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Friday, August 05, 2005

Dismissal of musician's lawsuit upheld

Dismissal of musician's lawsuit upheldDismissal of musician's lawsuit upheld

By MATT WICKENHEISER, Portland Press Herald Writer

A federal appeals court has upheld the dismissal of a Yarmouth jazz musician's lawsuit against a Japanese girls' clothing company that he claimed stole his name.

Grammy-winning artist Cecil McBee's attorney said the musician was considering his options, including an appeal to the U.S. Supreme Court.

In a Tuesday filing, the U.S. Court of Appeals for the First Circuit agreed with the finding made last fall by U.S. District Court Judge Gene Carter that the U.S. courts had no jurisdiction over the case under federal law.

"The Court of Appeals adopted an easily applied standard for future abusers (including Delica, our opponent in this case) to enable U.S. Courts to step in where a foreign company's actions have an impact in the United States. We think that is a victory for U.S. consumers and intellectual property owners, and believe the standard supports liability against Delica for their past actions," said PretiFlaherty attorney Alfred C. Frawley III in a written statement.

"Unfortunately, the Court of Appeals disagreed that the past actions of Delica had met that standard. Mr. McBee is contemplating his future options, including seeking a review by the U.S. Supreme Court of his case."

Todd Holbrook, a local attorney who represents the Japanese company Delica Inc., which owns the Cecil McBee chain of stores, said he thought the case had a "slightly higher chance than the run-of-the-mill case" to attract the Supreme Court's attention, but that the end determination regarding jurisdiction would still be the same.

"I think it's the right decision," said Holbrook, of the Portland law firm Bernstein, Shur, Sawyer and Nelson. "Just flip this around. How would people think about it if a Japanese citizen in Japan were to try to take action against, say, Central Maine Power Co. for doing something entirely in Maine? I think most people would find that's something unreasonable . . . "

McBee is a jazz musician who has performed for four decades, playing with musicians including Benny Goodman, Miles Davis, Elvin Jones and McCoy Tyner. He's toured the globe many times over, to venues including the Montreux Jazz Festival in Switzerland, the Berlin Jazz Festival and the Antwerp Jazz Festival. He received a Grammy award in 1989 for his contribution to "Blues for John Coltrane."

Cecil McBee, the store chain, first appeared in 1984, according to court documents. The chain today is one of the hottest in Japan, comparable to The Gap in the United States.

The stores sell a variety of goods, from Cecil McBee wines to doggie sweaters, but the primary line is sassy-styled clothes for teen and preteen girls.

Delica Inc. suggests in court documents that it didn't steal the name from the musician, but rather chose the name for its pleasant sound, and the situation is nothing but a coincidence.

The musician had fought the company for about nine years in the Japanese court system, and in 2002, he filed the initial complaint in the American court system with PretiFlaherty. The law firm first had to prove the U.S. District Court in Maine had jurisdiction. That was difficult because Cecil McBee didn't have any stores or members of its board of directors here. Researchers working on the case, however, were able to use the company's Internet Web sites to track down contact information and order more than $3,000 in goods from 16 Cecil McBee stores.

A magistrate judge decided that the court had jurisdiction over the case, and the case proceeded in summer 2003. That decision was reversed last fall by Carter, and that judge's ruling was upheld Tuesday by the Court of Appeals.

Staff Writer Matt Wickenheiser can be contacted at 791-6316 or at:

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