# Seeking a court ruling that you did no wrong \*before\* the other guy sues you? Huh? **URL:** \ **Category:** Factual Questions\ **Created:** [March 4, 2008, 4:41pm UTC](https://boards.straightdope.com/t/seeking-a-court-ruling-that-you-did-no-wrong-before-the-other-guy-sues-you-huh/440045 "2008-03-04T16:41:30Z")\ **Posts on this page:** 8\ **Page:** 1
**Author:** ![stuyguy](https://avatars.discourse-cdn.com/v4/letter/s/ec9cab/32.png) [@stuyguy](https://boards.straightdope.com/u/stuyguy)\ **Post date:** [March 4, 2008, 4:41pm UTC](https://boards.straightdope.com/t/seeking-a-court-ruling-that-you-did-no-wrong-before-the-other-guy-sues-you-huh/440045/1 "2008-03-04T16:41:30Z")
I was reading a business article from the Jan. 6 New York Times that described an ongoing legal battle between the shoe manufacturers Vans and Skechers. Vans is famous for its black and white checkerboard-pattern slip-ons. Apparently Skechers marketed a similar shoe. Quoting from the article: _" … Anticipating a fight, Skechers beat Vans into court. The company filed suit last March in Federal District Court in Los Angeles, seeking a ruling that its shoe does not infringe the Vans trademark on the pattern. Skechers submitted evidence that a dozen other manufacturers had used the checkerboard pattern. Then, when Vans filed a claim to block Skechers from selling its version, the judge denied the request. Vans is now appealing. … "_ You can do that, that is get a “preemptive” (my term) ruling in your favor before the other guy even takes his shot? Why would the court system even allow such a thing? Shouldn’t the court say something like, “Why are you taking up the court’s time over a dispute that does not, and may never, exist? And besides, if your opponent decides to sue you, we want to hear his side of the story _from him_, not from you.” Can someone explain how this works? Is there some crucial piece of the picture that’s missing from the article? Thanks all, in advance. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 4, 2008, 4:59pm UTC](https://boards.straightdope.com/t/seeking-a-court-ruling-that-you-did-no-wrong-before-the-other-guy-sues-you-huh/440045/2 "2008-03-04T16:59:33Z")
It’s called a declaratory judgment. [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/2nd/959150.html](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/2nd/959150.html) ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [March 4, 2008, 5:00pm UTC](https://boards.straightdope.com/t/seeking-a-court-ruling-that-you-did-no-wrong-before-the-other-guy-sues-you-huh/440045/3 "2008-03-04T17:00:59Z")
It’s a declaratory ruling (a/k/a declaratory judgment), common in patent and intellectual property cases. If it’s truly a case where a dispute does not and may never exist, a declaratory ruling won’t be available; the dispute still has to meet the case or controversy requirement of Article III of the Constitution. Wikipedia has an excellent explanation of the rationale behind declaratory rulings: > [@](#): > > Declaratory judgments are common in patent litigation - as well as in other areas of intellectual property litigation - because declaratory judgments allow an alleged infringer to “clear the air” with regard to a product or service which may be the focal point of a business. Take for example a typical claim of patent infringement. When a patent owner becomes aware of an infringer, the owner can simply wait until he pleases to bring a suit for infringement (EDIT- there is no statute of limitations in patent law. The six years refers to how far back damages are available. Since infringement is a continuing tort, as long as the patent is in force and the defendant is continues to infringe, a patentee may seek up to six years of prior damages.). Meanwhile, the monetary damages continuously accrue - with no effort expended by the patent owner, apart from marking the patent number on products the patent owner sold or licensed. On the other hand, the alleged infringer could do nothing to rectify the situation if no declaratory judgment existed. The alleged infringer would be forced to continue to operate his business with the cloud of a lawsuit over his head. Fortunately, the declaratory judgment procedure allows the alleged infringer to proactively bring suit to resolve the situation and eliminate the cloud of uncertainty looming overhead. [Declaratory Ruling](http://en.wikipedia.org/wiki/Declaratory_judgment) On preview: d’oh! Too slow again! :smack: 😃 ---
**Author:** ![Outpits](https://avatars.discourse-cdn.com/v4/letter/o/4bbf92/32.png) [@Outpits](https://boards.straightdope.com/u/Outpits)\ **Post date:** [March 4, 2008, 5:03pm UTC](https://boards.straightdope.com/t/seeking-a-court-ruling-that-you-did-no-wrong-before-the-other-guy-sues-you-huh/440045/4 "2008-03-04T17:03:01Z")
[QUOTE=stuyguy] I was reading a business article from the Jan. 6 New York Times that described an ongoing legal battle between the shoe manufacturers Vans and Skechers. Vans is famous for its black and white checkerboard-pattern slip-ons. Apparently Skechers marketed a similar shoe. Quoting from the article: _" … Anticipating a fight, Skechers beat Vans into court. The company filed suit last March in Federal District Court in Los Angeles, seeking a ruling that its shoe does not infringe the Vans trademark on the pattern. Skechers submitted evidence that a dozen other manufacturers had used the checkerboard pattern. Then, when Vans filed a claim to block Skechers from selling its version, the judge denied the request. Vans is now appealing. … "_ You can do that, that is get a “preemptive” (my term) ruling in your favor before the other guy even takes his shot? Why would the court system even allow such a thing? Shouldn’t the court say something like, “Why are you taking up the court’s time over a dispute that does not, and may never, exist? And besides, if your opponent decides to sue you, we want to hear his side of the story _from him_, not from you.” Can someone explain how this works? Is there some crucial piece of the picture that’s missing from the article? Thanks all, in advance. [/QUOTE] This is called a declaratory judgment action. More can be read about it in this Wikipedia article [Wikipedia](http://en.wikipedia.org/wiki/Declaratory_judgment) . Declaratory judgment (“DJ”) actions are fairly common in intellectual property cases, as this one appears to be. DJ actions are permitted under federal law [28 USC 2201](http://www4.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00002201----000-.html) and are used to “quiet title”. In order to file a DJ action you must have some reasonable apprehension of litigation, usually in response to a threat of a lawsuit. Edit: Aaargh. Too slow ---
**Author:** ![nd\_n8](https://avatars.discourse-cdn.com/v4/letter/n/439d5e/32.png) [@nd\_n8](https://boards.straightdope.com/u/nd_n8)\ **Post date:** [March 4, 2008, 5:07pm UTC](https://boards.straightdope.com/t/seeking-a-court-ruling-that-you-did-no-wrong-before-the-other-guy-sues-you-huh/440045/5 "2008-03-04T17:07:30Z")
Even after reading the cite I still don’t quite get it. Does this mean I can plan on marketing a “Nathan’s Beef Stick” and file for a declaratory judgment that my name is Nathan and I am selling the Beef Stick and since there is no other “Nathan’s Beef Stick” on the market I can have it ruled in my favor pre-emptive of any legal action by Nathan’s Famous Hot Dogs? Wouldn’t I have to notify the hot dog people as part of the declaratory judgment? Would this still be valid if I intended to use a similar but not identical font and color scheme? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 4, 2008, 5:25pm UTC](https://boards.straightdope.com/t/seeking-a-court-ruling-that-you-did-no-wrong-before-the-other-guy-sues-you-huh/440045/6 "2008-03-04T17:25:55Z")
[QUOTE=nd\_n8] Even after reading the cite I still don’t quite get it. Does this mean I can plan on marketing a “Nathan’s Beef Stick” and file for a declaratory judgment that my name is Nathan and I am selling the Beef Stick and since there is no other “Nathan’s Beef Stick” on the market I can have it ruled in my favor pre-emptive of any legal action by Nathan’s Famous Hot Dogs? [/QUOTE] No. You need to show that the issue is contested in order to satisfy the actual controversy requirement. If Nathan’s had threatened to sue you, you might be able to sue Nathan’s (which is what happened in your example) seeking a ruling that your proposed use didn’t infringe Nathan’s mark. > [@](#): > > Wouldn’t I have to notify the hot dog people as part of the declaratory judgment? Yes. They’d be the opposing party in the case. > [@](#): > > Would this still be valid if I intended to use a similar but not identical font and color scheme? That’s what you’d argue about in the lawsuit. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [March 4, 2008, 6:15pm UTC](https://boards.straightdope.com/t/seeking-a-court-ruling-that-you-did-no-wrong-before-the-other-guy-sues-you-huh/440045/7 "2008-03-04T18:15:49Z")
Gfactor has covered the issue. I’d just like to clarify that declaratory judgments are not limited to intellectual property cases, but, just to emphasize what has been said before, a declatory judgment plaintiff has to show a real likelihood of litigation, most commonly a threat of lawsuit. [QUOTE=nd\_n8] Does this mean I can plan on marketing a “Nathan’s Beef Stick” and file for a declaratory judgment that my name is Nathan and I am selling the Beef Stick and since there is no other “Nathan’s Beef Stick” on the market I can have it ruled in my favor pre-emptive of any legal action by Nathan’s Famous Hot Dogs? [/QUOTE] As Gfactor said, these arguments would be addressed by the court in the action. But, just speaking off the top of my head and assuming you actually made it to court with a valid declaratory judgment action, these are not winning arguments. Nathan’s Famous would likely win and you would have wasted a lot of money. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 4, 2008, 6:27pm UTC](https://boards.straightdope.com/t/seeking-a-court-ruling-that-you-did-no-wrong-before-the-other-guy-sues-you-huh/440045/8 "2008-03-04T18:27:24Z")
[QUOTE=acsenray] I’d just like to clarify that declaratory judgments are not limited to intellectual property cases. [/QUOTE] They are also common in insurance coverage disputes: [http://library.findlaw.com/2000/Aug/1/127287.html](http://library.findlaw.com/2000/Aug/1/127287.html) [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=co&vol=2002app\2430&invol=1](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=co&vol=2002app%5C2430&invol=1)