp bulbs only which is partly made easy by the fact that the word lamps is sometimes used for lamp bulbs too. (3) The only proffered evidence of confusion as to desk lamps is one of the two-stroke surveys, both rejected by the trier-of-fact, who given the preponderance of evi- Al13 dence negating their pertinence stated ‘‘I conclude that the surveys are entitled to little, if any, weight’’. Hence, it would be easier for the Court to real:ze tuat maybe something is wrong with respect to desk lamps, both because evidence of confusion is dubious and because the law there was clearly on the side of the long use of Ever- Ready on desk lamps prior to any complaint by plaintiff and furthermore as indicated in point (D) (1), plaintiff - continued its laches as to desk lamps right along through the filing of the complaint because they failed to mention desk lamps, even lamps per se in the complaint. (4) The lack of due process on laches, perhaps espe- cially pertinent to desk lamps, is even more clear than the failure to permit arguments on the question of laches, resulted in overlooking more than twenty six years of desk lamp sales, well advertised. (5) This Court has failed to distinguish between high intensity bulbs which are classified everywhere, including the patent office, as large lamps and ‘‘miniature lamp bulbs’’ classified everywhere, including the patent office, wherein trademark registrations are filed, as light bulbs powered by batteries. Plaintiff appellee, knowing full well that its trademark registrations did not include high intensity bulbs, ‘‘large lamps’’, PURSUED THE RE- GISTRATION OF ‘‘LARGE LAMPS” INCLUDING HIGH INTENSITY LIGHT BULBS ON FEBRUARY 10, 1975, THREE YEARS AFTER IT FILED ITS COM- PLAINT AND EIGHT DAYS BEFORE ANNOUNCE- MENT OF THE MARSHALL OPINION (Appellants’ Reply Brief at 12), thereby CONCEDING the WEAK- NESS of its mark and its INAPLICABILITY to defen- dants-appellants’ high intensity bulbs, ‘‘large lamps’’. (6) Moreover, on the question of likelihood of confusion between high intensity bulbs ‘‘large lamps’? and ‘‘minia- ture light bulbs’’, found non-existent by the trier-of-fact, this Court should take judicial notice that plaintiff itself concedes no likelihood of consumer confusion, as through Al4 the voice of its Own Manager of Consumer Products, Marion Sigovich, wherein to avoid any trademark ‘‘nexus’’ with the acts alleged to be antitrust violations, he belittled reliance on trademarks in the light bulb indus- try. In effect, he stated that no one relies on trademarks in buying replacement bulbs—they just match the bulb type with whatever make the store they enter is carrying. (Ap- pellants main brief at 33). This Court failed to treat that decisive point as also raised by one amicus as he pointed out that this was inconsistent with Carbide’s previous position, that regardless of laches an injunction was needed to protect purchasers, inviting this Court’s dis- position of the case on the ground that clearly no injunc- tion was needed to protect the consumer. (Appellants’ Reply Brief, Amicus Robertson at -b-). (7) Had any other electrical product, or for that matter, any other non-electrical product, been substituted for Ever- Ready’s desk lamps or high intensity light bulbs, in the defective surveys, resurrected by this Court’s Panel in 75-1371, that product would have then and would now, despite this Court’s rejection of ‘‘any other electrical products’’, be condemned and tarred with likelihood con- fusion. lil FACTS CREATED OUT OF THIN AIR This Court’s panel in 75-1371, meeting a test of laches, presented as factual, maong others, these grossly erron- euos representations: ‘‘Prior to 1971, Ever-Ready did not market the elec- trical products involved in this case under its own name. « A100 BRIEF OF AMICI CURIAE INTEREST OF THE AMICI CURIAE The amici curiae offer this brief solely in the public interest, and especially in the interest of justice with due process of law. Although this brief is favorable to defendant, the amici participated previously in offering a brief favorable to plaintiff. One of the main points of the prior brief was that due process had been lacking in a sua sponte decision by the District Court. A main point of the present brief is that due process was lacking in a sua sponte decision by the Court of Appeals on another point, laches. The brief is not offered on behalf of any client, nor does it affect any known client interest. It is submitted without giving any party or counsel for any party advance knowledge of it. RELIEF URGED The most immediate relief here urged is restoring this Court's stay of the injunction, the stay having been dissolved before a defendant, lacking counsel, could reply to the opposi- tion; and before even a normal initial showing had been com- pleted. ‘ y Also urged (next in the order of probable ease of accept- ance) is working out a tempering of the present catastrophic injunction if the stay must be again dissolved. In aid of both of these urgent needs, and for possible greater restoration of justice, this brief urges full recognition Brief Pp. l A101 of this Court's unfairness to defendant in denying laches sua sponte, before hearing arguments thereon, with no reason to assume all of the pertinent evidence was before it, and on the basis of two grounds, both erroneous. TIMELINESS OF POINTS RAISED On the aneniantin that one area of the appeal is the severity of the judgment, and its failure to allow any period for orderly transition, the points raised in this brief are timely for consideration in that area. However, the amici do not believe it is too late to make full correction of this Court's error in its sua sponte denial of laches. At least that error should now be recognized so as not to be further compounded. SUA SPONTE DECISION DENYING LACHES LACKED DUE PROCESS Just as the previously offered amicus brief emphasized a lack of due process in the District Court's sua sponte deci- sion against validity, the amici here point to an even more severe lack of due process in this Court's sua sponte decision denying laches. That the trial had encompassed laches is not enough when this Court had no reason to think all evidence pertinent to laches was before it; nor when the District Court decision expressly avoided deciding the question of laches, having found for the defendant without it; nor when this Court gave no chance for arguing laches before its decision. Had either party sought a ruling on laches, this Court might well have refused (even if both parties had been heard) basing Brief P. 2 A102 refusal on the usual grounds that there should be a prelim- inary marshalling of the facts by the District Court. The lack of due process is more severe than that which the previous brief criticized because, though clearly based on error, there was no right of appeal. This Court's final sentence on laches reads; “In any event, the issue of laches was not urged on this appeal and may be considered as having been waived." (Slip opinion p. 35, 188 USPQ 644). The holding of waiver was utterly unfair, because there had been no reason for the defendant to treat laches on the appeal, when there had been no District Court decision denying laches and when there was no duty on the part of defendant to anticipate that all of the several holdings in its favor would be reversed. Instead of justifying this erroneous conclusion of waiver, the phrase “was not urged on this appeal” constitutes an unconscious and unrecognized admission that the point was being decided before it had been argued! The writers of this brief confess that they, too, failed to recognize this admis- sion when the opinion was first read, When the Court of Appeals makes an unargued sua sponte decision, it almost certainly lacks knowledge of the facts ex- cept (hopefully) those in the appendix or briefs. However, these of course had been selected for consideration by the Court of Appeals on the issues on appeal, Inasmch as laches was not an issue on appeal, there was no reason to clutter the appendix with testimony and exhibits pertinent only to the Brief P. 3 A103 question of laches. As an example of an exhibit which either was not before the Court of Appeals when it made its unargued sua sponte decision on laches, or was overlooked by that Court, we show at this point a purported* "Dx52(181)" which shows a Wall Street Journal advertisement in December 1968 of "“Ever- Ready Radio-Lamp". Contrast this with the statement in this Court's decision paragraph on laches, which seems to have been this Court's other erroneous basis for its decision: "Prior to 1971, Ever-Ready did not market the electrical products in- volved in this case under its own name." ARGUMENTS ON REHEARING DO NOT OVERCOME LACK OF DUE PROCESS A party is entitled to have its arguments heard before the decision is made, not afterwards. For that reason alone, the lack of due process is not overcome by the fact that defendant submitted arguments against laches on its petition for rehearing. The proverbial futility of petitions for rehearing show the need for permitting arguments before the original decision. Further- more, in this Court, there is not an adequate briefing schedule in connection with petitions for rehearing for arguments at this time to take the place of a chance for full briefing prior to the decision.** “See next page. The exhibits were withdrawn from court custody before termination of the case. This one came to attention upon receiving it with a copy of a letter from defendant to plaintiff's counsel. An “Ever-Ready" lamp blister-pack card showing "¢€ 1967" was received with it. **Even if the failure to await a rebuttal brief may work well as to most motions, a petition for rehearing, once accepted, should be recognized as having more need for rebuttal. Those who de- cided wrong at first cannot be expected to recognize errors in the brief supporting their decision. Brief Pp. 4 THE EVER-READY RADIO/LAMP IS MARKETED BY: 1218 W. Medison Street Wenc. phone fein ze20 Phone (312) 226-2100 Sunday, December 22, 1968 The SHOPPER Hi-Intensity Type LAMP with transistor RADIO WONDERFUL PRESENT FOR THE STUDENT OR CHRISTMAS GIFT GIVING! A104 THE WALL STREET JOURNAL. THURSDAY, DECEMBER 12, 1968 Kroch’s & Brentano's 28 &. Wabash Ave, Chicage, lil. 00683 + DEarbern 2-7500 BRANCH STORES Ever-Ready Redio-Lamp . hi-intensity a $ and it’s attractively — = _ formerless. Wi: mall cob tion, and a the price : (postage $1.00) Each $22.95 HOLIDAY STORE HOURS LOOP STORES Conenpt Le Salle Street) Daly OAM. OPM. © Saterday # AM to 6 P.M SUBURBAN STORES; (emeapt Evanston and Ooh Park) Dally 0:30 0:38 © Saterday 0:30 te 5:00 FREE GIFT WRAPPING UPON REQUEST have been found or there would be no injunction. A105 The inadequacy of arguments after the decision instead of before is further indicated in the present case by the fact that the Court made no correction in either of its above- mentioned erroneous grounds. Neither statement was specifically defended by plaintiff's answering brief on the petition for rehearing. WEIGHING LACHES VE?’SUS CONFUSION REQUIRES CAREFUL th day of May, 1978. Ce oe, Notary Public ) . rade A116 G BRIFF OF AMICUS CURIAE INTEREST OF THE AMICUS CURIAE The amicus curiae offersthis brief solely in the public interest and especially in the interest of due process and of equal treatment under the law. QUESTIONABLE ACTIONS OF THE APPELLATE PANEL IN NO. 75-1371 The Appellate Panel which considered and adjudicated the appeal of plaintiff, Union Carbide Corporation in No. 75-1371 engaged in a number of questionable actions to the benefit of the appellant and to the detriment of the appellee in that appeal. The Appellate Panel decided the question of laches when that question had been reserved by the trial court, was not involved in the appeal and had not been discussed or treated in the briefs of appellant or appellee. The Appellate Panel treated defendants’ silence as conceding away the question of laches and as waiving their affirmative defense of laches. The Appellate Panel overlooked the fact that the appellate record had not been selected for laches. The Appellate Panel failed to notify the parties that it was going to take up the unappealed issue of laches so that arguments could be properly briefed and inadequacies of the appellate record pointed out. The Appellate Panel based its determination against laches on its own most amazing misstatement of facts to the effect that the defendants’ acts in issue had not begun before the year in which suit was brougiit. The Appellate Panel. on petition for reconsideration issued its denial without giving defendante-appellees a chance to reply to plaintiff-appellant's Answer to Part II of the Petition for Rehearing. In all of the above respects, the Appellate Panel violated due process. The Appellate Panel in No. 75-1371 improperly substituted itself over the trial court as trier of fact, not only striking down without trial the issue of laches in the face of the record, but by validating questionable evidence of confusion held by the trial court to have been "manufactured". The judicial objectivity of the Appellate Panel in its 1976 Opinion as amended having been questioned, its objectivity has not been vindicated by post-Opinion actions of the two judges who were members of that panel and who singly or to- gether have made all significant decisions in the intervening motions and papers, including the April 24, 1978 denial of the alternative motion to disqualify themselves, all to the benefit of Union Carbide Corporation. In addition to the April 24 denial of disqualification, the post-Opinion actions of Judges Wilbur F. Pell, Jr. and Robert A. Sprecher include the following: 1. Om April 14, 1977, Judges Pell & Sprecher dissolved the April 4, 1977 stay of injunctionduring pendency of appeal; 2. On May 25, 1977, Judges Pell and Sprecher denied Defendants’ Motion to Re- Consider and Restore Due Process, that denial made “en banc" with six of the eight active judges abstaining; Brief p. 1 A117 C ' 3. On May 25, 1977, Judges Pell and Sprecher denied the Rummler-Robertson Amici Curiae Brief, that denial ordered "en banc" with six of the eight active judges abstaining. 4. On September 15, 1977, Judge Sprecher overruled Judge Commings' order that exhibits documenting defendants' use of Ever-Ready on electrical products in a 1956 catalog would be permitted in the Record. 5. On September 26, 1977, Judge Sprecher dismissed the appeal of the corporate defendant unless an attorney filed an appearance for the corporation. 6. On October 20, 1977, Judges Pell and Sprecher denied defendants' emergency motion to stay the remand court's Order to comply with the injunction during pendency of appeal. CONCLUSION Because the judicial objectivity of the members of the 1975 Appellate Panel in No. 75-1371 has been called into question by what appears to be an arbitrary pattern of behavior directed against the defendants and in support of the plaintiff in that action and in the current appeal, the amicus prays that: 1) This Court's Order of April 24, 1978 denying initial "en banc" consideration of the present appeals and the Pell/Sprecher denial of defendants-appellants' alternative motion that members of the Appellate Panel in 75-1371 disqualify themselves from any possible future panel assignment to adjudicated appeals No. 77-1378 and No. 77-2035 be vacated instanter; and that 2) All motions in and adjudication of No. 77-1378 and No. 77-2035 be considered en banc; and 3) In the alternative, that Judges Wilbur F. Pell, Jr. and Robert A. Sprecher be disqualified from panel assignment to consider motions in and to adjudicate defendants’ appeals No. 77-1378 and No. 77-2035. If this Court should consider the form or timing of this brief technically imperfect under its regular rules, we further pray that the conscience of this Court and ite concern for justice will prevail over ite procedural bookkeeping. ‘USCA. - 7th Circuit Received in Clerk's Office Respectfully submitted, MAY 15 oe Committee For Equality of Citizens Before The Courts (Co-Equal) 3401 W. Division Street, Chicago, Ill. 60651 312/252-1817 By O P THOMAS F. STRUBBE y Order of the Board of Directors: CLERK 8 “4 Alvig Horwitz, Direc -\ dc, A Leo Stepkin, Directok StL a > A119 A118 WY . | | | ! 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Such surveys, it would appear, can be as illusionary as the optical illusion which can look like the top side of a stairway or the underside, depending upon some mystery within the brain The survey in question is that reported by the District Court at 185 USPQ 472, and by the Court of Appeals at 188 USPQ 640, the two courts reaching opposite conclusions on whether these surveys show trademark con- fusion The survey was offered by Union Carbide for showing confusion between ‘‘Ever- Ready" on lamps and lamp bulbs in the field of plug-in ylamps and EVEREADY in the field of batteries and the battery lamps. Whee initially viewing the survey, this writer's sympathies were with Union Carbide as a result of the shock: at seeing that Judge Prentice H. Marshall bed held EVEREADY to be in- valid. This writer, in an ar- ticle published in this paper Aug. 6, 1975, criticized that decision, and participated in a brief amicus curiae offered to the Court of Appeals against it. Although the brief was directed mainly against (1) lack of due process in a sua sponte decision against validity and (2) denying any ‘offensive’ effect of Lanham Act incontestability, @ fvotnote suggested error in treating the survey evidence as of no weight More recently, knowledge that Union Carbide had obtained an injunction which allowed no period for orderly transition and which enjoined acts not found to be confusing, led to writing ar- ticles sympathetic to “Mr. Ever-Ready" published in this paper April 5 and June 6, 1977. Efforts to persuade Union Car- bide to he more reasonable having failed, two of the former amicae (this writer and Charles W. Rummiler) joined in a second amicus brief, this time in sup- pot of an appeal by defen- dants This brief was mainly critical of the Appellate Court's sua sponte decision denying laches without first hearing arguments, and pointed out that whether or not this deprivation of due pro- cess could still be vacated, the facts could be considered in evaluating the injunction now on appeal. The bvief also pointed out that determining the extent to which the public interest against continuing confusion overrides laches reyuires a ca:elul evaluation of the degree of danger of confusion m the marke. place. Discussing this need for evaluation im the marketplace led to this writer's realization that with this main requirement in mind, perhaps Judge Marshall was correct after all in giving the survey little or no weight. The survey questions necessarily required of each person surveyed three mental steps, with no known evidence that even the first of those steps would have been normally ex- Continued on page three Trademark survey illusions Continued fram page one |ordinary purchaser to be cognizable evidence, if it torces perienced by the casual the 4 person surveyed to progress purchaser in the marketplace through mental steps which the The three mental steps are: | ordinary purchaser might not (1) consciously taking note of take? the trademark, (2) consciously giving it origin-significance, and (3) wondering whether other products sold under like name may be of the same source, with the question pussibily suggesting an affirmative answer. In buy- ing batteries, where more than) jarge percentage of people? one brand is usually on display, | steps (1) and (2) might be\trademark is that famous, no common in the course of nurmal jinde pendent purchasing. But do bulb-dealers) should get a “free ride’ on its carry tow lines? | fame even if confusion might be In short, the questions forced| absent. But should fame pre- dant’s products, the questions will inevitably call the It is easy to reply that when a‘ If future events should turn ; this writer's sympathies back to | Uniwn Carbide, teresting to see whether, like | the stairway illusion, the survey | it will be in-| _ seem ‘right side up” after. all. In any event, it appears that if anyone sets out to study past , cases to learn what causes of | If it can ever be cognizable, Possible injustice in our civil! can it be when the plaintiff's judicial system need correcting. mark is so famous that, regard- ‘his ‘Ever-Ready" case might less of the nature of defen. b€ @ fruitful subject of study survey | Whether the case itself could be corrected might be the subject famed product to the minds of a| °f #nother article. (Note: Mr. Robertson, who has been a contributor of epectai ar- ticles to the Law Bulletin on the manufacturer | subject of patent law over a pe- riod of years, and who has been with the firm of Darbo, Robert. son & Vandenburgh in Arlington the interviewed person to con- sider whether he could name some other product sold under the sound “Ever Ready."’ Given the fame of EVEREADY bat. teries, of course a certain per- centage of those interviewed came up with a reference to batteries. In the survey on lamp bulbs, the percentage was 606 per cent, while in the survey on lamps it was only 55.2 percent A possibility exists, apparently unexplored, figure is at or close to an irreducible minimum such as would be the result of any sur- vey using the same thought- that this lower| name any other products put out inducing questions, even as to products too remote from bat-| voiced mention of batteries and teries for any thought of a common source to be self, suggesting Raving in mind that the bur- den of showing « likelihood of Confusion is on the plaintiff, and Usually must be with reference to ordinary purchasers, s«me interesting questions are here presented to readers: Does a survey have eiough significance with respect io the clude the nonconfusing use of | Hewhts, has advised the Bulletin term such as “Ever-Ready” for that he will soon become semi- its inherent attractiveness? And! retired and will have a new if there are 50 users of marks of Permanent address by Aug. 6 at this sound, should one of them, M411 Nashua Circle, Sun City, FL. a long time user. be discri- | 33570./ minatively excluded? ” The final question of the sur- vey illustrates another weakness of surveys. Bear in mind that this question was asked with “Ever-Ready" fixed in atten- “jon. The question was: ‘Please by the same concern which you think puts out the (product) shown here.” The recorded answers would naturally show no difference between a firmly a@ mention of batteries in an in- quiring voice inherently ex. pressing doubt as to its really being the same concern Nor would the survey necessarily show if, between this question nd its answer, some en- couragement was given by the interviewer to name, EXHIBIT “Z“ sometheng. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1512%3A2. Public record. Not legal advice.