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I was out of town for the weekend (competing in a triathlon – for
the first time in my life), and when I got back on Monday afternoon (October 15, 2001), I found that
Ms. Greenberg had sent me a fax earlier in the day. The fax did not come through very well, but it was
clear enough for me to see that it was from the Court, and I could easily read the uppercase, bold,
underlined text that read ORDER GRANTING PRELIMINARY INJUNCTION. I had lost my fight to stop
Judge Zatkoff from issuing an preliminary injunction against me.
Just in case I was experiencing problems with my fax machine, Ms.
Greenberg was thoughtful enough to call and leave this message on my voicemail.
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Hank, this is Julie Greenberg. I'm going to send you a fax of the Order of Preliminary Injunction
that's been entered by the Court, dated October 11th. I got it by mail, I'm assuming you're going to
get it by mail, so I'm going to fax it to you in view of the fact that you may not have received it
yet. It does order you to disconnect the website, so I will expect it to be off by 5:00 today -
today is Monday, October 15th. If it's not, I will be filing a motion for contempt of the order. If
you have any questions, you can call me back, you know how to reach me.
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Her tone was pleasant, conversational – which, actually, is true
of every discussion we've had and every message she's left for me.
A couple of hours later, one of her partners called and left me this
message.
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Yeah, I assume this is Henry Mishkoff. This is Doug Sprinkle, I'm here with Julie Greenberg. As
you know, we represent the Taubman Company. You're in violation of an injunction at this time, my
friend. If your website is not off the air at 4:00 Eastern Standard Time, we're going to file a
motion and hold you in contempt tomorrow, and then you can explain to the judge why you ignored his
order. You want to talk about this, you can give me a call at 248-647-6000. But if your website is
up and running as of 4:00 today, Eastern Standard Time, we'll see you in court. Bye.
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Gee, lawyers really like to say, "I'll see you in court," don't
they? Anyway, this message was a little more aggressive than Ms. Greenberg's message – not rude,
but certainly abrasive. I guess this must be the "good lawyer / bad lawyer" approach.
And did you notice that my deadline for compliance had leapt forward?
Ms. Greenberg had given me until 5:00 – but my new friend Doug, lacking his associate's patience,
was giving me only until 4:00. I decided that I had better do something pretty quickly – if I
had waited around much longer, I might have gotten a call from another of Ms. Greenberg's partners and
found out that my time had already expired!
So I drove the few miles to my mailroom – and sure enough,
just like my buddies Julie and Doug had been trying to tell me, a letter from the Court was waiting
there for me. Here's what it said.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THE TAUBMAN COMPANY,
Plaintiff,
v. WEBFEATS and HENRY MISHKOFF,
Defendants.
CASE NO 01-CV-72987-DT
HON. LAWRENCE P. ZATKOFF
ORDER GRANTING PRELIMINARY INJUNCTION
AT A SESSION of said Court, held in the United States Courthouse, in the City of Detroit, State
of Michigan, on 11 OCT 2001
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
CHIEF UNITED STATES DISTRICT JUDGE
On September 26, 2001 , Plaintiff filed a Motion for a Preliminary Injunction. Plaintiff seeks
to enjoin Defendants from using and operating the Internet domain name
www.shopsatwillowbend.com. Plaintiff alleges that Defendants are infringing Plaintiff's
trademark, THE SHOPS AT WILLOW BEND, which is incorporated into Plaintiff's domain name
www.theshopsatwillowbend.com. Defendants responded to Plaintiff's motion on October 5,
2001.
Upon review of the respective parties' briefs, exhibits, and the relevant legal authority, the
Court finds that a preliminary injunction should issue in this matter. Because Defendants are not
operating their website for profit, they are less likely to be harmed by a preliminary
injunction.
Accordingly, it is ORDERED:
Defendants are hereby RESTRAINED and ENJOINED from using the Internet domain
name www.shopsatwillowbend.com. FURTHER, Defendants are ORDERED to remove the domain
name www.shopsatwillowbend.com from the Internet.
This Order shall remain in effect until this matter can be heard on the merits.
IT IS SO ORDERED.
LAWRENCE P. ZATKOFF
CHIEF UNITED STATES DISTRICT JUDGE
Dated: 11 OCT 2001
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View the Original Order (in a
separate window)
Naturally, I was disappointed at having lost my first "case." But if
I understood Judge Zatkoff's order correctly (always a possibility), perhaps it wasn't so bad, after
all. The judge seemed to have based his decision solely on the fact that I wouldn't be hurt by an
injunction, whereas it was possible that Taubman might be hurt by the lack of one. He hadn't commented
at all on the relative merits of our cases – so in that sense, I had "held my own." (OK, maybe
I'm straining a little in my search for a silver lining.)
I do have to admit that I found the basis for the order to be more
than a little disconcerting. According to Taubman's brief:
"The Sixth Circuit has held that four
factors should be considered in determining whether a preliminary injunction should issue: (1) the
likelihood of success on the merits of the action; (2) the irreparable harm that could result if the
Court did not issue the injunction; (3) the impact on the public interest; and (4) the possibility of
substantial harm to others."
So, knowing that the Court had listed these four factors, Taubman
had concentrated on them in their brief. And picking up my cue from Taubman's brief, I had concentrated
on them in my brief as well. But the judge had completely ignored the four factors imposed by his own
Court and had decided the issue based on an entirely different factor! Maybe I'm missing something
here, but I've always assumed that the law, whatever its shortcomings, was at least consistent. It's
more than a little unnerving to discover that it can be capricious, instead. (Or maybe my problem
isn't with the law, but with the process of justice. Or maybe that's too fine a distinction, and my
problem is with the law. Or maybe I'm just being naive and my expectations were unrealistic
in the first place.)
Anyway... I could have quibbled with the judge's order – what
he referred to as a "domain name" is actually a host name, and his instruction to "remove the domain
name www.shopsatwillowbend.com from the Internet" could be interpreted in a few different ways.
But in spite of Judge Zatkoff's obvious lack of technical expertise (no disrespect intended, Your
Honor!), I suspected that I knew what he wanted me to do. And so I drove home from the mailroom and
pulled the plug on my website until such time, as the judge had suggested, "this matter can be heard
on its merits."
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