GORILLA PRODUCTIONS VS. GIRL TROUBLE
The Entire Story
by Bon Von Wheelie
THIS IS THE PAGE GORILLA SUED US OVER - Gorilla Music Battle of the Bands
LAWSUIT PAGE DIRECTORY...
FIRST STRIKE / BOMB DROPS / DREAM TEAM / LOCAL PRESS / PRELIMINARY INJUNCTION / DISMISS & STAY / CURVE-BALL / OHIO PRESS & NEW WEBSITES / GORILLA SPAM / MYSTERIOUS EMAIL / TAYLOR TEXAS / GORILLA TRADEMARK / DECISION
Back to neverpaytoplay.com
January 2015 - Gorilla finally weighs in on the lawsuit. Read about it here.
BEFORE WE START ...
I would like to make everyone aware that "Gorilla Productions" is now doing everything they can to back off from the name "Gorilla Productions" and attach themselves to the name "Gorilla Music". It's still exactly the same company, owned by Dan Cull and John Michalak, putting on exactly the same shows all over the U.S. If I refer to either "Gorilla Productions" or "Gorilla Music" it is the same company.
For almost two years that the lawsuit filed by Gorilla Productions (aka Gorilla Music) has been active, I’ve had to stay silent. I had to be careful not to contact anybody from Ohio. I had to stop adding specific information to this website. While we waited for the judge to rule on this, I was on hold. Finally, I can share this story.
I’m gong to warn you right now. This page is going to get really involved. I’ll be going into excruciating detail posting a ton of paperwork filed on both sides. This is all considered public record and is also available from the Cuyahoga Civil Court. I’m also going to talk about details I couldn’t share while we were still stuck in the courts in Ohio. I’m going to share how I felt and what we went through to fight this.
NOBODY NEEDS TO READ THIS...BUT YOU MIGHT FIND IT INTERESTING
Freedom of speech is also very important to me. I hope it’s important to everybody. Civil discourse is a good thing. Debate is important. Ever watched CSPAN? Now I ask you, why would they teach debate in school if they didn’t want anybody to practice it? I get to have an opinion. Everybody does. And in a democracy we are all allowed to share it. It doesn’t matter if one person agrees with what I’m writing. Not one person needs to agree. But all should agree that I have a right to express it.
Instead of engaging in meaningful argument, instead of stating the other side, instead of a healthy debate, some people feel the best remedy is to simply stop the debate altogether. If they can crush the exchange of ideas or criticism - they win. Many times it works. It’s far easier to threaten a critic than to offer an intelligent argument against them. And the best way to crush an on-line opponent is to threaten to sue them.
I learned that this tactic is called SLAPP (Strategic Lawsuit Against Public Participation). You basically use the court system to bully people into backing down and permanently removing the “offending” (anything you don’t personally agree with) opinion. You don’t have to win. Most plaintiffs don’t expect to. You only have to file the lawsuit to achieve your goal. This is because nobody wants a lawsuit. They are expensive and time consuming and stressful. Most people will immediately fold at the mere mention of a legal procedure.
On the subject of pay-to-play many musicians will put their fists in the air and say “fight the power”. Unfortunately most of those fists come down pretty fast when some promoter or company threatens to sue them for $25,000. This is because lawsuits are fought one way, with money (a normal lawyer fee is $250 per hour). We all know how rich most musicians are. They barely have a few bucks to buy guitar strings or rent practice space. There’s usually not enough money left over in the band fund to hire legal council and fight a lawsuit.
In March 2009, we got our first letter from Gorilla Productions. They actually passed on the niceties and went right for the intimidation. Since I had a few small paragraphs on this company listed on the Girl Trouble band site, a letter was sent to the registered owner of wig-out.com. It was sent directly from a lawyer’s office in Ohio, not through the court. And it was sent by regular mail (not even registered!). They instructed us to take down my opinions of Gorilla Productions and to pop $30,000 in an envelope and send it back to them.
Really Gorilla? You demand?
In June, 2009, neverpaytoplay.com was launched. I worked on developing more up-to-date information about pay-to-play with many links as proof that this info was not a fabrication.
I’ll never forget it. I was lying around in bed watching Monkees re-runs (my idea of a perfect Saturday morning) when Mr. Ed brought me the mail from the Girl Trouble PO Box. He signed for it - four summons to appear in court for a lawsuit in Ohio, filed of course by Gorilla Productions (aka Gorilla Music). One to Bon Von Wheelie, Dale Phillips, KP Kendall, and Wig Out Records. But why not Kahuna? We never did find out. My only thought was that nobody in the Gorilla organization could do a 30 second Google search to find out Kahuna’s real name, or my name for that matter. Being listed as “Bon Von Wheelie” on an official document was strange.
My heart sank. I knew exactly what this meant. I knew that finally things were going to get very serious. I knew it would cost me a ton of money, take many months or even years to deal with, and give me unwanted extra stress. So much for watching The Monkees. This was about to get ugly.
Click the cover page for the link to the original brief that was filed against us. It has been on the NPTP website since it was sent to us (and yes, Gorilla tried to make that another example of our contact to residents of Ohio). If you stick with me you will see that many of Gorilla Production’s grievances against us sort of unraveled as time would drag on. By the time the lawsuit was dismissed (spoiler alert), we had evidence against many of these ridiculous claims.
CALLING THE BAND: HEY GUYS, YOU’RE BEING SUED
We believe there were a couple of reasons Gorilla Music decided to sue the entire band and not just me.
Also notice throughout these proceedings the attempt to continually confuse neverpaytoplay.com with wig-out.com. That is not a coincidence. It was important to mix the two websites in order to keep the band involved.
To which K.P. Kendall exclaimed, “You mean we get a legacy!? Right on!” (BTW If I ever get in a fight, please don't send "Trigly" as my backup!)
So why didn’t we just fold the website and comply with Gorilla's demands? I don’t think it would have been that simple. Besides taking down NPTP forever, I probably would have had to pay them some money (which happened to Gorilla Liz when she didn't have the resources to fight her lawsuit - Cuyahoga County Civil Court - Case #CV 09 706282) and admit that I was wrong. That would have killed me.
I knew what would happen if I fought this, but I had to think about how I’d feel if I just gave up. I’ve learned that it’s pretty easy to say you’ll take a stand but in reality it involves sacrifice. All the lip service in the world means absolutely nothing unless you back it up with action when the time comes. I couldn’t be a hypocrite. I wouldn’t have been able to look at myself in the mirror if I’d just caved in to their bullying. I’d always said freedom of speech was important. Now I’d have to prove it.
WADE NEAL: We’ve known Wade Neal for years. We knew him when he was “that kid in Seaweed”. We played with Seaweed at the Capital Theater at the Yo-Yo a Go Go in Olympia. We were on the Sub-Pop record label together. Seaweed was a Tacoma band that actually made it to a major label. After Seaweed, Wade stayed a Tacoma guy and we’d hang out with him at parties. Who would have thought that “kid” we knew was now a local attorney? By a stroke of luck, that’s what happened. While telling a friend about our lawsuit, he said “Wade’s a lawyer. You should ask him.” I couldn’t believe it. So after contacting Wade, Dale and I went to his law office to figure out a game plan. Wade agreed to represent us and started schooling us on SLAPP. He said that what Gorilla was filing was fairly typical with the twist of trying to force us to come to Ohio for a lawsuit. Wade thought the best course of action would be to get the case dismissed for lack of jurisdiction. In other words, Girl Trouble didn’t have enough contact with the citizens of Ohio to be hauled out there for a trial. That would be our defense.
We can’t stress enough how important Wade Neal was to this lawsuit. He is not only an awesome musician (and certainly knows the ropes of the music industry) but is a competent, professional lawyer. He had great knowledge of all the ins and outs of the law and helped smooth out those rough times when I was about ready to lose it. We couldn’t have done this without him.
If you need a really good attorney in Washington State (and we absolutely recommend this for any musician who is about to sign anything!), this is the guy you need to contact. On these pages you will see some of the well-written legal briefs that Wade composed. We were always impressed with his skills.
SUZANNE BRETZ-BLUM: Our only problem was that Wade was not licensed to practice law in the state of Ohio. Therefore we needed to find an Ohio attorney. Wade did a lot of research to find just the right person for our lawsuit. We needed someone who was knowledgable and professional, with a down to earth approach to legal matters like this. We found Suzanne Bretz-Blum of Thacker-Martinsek from Cleveland Ohio would fit the bill perfectly. While Wade did the “heavy lifting” in researching the cases cited by the plaintiffs, dealing with us directly and writing volumes in response to Gorilla’s claims against us, Suzanne would know how to file the final paperwork the way Ohio courts want it. Suzanne was an invaluable source of knowledge when it came to what I like to call “Ohio’s slowest working legal system ever.” Suzanne was also our representative with the Gorilla lawyers through phone calls and emails. Wade and Suzanne were an excellent team. They were on the same page in almost every instance, and could rationally decide on a course of action when things got crazy. It was a pleasure watching them work. We knew we were in good hands every step of the way.
CASES YOU WILL SEE MORE THAN ONCE
In these legal briefs you will notice both sides citing different cases that proves their point. Gorilla’s lawyer, Jessica Dillon, refers to different cases to prove that Girl Trouble had enough connection to the “forum state” (that’s Ohio) to be forced to come for a trial. Of course Attorney Dillon’s main evidence, “that we’d played shows in Cleveland and Cincinnati to hundreds and thousands of Ohio residents” and obviously sold many more CDs and T-shirts, didn’t really pan out like they’d hoped. I personally couldn’t understand how they knew we’d even played in Cleveland and Cincinnati, since those shows were crappy enough not to ever mention again.
Simple contact wouldn’t be enough to prove their case so Gorilla started adding other “similar” (but upon further study, not really) cases. The Kauffman case is one you’ll see a lot. You’ll also notice the Zippo case. I’ll link for those of you who are law freaks.
THE ONE THING THAT BUGS ME THE MOST
I just need to quickly mention this one aspect of all the charges against me: That I stated that kids drink beer at Gorilla events. There is no way in the world I would stoop to making something like that up. No minors drink alcohol at Gorilla Music events. Each club Gorilla rents is responsible for their state liquor laws. While I hate the fact they are allowing pay-to-play shows in their venue, I am confident that each club follows their laws to the letter. We've played in enough clubs all over the U.S. to know that the fastest way to get your club shut down is to ignore the liquor laws. Club owners are well aware of it too and would never jeapordize their investment by allowing something so stupid to occur. And I would never make up something like this. It isn't true and I never list untruths. I take special care not to resort to fabrication when I'm writing about these companies. Everything else Gorilla attempts to pin on me is frivoilous. This one I take issue with.
Here's the charge which was stated over and over:
And here's what I really said:
Of course, anyone who can read would see that these two ideas are not the same. And yes, I made the "drink up kids!" crack, which referred to a beer corporation having what I consider an inappropriate presence at an all-ages show. I still stand by that. I think beer companies should sponsor shows with adults, not kids. I feel the same way about tobacco corporations. I was disappointed that Gorilla could twist my words this radically and list it on their charges. I can fight the truth. Fighting lies is tougher.
Around here this lawsuit was news. A local band being sued by a national company just for writing about them on a website hit home for many people. What musician hasn’t complained about promoters, clubs, shows or even other bands? The public took notice.
Our local music papers had it covered. The Weekly Volcano ran a big feature by Matt Driscoll ("Girl Trouble Goes to Court" 4-21-2010). This included quotes from the Vice President of Gorilla Productions (Gorilla Music), John Michalak, which has been a source of laughter: “we find it very sad that a virtually unknown rock band would resort to these kinds of tactics in order to draw attention to themselves.” The joke in this statement was that it wasn’t our website that caused the attention, it was the fact that Gorilla sued us. That’s what people were talking about and papers were writing about. Attention would not have been drawn to us if Gorilla Music had just left us alone. And of course, if we are so damn unknown (and we’ll grant him that) why the hell would Gorilla care about what I said? Michalak should have taken the high road like Afton and just told everybody how crazy I was. I’m good with that. But Gorilla is famous for wanting it both ways.
Our real city paper, The Tacoma News Tribune, did a feature on our ordeal that same weekend as the Volcano ("Music band Girl Trouble Hit With Lawsuit by Production Company" 4-23-2010). Ernest Jasmin wrote a great article about the entire lawsuit, and even featured me talking about it on his blog.
The Stranger Line-Out ("Girl Trouble Gets Hit by Lawsuit Over Anti-Pay-To-Play Website" 4-28-2010) and the Tacoma City Arts magazine (Girl Attacks Gorilla / Search and Destroy - 6-1-2010) also covered it.
Some of the best "press" we got wasn't even written. It was an awesome cartoon by local artist R.R. Anderson featured on the Feed Tacoma website. His political style "Tacomic" cartoons are always amazing, sometimes controversial, and usually right on the money! We were thrilled to get this special treatment from a very talented guy. And yes, that is us in our younger days, but we certainly felt like that giant "Donkey Kong" ape was trying to crush us nontheless.
MOTION FOR A PRELIMINARY INJUNCTION (5-26-2010) SEE THE ENTIRE BRIEF
When the brief starts off with “Now come plaintiffs...” you know extra problems are headed your way. This next round of arguments against us was very bizarre. In an attempt to further connect us to Ohio, Gorilla Productions started listing every piece of hate mail they’d received from musicians who were obviously fed up. The weird part was that Jessica Dillon was now claiming that they were all written by me as a way to specifically and purposely harass the Gorilla staff. FYI: It's my policy never to contact P2P owners/reps, unless they contact me first. They also claimed that I made fake Gorilla myspace sites in order to contact bands and interfere with their business. It was obvious to us that musicians were just getting annoyed with Gorilla’s constant contact and decided to screw with them. Even Gorilla Liz in her blog “10 Reasons I Left Gorilla Productions” claimed “f*ck u, I hope you all die, is only funny the first 1000 times”. In other words, Gorilla reps have been dealing with pissed-off musicians at least before September 2009 when Liz worked there. Additionally there had already been plenty of press about a national company suing a rock band. It wasn’t hard to find. People were bugged about it. Anyone who’s ever read my writing would instantly know I would never dream of using so much unnecessary profanity, incomplete sentences and bad “hip” grammar. Believe me, I know the difference between “there,” “their,” and “they’re.” And excuse my crudeness but making fun of Gorilla Alan’s lack of cock wouldn’t even cross my mind.
But the most insane claim of all was that I’d concocted an entire band in order to threaten Gorilla. While on one hand Gorilla gave me no credit at all to send childish, vulgar, threatening emails, on the other hand they were claiming I had enough skill to create an entire band (Lackluster) with fantastic music and actual shows! All this trouble to send them one critical email? Unfortunately, even though the charges against you are entirely fabricated, and even laughable, you still have to address them. We did. More money and time wasted, which of course is all part of the game plan with SLAPP.
They also had to amend the lawsuit to include these new emails that I supposedly had written to harm their business. One good thing did come out of this. I found out Lackluster is a really good band. Here Jonathan from Lackluster wrote an awesome blog on the entire experience. Go "like" them on Facebook.
FYI: Gorilla attempted to subpoena the Myspace records to find out who had written those emails. We never did find out.
This was our big argument and you can see that Wade hit every point. As things kept developing, he had to keep changing and re-working our main defense. Wade worked overtime with many rough drafts before he submitted our “motion to dismiss” and "motion to stay" the lawsuit brought against us. I'm no lawyer but I think basically we needed two main briefs to argue their charges. First we issued "A Motion to Dissmiss for Lack of Jurisdiction". We felt that we did not have enough contact in Ohio to be brought there for a juried trial. This was our main argument. But at the same time you also need to ask for a "stay" while the judge is deciding on your motion. This means that the trial can't proceed until the judge makes her ruling on whether one state has jurisdiction over residents in another state. Also included will be my affidavit.
It’s easy to see how skilled Wade is at writing this stuff. If you've never written much, let me assure you that this is a huge amount of work. Suzanne checked all out, submitted everything and signed off on it.
I’m also including some of the exhibits that were filed along with the Motion to Dismiss. There were many pages of our website but a few extra exhibits, including the Lackluster Myspace, Gorilla Music Battle/Showcase instructions and tips, plus the blog "Top Ten Reasons I Left Gorilla Productions" by Gorilla Liz. Again, these are all available from the Cuyahoga County Civil Court.
The judge granted our stay. Neverpaytoplay.com could remain on-line.
GORILLA FIRES A RESPONSE - WE FIRE ONE BACK
THE KAUFFMAN CASE VERDICT (6-10-2010)
CURVE-BALL! - A SUR-REPLY and DAN JANSSEN (2/20 PRODUCTIONS) GETS INTO THE ACT (6-25-2010)
Since the Kauffman case was ruled on, and Gorilla didn't get to address that fact, the judge granted them another chance. They were allowed to file a sur-reply which was supposed to talk about why the Kauffman case mattered and proved their argument. Instead they added something new...
Oh Oh. There's that phrase again! “Now come Plaintiffs...” Like I say, those words can only mean trouble. The next round of paperwork filed by Jessica Dillon and Gorilla brought in a new company to help sue us. Apparently, Dan Janssen (aka Dan Janssen Productions, 2/20 Productions, Slave to the Metal Festival, Get Your Rock On Festival (also this), Exposed Music Festival, Blueprint Artist Development ) was also suddenly getting headaches and nightmares from my criticism of his festivals/showcases. It now read "plaintiffs", plural .
Of course the most important fact was that Dan was also located in Ohio. Attorney Dillon was trying her best to find any promoter in Ohio who would throw in against us. It was turning into a pay-to-play dog pile and I was at the bottom.
I don't want to give the impression that I was a rock through this entire process. This was one of my huge low points and I'm sure everybody at Gorilla Music and 2/20 Productions will be delighted to know that I spent a lot of time crying over this. When you are writing $2,000 checks to lawyers (and don't get me wrong they EARN it) and watching your meager savings dwindle to practically nothing, it starts to wear you down. But, of course, that's the whole idea. If my funds completely dried up I was prepared to borrow money from family and other band members, who all offered to help. I hoped it would not get to that point and thankfully it never did. But it was at this point I was definitely the one who suffered "headaches, nightmares and a lessening of activities of daily living due to depression and anxiety."
Now I’ve already had a history with Dan Janssen. He is one of those “helpful” promoters who emailed to tell me I was right about other pay-to-play companies, but not his. When I wouldn’t agree that what he was doing was just like all the others, his tone changed. He told me he felt sorry for me because I must have been hurt “back in the day,” apparently when my career didn’t take off! He reasoned that I was just lashing out at the music business. You can see how these guys work their psychological intimidation. Luckily I’m an old broad and that tactic isn’t going to work. Also notice in this email he doesn't mention defamation. At this point, Dan's biggest gripe is that I'm sending out negative vibes! "Like wow dude..."
The charges filed by Attorney Dillon were almost laughable. Okay, not “almost” because we actually all had a good laugh over them. Dan Janssen was really mad that I’d called him out on his lack of attention to detail.
I will admit at this point I was fairly upset. I’d have to spend more money and time to answer even more stupid charges against me. But that’s how lawsuits work. Plaintiffs can keep making charges to see what will stick, and you have to keep answering, no matter how ridiculous.
NOW COMES THE WAITING - JULY, AUG, SEPT, OCT, NOV
The Ohio Court system is unbelievably slow. For some reason this case was even slower than usual. We in Washington State are not used to a question of jurisdiction taking so long to decide. We had to be incredibly patient and wait to see if Gorilla Music would think up some more charges aganist us. It was truly a monkey on our backs.
While we were waiting, some interesting things happened. The most interesting press of all happened right in Gorilla’s hometown. Their local music paper, The Cleveland Scene, featured a huge article (with impressive cover art) on Gorilla Productions called "Monkey Business". It was very well written and researched by D.X. Ferris. To my mind, Gorilla didn’t exactly come out smelling like a rose. It talked about all the lawsuits Gorilla had filed: Gorilla Liz, the former rep who dared to criticize their business operations, Nicholas Megalis, one of their acts who was sued over a contract dispute, and of course, "that virtually unknown band from Tacoma". In an attempt to dilute the tone of the article, Gorilla Music made a huge effort to post positive comments on the Cleveland Scene website. One guy later stated that the most of the comments were coming from the same IP.
GORILLA & SCAM: Even more fascinating was Gorilla's purchase of domain names that featured the words “Gorilla” and “Scam”. Suddenly gorillamusicscam.com, gorillaproductionsscam.com, gorillascam.com and gorillascam.net appeared around the same time as the sketchy press they were getting. They were all registered to Dan Cull, President of Gorilla Productions and purchased July 23, 2010 (five days before the Cleveland Scene article hit the street).
You can see some of the websites that were started. They all featured articles about how Gorilla wasn’t pay-to-play or a scam.
One of the key arguments that Gorilla Music was making against us involved my claim that Gorilla sends spam emails to any random band with a Myspace account. How could they claim otherwise? Our band and every band we’ve ever talked to had received more than one unsolicited request to play their battles. It was absurd. Gorilla also listed my little crack about how they didn’t pay attention to detail as further proof of defamation. In the briefs we filed, Wade specifically listed all of the Gorilla Myspace sites (75 of them!) to illustrate that these accounts were used to send spam emails.
After six full months of arguing back and forth, after Gorilla had made such an effort to sue us because I had dared to say they send spam emails to bands, we got the ultimate proof. On September 29th, 2010, Girl Trouble received a Myspace email from Gorilla Kevin inviting us to play a Gorilla Music Battle of the Bands at Studio Seven in Seattle. I just about crapped my pants! So let me get this straight: Gorilla sues us for defamation because I made a claim they send spam emails...and then they send us a spam email? They couldn’t even manage to filter out the one band in the entire U.S. they were suing. Girl Trouble wasn’t the only band who got one. We heard from other local bands who’d gotten the same damn email for those two dates at Studio Seven.
I immediately made a screen shot of our battle of the bands invitation. Good thing I took quick action. Gorilla Kevin’s entire “Gorilla Seattle” site was removed within 24 hours. When you delete a site on Myspace, all emails that you’ve sent disappear with it. Somebody at Gorilla HQ must have finally figured out they’d sent spam email to the band they were suing. They attempted to remove all evidence of it. Nice try, but not quick enough. Our pal Justin from the cool Tacoma band Big Wheel Stunt Show also got one about a half hour earlier and forwarded it to me. Our email had disappeared but not Justin's. Forwarded myspace email still shows up with the familar "Deleted/X" default photo.
Needless to say we did not play the Gorilla Battle of the Bands on October 24th or November 21st. Wade instructed me to save it all in case we got stuck in Ohio court. I found it personally frustrating that I couldn’t email friends in Ohio (because it might cause more contact to the forum state) and yet Gorilla Productions had no problem emailing my band here in Washington State. That's how SLAPP works.
THE MYSTERIOUS EMAILS (10-27-2010) Read the story first and then see...
(See what I mean about the titles on those things?)
Jessica Dillon was the attorney for Gorilla Productions. In addition to handling the case against us, she also represented Gorilla when they sued a former artist, Nicholas Megalis over a contract dispute (CV 10-715531 - filed 1/14/2010). Attorney Dillon filed all the legal briefs against us. We never actually had personal contact with her. That’s the beauty of hiring legal counsel. Once you hire a lawyer they do all the talkin’. You never have to talk to the plaintiff or their attorney, until there’s something official, like a deposition. That’s actually a good thing.
So it was very strange when I suddenly started getting phish-type emails from Jessica Dillon in my hotmail inbox. Obviously she was not really sending me personal emails inviting me to buy cheap medication and knock-off products. Her email must have been compromised since I was in a list with her other contacts.
But why was I on that list? She’d never written to me and I’d certainly never dream of contacting her. It is my understanding that emails like this are normally received after you’ve had contact with that address (since my email was in a list of about 10 others). Even though I kept receiving these emails, I chalked it up to a random fluke. That is until one day in October 2010 when I was digging around in my hotmail inbox researching a misplaced email. There in the huge list of my undeleted emails I suddenly saw that familiar Jessica Dillon email address. I knew it well. It was the one we kept seeing during much of the official correspondence.
From email@example.com with the subject line:
I love Girl Trouble
I couldn’t believe it! Actually I was in shock. What had she written? Worse yet, what was my reply? A few weeks before Gorilla filed the lawsuit against us Jessica Dillon (as “Chewie aka Matt”) wrote me this email:
Well, at least our little mystery on how Gorilla knew we’d played in Cleveland and Cincinnati was solved. Jeez...I told them. I felt like an idiot. K.P. Kendall always laughs at that first email. After one sentence she immediately starts asking all about Ohio. If I’d only known! Jessica Dillon...er, I mean "Chewie" follows up with a more pointed email from a different email address, even making up a fake band and asking my opinion of pay-to-play and Gorilla Productions in particular. Man, could that have been used against us!
Thank goodness my usual conservative reply did not give them more ammunition to use. And stop offering her a free button, you moron! "Chewie" doesn't want one of your dumb buttons!
We thought this turn of events was enough to file some more paperwork. Our point was that if Jessica Dillon needed to send email to find out our connection to Ohio, they must not have had much evidence of it in the first place. Their reply was she was "simply" asking me a few questions (even though she used a ficticious name to do it). It never amounted to much other than now I’m skeptical of all our “fan mail”. I’m pretty guarded until I thoroughly check it out. You never know when one of your “fans” might be a lawyer about to sue you. Thanks, Jessica, for helping me to be suspicious.
THE TAYLOR TEXAS STORY
Then there was Taylor Texas. Taylor and his band The Relapsed from Brunswick Ohio (The Relapsed outside the Gorilla Music show) had a really bad experience with Gorilla doing a pay-to-play CD release for the Ohio band Karen Page (formerly on Rotten Records, and now broken up). In fact, it was so bad that Taylor claims a Gorilla Rep threatened him. He wanted to warn other bands about his experience so he wrote about it on the Cleveland Hardcore forum.
So after the Gorilla show Taylor posted this:
Taylor’s real name, address and phone number (obviously obtained from the Gorilla Battle of the Bands registration that Taylor first described) was listed. I will block it from the "Plaintiff’s Motion To Introduce New Evidence Regarding Jurisdiction”. I feel this is something for bands participating Gorilla shows to consider: The contact information you provide for your Gorilla event could be listed in a lawsuit!
It took the Cleveland Hardcore forum a few months of getting legal threats before they finally gave up. This post is a good example of the way Gorilla handles their critics and apparently in most cases, it works.
After talking it over between Wade and Suzanne, we decided to hold off on spending any more time answering this one. We'd stated our case. We were going to let this one ride.
MORE WAITING - 2011 - JANUARY, FEBRUARY, MARCH
After the Taylor Texas "New Evidence" was posted there was nothing more we could do. We just had to sit and wait to see if the judge would rule on our case.
Today is May 15, 2012. It is important for me to list this date. That is because once I make this information public, it will probably change. When Gorilla discovers the facts I’m listing, they will no doubt work on this problem. And I think it is a problem. But please note that from January 7, 2011 to May 15, 2012 (today’s date) this information never changed.
One of the biggest charges against me was trademark infringement. I discovered that trademark infringement is often one of the grievances listed in SLAPP type lawsuits. Yes, I used a small screen shot of the Gorilla logo when I showed the massive schedule of Gorilla events. I also used it when showing the map of cities as I made that nightmare inducing crack about the “giant Gorilla head that was taking over”. I believe this small noncommercial use of the trademark falls under “fair use”.
Nevertheless, Gorilla was stating that their registered trademark (#77953048) was being displayed illegally. I thought it was interesting to note that their precious trademark was registered only one day before they filed the lawsuit in the Ohio Civil Court (3/8/2010). What a coincidence! When I displayed the gorilla head logo, it hadn’t been registered. But the real story happened months later.
After a year of waiting around I decided to check on the status of the Gorilla Trademark. It was now listed as: ABANDONED! On one website it even suggests you can buy “dead” logos, like the Gorilla Trademark, from them. So again, let me get this straight: While I am being sued for showing a very small image of their trademark, they can’t get it together enough to proceed with the required paperwork?
Here's all the Gorilla Trademark scoop on the Trademarkia.com page.
Another data base website for Trademarks is trademarks.justia.com.
But this is the real deal. This is what is listed on the official United States Patent and Trademark Office website.
The United States Patent and Trademark Office clearly lists all the contact between their office and Gorilla legal rep Jessica Dillon. The USPTO sent Ms. Dillon a follow-up list of items that would need to be addressed before they could continue to register the trademark. If Gorilla did not respond within a six month period, the trademark would be considered abandoned by the USPTO. On 2/28/11 the letter of information sent to Jessica Dillon was returned by the post office marked “moved, left no address, unable to forward.”
Since that was the official address and there was no further contact from Gorilla’s legal representative, the Gorilla Productions trademark is now listed as “abandoned”, as of today May 15, 2012.
So much for their outrage at my careless and "illegal display" of their important registered trademark. Nice one.
A NEW LAWYER ON THE SCENE AND A T.R.O. AT THE READY
For whatever reason, on 4/25/11 Gorilla Productions got new legal representation, Daniel Thiel. Dan Thiel had previously worked for Gorilla when he filed the lawsuit against Gorilla Liz (Cuyahoga County Civil Court case CV-09-706282) for her blog “Top 10 Reasons I Left Gorilla Productions.” Attorney Thiel’s move was first to file "Addition Case Law Binding by Ohio Supreme Court Authority Apllicable To The Instant Case." I'm going to spare you this one. It's 24 pages of legal stuff all about the Kauffman Racing Lawsuit again. It's just churning up all the stuff that had previously been discussed. We'd already been through it over and over. I guess Dan Thiel thought he'd start up the process all over again in an attempt to get the judge in gear to finally make a ruling. Below is his conclusion and that about sums up the entire 24 pages.
And of course the other important question: What the hell happened to Dan Janssen and 2/20 Productions? He and his company simply isn't mentioned by name in all the documents that Dan Thiel presented. We never did find out about that either. We're back to "two Ohio residents" which is John Michalak and Dan Cull, the owners of Gorilla Music.
Later Attorney Thiel filed a preliminary injunction and a proposed temporary restraining order against neverpaytoplay.com. If the judge agreed, I would have to take the entire website down for 14 days while they argued some more about it. Our position was that the judge had granted us a stay and we were already waiting on the jurisdiction issue so that should be decided first. Dan Thiel wanted Suzanne to appear in court for the TRO hearing. That would have cost me some extra dough! Suzanne declined since our position was that the ruling on jurisdiction must come before this hearing.
And yes, I’m thinking of Dr. Evil.
One million dollars!? That amount from a few sarcastic comments on my tiny website? Wow! Every time I thought this case couldn’t get any more bizarre, it did. And even more interesting was the statement that this damage was half their business! In other words Gorilla Productions is a two million dollar company. Keep this in mind next time one of their reps (like Michael Patrick) tells you that poor Gorilla Music doesn’t make that much from bands selling tickets. If they were being truthful in this brief, apparently they make millions!
It is also interesting to note that they didn’t just want the material concerning Gorilla Productions removed, they wanted the entire website shut down. They basically didn’t want me to ever mention pay-to-play again in any form. It is my personal belief that this was their goal the entire time.
Wade and Suzanne prepared a short one page document saying that we wouldn't respond until the jurisdiction question was settled. Then, more waiting. I was getting sort of used to it by now.
STILL MORE WAITING - JULY, AUGUST, SEPTEMBER, OCTOBER, NOVEMBER
Even though Gorilla got a new lawyer and he'd submitted all kinds of paperwork, the court didn't seem like it was ever going to budge. We almost started to forget about it.
Wade called. After all this time, my usual response to a call from Wade was, “Is it bad?”
The monkey was finally off our backs. It was a feeling of relief, but also pride, that with Wade and Suzanne (and all our supporters) we’d stuck together and didn’t back down.
As with every step of this process we took the cautious route. Gorilla Productions had 30 days to appeal this ruling and believe me, trying to second guess that bunch is impossible. Instead of shouting it from the mountain top, which was my first inclination, we decided to wait the extra month. We’d waited one year and nine months, 30 days didn’t seem like much more. As the days passed, it appeared less likely that Gorilla would file that appeal.
Finally enough time had gone by. Wade and Suzanne both sent their congratulations and agreed we could announce the good news. It didn’t take long for all our many friends and supporters to weigh in on our situation. We were thrilled. It was certainly an intense experience but the outcome was worth it. We stood up to this intimidation and the ruling was in our favor.
Our friends at the Weekly Volcano, who'd stuck with us that entire time, did a cover story all about it called "The Final Chapter". It was written by Matt Driscoll and I particularly thought the cover photo was really a good one.
So here’s a few last points:
We didn’t just fight this for us. We fought this for every musician who has criticism and concerns about a promotion company and wants to share it. There is nothing wrong with critiquing a company, club or promoter. As long as you are certain of your facts, in this country you are allowed to have an opinion. This is our right to free speech!
The main question I’ve gotten through this entire experience:
So...Was it worth it?
THANK YOU FOR YOUR SUPPORT!
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