Infringing Unicorns and Knock-off Elves in the Covid-19 Public Emergency
There are few light moments during a pandemic, but the Order of the Hon. Steven Seeger, a federal district court judge in Chicago sitting in the United States District Court for the Northern District of Illinois, Eastern Division, issued on March 18, 2020, in an infringement case brought by Art Ask Agency, is scathing. The Order is a biting commentary, penned with deadpan sarcasm, about litigants, such as the plaintiff here, who were clearly oblivious to a “fast-developing public health emergency” in repeatedly demanding that the federal district court hold a hearing to enjoin the sale of “infringing unicorns and knock-off elves”. The Court observed with thinly disguised irony, “These are phone cases featuring elves and unicorns, and a unicorn running below a castle lit by full moon. Meanwhile, the world is in the midst of a global pandemic.”
Only a week prior to the filing of the TRO, the Executive Committee of the Court had issued a General Order that, among other things, held all civil litigation in abeyance. The General Order advised that the Clerk’s Office was operating with limited staff and that the court could still hear emergency motions, but cautioned that resources were stretched and time at a minimum. The client and the law firm clearly believed that their TRO warranted the expenditure of limited judicial resources during the height of a pandemic because they rejected the Court’s reasonable proposal that the matter be adjourned for a few weeks.
Judge Seeger was not persuaded that an emergency hearing was needed to prevent potential counterfeiting of unicorns and elves in light of the present circumstances to which we all are adjusting. “The world is facing a real emergency. The plaintiff is not.”
Judge Seeger writes that the plaintiff’s conduct calls to mind the sage words of Elihu Root penned eighty years ago: “About one-half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” See Hill v. Norfolk and Western Railroad Co., 814 F.2d 1192, 1202 (7th Cir. 1987)(quoting 1 Jessup, Elihu Root 133 (1938)). The moral of this tale is that lawyers need to do a better job policing their clients’ worst instincts. The public relations damage to the plaintiff law firm and the client, which was reasonably foreseeable, may result in their being more irreparably harmed at the end of the day than the unicorns and elves.
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