Judge To Art Licensing Agency: No, Your Stupid Unicorn Is Not More Important Than COVID-19 Right Now, Shut Up

from the slightly-paraphrased dept

Pretty much everyone by now should recognize that large parts of the world have needed to shutdown due to COVID-19 -- and you would hope that most people would be understanding that certain things may need to be delayed for a bit. But apparently not lawyer Michael Hierl from the law firm of Hughes Socol Piers Resnick & Dym, and his client, a copyright licensing agency called Art Ask Agency, based in Spain. On March 9th, Art Ask Agency sued a bunch of unnamed defendants (their identity to be determined later), in US federal court in Illinois, over what it calls "counterfeit" images of a unicorn designed by artist Anne Stokes. Stokes apparently does brisk work in unicorn-related merchandise, as seen by her page on Art Agency's website:

And, boy, is Art Agency ever so mad that there are "counterfeit" unicorns out there, which they claim violate Stokes trademark and copyright. Art Agency is so mad, that it's tossing out totally random fantasy numbers that have nothing to do with the specific works in this case:

The success of Plaintiff’s brand has resulted in its counterfeiting. Plaintiff has identified numerous domain names linked to fully interactive websites and marketplace listings on platforms such as iOffer and Aliexpress, including the Defendants’ Internet Stores, which were offering for sale, selling, and importing counterfeit products to consumers in this Judicial District and throughout the United States. Defendants have persisted in creating the Defendants’ Internet Stores. Internet websites like the Defendant Internet Stores are estimated to receive tens of millions of visits per year and generate over $135 billion in annual online sales. According to an intellectual property rights seizures statistics report issued by Homeland Security, the manufacturer’s suggested retail price (MSRP) of goods seized by the U.S. government in 2013 was over $1.74 billion, up from $1.26 billion in 2012. Internet websites like the Defendants’ Internet Stores are also estimated to contribute to tens of thousands of lost jobs for legitimate businesses and broader economic damages such as lost tax revenue.

Then there's a lot of conspiracy theory stuff about how the defendants hide who they are and part of this lawsuit is to try to figure out who is selling those darn counterfeit unicorns. As the plaintiff admits, many of the sellers are likely in China, meaning it's unlikely (1) they'll be found or (2) that a federal court in the US can do much to people in China printing counterfeit t-shirts. It seems the real goal of the lawsuit is to get a court order that can be passed along to various internet merchants to pressure them to take down the listings. Part of the relief sought is:

Entry of an Order that, upon Plaintiff’s request, those in privity with Defendants and those with notice of the injunction, including any online marketplaces such as iOffer and Alibaba Group Holding Ltd., Alipay.com Co., Ltd. and any related Alibaba entities (collectively, “Alibaba”), social media platforms, Facebook, YouTube, LinkedIn, Twitter, Internet search engines such as Google, Bing and Yahoo, web hosts for the Defendants’ Domain Names, and domain name registrars, shall:

a. disable and cease providing services for any accounts through which Defendants engage in the sale of counterfeit products using the Anne Stokes trademark or which are derived from the copyrighted artwork, including any accounts associated with the Defendants listed on Schedule A;
b. disable and cease displaying any advertisements used by or associated with Defendants in connection with the sale of counterfeit products using Plaintiff’s trademark or which are derived from the copyrighted artwork; and
c. take all steps necessary to prevent links to the Defendants’ Domain Names identified on Schedule A from displaying in search results, including, but not limited to, removing links to the Defendants’ Domain Names from any search index;

So, in short, Art Agency and Stokes want the court to issue an order that they can wave at various stores and search engines demanding they delist the various "counterfeit" unicorn merch. Indeed, a day after filing the complaint, the lawyer, Hierl, requested a temporary restraining order (TRO) on the still nameless defendants. He's also filed a bunch of stuff under seal, which is a bit confusing in a case like this, but given some of the conspiratorial language in the complaint -- and Hierl later also suggesting that if the defendants were to become aware that he was after them they may alter their tactics and hide -- perhaps that's all part of the plan.

As you might imagine, the court is a wee bit busy with everything else going on right now. So, it said rather than an immediate hearing, it needed to push off a hearing until April 13. In the grand scheme of things... not that long. Hierl, quickly filed an ex parte motion saying that it was really super duper important to have the hearing immediately, because counterfeit unicorns were at stake, dammit.

Due to the nature of Plaintiff's claims and the existence of irreparable injury, Plaintiff respectfully requests this Court to re-set its Ex Parte Motion for Entry for a Temporary Restraining Order for presentment during the week of March 16, 2020. Plaintiff is willing to appear telephonically or otherwise make itself available for the presentment of Plaintiff's motion.

Delay of entry of Plaintiff's Ex Parte Motion for Temporary Restraining Order would result in significant irreparable injuries to Plaintiff, continue harm to the consuming public and denial of the protections that only this Court can afford.

Dude's in quite a rush, it seems. The same day (last Monday) that Hierl made this request to have the hearing as quickly as possible, rather than waiting until April, the Court responded saying, in not so many words, "Dude, everyone's impacted by COVID-19, all cases are impacted, including yours, and be a little patient." More specifically, it pointed him to the following notice, which makes it clear that many things are getting pushed back and the court isn't having any hearings for a few weeks due to COVID-19.

You would think that lawyer Hierl might get the message. But, no. UNICORNS are at stake. Counterfeit unicorns. He filed an emergency Ex Parte Motion, demanding a TRO as soon as possible.

On Wednesday, Judge Steven Seeger, who's only been on the bench for a few months, denied the motion two days later, and was, uh, pretty clear to Hierl that unicorns, counterfeit are not, are not exactly the most pressing matter at this moment:

This case involves counterfeit unicorn drawings. The complaint includes a few examples of products that allegedly infringe Plaintiff’s trademarks, which offer “striking designs and lifelike portrayals of fantasy subjects.”... One example is a puzzle of an elf-like creature embracing the head of a unicorn on a beach.... Another is a hand purse with a large purple heart, filled with the interlocking heads of two amorous-looking unicorns... There are phone cases featuring elves and unicorns, and a unicorn running beneath a castle lit by a full moon....

Meanwhile, the world is in the midst of a global pandemic. The President has declared a national emergency. The Governor has issued a state-wide health emergency. As things stand, the government has forced all restaurants and bars in Chicago to shut their doors, and the schools are closed, too. The government has encouraged everyone to stay home, to keep infections to a minimum and help contain the fast-developing public health emergency.

The United States District Court for the Northern District of Illinois took action last week to protect the public, issuing General Order No. 20-0012 entitled IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY. See www.ilnd.uscourts.gov (last visited March 16, 2020) (bold and all caps in original). On March 16, the Executive Committee issued an amended Order that, among other things, holds all civil litigation in abeyance.

Judge Seeger is just warming up.

Last week, Plaintiff filed a motion for a temporary restraining order (Dckt. No. 11) against the Defendants (who are located abroad) and requested a hearing.... This Court thought that it was a bad time to hold a hearing on the motion. So, this Court moved the hearing by a few weeks to protect the health and safety of our community, including counsel and this Court’s staff. See Dckt. No. 19. Waiting a few weeks seemed prudent.

Plaintiff has not demonstrated that it will suffer an irreparable injury from waiting a few weeks. At worst, Defendants might sell a few more counterfeit products in the meantime. But Plaintiff makes no showing about the anticipated loss of sales. One wonders if the fake fantasy products are experiencing brisk sales at the moment.

Uh oh, Hierl. This ain't going well.

On the flipside, a hearing – even a telephonic one – would take time and consume valuable court resources, especially given the girth of Plaintiff’s filings. See Dckt. Nos. 1, 6-7, 11-18. And the proposed temporary restraining order would require the attention of innocent third parties, and create a cascade of obligations. Plaintiff wants to force financial institutions to lock down accounts, and require domain name registries to shut down websites, for example. See Dckt. No. 12. Plaintiff requests an order forcing innocent third parties – such as Amazon, eBay, PayPal, Alibaba, Western Union, plus social media platforms such as “Facebook, YouTube, LinkedIn, [and] Twitter,” plus internet search engines such as “Google, Bing and Yahoo,” among others – to spring into action within two or three days. Either the order would be a nullity, or it would distract people who may have bigger problems on their hands right now.

The judge ain't done yet.

Plaintiff recognizes that the community is in the midst of a “coronavirus pandemic.”... But Plaintiff argues that it will suffer an “irreparable injury” if this Court does not hold a hearing this week and immediately put a stop to the infringing unicorns and the knock-off elves.... To top it off, Plaintiff noticed the motion for a hearing on March 19, 2020, a day that has been blocked off on the Court’s calendar – as revealed on its webpage – for several weeks....

Meanwhile, the Clerk’s Office is operating with “limited staff.”... “[P]hone conferencing” is available “in emergency situations and where resources permit.” ... The Court can still hear emergency motions, but resources are stretched and time is at a premium... If there’s ever a time when emergency motions should be limited to genuine emergencies, now’s the time.

And, to be clear, at this point, Judge Seeger is still talking about the original Ex Parte motion to move the hearing up. Now we get to the "Emergency" Ex Parte Motion.

Thirty minutes ago, this Court learned that Plaintiff filed yet another emergency motion. They teed it up in front of the designated emergency judge, and thus consumed the attention of the Chief Judge.... The filing calls to mind the sage words of Elihu Root: “About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” ...

The world is facing a real emergency. Plaintiff is not. The motion to reconsider the scheduling order is denied.

Yeah, take your fake unicorns and shut the fuck up right now.

Oh, and then just a bit later, Judge Seeger denied the Temporary Restraining Order, and once again, tries to put things in perspective for Hierl and his client.

Plaintiff's Ex Parte Motion for Entry of a Temporary Restraining Order (Dckt. No. [11]) is denied without prejudice. Injunctive relief is an "extraordinary remedy," and it is "not granted routinely."... Here, Plaintiff makes next to no showing that it will suffer irreparable harm unless this Court issues emergency relief. The gist of the motion is that Plaintiff will suffer harm from the sale (and the offer for sale) of counterfeit unicorn products on the internet. But Plaintiff gives this Court no information about the anticipated loss of sales. Not even an estimate. Plaintiff doesn't even tell this Court anything about its own sales, let alone anything about the volume of sales that it will lose without immediate Court action. Maybe the loss of sales is de minimis, or maybe not. But the point is that Plaintiff has made no such showing. A generic allegation of harm, without more, does not weigh heavily in the balance. On the flipside, one of the most important considerations before awarding equitable relief is the public interest. Here, Plaintiff proposes a bloated order that imposes extraordinary demands on third parties, including a wide array of technology companies and financial institutions. (Dckt. No. [30]) Plaintiff's proposed order would require immediate action, in a matter of days, from firms that have nothing to do with this case. In the meantime, the country is in the midst of a crisis from the coronavirus, and it is not a good time to put significant demands on innocent third parties. See generally General Order 20−0012 (as amended on March 17, 2020). All of them undoubtedly have (more) pressing matters on their plates right now. To put it bluntly, Plaintiff's proposed order seems insensitive to others in the current environment. Simply put, trademark infringement is an important consideration, but so is the strain that the rest of country is facing, too. It is important to keep in perspective the costs and benefits of forcing everyone to drop what they're doing to stop the sale of knock−off unicorn products, in the midst of a pandemic. Without a showing of immediate, real−world harm, this Court cannot impose significant demands on third parties in the current environment. That said, this Court denies the motion without prejudice. Later, perhaps Plaintiff will make a better showing. But for now, Plaintiff has come up short (by a wide margin). As a reminder, the Court expects Plaintiff and its counsel to follow General Order 20−0012, including the admonition about emergency motions.

And, yes, this is our second story about potential unicorn infringement in just about a month, but these are the times we live in.

Filed Under: anne stokes, copyright, licensing, michael hierl, steven seeger, trademark, tro, unicorns
Companies: art ask agency


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  • identicon
    David, 23 Mar 2020 @ 11:07am

    Well, Judge,

    if due to your inaction unicorns are extinct next year, you will be the reason for it.

    Frankly, I'm fed up with those buggers anyway.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 23 Mar 2020 @ 11:46am

      Re: Well, Judge,

      No worries, if unicorns go extinct they can be replaced by hippogriffs on an emergency basis.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Mar 2020 @ 5:32pm

      Re: Well, Judge,

      Frankly, I'm fed up with those buggers anyway.

      Money isn't everything, and many forget that. Which is why we have charts like this:

      Horrendous crimes:

      1. PUI (Potential Unicorn Infringement)
      2. Murder
      3. Rape
      4. Torture
        ...
        10 DUI (Driving under the influence) (Sorry for the list break, but markdown is dumb sometimes.)

      and charts like this:

      Top 3 idiots:

      1. Art Ask Agency (Seriously, your country is doing what right now? The US may be corrupt but it snows in hell every now and then.)
      2. Anne Stokes (Why did you decide to bring this case again? and of all times now?)
      3. Donald Trump (This idiot also thinks the "cure" for the markets is more important than the lives of Americans.)

      Given the incredible amount of care that seems to have been made by Anne Stokes with regard to this case, I think we should give her the requested relief. As long as said relief is limited in scope to her site and any others she intends open between now and the end of the COVID-19 pandemic. After all I'm sure the public will glad to know the PUI was dealt with swiftly instead of allocating such precious resources to something as irrelevant as the global health crisis.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 25 Mar 2020 @ 4:18am

        Re: Re: Well, Judge,

        "I'm sure the public will glad to know the PUI was dealt with swiftly instead of allocating such precious resources to something as irrelevant as the global health crisis."

        Well, to be fair unicorns are mythically endorsed to possess purification and curative effects. So needless to say a Potential Unicorn Infringement is effectively a possible sale of counterfeit medication and should be dealt with summarily.

        It's no worse than most of the other tripe pushed by the cult of Imaginary Property.

        reply to this | link to this | view in chronology ]

  • icon
    That Other Guy (profile), 23 Mar 2020 @ 11:19am

    One wonders if the fake fantasy products are experiencing brisk sales at the moment.

    I think that should be "fantasy fake products."

    reply to this | link to this | view in chronology ]

  • icon
    virusdetected (profile), 23 Mar 2020 @ 11:49am

    This case is likely to be a fantasy, too

    Determining what merchandise is infringing will require incredibly painful analysis. An Amazon search for "unicorn merchandise" yields over 1,000 hits. A similar Google search produces too many hits to be worth counting. The artist's trademark isn't exactly crisp (neither are her images) and it's unclear what, exactly, she copyrighted. References to unicorns seem to date back to the 4th century B.C. and subsequent descriptions and illustrations cover pretty much every imaginable variant of a four-legged animal with a single horn. This feels just as shady as some of the music copyright disputes ("sorta sounds like" == "sorta looks like"). The judge has exhibited far more patience that the "damn fool" attorney deserved.

    reply to this | link to this | view in chronology ]

    • identicon
      bob, 23 Mar 2020 @ 3:04pm

      Re: This case is likely to be a fantasy, too

      How about the horn is coming out the side. The artist should draw that.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 24 Mar 2020 @ 3:24am

      Re: This case is likely to be a fantasy, too

      "Determining what merchandise is infringing will require incredibly painful analysis. An Amazon search for "unicorn merchandise" yields over 1,000 hits."

      The issue is that the way the DMCA has been written the burden of proof lies, in practice, on the accused. Meaning that the copyright troll in question only has to do that google search, then mass spam accusations - and it will in practice be up to the accused platform to prove they're innocent of infringement or contributory infringement. Meaning that rather than have to dispute in court the unwitting defendant often chooses to settle for a lesser amount. Unbelievably the DMCA's main contribution to the legal landscape is that it effectively legalized racketeering.

      Any potential "rightsholder" - or anyone who can make a half-assed claim of being one - is thus heavily incentivized to drown a court in claims, especially so given that so very many judges tend to just issue fiat judgements in favor of said alleged rightsholder. If it sticks, it's easy money, if not, no loss is incurred.

      What is actually scary is that the arrogantly casual claims the judge reacts to in the OP usually works, which is no doubt why Art Ask Agency had the reasonable expectation claiming ownership over every unicorn online would bring some cash.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Mar 2020 @ 12:20pm

    There is a video on YouTube (which I will not link) called "Pink Fluffy Unicorns Dancing on Rainbows" (24 hour version). It would be instructive for the plaintiff to watch and listen to the entirety of this video. Thank you.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 23 Mar 2020 @ 4:36pm

      Re:

      On perpetual loop ideally, as that should keep them occupied with something vastly more important than them or their concerns for the foreseeable future.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 24 Mar 2020 @ 3:33am

        Re: Re:

        "On perpetual loop ideally, as that should keep them occupied with something vastly more important than them or their concerns for the foreseeable future."

        But how are they going to run a successful racketeering/extortion scheme by just watching that video? That's not going to bring the cash...

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Mar 2020 @ 12:22pm

    Another sign of a lawyer caving in to the client...

    Internet websites like the Defendant Internet Stores are estimated to receive tens of millions of visits per year and generate over $135 billion in annual online sales.

    Example 1: Comparing the entirety of online sales as a placeholder for their client's sales figures.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 24 Mar 2020 @ 4:13am

      Re: Another sign of a lawyer caving in to the client...

      "Comparing the entirety of online sales as a placeholder for their client's sales figures."

      Classic copyright math. The mandatory minimum fines for copyright infringement are still based on assumptions which have the media industry losing more than 42 times as much money as exists in the whole world, annually, due to people making copies.

      I keep wondering how copyright lobbyists get away with it. Any other industry pulling numbers out of their asses to that extent would be expecting the SEC to hold outright fraud investigations.

      reply to this | link to this | view in chronology ]

  • icon
    Anon E. Mous (profile), 23 Mar 2020 @ 12:38pm

    Ah Hierl is still trolling along, from porn torrent lawsuits to unicorns lawsuits my how he has broadened his scope of trolling for dollars. Some things never change

    reply to this | link to this | view in chronology ]

  • icon
    K`Tetch (profile), 23 Mar 2020 @ 4:06pm

    HOW DARE YOU!

    Don't you know, Mike, that there's absolutely nothing more important than copyright, patent and trademark protections? We have to give up anything and everything to protect those rights - the environment, free speech, the basic ability to communicate freely - or else corporate civilization as we know it will DIE!
    There's only 2 things that can harm companies:
    1) Lib'ruls
    2) allowing any potential threat to c/p/t to be handled with less than extreme force.

    Pfft Covid19 - how stupid is that judge, doesn't he know corporations don't get that kind of sick (just like they can't be arrested or jailed for criminal activity)

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 23 Mar 2020 @ 4:54pm

    'Now go away or I shall taunt you a second time.'

    The filing calls to mind the sage words of Elihu Root: “About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” ...

    The world is facing a real emergency. Plaintiff is not. The motion to reconsider the scheduling order is denied.

    When you see that language coming from a judge you know you really screwed up. If it wouldn't involve wasting resources much better spent elsewhere I'd almost hope they don't take the hint and push again, because if the judge is already this annoyed I can only imagine how bad it would get if they try the 'nothing is more important than unicorn art' angle again.

    Looks like we've got another strong contender for both the individual and group section of the Biggest Asshole of the Year award, because it takes some stunning indifference to suffering and/or self-centeredness to think that potential counterfeit unicorn rubbish is not just more important than a global pandemic but deserves emergency attention in court.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 24 Mar 2020 @ 4:17am

      Re: 'Now go away or I shall taunt you a second time.'

      "If it wouldn't involve wasting resources much better spent elsewhere I'd almost hope they don't take the hint and push again..."

      Oh, they will - perhaps not exactly with unicorns, but the thing about copyright trolls is that they have no shame whatsoever. Unless they're actually disbarred, fined, and charged with the fraud they keep perpetrating they'll just be back none the worse for wear.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 24 Mar 2020 @ 4:19am

      Re: 'Now go away or I shall taunt you a second time.'

      "..it takes some stunning indifference to suffering and/or self-centeredness to think that potential counterfeit unicorn rubbish is not just more important than a global pandemic..."

      Not really. All it takes is a copyright troll. In their eyes the pandemic is a bonus likely to make shorthanded judges more vulnerable to a swift con.

      The church of copyright has never been known to give much of a shit about human life and dignity. Why would it start to do so now?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Mar 2020 @ 9:59pm

    Because there is NO SUCH THING as a Unicorn, HOW CAN YOU HAVE COUNTERFEIT Unicorns?

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 25 Mar 2020 @ 4:23am

      Re:

      "Because there is NO SUCH THING as a Unicorn, HOW CAN YOU HAVE COUNTERFEIT Unicorns?"

      The same way you can have counterfeit math or a counterfeit photo of the eiffel tower?

      Copyright adherents hold the article of faith that the purely imaginary is physically real, so it's not a great leap to state that the rational and well articulated ruling of the judge in the OP has been met by wide-eyed disbelieving stares and the gasping cry of "Blasphemy!!" in the company to file the claim.

      reply to this | link to this | view in chronology ]

  • icon
    Vikarti Anatra (profile), 24 Mar 2020 @ 1:45am

    Why stop at alibaba? There are Warner Bros. and Scholastic (and one J.K.R.) who blatantly violate rights on unicorns. All violating books should be confiscated and burned. All 8 movies should also be removed from distribution RIGHT NOW! All profits should be rerouted to rightful owners.

    reply to this | link to this | view in chronology ]

  • identicon
    Peter, 24 Mar 2020 @ 3:21am

    Defendents?

    Are these the defendents he wanted a court order against who cannot defend themselves because they don't know they are defendents.

    Or the this the "they know who they are" reasoning?

    reply to this | link to this | view in chronology ]

  • identicon
    Peter, 24 Mar 2020 @ 3:21am

    Defendents?

    Are these the defendents he wanted a court order against who cannot defend themselves because they don't know they are defendents.

    Or is this the "they know who they are, the guilty bastards" reasoning?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Mar 2020 @ 3:37pm

    I actually don't understand why the courts need to close for this sort of thing. OK, maybe you don't want to convene a jury right now for non-emergencies. But don't we have the ability, in this day and age, to do teleconferencing for things like motions?

    reply to this | link to this | view in chronology ]

  • identicon
    Avideogameplayer, 24 Mar 2020 @ 3:54pm

    Here I am, thinking unicorns were fake. It's really that pandemic going around. Silly me!

    reply to this | link to this | view in chronology ]


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