Thursday, July 08, 2010

Toyota Motor Sales v. Tabari (9th Cir. - July 8, 2010)

There's such a thing as being too bright by half.

Toyota wins an injunction in a trademark case against an online auto broker who's representing himself. The case goes up to the Ninth Circuit. The panel consists of Judges Kozinski, Fernandez and Randy Smith. Hardly the intellectual slouches of the federal bench.

So the judges (and their clerks) are going to do some independent work to make sure they get this one right. If only because it's an IP case, and all the clerks want jobs in IP, right? Accordingly, the advantage that Toyota has of opposing a pro se litigant isn't nearly as high on appeal as it was in the district court.

Nor is this a meaningless difference. Which Toyota learns when it discovers, as it did this morning, that the Ninth Circuit reversed the judgment in favor of Toyota and gave the pro se litigant much of what he wanted.

But that's not all. The Ninth Circuit's opinion is written by Chief Judge Kozinski. Which means on some occasions that you get lots of pop culture references, and on other occasions -- as here -- means that you get an opinion that's sometimes fairly harsh. Particularly when Alex thinks you're trying to pull a fast one. So listen to what he says about Toyota's lawyers (from Greines Martin):

"Toyota artfully maneuvered to obscure this factual overlap before trial and again on appeal. Toyota argued in favor of bifurcation on the grounds that even 'a cursory review' would show 'that there are no common issues of fact between any of these original claims and the counterclaims.' This was technically correct: The overlap was between the Tabaris’ defenses and counterclaims, not Toyota’s 'original claims' and the Tabaris’ counterclaims. Toyota evidently hoped that the district court would not notice the careful parsing of its language, and that the Tabaris (who are defending this case pro se) would not call it to the court’s attention.

Toyota is playing the same game on appeal: It states that bifurcation was proper because '[t]here was no factual overlap between Toyota’s trademark claims and Fast Imports’ interference claims.' But Toyota is only telling half the story by talking about only half of the relevant claims; Toyota admitted as much in its motion for summary judgment. Such selective memory exceeds the bounds of zealous advocacy."

Not something you want said about you in a published opinion. Plus, Chief Judge Kozinski doesn't stop with just the slam. It sufficiently matters to him that, in something fairly creative, he actually wants to level the playing field on remand. He concludes the opinion by saying:

"Many of the district court’s errors seem to be the result of unevenly-matched lawyering, as Toyota appears to have taken advantage of the fact that the Tabaris appeared pro se. See,
e.g., [the quote I retyped above]. To avoid similar problems on remand, the district court might consider contacting members of the bar to determine if any would be willing to represent the Tabaris at a reduced rate or on a volunteer basis."

Getting slammed is bad enough. Getting your client potentially harmed as a result adds injury to insult.

Judge Fernandez writes a concurring opinion that distances himself from some of the classic Kozinski contents. For example, Judge Fernandez doesn't like the off-the-record assumptions that are sprinkled throughout Judge Kozinski's opinion; e.g., that “[c]onsumers who use the internet for shopping are generally quite sophisticated" or that such people “would arrive at the Tabaris’ site agnostic as to what they would find." He also doesn't like the stuff about Toyota's lawyers, and concludes his brief concurrence by saying:

"Second, I am unable to join the gratuitous slap at counsel for Toyota in the majority opinion, which I see as entirely unnecessary to our decision or even to the upholding of the marmoreal surface of the law.

Finally, I do not join the final textual paragraph, which nudges the district court to find pro bono counsel for the Tabaris, who have neither chosen to retain their own counsel nor demonstrated that they cannot do so. To the extent that the majority sees their activities as especially socially worthy and above reproach, I do not agree."

So Judge Kozinski is harsher than Judge Fernandez, and more willing to use social assumptions, while Judge Fernandez is more willing to use big words (e.g., "marmoreal"). No surprises there.

In short, smart is good. But too smart is not.