Ed Makbejn - Gladly the Cross-Eyed Bear

In the state of Florida, it doesnt matter if its day or night as concerns the burglary statutes. You can go in at any hour, it doesnt affect the punishment. What matters is if youre armed or if you assault someone, thats Burglary One, and they can put you away for as long as the rest of your natural life. If the structure you enter happens to be a dwelling or if somebodys on the premises when you go in, why thats a Burg Two, and they can lock you up for fifteen years.

Warren was going in during the daytime if she ever got the hell out of there and he wasnt armed, though he did own a license to carry. The condo was a dwelling, so if he got caught in there he was looking at a max of fifteen because in the state of Florida, if you stealthily entered any structure or conveyance without consent of the owner or occupant, that was considered prima facie evidence of entering with intent to commit an offense.

But he had to get in there, anyway.

If only she would hurry up and go about her business.

He turned on the car radio.

I had filed my complaint in Calusas federal court for the Middle District of Florida, asking for an order to show cause. Judge Anthony Santos had signed a temporary restraining order and had set a hearing for the twelfth day of September. A U.S. marshal had then served papers on Brett and Etta Toland, the owners of Toyland, Toyland, ordering their appearance at the hearing. It was now nine oclock on the morning of the twelfth, a blistering hot Tuesday in Calusa, Florida.

The first thing Santos said to me was, How are you feeling, Matthew?

I wished people would stop asking me how I was feeling.

Or what it had felt like.

It had felt like all the lights suddenly coming on after a power failure. One moment there was utter darkness below, while above a raging electrical storm flashed intermittent white tendrils of lightning and boomed ugly blue thunder. I was standing in a deep black pit slowly filling with oily black water that rose inexorably to my waist, and then my chest, and then my throat. I was chained to the walls of this fathomless black pit while above lightning crackled and thunder roared and the fetid black water inched up toward my mouth and then my nostrils. And all at once there was a crashing bolt of lightning and a shattering thunderclap so close they seemed to be inside the pit itself, shaking its wet stone walls, filling my eyes and my head with bursting sound and blinding incandescence and...

With a mighty leap, I sprang out of the pit.

Thats what it had felt like for me.

Maybe if you came out of a coma five months ago, it was different for you.

Im fine, Your Honor, I said.

Are both sides ready? Santos asked.

Matthew Hope, representing the plaintiff, Elaine Commins.

Sidney Brackett, representing the defendant, Toyland, Toyland.

Brackett was Calusas best man for legal matters pertaining to copyright or trademark, famous for having successfully defended the landmark Opal Oranges infringement suit. I was Calusas best man for all seasons, famous for having got shot twice once in the shoulder and once in the chest last April. Im fine now. Really. Im fine, goddamn it!

Ive reviewed the complaint, the affidavits, and the legal briefs from both sides, Santos said, so I think we can do without any lengthy opening statements. I hope youve explained to your respective clients...

Yes, Your Honor...

Yes, Your...

...that the purpose of this hearing is to determine whether Toyland, Toyland hereinafter referred to as Toyland should be enjoined on a preliminary basis from further production, distribution or sale of a teddy bear they call Gladys the Cross-Eyed Bear, for which Ms. Commins is claiming copyright, trademark, and trade dress infringement. It is your burden, Ms. Commins, to prove ownership of a valid copyright and trademark for the bear you call Gladly, and as to Count I to further prove unlawful copying of protected components. As for Counts II and III, it is your burden to prove infringement of the trademark and trade dress. Does everyone understand this?

Yes, Your Honor, this was all explained to my client.

My clients as well, Your Honor.

As Im sure counsel has further explained, Santos said, ideas cannot be copyrighted. Protection is afforded only to the expression of ideas. For example, its not enough to show that both plaintiff and defendant used the idea of a cross-eyed bear whose vision is corrected by eyeglasses. In order to prove copyright infringement, it must be shown that the expression of this idea was copied. The essence of copyright infringement lies not in the defendants taking of the general idea or theme of the plaintiffs work, but in the taking of the particular manner in which the plaintiff has expressed those ideas in the copyrighted work.

Similarly, in order to prove trademark and trade dress infringement, it must be shown that a similar use of names and design features would be likely to cause confusion in the marketplace. The design features of a product may be given trade dress protection, but only if they are inherently distinctive or have achieved secondary meaning in the marketplace. Is all of that clearly understood?

Yes, Your Honor.

Yes, Your Honor.

Has it also been explained that a permanent injunction cannot be granted until after a trial on the merits?

Yes, Your Honor.

Yes, Your...

Before we proceed, then, I should mention that the Court fully recognizes the exigencies of the case, Christmas being right around the corner, so to speak, in terms of getting one of these bears into the stores, whichever party may prevail. At the same time, and exactly because of the very real and pressing commercial considerations for both sides, the Court does not intend to be rushed into any decision.

On the other side of the courtroom, seated at the defense table with his clients, Sidney Brackett sat stone-faced. Or bored. Or both. A squat chubby little man who bore an unfortunate resemblance to Newt Gingrich, he sat flanked by two of the more attractive people on this planet, Mr. and Mrs. Brett Toland, accused teddy-bear thieves.

I should also mention that the rules of procedure in a hearing are identical to those in a trial, Santos said. There is no jury, but everything else is the same. The plaintiff presents his...

I was thinking that everyone in the world already knew all this, at least insofar as it bore similarities to criminal law. Everyone in the world had watched the Simpson trial for the past twenty-two years, six months, three weeks and twelve days and knew all this procedure stuff even better than I myself did. I was thinking it was too bad there wasnt a jury here because then ordinary citizens who werent lawyers could catch any mistakes I made, and maybe write to tell me all about what a lousy lawyer I was, I just loved getting Gotcha! mail. When I woke up at Good Samaritan Hospital, in fact, Id found a pile of letters from strangers who felt I was somehow responsible for having got myself shot, and somehow derelict in not coming out of the coma soon enough to suit them. Actually, Id have enjoyed popping off that table in ten minutes flat, but medical problems prevented me from doing so. Better yet, I would have preferred not having the medical problems to begin with. Even better, I would have preferred not getting shot at all. You try getting shot sometime, and Ill write you a letter when you refuse to come out of a goddamn coma.

Then again, people keep telling me I seem a bit crotchety since I woke up.

...a direct examination of each witness, Santos was saying, followed by the defenses