Stringer v. Simon & Schuster

Background

Vickie M. Stringer, proceeding without a lawyer, sued Simon & Schuster, Inc. concerning the use and distribution of a series of books she wrote. Her Third Amended Complaint alleged breach of contract, willful copyright infringement, vicarious copyright infringement, and fraudulent concealment. It also described alleged trademark violations under the Lanham Act, the federal trademark statute. The court liberally construed the complaint as asserting federal trademark claims.

Stringer previously sought temporary restraining orders and production of a contract concerning Dirty Red. The court had denied those earlier requests and had stayed discovery while Simon & Schuster’s anticipated motion to dismiss was pending. Stringer then filed a third request for a temporary restraining order, later asking the court to treat it as also seeking a preliminary injunction. She sought an order requiring Simon & Schuster to stop distributing, selling, and licensing several titles while she pursued discovery about alleged unauthorized use and concealed revenue. She also sought leave to file another motion to compel production of the Dirty Red contract or, alternatively, to strike references to that contract.

Temporary Restraining Order and Preliminary Injunction

The court treated Stringer’s filing as requesting both forms of emergency relief because they use the same legal standards. A party seeking this relief generally must show likely irreparable harm, a likely win on the merits, that the balance of hardships favors relief, and that an injunction would serve the public interest. Because Stringer sought to change the parties’ current situation by requiring Simon & Schuster to stop distributing the books, the request was for a mandatory injunction, which requires a stronger showing. The court nevertheless concluded that she did not meet even the lower standard applicable to a prohibitory injunction.

Irreparable Harm

The court held that Stringer had not shown likely irreparable harm. Her assertions that alleged trademark infringement caused consumer confusion and irreversible harm to her publishing identity and reputation were conclusory. She did not provide evidence showing how Simon & Schuster harmed her reputation, confused consumers, or caused harm that could not be remedied with money damages. The court also considered her unexplained delay: she sought this emergency relief nearly eight months after starting the lawsuit and after two earlier unsuccessful requests for a temporary restraining order.

Stringer argued that trademark law entitled her to a rebuttable presumption of irreparable harm because she had shown likely success on her trademark claims. The court rejected that argument because she had not shown likely success on those claims.

Likelihood of Success on the Trademark Claims

The court found that Stringer had not sufficiently established a likelihood of success on any federal trademark claim. For an infringement claim involving a registered mark, she needed to show, among other things, that the mark was legally protectable and that Simon & Schuster’s use was likely to confuse consumers about the source or sponsorship of its goods. The court also explained that a willfulness finding requires proof that the defendant knew of the infringement or acted with reckless disregard or willful blindness.

Stringer alleged that she owned a federally registered mark called “Triple Crown Publications.” But the court could not determine from her exhibit that she held a valid registration, and a trademark-status document attached to the complaint stated that the application was dead, abandoned, refused, dismissed, or invalidated because the applicant failed to respond, or responded late, to an office action. The court therefore found that Stringer had not shown a valid certificate of registration. The court also found that her alternative assertions about the mark’s distinctiveness, secondary meaning, and consumer confusion were conclusory and insufficient. Because she had not established trademark infringement, she also had not established willful infringement.

The court did not decide the ultimate merits of Stringer’s contract, copyright, or fraudulent-concealment claims in this order. The court noted that Stringer did not argue that she was likely to succeed on those claims in support of the injunction request.

Request to Seek Discovery or Strike References

The court denied, without prejudice, Stringer’s request for leave to file a third motion to compel production of the Dirty Red contract or to strike references to it. Discovery was stayed pending resolution of Simon & Schuster’s motion to dismiss, and the court had already explained that Stringer’s proposed request did not comply with the court’s individual practice rules. The court also stated that, when deciding the motion to dismiss, it generally would consider the complaint’s factual allegations as true and would consider only certain permitted documents. It therefore found that Stringer had not shown a basis to strike references to the contract.

Other Directions and Disposition

The court directed Stringer to stop submitting repetitive and duplicative filings. It warned that continued duplicative, vexatious, or frivolous filings could result in sanctions, including monetary penalties, loss of filing privileges, or pre-filing restrictions. The court stated that Simon & Schuster’s fully briefed motion to dismiss and other properly filed motions would be decided later.

The court ordered that Stringer’s third motion for a temporary restraining order and preliminary injunction was DENIED without prejudice. It also ordered that Stringer’s pre-motion letter seeking leave to file a motion to compel, or alternatively a motion to strike, was DENIED without prejudice. The court certified that an appeal from this order would not be taken in good faith and denied fee-free appeal status for purposes of an appeal. This order did not resolve Simon & Schuster’s pending motion to dismiss.