Trask of Living Dice wrote:Battle Foam v. Outrider Hobbies Trademark Case–The Judge Ruled and the Case is Over
June 30, 2010

The New Hampshire court ruled today on the Battle Foam v. Outrider Hobbies trademark infringement case. For those coming late to this legal party, Battle Foam sued Outrider Hobbies claiming trademark infringement regarding their respective lines of custom cut foam blocks for miniature transportation. Today, the court dismissed the case against Outrider.

As in the Palladium Books v. Trion Worlds case, the dismissal arose from a lack of jurisdiction by the court. Essentially, the New Hampshire judge did not believe Battle Foam proved a New Hampshire court was the correct venue for the case and that the burden on proof was on Battle Foam. That is not really doing the opinion justice and the judge had some pointed words for the plaintiff. I normally do not reprint large sections of court rulings, but I think my readership will find these excerpts interesting. First, the judges thoughts on the merits of the complaint.

judge wrote:While the complaint is replete with seeming hyperbole, including allegations of industrial espionage, unauthorized access to Battle Foam’s manufacturing facility, and theft of trade secrets, it contains relatively few concrete factual assertions.

Another contention made by Battle Foam was customers, specifically one fellow named “Jim Kavourias”, confused Battle Foam and Outrider Hobby products. Outrider responded that Mr. Kavourias had a pre-existing relationship with Battle Foam through their “Diablo Bats” company.

Rather than editorialize, I will let the judge speak for himself on this issue.

judge wrote:It is, of course, possible that the fifth round pick of the Florida Marlins in the 2000 draft is both a fan of Diablo bats and a collector in the war gaming miniature market who is familiar with Battle Foam’s products. It is also possible that the baseball player who provided the testimonial for Diablo bats and the confused customer who contacted Battle Foam simply share the same name. A third possibility is decidedly less savory and, hopefully, is not the case here.

This is concluding section of the opinion and once again the judge speaks with greater clarity than any summary I can muster.

judge wrote:Battle Foam bears the burden of establishing that this court may properly exercise personal jurisdiction over Wade. It has failed to point to any evidence even remotely suggesting that Wade has the minimum contacts with this forum necessary to support this court’s exercise of personal jurisdiction over him. Accordingly, Wade’s motion to dismiss is granted.

Parenthetically, the court suggests that prior to refiling this complaint in another forum, Battle Foam and its counsel might give serious consideration to the legal claims they are advancing, as well as the factual allegations leveled against Wade to ensure that they are supported by legal authority and an evidentiary basis (e.g., allegations that Wade “intentionallyd directed [his] tortious activities toward New Hampshire,” Complaint at para. 6; that Wade and Outrider Hobbies, “using Battle Foam’s misappropriated trade secrets, have introduced products of inferior quality to the marketplace under the FOAM CORPS mark that consumers believe to be Battle Foam products,” id. at para. 23; that Wade “surreptitiously obtained access to and/or information from Battle Foam’s industrial facility and misappropriated trade secrets . . . which are the subject of Battle Foam’s ‘410 patent application,” id. at para 21; etc.). As currently developed, the record in this case contains some suggestion that Battle Foam’s evidence of consumer confusion regarding the parties’ respective marks may be suspect. And, there is a reasonable basis to question why this suit was filed in this forum. At a minimum, a bit of sober reflection by Battle Foam and its counsel would seem to be in order.

And, in a final win for Outrider, the court ordered Battle Foam to pay costs to the defendant.

judge wrote:In accordance with the Order of Chief Judge Steven J. McAuliffe dated June 29, 2010, judgment is hereby entered, and that the defendant shall recover his costs of the action from plaintiff, if appropriate.

Now that the court ruled, it is all over unless Battle Foam re-files in a different venue. I will stay on top of the story and let you know if anything develops.

Here are the original documents for your examination.

Battle Foam v. Outrider Dismissal Order :
http://www.livingdice.com/wp-content/uploads/2010/06/Battle_foam_outrider_dismissal.pdf

Battle Foam Owes Costs to Outrider Hobbies
http://www.livingdice.com/wp-content/uploads/2010/06/battle_foam_must_pay_costs.pdf

Trask, The Last Tyromancer