As famously observed by sports reporter Mike Royko, that keen observer of the human condition, “the race is not always to the swift, not the fight to the strong, but that’s how you handicap them.” Translated into more common vernacular, "in a legal battle, bet on the special interests to ultimately prevail." (V Secret Catalogue Inc. v. Moseley et al.)
As recounted in our two previous blogs (see Of Special Interests and Moseley Fights On), Victor Moseley and his wife Cathy are the owners of a shop, formerly known as Victor’s Little Secret, which sells “sexy lingerie, crotchless panties and other related items.” In a case of the pot calling the kettle black, V Secret Catalogue, owners of the Victoria’s Secret chain of shops, which sells what they describe as “sexy and playful” undergarments, sued the Moseleys, claiming that use of “Victor’s Little Secret” diluted the “Victoria’s Secret” trademark. That was in 1998.
The case went all the way to the U.S. Supreme Court where, as a result of their long study of pornography, the justices have become experts on crotchless panties. The Supreme Court decided that Victoria’s Secret had not proven that it had actually been harmed and sent the case back to the lower court.
Here is where the special interests come into the game. The Sixth Circuit Court of Appeals was supposed to send the case back to the district court which, in turn, was supposed to enter a judgment in accord with the Supreme Court’s ruling. While all this was going on, certain interests persuaded Congress to pass the Trademark Dilution Revision Act of 2006, which lowered the standard for proving dilution to a “mere likelihood” of harm.
For some reason, the Sixth Circuit delayed the transfer of the Moseley case back to the district court. By the time it finally arrived there, the new law was in effect and the district court entered judgment against the Moseleys.
Not quitters, the Moseleys changed the name of their store to Cathy’s Little Secret and filed another appeal. When this appeal was denied, they petitioned for a hearing by the Supreme Court. That brings us to the present.
Last Monday the Supreme Court denied the Moseleys’ petition. They will not hear the case again. This brings down the curtain on the matter, or, as Victor so succinctly phrased it, “[i]t’s kind of like the fat lady sang.” He added that his shop was doing a decent business but noted that “the economy is not booming.” So, if you should happen to need a pair of crotchless panties, why not stop by Cathy’s Little Secret.
THE LESSON TO BE LEARNED: This is an example of the new “golden rule,” to wit, “he who has the gold, makes the rules.”