In the case of GoPro v. 360Heros, GoPro recently moved for summary judgment against the defendant for using their photographs and trademarks in connection with 360Heros’ competing project — one that utilizes GoPro’s technology.
The court denied the motion for summary judgment stating that there were too many issues of material fact to determine the case — but entertained the motion for sanctions. It seems that 360Heros, or one of its principals, took a Skype conversation and edited it to insert an exchange about GoPro’s registered trademark, ABYSS — trying to demonstrate, “See, I had permission to use that trademark.” The fraud was determined by a forensic analysis of the transcript because the audio was reportedly “lost” (à la United States President Nixon).
The court agreed this was sanctionable conduct. The bad news for GoPro (for now) is that the court declined to adversely presume that the facts were the opposite of what defendant had tried to prove with its fabricated evidence (effectively, to dismiss defendant’s answer to the complaint and grant GoPro a favorable verdict without a trial). Rather, the only sanction the court imposed was to award GoPro the costs of its forensic expert.
Ultimately, the court then went on to deny the motion of summary judgment, saying there were issues left to be determined by a jury. So, the sanctions award was a pyrrhic victory for GoPro.
I’m betting that if GoPro is eventually victorious, the court is going to weigh this misconduct when determining whether to award attorney’s fees and punitive damages. Bad conduct adds up and can tip the scales of a judge who is deciding discretionary things like punitive damages, attorneys’ fees, and the like.
In a trademark context, attorney’s fees are awarded for “exceptional circumstances.” Someone falsifying evidence is pretty exceptional. It comes back to what a mentor told me years ago:
“I’m your lawyer, not your spiritual advisor, so I’m not going to tell you not to lie because it’s the morally wrong thing to do. Although, it is morally wrong. I’m going to tell you don’t lie because when you’re caught, and you’re almost always going to get caught, the consequences are worse than if you just owned up to the bad facts.”
The moral here is that when people are litigating, they’re scared of what they think what might result from prior misdeeds – or simply mistakes. As a result, they may do underhanded things, trying to circumvent the consequences of their actions. And people get caught. And when they do, the consequences are often worse than if the facts were addressed, or at least set up accurately, from the outset.
In this particular case, time, the judge, and the jury, will tell.
