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While we had heard rumors of that being done, we actually encountered it for the first time in our last round of investigations. To answer your question, if they have removed the logos but kept the other graphical elements, yes, we are very much pursuing the KJs who had that.

Those tracks may be available for purchase, but not for use in a commercial setting.

It is also important to recognize who owns what. Stingray Digital's ownership of the recordings does not extend to ownership of the trademarks or trade dress. SC continues to have the right to sue for infringement of those items, and we will exercise that right where necessary.

...I've never seen it at any shows (don't go out to other shows that often), only read about it. Didn't know if some of the illegal KJ's were finding a way to get around the investigators (trademark infringements).

With all due respect--and I mean that very sincerely--I simply do not understand this line of reasoning.

What it amounts to is a principle that trademark infringement can only occur if a representative of the trademark owner is present to witness the infringement occurring.

That is not even close to being the law, and it never has been.

It would be like a Louis Vuitton or Prada investigator going to a swap meet, buying a fake handbag, then suing the vendor for infringement and being able to prevail and obtain damages solely for the bag the investigator bought, and not the warehouse full of bags the infringer controls.

What is required to bring a suit--and to get "all the way to discovery"--is a good-faith belief that infringement has occurred or is occurring. We choose to build our good-faith belief on observation of the trademark in use. But what constitutes evidence of infringement for summary judgment and trial purposes is what we are able to discovery through a thorough inspection of the KJ's system, any discs he might have, and so forth. We are generally not even required to disclose which tracks we saw and when, unless we are planning to use that as evidence at trial. In reality, the much stronger, more voluminous, and cogent evidence is found on the KJ's system.

Civil litigation is not a child's game. In litigation, the parties are required to make non-privileged, relevant evidence available for inspection. There is simply no evidentiary regime under which a KJ's entire karaoke system would not be relevant to this discussion.

Smoothedge69
"What I was trying to say is I won't have near the overhead that your boss has. I won't UI to worry about. I won't have SSI to worry about."

Please before you end up causing yourself a great deal of hardship please look ahead in time. If you take the time to "freelance" and report your income and file taxes with proper filing the most tax you should end up paying is self employment tax as a single man op...that self employment tax is SSI....when the time does come for you to retire or Knock on wood you are disabled the amount you have paid in will be determined on what you have paid in formulated heavily towards the last 5 years.
Also if you were to be caught...either due to audit triggered by a bar 1099ing you by surprise upto 3 years later (even if they paid cash) or by someone turning you in the costs would be huge. If you want to "freelance" or be a "one man operation" I wish you great luck but please protect yourself and do everything legal so that you do not end up paying much more later

KjAthena

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"Integrity is choosing your thoughts, words and actions based on your principles and values rather than for your personal gain."
Unknown
"if a man has integrity, nothing else matters, If a man has no integrity, nothing else matters."
Lee McGuffey

The fake handbag that was purchased (ie. evidence, proof) is different than Louis Vuitton or Prada suspecting someone of selling fake handbags.

Suspecting someone and making a purchase of an illegal good is not the same thing.

If SC's investigator suspects a KJ of using pirated tracks and they can provide irrefutable evidence that the suspected KJ played a track from SC###1 on (date) at (time) on the premises of (venue) and then again played a track from SC###2 on (date) at (time) on the premises of (venue) and then again played a track from SC###3 on (date) at (time) on the premises of (venue) etc... and the KJ could not produce those discs containing those tracks then you have shown proof of trademark infringement.

Under that scenario I could see searching the wharehouse (hard drive) to determine the number of counts of infringement.

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My statements, opinions and conclusions are based on my own personal experiences, observations, research and/or just my own $.02. I'm not a "cheerleader", but that doesn't make me a Pirate.

Then obviously, you misunderstood what you read.



I understand that. But it will require that the investigator prove by evidence that they bought at least ONE handbag.

Not "I think they have a bunch of fakes and we should be able to scour their whole warehouse... because they sell handbags."



I would imagine that those "general" times are not against attorney's (that are worth much).

Otherwise, your logic is demanding discovery without any proof that infringement had EVER occurred... simply your "belief" that it might have in the past or will in the future?... After all, they're in the business anyway....

Kinda weak wouldn't you say?

Or should I demand complete discovery of someones entire filing system -- computerized and not -- because there might be a possibility that could/have/would infringe on my songbook-making software (Karaoke SpeedBook) ?


That's why I don't understand why you and your client try to minimize this fact when you characterize it as: "only named in a lawsuit." Named IS "sued." And I understand that even before 2009, "being sued" was certainly not unfamiliar territory to your client so it may well be a no-big-deal affair for them. For the average KJ, it can spell your livelihood even if "by mistake." This is why "mistakes" to me are far more important than they are to you. If you're going to shoot fish in a barrel, you could at the very least, make sure it's the right fish FIRST.



And conversely, I believe that an investigator's report could not remain a secret. But now I would think that an attorney would argue something different since SC is now (by recently filed trademark) a "KJ competitor."

That is just not what the law is. "Irrefutable evidence" is not required to file a suit nor to carry it forward. It's not even a requirement for a criminal prosecution, which is far more serious than a civil suit. What is required in a civil suit (to summarize) is a good faith belief, formed after an inquiry reasonable under the circumstances, that the suit is not being filed for any improper purpose, that the claims and other legal contentions are warranted by existing law or a nonfrivolous argument for a change in the law, and that the facts have or (after discovery) are likely to have evidentiary support.

You may believe that the current system is insufficient and needs changing. You're entitled to that opinion and I might not disagree with you. But that's the system we have, and we're going to use it as it is.

In a civil matter, a plaintiff is required to establish his or her case by "a preponderance of the evidence." A preponderance of the evidence is a body of evidence that is of greater weight or is more convincing than the evidence offered in opposition—evidence that as a whole shows that the facts asserted by the plaintiff and sought to be proved are more probable than not.

Another burden of proof applied in some matters is that the evidence must be "clear and convincing." This standard of proof falls somewhere between the civil preponderance-of-the-evidence standard and the criminal beyond-a-reasonable-doubt standard. Clear and convincing evidence requires the trier of fact to have a "firm belief" that the facts have been established. The clear-and-convincing standard, though not used nearly as often as the other two standards, has been applied to some civil cases, including suits seeking the reformation of a contract. In addition, the Supreme Court of the United States has held that the clear-and-convincing standard is the constitutionally required burden of proof in a civil commitment proceeding (Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 [1979]).

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My statements, opinions and conclusions are based on my own personal experiences, observations, research and/or just my own $.02. I'm not a "cheerleader", but that doesn't make me a Pirate.

Then I guess it would be wise to just do it before that happens!

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LIKE Lonman on Facebook - Lonman Productions Karaoke & my main site via my profile!

I disagree for several reasons:


That may be true, but "no evidence whatsoever" doesn't count. So there needs to be "some" evidence in the mix somewhere. I realize that "microscopic" and "quite a stretch" are well within the boundaries you've set.


This is an argument for a fishing expedition.



Translation: It's a cheesy technicality... but it's good enough to get money... so we'll use it.


So, counsel:

You stated you don't need evidence, just a belief that maybe infringement might have occurred(or will). Based on the above, what prevents you from simply filing a lawsuit against every KJ you can find? That's a pretty big "human element brush" you're painting with.

No, I don't think I did, but let's proceed.



It's not "I think they have a bunch of fakes." It's "I believe, based upon a reasonable inquiry, that they have a bunch of fakes." LV or Prada could maintain that suit simply by having their investigator visit the swap meet and not buy anything, just examine the merchandise--just as we maintain our suits by having an investigator visit the show and observe the conduct. It is the attorney who, by signing the suit, makes the representation to the court of his good-faith belief based upon the reasonable inquiry. There is a mechanism for challenging that good-faith belief, but it does not require the details of the actual inquiry to be turned over.



I have been required to disclose investigative reports on two occasions. In one instance, we chose not to fight it because the defendant was not allowed to claim that he owned more discs than he had already voluntarily disclosed to us--and there were several tracks our investigator observed that he did not have discs for. In the other instance, we applied for and obtained a protective order that allowed the reports to be disclosed to the court under seal in order to evaluate the sufficiency of our belief that infringement had occurred. Only the attorneys were allowed to see the reports, and they were not allowed to share them with their clients. In the resulting order, the judge agreed that not only was our pre-suit investigation sufficient under Rule 11, but that we had demonstrated sufficient evidence to move forward under Rule 12 and to defeat summary judgment. Every other judge who has been asked the question has refused to order us to turn over those documents.



As I said in another response, that's how the system works. I have no opinion of how "weak" or "strong" it happens to be.



Not a "possibility," but if you can state in good faith, based upon reasonable inquiry, that you believe that they have infringed your songbook-making software, then by all means, yes, you can probably get discovery on that. For example, if you examined one of their songbooks and the output was identical to the output of your software, you could definitely get to discovery. You aren't required to steal their songbook so you have evidence.



The "mistakes" you are referring to are embarrassing to us, but we have addressed them promptly, resolved the questions completely, and reformed our processes to avoid them in the future. In all of the other cases--nearly the entire universe of cases--we did actually make sure it was the right fish FIRST, as you put it.


[/quote]

SC is not a "KJ competitor" in the sense you appear to mean it. SC has licensees who are KJs and who have submitted to its quality control with respect to their services and SC's trademarks. Under those circumstances, SC accrues rights under the Trademark Act and the common law based upon those KJs' activities. Thus, we applied for and obtained a new registration to reflect those new rights. We made this completely clear in our registration applications, which passed through the USPTO without any form of objection.

That's the burden at trial, which is at the end of the process. The phrase usually associated with the standard is "more likely than not," which amounts to a 50%+ rule.



"Clear and convincing evidence" is the typical standard for suits for fraud and mistake. It does not apply to trademark infringement.

You're using the layman's definition of "evidence."

The rule requires that the person signing the complaint--usually the attorney--make "an inquiry reasonable under the circumstances." It does not require that the person signing the complaint submit the results of that inquiry, such as evidence gathered.



It's not an argument for anything. It's a statement of the standard. I assure you, the part about "inquiry reasonable under the circumstances" is not a light standard.



I never said that I don't "need evidence." I said that I don't need to show the "evidence" that results from my pre-suit inquiry. What prevents me from simply filing a lawsuit against every KJ I can find is the necessity of performing an inquiry reasonable under the circumstances, that is sufficient for me to be able to state in good faith a belief that the case is a valid one.

So are you saying this is false:


BTW you probably missed this from earlier in the thread but I was hoping for a response.


An enormous administrative process to maintain 2 seperate documents? Again I understand the reasoning for the financial information in a post-suit audit situtaion, but that's not what we're talking about here.

If you have loyal customers willing to comply with your clients request even if they don't necessarily agree that they should have to pay for it, is it really that much of an effort to have 2 seperate documents.

Non-certified 1:1 KJ's aren't the same animals as Pirates nor have they harmed the industry and I'd think they deserve better.

How difficult would it be to differientiate between the following if they were actual documents?

3-28-12 COVENANT NOT TO SUE VOLUNTARY.pdf
3-28-12 COVENANT NOT TO SUE POST SUIT.pdf

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My statements, opinions and conclusions are based on my own personal experiences, observations, research and/or just my own $.02. I'm not a "cheerleader", but that doesn't make me a Pirate.

I find it difficult to believe that someone like Bazza is "under your quality control with respect to his SERVICES."

I'm pretty sure Bazza runs his shows (services) the way HE wants it and is not under any limitation or quality control standards set by SC. (Are you Bazza?)

And what might those "service standards" be?

Unless of course, you are now considering these KJ's to be franchisee's that work for you. (like McDonalds or Wendy's)

Actually in the Louis Vitton example, the investigator does not have to buy a bag, he or she just needs to observe the transaction. Several people buying fakes would be a reasonable grounds to believe they have some in their warehouse. It would be equal to police officers observing a drug dealer making buys, obtaining a search of his residence, then arresting him and searching their property at the same time. And BTW the police would have a much more difficult time getting a warrant but both cases show that observation is in fact evidence. Observation can mean any of the senses not just sight.

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You can be strange but not a stranger

Not at all. Trademark infringement is not a "civil commitment proceeding." "Civil commitment" is a procedure to restrict a person's freedom based upon their incompetence (usually insanity or senility). It's considerably more rare than fraud or mistake claims, which are the usual "clear and convincing" standard cases.




Sometimes there are so many posts in a thread it's hard to keep up.

I understand your issues, but we prefer to have uniformity in this area. It is a lot of work keeping up with different versions of documents. It's easy to differentiate, but what happens when we need to make a change? We now have to analyze two separate documents instead of one, determine how to change them, and keep track of that.

Actually, I am. Before I open the mic I always speak to Mr. Harrington first and run what I am going to say by him. He will often give my pointers and on several occasions offered witty comments and once a dirty limerick. He is my QC manager.

Just last week I considered playing a Non-SC song for a singer and Mr. Harrington (on the phone with me at all times of course) suggested I not do this, adding that it would be "most unfortunate" if something were to happen to me or my equipment. He then reminded me of my last meeting with Mr. Slep in which I kissed his ring and pledged my families eternal loyalty. I swapped out the song for an SC song and he chuckled, adding "I knew you would do the right thing, my boy".

Did you expect anything less?

Oh, good Lord, Bazza, you're going to throw Chip's imagination into overdrive.

Here is the quality control provision from the GEM series license agreement:

Maybe something like:

"You want fries with that?"