The Verdict

THE CLERK: I will review the verdict with you and ask for your responses. As to the federal copyright infringement claim, question 1. Did the plaintiff Independent Living Aids prove that it changed the product listing from its non-copyrighted catalogs, so that the listing as changed in the copyrighted catalogs were removed from the public domain and were original and protected? THE FOREPERSON: Yes.

THE CLERK: Question two.

Did the plaintiff ILA prove that it is the owner of a valid registered copyright to the Independent Living Aids, Inc. catalogs to the years 1985 to 1995?

THE FOREPERSON: Yes.

THE CLERK: Question three.

Did the plaintiff ILA prove that the defendant Maxi-Aids, Inc. infringed the plaintiff's copyrights in its 1985 through 1995 catalogs by copying original product listings in any of the plaintiff's copyrighted catalogs?

THE FOREPERSON: Yes.

THE CLERK: Question four. Did the plaintiff ILA prove that the defendant Maxi-Aids acted willfully when it infringed the plaintiff's copyrights?

THE FOREPERSON: Yes.

THE CLERK: As to the federal trademark and service mark infringement claim. Question five. Did the plaintiff ILA prove that the term "Can-Do Products" is a suggestive term and does not require proof of secondary meaning?

THE FOREPERSON: Yes.

THE CLERK: Question six.

Did the plaintiff ILA prove that prior to any copying of the terms the plaintiff had so used each of the following terms so that it developed a secondary meaning, so as to associate that term with the plaintiff, Independent Living Aids? THE FOREPERSON: Yes.

THE COURT: There is no answer to Can-Do Products, correct?

THE FOREPERSON: Yes, correct.

THE CLERK: Question seven. Did the plaintiff ILA prove that the defendant Maxi-Aids in its advertising, catalog, and sales program used the following terms "Independent Living" "ILA" the ILA logo "Do More Products," "Maxi-Aids," and "Appliances for Independent Living" and "Maxi-Aids products for Independent Living" in a manner likely to cause confusion as to the source among persons using ordinary care in the purchase of the products sold by both companies? Independent Living. THE FOREPERSON: No.

THE CLERK: ILA.

THE FOREPERSON: No.

THE CLERK: ILA logo.

THE FOREPERSON: Yes.

THE CLERK: Do More Products.

THE FOREPERSON: No.

THE CLERK: Maxi-Aids and Appliances for Independent Living.

THE FOREPERSON: No.

THE CLERK: Maxi-Aids Products for Independent Living.

THE FOREPERSON: No.

THE CLERK: As to the federal trade dress infringement claim as to the watches. Question eight. Did the plaintiff ILA prove that the trade dress of its Slimline Lo-Vision watches were distinctive or had acquired secondary meaning?

THE FOREPERSON: Yes.

THE CLERK: Question nine. Did the plaintiff ILA prove that the defendant Maxi-Aids in its catalog and sales program advertised and sold its Ultima Low-Vision Watches in a manner likely to cause confusion as to the source among persons using ordinary care in the purchase of the watches?

THE FOREPERSON: Yes.

THE CLERK: Question 10. Did the defendant Maxi-Aids prove that the features of the plaintiff's Slimline Lo-Vision watches it allegedly copied and advertised are functioning, meaning that such features are essential to the basic purpose of such watches? THE FOREPERSON: Yes.

THE CLERK: Question 11. Did the plaintiff ILA prove that the following individual defendant was an actual participant in the infringement of the defendant Maxi-Aids or that the following individual defendant authorized or approved the acts of infringement or was a conscious moving force behind the infringements?

Harold Zaretsky.

THE FOREPERSON: No.

THE CLERK: Mitchel Zaretsky.

THE FOREPERSON: Yes.

THE CLERK: Elliot Zaretsky.

THE FOREPERSON: Yes.

THE CLERK: Pamela Zaretsky Stein.

THE FOREPERSON: Yes.

THE CLERK: As to the New York Deceptive Acts and Practices Claim. Question 12. Did the plaintiff prove that the defendant Maxi-Aids engaged in a materially deceptive act and practice with regard to the advertising and sales of its products? THE FOREPERSON: Yes.

THE CLERK: Question 13. Did the plaintiff prove that the primary injury resulting from the said deceptive act and practice was suffered by the public?

THE FOREPERSON: Yes.

THE CLERK: Question 14. Did the plaintiff ILA prove that it was injured by the said deceptive act and practice?

THE FOREPERSON: Yes.

THE CLERK: Question 15. Did the plaintiff ILA prove that the defendant Maxi-Aids acted willfully when it committed the deceptive act and practice?

THE FOREPERSON: Yes.

THE CLERK: As to the New York false advertising claim. Question 16. Did the plaintiff ILA prove that the defendant Maxi-Aids engaged in false advertising that was misleading in a material aspect with regard to the sale of their products? THE FOREPERSON: Yes.

THE CLERK: Question 17. Did the plaintiff ILA prove that it was injured as a result of such false material misleading advertisement?

THE FOREPERSON: Yes.

THE CLERK: Question 18. Did the plaintiff ILA prove that the defendant Maxi-Aids acted willfully when it committed the false advertising?

THE FOREPERSON: Yes.

THE CLERK: As to the New York State intentional interference with economic benefits claim. Question 19. Did the plaintiff ILA prove that the defendant Maxi-Aids knew that the plaintiff had made certain bids to the Veterans Administration in 1993 and 1994? THE FOREPERSON: Yes.

THE CLERK: Question 20. Did the plaintiff ILA prove that the defendant Maxi-Aids intentionally interfered with the plaintiff's bids?

THE FOREPERSON: Yes.

THE CLERK: Question 21. Did the plaintiff ILA prove that it would have been a successful bidder if not for the interference of the defendant Maxi-Aids.

THE FOREPERSON: No.

THE COURT: You didn't answer 22, correct?

THE FOREPERSON: Correct.

THE COURT: Let's go to 23.

THE CLERK: Question 23. Did the plaintiff ILA prove that the following individual defendant was an actual participant in the wrongful acts comprising the New York State claims or that the individual defendant authorized or approved of the wrongful acts or was a conscious moving force behind the wrongful acts? Harold Zaretsky.

THE FOREPERSON: No.

THE CLERK: Mitchel Zaretsky.

THE FOREPERSON: Yes.

THE CLERK: Elliot Zaretsky.

THE FOREPERSON: Yes.

THE CLERK: Pamela Zaretsky Stein.

THE FOREPERSON: No.

THE CLERK: As to the libel counterclaim of the defendants Maxi-Aids, Harold Zaretsky, Mitchel Zaretsky, and Elliot Zaretsky against plaintiff Marvin Sandler. Question 24. Did the defendant Maxi-Aids prove that the statements by Marvin Sandler in his letter dated January 17, 1994, sent to Dr. Jernigan, and published in the December, 1994, edition of the Braille Monitor were defamatory?

THE FOREPERSON: No.

THE COURT: Did you answer questions 25, 26, and 27?

THE FOREPERSON: No, Judge.

THE COURT: All right. Let's proceed to the damages question.

THE CLERK: Damages in the plaintiff's claims. Compensatory damages. Question 28. What amount of damages, if any, do you award to the plaintiff ILA for loss of business and profits as a result of any of the wrongful acts in the three federal and three New York State claims?

THE FOREPERSON: $2,400,000.06.

THE CLERK: As to punitive damages, question 29. In the intentional interference with economic benefits claim, do you award punitive damages in favor of the plaintiff ILA against the defendant Maxi-Aids?

THE FOREPERSON: No.

THE COURT: Do you answer any of the other questions?

THE FOREPERSON: No, Judge.

There you have the highlights of a trial that will probably remain a unique legal episode in the blindness field. The Zaretskys have submitted motions to Judge Spatt, and Marvin Sandler's attorney has responded. Each side gets another chance to respond to what its opponent has argued. Then the judge will decide whether or not to accept any of the Zaretskys' motions. If he does not, the Zaretskys will have to decide if they want to try an appeal. Since Mitchel Zaretsky would not speak to the Braille Monitor, we could not confirm Marvin Sandler's understanding that Mark Mulholland will not be serving as counsel to the Zaretskys during any possible appeals. Mulholland himself sidestepped the question by saying that the appeal process was still a long way in the future and that he is certainly the attorney of record at present.

Marvin Sandler makes no bones about the fact that he undertook this legal action because he thought it was in his own financial interest to do so. But in the next breath he adds that somebody had to let the world know what the Zaretskys think of their competitors and customers and how they are prepared to treat them. From now on no one in the blindness field can claim that they didn't know about Maxi-Aids and the way the Zaretskys do business—let the buyer beware.