Silvers v. Google, Inc.

Filing 110

REPLY by Steven A. Silvers to response to [102-1] motion for protective order concerning his upcoming deposition (cj, Deputy Clerk)

Silvers v. Google, Inc.

Doc. 110

Case 9:05-cv-80387-KLR

Document 110

Entered on FLSD Docket 08/16/2006

Page 1 of 3 Aug 15 2006

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Palm Beach DIVISION STEVEN A. SILVERS, an individual, Plaintiff, v. GOOGLE INC., a Delaware corporation, Defendant. _________________________________________ GOOGLE INC., a Delaware corporation, Counterclaimant, v. STEVEN A. SILVERS, an individual; STELOR PRODUCTIONS, INC., a Delaware corporation; STELOR PRODUCTIONS, LLC; a business Entity of unknown form; and STEVEN ESRIG, an individual, Counterdefendants. _________________________________________

CASE NO. 05-80387-CIV (Ryskamp/Vitunac)

SILVERS' REPLY TO GOOGLE'S OPPOSITION TO SILVERS' MOTION FOR PROTECTIVE ORDER
Phase One of this case does not include the trial of the cross-claim brought by Stelor against Silvers, and for good reason. This case is first and foremost a reverse trademark

infringement action brought by Silvers against Google for the damage cause to him by Google's junior use of an identical mark. Google moved to bifurcate the trial of that claim to first determine apart from all other issues and claims in this litigation (including the counterclaim Google filed against Silvers) whether Silvers' superior trademark rights are valid and enforceable - - alleging that Silvers may have abandoned his trademark prior to bringing this action. Google did not move to bifurcate and try separately in this first phase the cross-claim brought by Stelor against Silvers, and neither has Stelor or Silvers. In fact, Stelor has stipulated in response to Silvers' Motion For Protective Order that the scope of Phase One discovery is confined to Silvers' trademark ownership rights.
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110 Dockets.Justia.com

Case 9:05-cv-80387-KLR

Document 110

Entered on FLSD Docket 08/16/2006

Page 2 of 3

Google now contends for the first time that Stelor and Silvers must litigate the crossclaim in Phase One. No one, including the Court, has ever suggested the cross-claim is part of Phase One. In fact, the Proposed Scheduling Order the parties submitted, and the Scheduling Order issued by the Court makes no mention whatsoever of the cross-claim. Furthermore, Silvers and Stelor's discovery cut-off for Phase One has passed. Google's only support for wanting to now inject the cross-claim into Phase One comes from a single sentence in an unrelated order where the Court, in denying Silvers' request to dismiss the cross-claim, mentions that the contract issue between Stelor and Silvers "will need to be addressed before the Court can reach the trademark infringement claims." That is far short of ruling that the cross-claim, which involves three separate Counts and three different contracts between Silvers and Stelor, must be tried in Phase One. Stelor and Silvers have not engaged in any discovery relating to the crossclaim, and in fact, would not have been able to complete that discovery in the shortened discovery period provided for in Phase One. Furthermore, Google is absolutely wrong when it argues that resolving the cross-claim "promotes the possibilities of settlement because it will eliminate an alleged rights holder." Silvers is the sole owner of every aspect of the Googles IP and has all the rights associated with that; Stelor has always been a mere licensee. Even if Stelor prevails on its claim that Silvers wrongfully terminated its license (an unlikely outcome) that would not alter the fact that Silvers' owns all the rights to the Googles IP, nor vest Stelor with any ownership rights. In fact, prevailing on the cross-claim would not even reinstate Stelor's licensing rights because Stelor's only remedy for breach of the License Agreement is governed and confined by the limited liability provision contained in the License Agreement, which strictly limits Stelor's remedy to money damages.

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Case 9:05-cv-80387-KLR

Document 110

Entered on FLSD Docket 08/16/2006

Page 3 of 3

For these reasons, the Court should grant Silvers' request for a Protective Order, or simply deny it as moot based on the non-objection filed by Stelor. Respectfully submitted,
s/ Gail A. McQuilkin Kenneth R. Hartmann (Fla. Bar #664286) [e-mail] Gail A. McQuilkin (Fla. Bar #969338) [e-mail] KOZYAK TROPIN & THROCKMORTON, P.A. 2525 Ponce de Leon, 9th Floor Miami, Florida 33134 305-372-1800

Adam T. Rabin (Fla. Bar #985635) [e-mail] DIMOND KAPLAN & ROTHSTEIN, P.A. 525 S. Flagler Drive, Trump Plaza, Suite 200 West Palm Beach, Florida 33401 561-671-2110

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by E-mail and U.S. mail on this 15th day of August, 2006 upon: Jan Douglas Atlas Adorno & Yoss, LLP 350 East Las Olas Blvd., Suite 1700 Fort Lauderdale, FL 33301-4217 [e-mail] Kevin C. Kaplan Burlington Weil Schwiep Kaplan & Blonsky, PA 2699 S. Bayshore Drive, Penthouse A Miami, FL 33133 [e-mail] Ramsay M. Al-Salam Perkins Coie, LLP 1201 Third Avenue, Suite 4800 Seattle, WA 98101-3099 [e-mail] s/ Gail A. McQuilkin
3339/102/267732.1

Andrew P. Bridges Winston & Strawn, LLP 101 California Street, Suite 3900 San Francisco, CA 94111 [e-mail] Johanna Calabria Perkins Coie LLP 4 Embarcadero Center, Suite 2400 San Francisco, CA 94111 [e-mail]

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