|
 |
Monster Cable Correspondence
The Story:
It's been years since our Monster Cable experience now, and it's still something that customers bring up at trade shows, visits and the like. I (this is Kurt writing) was an attorney specializing in litigation of civil rights and municipal liability disputes prior to my entry into the cable business, and had spent plenty of time in the federal court system; but the lawyers at Monster Cable didn't know this, and there begins the tale.
Monster Cable, then a much more significant presence in consumer electronics than it now is, had a reputation for making frivolous intellectual property claims. Most of these centered around the Monster Cable trademark -- the company would make claims of infringement against people who, in many cases, had only used the word "Monster" in its ordinary, literal sense. By 2008 this abusive practice (which wouldn't reach its fullest expression until a couple of years later, when Monster Cable sued Monster Mini Golf) was already pretty well known to the public, and it was against that background that April Fools' Day rolled around that year.
We had recently begun selling, as a sideline, some low-cost cable assemblies made in China -- this was our "Tartan Cable" branded line, most of which, apart from HDMI cable, now is discontinued. These cables used very ordinary RCA plugs -- nothing distinctive or unusual in the slightest.
On April 1, surely not the most auspicious day for litigation threats, I received a letter, accompanied by some trademark and design patent papers, demanding that we cease selling these Tartan Cable products. There have been numerous times, since my exit from the practice of law and entry into the cable business, when I've been glad that I have a legal background, and this certainly was one of those; it meant that the inevitable surge in adrenalin manifested itself through careful legal review rather than through the intended panic. Although my own practice was not principally in IP, I had some experience with it, and an old friend and roommate was a distinguished practicing IP lawyer, so I was ready to evaluate this thing. If Monster were right, I'd have had to shrug my shoulders, pull the product from sale, and hunker down in case of litigation. But if they were wrong, of course, I would know what to do.
Review of the design patents and trademarks revealed that Monster's claim was entirely frivolous: completely asinine, in fact. None of the designs they referenced matched the connectors in question, and some were very different from them. What's more, the connectors in question were closer to a design in an expired design patent (the existence of which Monster had not disclosed) than to any of the designs they referenced. The importance of that can't be overstated. Each design patent must be distinct from the others, or the design isn't novel and patentable. And when a novel, patentable design's patent expires, that design becomes part of what we call the "prior art" -- unpatentable thereafter because it is no longer novel. So, there was no possible way for a single connector backshell design to violate more than one of these patents, and there was no way to conclude, if one were trying to match the design to Monster patents, that it was closer to any of those others than to the expired patent.
As an ex-lawyer, this sort of thing didn't please me much to see. People get bullied by companies like this. They lack the ability to seriously scrutinize the claims made, and they lack, in most cases, the resources to put up a fight if the case goes to litigation. Patent trolls are the scum of the IP world, and they hardly ever get the comeuppance they deserve. It would have been easy enough to write back and say that I don't think there's any infringement, and not say much more.
But I went to Penn, in Philadelphia, and I was, literally, a Philadelphia lawyer, having practiced there for seven years after law school. It is fair to say, judging from my later experience in the Seattle legal community, that Philadelphia is not as gentle a place to practice as some people are accustomed to. We took our litigation seriously and when the occasion called for it, we were hard-charging and pugnacious. And we knew how to write a letter, and that's what I did.
Now, this might all have been kept private. But I'd mentioned publicly that Monster had sent us this letter, and the word had gotten out. Most people didn't know my background, and the things people said -- well, I found them saddening. People assumed that we couldn't put up a fight, and even that this might be the end of us. They believed that where Monster is concerned, the bully always wins. It seemed to me that this situation needed correcting.
I sent the letter to Monster's counsel, and then I sent a copy on to Audioholics, who published it. I'd thought to brighten the mood of the thing a bit, and let people know that the ending they might be expecting would not be the ending of this story. What happened next shocked me.
The letter was a sensation at Audioholics. It next found its way to various outlets -- Reddit, Gizmodo, and others -- and became a truly viral phenomenon. Warhol said that in the future, we'd all be famous for fifteen minutes -- clearly, my fifteen had arrived. The traffic to our website, for the next few days, was heavier than our server could keep up with, to the point that people had trouble ordering anything. And I found out that there were a lot of people who were tired of seeing bullies win.
So, How'd it Turn Out?
Monster's counsel had made a horrible mistake, and probably caused lasting harm to the company, by sending me that ridiculous letter. But he, and Monster, did apparently know the first rule of holes: "If you find yourself in a hole, stop digging." The end, therefore, of the story was a bit anticlimactic. Knowing that I was able to defend myself and knowing that they'd probably be sanctioned for frivolous conduct if they sued me, Monster fell silent. Not a peep was heard again.
When I was a teen, I wanted to be a famous writer. I wanted to write the great American novel, or some such thing. That, I learned, was not my particular skillset. But I would have been pleased then to know that I'd manage to write a six-page letter that would become as famous as this one has.
Here, in Adobe .pdf form, are copies of all of the correspondence:
Initial Letter from Monster Cable, 3/28/08 (without exhibits)