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How did you go about finding others named on the suit?
Celeski: My wife and a few of the others tracked back names from shopkeepers at Cafe Press. And after that it became a matter of using Google and other search engines to try to track down the other defendants. It was quite interesting because if we did Google searches, we were finding the defendants' names on the lawsuit in almost the same order, or same priority level.
Celeski: It was just totally shocking that they would be named in a lawsuit, and it was taking a great psychological toll on them. The fear of the financial repercussions was just tremendous. Most of these defendants turned out to be mothers with small children at home who maybe opened a little Cafe Press shop and maybe printed a little T-shirt or something for their daughter or child. And then to find that they were named in a lawsuit that requested a $16 million judgment against them, or a potential $5,000 payoff, was devastating. And the more we found out about that, the more determined we were to try to get everybody out. Why do you think that the defendants were targeted. And why do you think others weren't?
Celeski: When I first saw the lawsuit it became very obvious that there was something missing. There were no large defendants in here. The most important defendant not named in the lawsuit was Cafe Press, the very manufacturer, seller and fulfillment company for most of the merchandise that was in the lawsuit. It became very obvious that small companies were in essence targeted because the plaintiff's attorney knew there was no way financially that they could afford to truly defend themselves in the case. The cheapest way out of the lawsuit was to write a check.
There were huge numbers of large potential defendants, including Gymboree, Carters, Nordstrom and many others that should have been named, but they weren't.
Celeski: Early on, we knew we needed two things to prevail. One of them was a very good legal strategy and representation. The private Web site ultimately was a tool that helped us find just the right attorneys. The second part was a strong media campaign (which) would be a very useful tool. A media campaign is not always useful in every case, and sometimes it can definitely backfire, if it's not planned very well. If you go public, you can really hurt yourself.
So what I started to do, and it took me about three weeks to put it together, was to put together a very careful media plan. One of the most important parts of the media plan was to essentially create a set of tools, some guidance and some structure that would help train essentially 12 to 15 people who went public.What was the end result?
Celeski: There was a timing to the media campaign. Everyone started by first hitting their own regional or local newspapers and TV stations. We tried to time the media campaign so that the most important date was effectively when The Miami Herald would run a story. The Miami area was where both the plaintiff's attorney and the plaintiff were located. The very same day that the Miami Herald story ran, all of a sudden we were getting settlement offers that were quite acceptable to the defendants. Whether that was coincidence or not is something that might be disputed, but the effect was very obvious, once the media campaign had ramped up.
Has all this given you new insight into potential problems with trademark laws?
Celeski: My background originally is in graphic design. Understanding the basics of copyright law is simply a part of the business. I had certainly been well-aware that true trademark infringement has been a big problem ever since the Internet started to become very popular. But I wasn't aware that you would find situations where, in essence, trademark abuse is also an equal problem caused by growth in the Internet. Trademark abuse is when a potentially questionable trademark or copyright is used as a vehicle to create a type of legal extortion on potentially innocent victims. It was something very new to me. In the process of dealing with this lawsuit I was in touch with a large number of intellectual-property attorneys, and all of them had said that this seems to be (the area that will spawn) the coming shakedown lawsuits.
Celeski: The third part of all this was to archive the important materials into an educational resource for people who may end up in this sort of litigation situation. The Web site over the next few months will evolve into more of a general purpose Web site to help people with the issues of trademark abuse and trademark infringement. But we won't even start this until we take some time off. Between my wife and I, we're well in excess of a couple hundred hours in terms of the efforts put in to try to resolve this problem."
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