The Verdict

The Verdict

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.