Higher Authority? Maybe.Wrong courthouse? Definitely.

In Union of Orthodox Jewish Congregations of America v. Brach's Confections, Inc., Judge Andre M. Davis addressed a venue question that, if anyone doubted it, settles the issue of whether litigation has to be conducted in a way that is convenient to counsel. It doesn't.

The Plaintiff is a non-profit organization that offers Kosher certification of food. Its trademark signal (that is, its hekhsher) is a "circled 'u.'" (Commonly referred to as the "OH-U" symbol.) Brach's is a Delaware corporation with its principal place of business in Dallas and manufactures and markets confections and candies, including “Star Brites Peppermint.” It seems that the label to the Star Brites appeared to contain the hekhsher.

After what the Court categorized as "an exchange of some rather over-heated emails and letters, in the course of which, in classic 'lawyerese,' Louis Vuitton S.A. v. Lee, 875 F.2d 584, 587 (7th Cir.1989)(Posner, J.), plaintiff threatened to sue," the parties raced to two different courthouses to commence actions against each other. The Orthodox Union filed first, initiating an action in Maryland that it filed in the Southern Division Courthouse. That is, the courthouse closest to its attorney's offices. A few hours later, Brach's filed in the Norther District of Texas where it is headquartered.

Judge Davis had no difficulty in ordering the action transferred to Texas. It seems to me to have been a foregone conclusion since:

It is undisputed that plaintiff is headquartered in New York and that defendant is headquartered in Dallas. The only relevant connection this district has to this dispute is that some of the allegedly infringing products were found on the shelves of one or more retail food stores in Baltimore, and a local rabbi would so testify.

(Emphasis by the Court.)

As best as one can gather, the Orthodox Union wanted to bring the action in Maryland because its counsel, perhaps acting pro bono, was located in either Maryland or Washington, D.C. Thus, proceeding here would have been less expensive for the Orthodox Union. However, since it had virtually no real connection with Maryland, its choice of forum was rejected in favor of the Texas Court in the District where Brach's is headquartered.

The Orthodox Union should not be too dismayed over the outcome of the case, however. There are Jews in Texas.