Dark Bilious Vapors

But how could I deny that I possess these hands and this body, and withal escape being classed with persons in a state of insanity, whose brains are so disordered and clouded by dark bilious vapors....
--Rene Descartes, Meditations on First Philosophy: Meditation I

Home » Archives » May 2005 » Stupid lawsuits department....

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05/05/2005: Stupid lawsuits department....


Not stupid as in, "How stupid it is that this old lady should get millions for spilling hot coffee on her lap" or other examples of "lawsuit abuse" that you can probably think of, but stupid as in, "Y'know, maybe we shouldn't have filed that lawsuit in the first place..."

Today's Lockergnome Linux Fanatics newsletter pointed me to LinuxPlanet's review of Mandriva LE (Limited Edition), the latest release of The Distribution Formerly Known As Mandrake. This review interested me because I've been a happy user of Mandrake Linux since about version 8.0, and about once a year (this time of year, in fact) I usually consider buying a copy of the latest general release of Mandrake (well, now Mandriva, but we'll get to that...).

By way of background, Mandrakesoft, the company behind Mandrake Linux, acquired Connectiva, another Linux distribution, and a few months ago, shortly after the acquisition, we received word via Mandrakesoft's customer email newsletter that Mandrake was changing its name to "Mandriva", a portmanteau of "Mandrake" and "Connectiva". I'm also a subscriber to the Mandrake-Linux Yahoo Group (http://groups.yahoo.com/group/Mandrake-Linux/ if you want to check it out for yourself), and we had a brief discussion of the name change on the group (the general consensus was pretty much in the nature of, "WTF?..."), but nobody seemed to come up with any particular explanation of why Mandrake decided to change its name (or "to rebrand", in business jargon). I hadn't given the issue much thought until reading LinuxPlanet's Mandriva review this morning. The first section is titled "The Obligatory Lawyer Razzing", and therein appears this (to me) curious sentence:

Recently, these two distributions merged to form Mandriva, which means "The Hearst Corporation can go perform a physically impossible act" in Esperanto.
This piqued my interest, so I did a quick Google search on "mandrake linux hearst", and came up with this pretty damn significant hit:
MandrakeSoft S.A. initiated an action in a French court against Hearst Holdings, Inc. in an attempt to have Hearstís MANDRAKE LE MAGICIEN (MANDRAKE) trademark cancelled. Hearst Holdings, Inc. responded to that suit and in December, 2003, the French court ruled in favor of Hearst. The French court concluded in part, that MandrakeSoft S.A.ís use of the trademarks MANDRAKE and LINUX-MANDRAKE, as well as its reservation of numerous Internet domain names that include the term ďmandrake,Ē infringed Hearstís rights in the MANDRAKE LE MAGICIEN (MANDRAKE) trademark. The court therefore ordered the cancellation of MandrakeSoft S.A.ís various MANDRAKE trademarks and prohibited MandrakeSoft S.A. from using the name MANDRAKE.
[Hyperlink added --LRC]

Suddenly, the scales fell from my eyes and I understood exactly (well, more or less) what had occurred. I'd lived through this once before. Rather than clog up the main page with a long and rather boring story from my past, the one or two of you who might be interested can just click on "more" to see the gory details....

A long time ago, in a galaxy far, far away, I made a huge career mistake and went from college into law school, and from thence into law practice. A bit over a decade later I finally corrected that mistake, went back to graduate school, and credentialled myself for a bright, shiny new career in information technology (a career which eventually tarnished a bit after about 4 years, thanks to the "dot bomb", but thankfully I'm still employed (knock on wood) and still much, much happier than I'd ever been as a lawyer). Anyway.... My first job in the IT field (which I acquired shortly before receiving my master's degree in Management Information Systems) was with a St. Charles, MO, based consulting and training company which was then known as Solutech. After a little post-hire training, I was sent out on a consulting assignment at Boatmen's Trust Company (then a subsidiary of Boatmen's Bank of St. Louis, which has since disappeared after being acquired (during my consulting tenure at BTC) by Nation's Bank; in a sterling demonstration of What Makes American Capitalism So Great, Nation's Bank was subsequently acquired by Bank of America, while somewhere in that morass both Boatmen's Bank and Boatmen's Trust Company ceased to exist). After that assignment I settled into a niche at Solutech as a fulltime database management systems trainer (specializing in Sybase Adaptive Server and Microsoft SQL Server) for several years.

Towards the end of my tenure at Solutech's St. Louis office (the company transferred me to their Memphis office about 10 months before laying me off), rumors of interesting changes in the organization began to filter through the organization. In January of 2001, they made the official announcement, Solutech would be "rebranding" to Quilogy. At the official rebranding ceremony (which was conducted with a pomp and circumstance appropriate to The Last Days Of The Technology Boom), the rebranding was presented by Solutech/Quilogy founder/president Randy Schilling as pretty much something they'd been planning to do as part of the company's [satiric]Grand Plan For World Domination™[/satric]. Being of a naturally skeptical (many who know me well would say, "cynical") nature, I didn't quite buy that, so I did a little digging on my own, and found out "the rest of the story", as Paul Harvey liked to put it.

Shortly into my tenure at Solutech, one of my students pointed out that there was another Solutech (or, more accurately, "SoluTech", as they liked to spell it), a California based consulting firm which, coincidentally enough, was also active in database consulting as well. I brought that to the attention of some superiors in the company, who indicated that yes, they were aware of the existence of that SoluTech. Since, at the time, our business was focused in the Midwest, and the business of the other SoluTech was focused on the Left Coast, it didn't appear to them that this posed any significant problems (and from what little I knew of trademark and unfair competition law, I could concur with their conclusion, though I didn't have to worry Solutech's legal problems, thankfully).

However, if Randy Schilling was anything, he was ambitious; within a year of my signing on we'd grown at an almost mind-boggling rate, and Randy was informing the troops that he was planning on expanding Solutech's business nationally. At some point, that was going to cause trouble (or at least force the company to think about a name change), because it was inevitable that our interests would expand to the west coast, and we'd be doing business in the other SoluTech's backyard.

Around about 1999 or so (by my recollection) Solutech aquired a coveted partnership with Oracle, the database systems mammoth, and we added Oracle technical training and consulting to the mix of services offered. And significantly, we'd apparently opened several West Coast offices under the name "R.L.Schilling & Co., Inc". That development didn't surprise me either, since I was aware of the existence of the other SoluTech, and knew that we'd be courting trouble if we started doing business as "Solutech" in their sphere of influence.

Apparently, the rebranding from "Solutech" to "Quilogy" was the result of the decision in Solutech, Inc. v. SoluTech Consulting Services, Inc. (according to my sources, the citation is 153 F.Supp.2d 1082 (E.D. Mo. 2000); I can't seem to find a copy of the decision online, and I'm too lazy (and still too nauseated by the thought of entering a law library) to go looking for it anytime soon). At any event, from what my sources inside the company told me, Our Solutech had filed a lawsuit much like Mandrakesoft's lawsuit, seeking to preemptively acquire exclusive rights to the "Solutech" name all over the United States (interestingly enough, there are a few "Solutechs" out across various oceans and seas, too, so no doubt a prime motivation for our lawyers was the prospect of ridiculously large fees arising out of many, many years of international litigation...). I'm not privy to the legal arguments (one of these years I may have to go look up the District Court's opinion in the case just to satisfy my idle curiosity), but my sources in the company suggested that our main argument was along the lines of a high pitched whining: "But, judge, we're bigger and doing business in more places, so we should get to use the name since they're not using it as much as we are...." Or maybe "It'll cost us more to change our name than for them to change theirs..." Or something around those lines.

My source's summary of the judge's decision was just as amusing: "WTF? The other SoluTech has been around longer, and has the prior claim to the name as of right. Not only am I not going to order them to change their name, I'm going to force you to change yours everywhere you do business...." Rather than pour more money in the pockets of lawyers, Randy made the IMHO wise decision to just "rebrand" the company, and near as I can tell the rebranding had very little impact on the company's business. (I hadn't seen the writing on the wall at the time, or my career history might have been significantly different, but after a peak of over 500 employees in 1999-early 2000, the company was beginning to contract, IIRC; employees were starting to be laid off and one branch office was closed (though in hindsight it was clear that the branch office that was closed never should have been opened in the first place), however this was pretty clearly the result of the downturn in the economy, particularly the tech sector, and the rebranding had little to do with it.)

Needless to say, having seen that history firsthand, I wasn't surprised at the decision in Hearst Holdings, Inc. and King Features Syndicate, Inc. (Hearst) v. MandrakeSoft S.A. (MandrakeSoft). Not in the slightest.

Interestingly enough, I've noticed that two of our (Solutech/Quilogy's) lawyers have listed this case on their online resumes, notwithstanding the fact that they came up somewhat short in the results department for us. I would think that when you were listing representative litigation for your resume, with a view to attracting clients, you would want to list cases in which Virtue And Justice Triumphed (i.e., cases you won) rather than cluing your prospective clients in to the fact that You're Only Human, After All, And Nobody Can Win 'Em All (i.e., you don't want them to get the idea you aren't invincible when you step into a courtroom). Silly me, I guess that's the reason I'm a mere failed lawyer rather than a High Powered Intellectual Property Litigation Superstar.

I think I can live with that just fine, anyway.

Len on 05.05.05 @ 08:13 AM CST



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