From CHFB News...
In a major turning point in the seven-year legal struggle over ownership of Famous Monsters, a federal court Wednesday issued a strongly-worded preliminary injunction against Ray Ferry and Connie Bean, ordering them to end all use of the "Famous Monsters" trademark and to stop operating their websites.
Granting a request from Philip Kim, a producer who purchased the Famous Monsters trademark for $25,000 at a bankruptcy sale in 2007, Judge Gary Allen Feess of the U.S. District Court for the Central District of California, concluded:
"Defendants are hereby ENJOINED from operating the famousmonsters.com, famousmonsters.biz, and filmlandclassics.com websites, and from marketing, selling, or offering to sell any goods or services that contain, or are confusingly similar to, the 'Famous Monsters of Filmland' trademark or any derivatives thereof, including 'Famous Monsters,' until the present litigation has been fully resolved.
"Defendants failure to comply with this Order may be grounds for contempt sanctions, including possible imprisonment. In addition, Defendants are cautioned that they are not to impose upon this Court any further baseless or frivolous arguments that are directly contradicted or undermined by the evidence in the record, including those that the Court has expressly rejected in this Order.''
The preliminary injunction is the latest, and perhaps most significant ruling against publisher Ray Ferry, who revived Famous Monsters magazine in 1995. Ferry had a bitter falling out with editor Forrest J Ackerman a few years later, and has been in court ever since. After losing a civil suit brought by Ackerman over the rights to the name, "Dr. Acula,'' he was ordered to pay a $500,000 judgment, which was later reduced.
Ferry went into bankruptcy in 2000. The Famous Monsters trademark was assigned away, and later sold to Kim at auction. But Ferry never stopped publishing the magazine, maintaining that he never relinquished the trademark nor the right to print the magazine. Kim started his own Famous Monsters website last May, establishing grounds to bring a suit against Ferry's use of the trademark. Ackerman, who never received any money from Ferry, died earlier this year.
The bitterness of the dispute has never abated, and continued in the wake of the order.
Kim said in an email on Friday morning: "This is the first step in making Ferry a bad memory. Ferry's reign of terror is over. His website will be no more. My only regret is that Forrest J Ackerman is not here to witness this. Forry may not have believed in the afterlife but I do, and I hope Forry is looking down on this and smiling...I know I am.''
Kim added, "For what Ferry & Connie have cost me and how relentless they are, I have every intention of recovering my damages from them and those who are found guilty of aiding them in their illegal enterprise. This is just the beginning.''
As of Friday morning, Ferry's Famous Monsters website was still up and offering Famous Monsters merchandise, magazines and other items. But as rulings began to go against them last year, Ferry debuted two new magazines, "Shock" and "Freaky,'' and downplayed somewhat the "Famous Monsters" emphasis at the website. (The Ferry FM site was taken down later Friday afternoon).
Contacted on Friday, Bean said she and Ferry had not actually seen the injunction, and could not say whether the couple will appeal the ruling.
"Right now we have no comment until we read it. Also, I caution you all to realize that we will have our day in court. We don't have to react to anything until we are served with it, so that is what we will do. I am assuming according to what I do know, that we move ahead with Shock and Freaky and go from there.
"Ray and I never run with our tails between our legs and will keep going no matter what, maybe not with FM but we will keep going anyway. We have to. It's the right thing to do. All I know is that everyone will get what they paid us for at one time or another and we won't leave fans hanging. I would appreciate that you bear in mind that we are human beings and we are NOT due a good beating from you guys over there and your fans. Please at least respect us a little.''
The injunction against Ferry is preliminary, or temporary -- in essence the court is saying Ferry must stop using Famous Monsters until ownership of the trademark is finally determined. Ferry could regain use of the trademarks if he prevails at trial. But the judge noted that the record shows Kim "has made a strong showing that he will likely succeed at trial on the merits of his trademark infringment claim.''
On several specific points, the judge flatly rejected arguments by Ferry, including Ferry's central contention that the bankruptcy trustee did not own the trademark when he sold it to Kim. The judge rejected Ferry's charge of fraud in the transfer, and said "Ferry gave up his ownership of the mark when he filed for bankruptcy (in 2000). Any use by Ferry of the mark subsequent to the transfer thereof to the Trustee was necessarily unauthorized.''
The judge cites a ruling last April, in a separate trademark case brought by Kim against another party, where a court found that Ferry "is not the record owner of the registration at issue.'' The judge also finds that Ferry's claim that famousmonsters.com and filmlandclassics.com are "official" websites "is highly likely to lead to consumer confusion.''
Fans have split for years over the case, many of whom were upset by Ferry's treatment of Ackerman subsequent to the breakup. Others praise Ferry for maintaining Famous Monsters magazine, a cherished brand name in the half century since it helped spark the monster craze of the 1960s. And some think Kim's website, which is a modern-era blog, doesn't quite reflect the spirit of the magazine, though Kim has promised books and other products in the future once legal issues are resolved.
This ruling, however, does seem to set a path for some kind of resolution.
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NOTE: We will update this story or post further reaction as appropriate. We will try to post the entire 12-page ruling as well.
We agree with Ms. Bean's contention that everyone is a real person here, and will delete any postings that are too personal or unprofessional in tone.
For further reading at CHFB:
A Brand New Day for Famous Monsters (a lengthy but detailed look at the case so far).
CHFB Interview with Robert Greenberger (editor of Kim's website, 5.23.08)
CHFB Interview with Ray Ferry 6.24.08
CHFB Interview with Philip Kim 6.30.08
Thanks.
david
