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David and Goliath Or Vanzant vs. DaimlerChrysler Facts of the case The following is written from the perspective of one individual (Ted Vanzant) as to why DaimlerChrysler (one of the worlds largest Corporations) would take on Ted Vanzant dba Country Craft and try to put him out of the Grill Overlay business - The reason is the Bottom Line. They win even when they lose. The facts of this particular case began as far back as 1940 (while World War II war was breaking out in various parts of the world). The U.S. Government requested that automobile manufacturers bid on the development of a powerful but small and lightweight vehicle for reconnaissance and transportation purposes (The beginning of the jeep). The three companies that ultimately succeeded in getting contracts for this vehicle were BANTAM, WILLYS-OVERLAND, AND FORD MOTOR CO. WILLY'S-OVERLAND was the predecessor to the Jeep Corporation, who was the predecessor to DaimlerChrysler Corporation at least with regards to the current Jeep vehicles (American Motors and Kaiser fit in there somewhere). The important point to this story is that Willy's and Jeep are all predecessors in interest to DaimlerChrysler Corp. which is now running the show. BANTAM (the smallest and hungriest of the three) received the first contract (for a prototype vehicle) and produced the very first jeep vehicle - This vehicle met the basic expectations of the Army, and after testing, the Army decided to make some changes and issue production contracts. In the mean time Willy's and Ford decided to provide prototypes of their own (at their own expense) so that they could keep their foot in the door. WILLYS-OVERLAND ( DaimlerChryslers predecessor) received the first production model contract based on its more powerful engine and lower overall cost - and proceeded to produce the jeep vehicle while incorporating changes that were directed by the Quartermaster Corps. One of these directed changes was to incorporate a grill design similar to the one FORD had patented and used on their earlier prototype. This early grill design was a fabricated grill of welded iron bars - similar in construction to a heavy duty Bar-B-Que grill. This is ironic that the company that later claims to have been all-knowing all-seeing with regards to the jeep was directed to use the Ford style grill and to dump their own design. FORD MOTOR CO. was then offered a contract for a similar number of jeeps (comparable to the Willy's-Overland contract) providing that Ford would agree to build them in such a way that all parts were interchangeable with the Willy's-Overland model.- FORD agreed and immediately began tooling up for production. This contract was issued because the Army didn't have the confidence that Willy's could keep up with the demand. One of the first things that FORD did after they received the contract (in October 1941 shortly before Pearl Harbor) was to re-design the front grill so that it could be "Stamped or Pressed" out in large quantities and still be interchangeable with the heavier grill that Willy's was using on the MB. The advantages of this grill over the Bar-B-Que style grill that Willys was using was that it was interchangeable with, easier to produce, cost less ($8.00 vs $26.00), weighed less and provided the same degree of protection to the front of the vehicle - It was commonly referred to as a "Radiator Guard" since that was its primary function. Again, Ford takes the lead in the design of one of the jeeps most recognizable features, and Willy's just sits there and brings up the rear. Willys-Overland continued to produce the welded bar grill design until approximately April 1942 - at which time they changed over to exactly the same pressed steel grill design that FORD had originated. This must have been hard to swallow for them at first - but then considered the bottom line. There is no indication that Willys was forced to change to this new design; therefor they must have felt that it was far more suited for its intended use than the Bar-B-Que style that they were building. The relevancy of these facts will become more clear when we discuss the underhanded methods that would later be used to obtain a trademark on the front grill of the jeep by the Jeep Corporation (Willy's successor - and DaimlerChrysler's predecessor). FORD and WILLYS-OVERLAND continued to build the military jeeps (both using exactly the same grill design) for the remainder of the War and for a period of time after. FORD had built close to 280,000 jeeps when their contract was over. Willys-Overland built a similar number - maybe more. WILLYS-OVERLAND started on a long campaign to con the American public into a false belief that it was their brilliance and theirs alone that developed the jeep vehicle - This con continues today with DaimlerChrysler Corp. continuing to maintain that they or their predecessor created the jeep vehicle (which is not true - and they know it is not true). The Federal Trade Commission (FTC) stepped in, in 1943, and filed suit against WILLYS-OVERLAND with the result being that in 1948, WILLYS-OVERLAND was issued a Court Order To Cease and Desist from:
The fact that this suit was brought at all is amazing since it is hard to get the FTC (Federal Trade Commission) to move on anything - I think Ford must have had some influence in getting them to move on it. Thirty years later in 1979 the Jeep corporation (apparently believing that all the players had forgotten about the court order) applied for and received a trademark (Reg. No. 1,170,088) on the front grill of the jeep. The trademark application falsely claimed (in violation of the court order) that "the trademark was first used on the goods by applicant corporation's predecessor-in-title at least as early as 1941; was first used in interstate commerce by applicant corporation's predecessor-in-title at least as early as 1941;" "The radiator grill design of the Jeep CJ vehicle has become a badge of identity after a period of continuous and exclusive use spanning four decades", and "The arbitrariness of the present radiator grill design is unique in the marketplace as to all other types of the same goods and has attained recognition by the long period of continuous and substantially exclusive use in interstate commerce." Since no one raised an issue, the lone trademark examiner simply tried to follow the rules in processing the application, and must have assumed that Jeep Corporation would not withhold relevant information, since they were such a fine and upstanding American Company and the fact that the Trademark Office had recently given a trademark to the Rolls Royce Grill Design and to the Mercedes Grill Design. At this point the strategy starts to emerge - Jeep and/or their dealers were already selling products (such as the chromed grill overlay) that was exactly the same shape as the front grill design of the Jeep vehicle and others were involved in making toys etc. that had the jeep grill emblazoned on them. Jeep was in a position to set themselves up as the sole source for these products, or at least receive a royalty from each and every person world wide that wished to use the front grill image in any way - FOREVER. This trademark would work out better than a patent - since a patent is only good for a "limited time", and to get a patent you actually have to be the one that came up with the new invention. How about that - a way to circumvent the U.S. Constitution and effectively get a monopoly FOREVER and probably not be wholeheartedly challenged by anyone or charged with an anti-trust action. This is great for the bottom line and relatively low risk. In reality, the so called trademark (as was stated above) was first used on the goods by Ford Motor Co. in 1941 (Was not used by Willys until 1942); Was first used in interstate commerce by Ford Motor Co. in 1941 (was not used in interstate commerce by Willys until 1942); was not used exclusive by applicant corporation's predecessor-in-title (Ford built approximately 280,000 vehicles during the first several years); and the radiator grill design was not arbitrary at all (it was in direct response to requirements spelled out in the bid requests for the new vehicle and was partially dictated by production requirements and capabilities (namely the stamping capabilities of the Ford Motor Company). The employee (at Ford) that was most responsible for the stamped grill design was Clarence Kramer who, as late as 1993 still lived in the same house that he lived in in 1940 and was said to be in his late 90's. The trademark applicant (Jeep Corp.) failed to disclose the facts surrounding FORD Motor Company's involvement in the original vehicle design and FORD's producing approx 280,000 jeep vehicles utilizing the same grill design as did WILLYS-OVERLAND. You may wonder why they would do this - but I don't. The reason was plain and simple - If Jeep had been honest with the Patent and Trademark Office they would surely have been denied the trademark for several reasons.
The trademark applicant also failed to disclose the fact that the applicant (Jeep Corp.) was at the time of the application selling a functional grill overlay that looked exactly like the grill design that was to be registered. There is a requirement, when applying for a trademark that you must specify the "goods and services" that this trademark is to be applied to. Again - a failure to disclose facts designed to keep the trademark examiner in the dark on certain issues. On July 10, 1986, DaimlerChrysler's predecessor (Jeep Corporation) filed an application for a trademark on the "Radiator Grill Design" for the new Jeep Wrangler YJ (which was to replace the earlier CJ series vehicles). This trademark was placed immediately on the principal register without the required proof of secondary meaning apparently based on the fact that Applicant was the owner of Reg. No. 1,170,088 (remember this earlier trademark was obtained without full disclosure of all relevant information). It was in 1989 that Ted Vanzant\Country Craft decided to produce and sell a grill overlay out of a hard vacuum formed plastic to protect the front grill of the Jeep Wrangler and the earlier CJ vehicle, in much the same way as you would use the standard type "Bra". Although Country Craft was not the first to produce a grill cover for this vehicle, its Grill overlay was easier to produce, cost less, weighed less and provided close to the same degree of protection as the chrome plated steel grill overlay that was then being sold by others (if this wording rings a bell - these are the same reasons that Ford designed the grill in question in the first place). At this point , it is appropriate to point to two other "Cases" that never got decided by a court of law. The first was a company in California (Olympic) that was producing a chrome plated grill overlay in competition with Jeep and/or their chosen heir to the grill overlay market. The second was a fiberglass parts manufacturer that was producing a replacement fiberglass jeep front end (including the grill openings - headlight openings - etc.) in competition with Jeep and/or their chosen heir to the fiberglass front end business. Jeep (or their successor - DaimlerChrysler) will tell you that these companies saw the error of their ways and decided to get out of the business - but discussions that I had with these people paint a different picture. In a trademark case a Corporation must be represented in court by an Attorney who must answer each and every Motion, Interrogatory, Request for Admission, etc. that the other side ( DaimlerChrysler) presents - Which in turn drives up the cost to defend yourself. And when a Corporation (such as DaimlerChrysler) has the desire, they can drive the costs up to astronomical proportions. If you are a grill overlay manufacturer (as an example) and are losing ten times as much in court costs and attorney fees than you could ever hope to recoup in product profits - What do you do? You either give up or spend your children's inheritance fighting a battle that you can not afford. In the end, the successful DaimlerChrysler Corp. can then offer (if it has not already done so) one of the previously competing Corporations a deal, where they become the sole source of that particular product and in turn for this tremendous generosity the lucky Corporation can then pay DaimlerChrysler 25% (maybe more - maybe less) of the selling price. Who does this hurt? You! Can you imagine the profits that could be involved - 25% of each and every sale (world wide) for each and every article - Toys, clothing, automotive products, etc.- that displays the Jeep front grill. I have talked to people that would not show the front grill of the jeep vehicle in their catalog for fear that they might be sued. Country Craft, to promote its products, advertised the grill overlays in National publications with readers that were primarily off-road enthusiasts and the sales were directed at owners of the Jeep Wrangler as well as dealers in aftermarket accessories. In July of 1992 DaimlerChrysler notified Country Craft that it could no longer advertise or sell the grill overlays because they resembled DaimlerChrysler's registered trademarks 1,433,760, and 1,170,088 (at a time that DaimlerChrysler had effectively stopped using the CJ Trademark). Country Craft had been previously unaware that DaimlerChrysler even had such a trademark, because DaimlerChrysler failed to use the normal trademark symbols either in their advertising, or on the chromed overlay product that they were selling. Country Craft offered to change its advertising, offered to change the look of the grill overlay and even offered to mark the product with the "Country Craft" logo in order to avoid a costly and time consuming conflict with DaimlerChrysler but refused to stop building the functional product that it had been manufacturing and advertising since 1989. DaimlerChrysler and/or their Attorney then secretly had an employee of their outside counsel purchase one of the grill overlays from Country Craft and used this one sale as justification for filing suit in Michigan for trademark infringement. DaimlerChrysler attempted to maintain venue in Michigan and force Ted Vanzant to come to Michigan to defend his actions, based on the one sale. Nowhere in their complaint or other papers did DaimlerChrysler notify the court or Country Craft that the person making the purchase was their own employee. This can be referred to as collusion and is a no-no - I think an Attorney can be severely sanctioned or even disbarred for collusion. Country Craft through its own investigation determined that the purchaser was actually an employee of the DaimlerChrysler's outside counsel and, Ted Vanzant , acting as his own attorney filed a motion in the Michigan District Court for a change in venue. The Michigan court decided to completely dismiss the case based on improper venue and was very critical of DaimlerChrysler's outside counsel (Mr. Sadowsky of Harness Dickey and Pierce) for the methods he used in attempting to maintain venue in Michigan. This was DaimlerChryslers first real attempt to run up the costs on Ted Vanzant and force him to give up - You see, Daimler-DaimlerChrysler doesn't care about the facts only the Bottom Line. DaimlerChrysler apparently believes that most people lack principal and will give in when push comes to shove - If you just shove hard enough. DaimlerChrysler then filed essentially the same case in California in January of 1993 - Apparently still believing that Ted Vanzant would roll over and play dead. Well DaimlerChrysler was wrong again. Ted Vanzant/Country Craft filed its obligatory answer to the complaint which raised several defenses allowed by statute to an incontestable trademark. At this point in time Ted Vanzant was anxious to get this case before a judge so he could get on with his business - by his logic it should be a slam dunk. Vanzant underestimated the ability of an organization (who has been there before) to effectively manipulate the words of the law so that they might appear to mean something that they don't. It comes down to this - The Attorney becomes a "Spin Doctor" and if the Judge hearing the case has little or no experience on the particular aspect of the law that is being tried - then they can be swayed and often are - that is why some cases are reversed by the Appellate Courts and others by the Supreme Court. The courts (appellate) have recognized this phenomenon before and have admonished the lower courts to critically scrutinize the claims of the larger corporations with tremendous assets when they are involved with a smaller business or person. Country Crafts' answer also contained counterclaims to cancel DaimlerChrysler's trademarks because the registration or the incontestable right to use the mark was obtained fraudulently and to cancel trademark 1,170,088 because the mark has been abandoned by the registrant, since they were no longer producing the CJ vehicle. DaimlerChrysler's reply to the counterclaims simply consisted of denials of virtually all of Country Crafts' contentions - another tactic to slow down Country Craft's fact finding and to run up the costs. Country Craft filed a motion for summary judgment based on Country Crafts' "Fair Use" of the Registered Trademarks which simply means (to me) that a trademark can be used by anyone so long as it is not being used as a trademark - That is, that you are not trying to make the public believe that the product is being manufactured by the trademark owner. DaimlerChrysler then immediately filed a motion for summary judgment based primarily on their claim of the likelihood of confusion of Country Crafts' grill overlay when installed on the front of the Jeep wrangler directly over the vehicle grill. On April 5, 1993 the hearing on the Summary Judgment Motions and the status conference was held before Alice Marie Stotler a Federal District Court Judge, with Partial Summary judgment being entered in favor of DaimlerChrysler (2 1/2 months later) on June 30 1993. The Damages were left to be determined at trial. You see, DaimlerChrysler gets a trial to prove their damages - but Ted Vanzant/Country Craft does not get a trial (with real live witnesses) to prove its allegations. What's with that? The Court failed to act on Country Crafts' Motion for Summary Judgment (which is unusual and not according to the courts own rules) and provided no reasoning as to why the Motion was not allowed. Country Craft could only assume that its Motion was denied and this assumption is based on the fact that DaimlerChrysler's Motion was approved. Country Craft believes that his "Fair Use" Motion met all the requirements of the Statute and as such should have either been approved, or have been left to be decided at a trial. In any event the Court should have notified Country Craft why its motion was not approved so that it could present a proper argument on appeal. During the 2 1/2 month time period between April 5, 1993 (the hearing) and June 30, 1993 (entry of the judgment) Country Craft continued with discovery and obtained documents which would tend to provide proof of the functionality of the original grill design and was in the process of gathering more proof on the subject at the time of the entry of the judgment. During this period of time the actual trademark file folder (that Vanzant ordered from the Patent and trademark office) had arrived - DaimlerChrysler was never required to place this trademark folder in evidence with the court or even to show it to Ted Vanzant - So I wonder how the Judge even knew what had been registered (evidence). Also at this point in time Vanzant finally learned that Clarence Kramer of Ford Motor Co. had actually designed the stamped grill and that Ford was the first to produce and to use that design - Keep in mind that the trial is essentially over and these facts just now become apparent with the discovery of this new information. DaimlerChrysler withheld these facts from Vanzant prior to the hearing - even though they were ask point blank who created the grill….. The plot thickens. It is now important to go back and review some of the claims made by DaimlerChrysler and their Attorney and understand that an Attorney is not permitted to make a statement of fact in a court of law before a judge or in writing unless that statement is well grounded. Consider the following statements in writing and in court at the Summary judgment hearing.
Defendant filed his motion for reconsideration of the Summary Judgment and pointed out the facts that surrounded Fords' involvement in the grill design - after this the attitude and the actions of the DaimlerChrysler changed somewhat.
Defendant accuses DaimlerChrysler of attempting to circumvent its lack of a patent monopoly by using trademark law as a device to secure equivalent insulation from competition - and contends that the district court should have required DaimlerChrysler to demonstrate likelihood of success on the merits by clear and convincing evidence. The motion for reconsideration was denied because the Court decided that Country Craft had not been diligent and that the evidence would not have been material to the decision. To this court, for some reason, it was not relevant that Ford Designed the Grill and that DaimlerChrysler was claiming under oath to have created the same design. I wonder what the court would have done to me if I had stated under oath that I had created the grill design and had used it first - Do you think that I would have been in a little trouble? This court (district court) even decided that certain portions of the Trademark itself would not be admissible evidence. HUH? Almost every decision that this court made was to simply take the proposed order written up by DaimlerChrysler and put a rubber stamp on it. I don't mean to be too critical of the district court, but on this case I believe it was asleep at the wheel. Country Craft filed a Notice Of Compliance with the Injunction (as required by the Court Order - Written up by DaimlerChrysler and signed by the Judge). DaimlerChrysler again issued a threatening letter to Country Craft stating that it could not proceed as described in the letter of compliance - and if he did that DaimlerChrysler would pursue the matter with the court. DaimlerChrysler gave Country Craft until Aug 93 to back down and comply. Country Craft refused to back off and DaimlerChrysler failed to follow up on its threat (did not persue matter with the court) - I was wishing that they would. Country Craft filed Appeal with the Ninth Circuit Court of Appeals in January of 1994 - and waits. The District Court delays trial on Damages apparently based on heavy court calendar of priority cases . Court again delays trial on Damages based on a new judge taking over case - This can't be all bad. Country Craft and DaimlerChrysler agree to a further delay in the trial on damages since the appellate hearing had not yet taken place and a decision by the appellate court in favor of Country Craft would make the trial on damages moot. On February 9th 1995 a hearing before a panel of three judges was held in the U.S. Court of Appeals (9th Circuit) in Pasadena California - for some reason the main guy for DaimlerChrysler did not show up at the appeal hearing - maybe he didn't want to be questioned by the judges on his statements in the district court about DaimlerChrysler creating the design. This failure to show up may prove fatal to his future career. This hearing was quite interesting to Ted Vanzant in that he had never actually been in such a place before and there was a certain air to the whole proceeding. In the appellate Court Country Craft was allowed to go first with 20 minutes of allotted time to verbalize its position on the numerous issues. After approximately fifteen minutes one of the three judges stated that they had heard enough and that Vanzant could save the remaining time to respond to any comments that DaimlerChrysler might have. This sounded good to me. When DaimlerChrysler got up, It was readily apparent to Country Craft and others in the court room that the Panel was at least in partial agreement with Country Craft that it should be permitted to produce a functional grill overlay in the configuration that is best suited to its purpose. One of the Judges brought up the Jobes Daughter Case concerning the use of a Jobes Daughter Crest on a ring that was offered for sale - stating that this case was right on point and was similar in effect to what Country Craft was doing. The attorney for DaimlerChrysler stated that he was not familiar with the Jobes Daughter case, which surprised the judge. The judge then asked the DaimlerChrysler attorney if he practiced trademark law. The attorney said yes. The Judge stated that he could understand that Vanzant "Country Craft" might not know of the case since he was not an attorney - but found it unbelievable that a trademark attorney working for DaimlerChrysler would not know of such a landmark case. Whoops! DaimlerChrysler's Attorney sat down rather quickly after that. Maybe another career change. Vanzant - Country Craft was then given more time to elaborate, at which time he brought to the attention of the court the "Limited Times" clause of the U. S. Constitution and argued that DaimlerChrysler's use of the trademark to limit competition on a functional product was in direct opposition to the constitution of the United States. A win for DaimlerChrysler would effectively give them a "Patent" that would last FOREVER. At long last - as of August 28, 1997 the decision of the appellate court is in . The district court order for partial summary judgment in favor of DaimlerChrysler is REVERSED.
THE APPELLATE COURT SAID: "It is inappropriate to treat DaimlerChrysler's limited monopoly -- one that the Trademark office registered only for the radiator grilles on its vehicles -- as though that monopoly extended to other products, in this case a protective grille overlay. That protection was not sought by DaimlerChrysler before the Trademark Office, nor was it registered by that Office, and no reason appears for the judiciary to confer protection for which the Trademark Office has not granted registration. The prima facie and incontestable provisions of the Lanham Act apply only to the goods or services specified in the registration. DaimlerChrysler may not rely on its trademark of a grille design to establish a prima facie case of a protected interest with regard to goods not specified in the registration --a grille overlay. DaimlerChrysler may recover for the alleged infringement of a good not described in the registration (the grille overlay), but it must do so bearing the burden of proof with regard to (1) nonfunctionality and secondary meaning; and (2) confusability. This rule is based "on the judicial theory that there exists a fundamental right to compete through imitation of a competitor's product . . . If the utilitarian aspects of a product are its essence, only patent law [not trademark] protects its configuration from use by competitors." A feature is functional if it is essential to the product's usefulness and affects the quality of the product. In other words, [functional features of a product are features which constitute the actual benefit that the consumer wishes to purchase, as distinguished from an assurance that a particular entity made, sponsored, or endorsed a product. Finally, if alternative designs are not available, the features of a product are functional and not capable of trademark protection. If the trademark holder is successful in establishing that its product configuration is entitled to trademark protection by proving nonfunctionality, to succeed with a trademark infringement claim it must then prove secondary meaning and confusability. Summary judgment was particularly inappropriate in this case where the district court misapplied the burdens of proof." DaimlerChrysler petitioned the 9th Circuit Court of Appeals for a re-hearing - DENIED Following the appellate court decision, the Harness Dickey & Pierce attorney (Mr. Sadowsky) disappeared and is apparently no longer a partner in the law firm. The case was handed over to Mr. Vitek who bravely informed Ted Vanzant that he (Mr Vitek) was told by DaimlerChrysler to "Win this Case" and to do whatever it takes to do so. The next step is up to the court - This case is now back with the district court. We are now at April 1999. Discovery is complete, Expert witness reports are in and We have completed the first pre-trial conference. The Court has dismissed DaimlerChryslers claims 1, 2, and all of claim 3 except for the dilution part concerning the state claims. This portion will go to trial and DaimlerChrysler will atempt to win the case on that item alone. Vanzant is still allowed to use the defenses enumerated in the statutes - including Anti-trust. DaimlerChrysler has indicated that they will file a motion for reconsideration on the Court's recent order. Update - DaimlerChrysler filed their motion for reconsideration and It was denied.
The trial date is now scheduled for 13 th of August 1999. The trial went off on schedule. Chrysler marched in with their legion of attorneys and evidence and proceeded to put on their dog and pony show. Vanzant challenged every witness and put on a little evidence of his own. Chrysler was successful in getting the anti-trust defense thrown out - based upon the fact that Vanzant does not produce replacement grilles. That defense is still available to those of you that are or want to produce replacement grilles for the Wrangler vehicles or the CJ's. The trial lasted three days and is now in the hands of the Court for a decision as of Sept. 1, 1999. Sept. 10, 1999 - The Court has filed its findings of fact and conclusions of law - The bottom line is: "Plaintiff (DaimlerChrysler) is not entitled to relief under California Business and Professions Code 14330 and Vanzant is entitled to judgment in his favor "This case is officially over - Chrysler lost - Vanzant won Vanzant tried to get the court to award damages based upon Daimler Chrysler's continued harassment (malicious prosecution) after they reached a point that they knew they could not win.
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