Authors: Gladly the Cross-Eyed Bear
Tags: #Hope; Matthew (Fictitious Character) - Fiction, #Detective and Mystery Stories, #Lawyers, #Mystery & Detective, #Hope; Matthew (Fictitious Character), #Lawyers - Florida - Fiction, #Florida, #Legal, #Fiction, #Legal Stories, #General, #Florida - Fiction
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First eBook Edition: April 2009
ALSO BY ED McBAIN
The 87th Precinct Novels
The Con Man
Give the Boys a Great Big Hand
See Them Die
Lady, Lady, I Did It!
The Empty Hours
Ten Plus One
He Who Hesitates
Eighty Million Eyes
Hail, Hail, the Gang’s All Here
Sadie When She Died
Let’s Hear It for the Deaf Man
Hail to the Chief
So Long as You Both Shall Live
Long Time No See
Eight Black Horses
And All Through the House
The Matthew Hope Novels
Beauty and the Beast
Jack and the Beanstalk
Snow White and Rose Red
Puss in Boots
The House That Jack Built
Three Blind Mice
There Was a Little Girl
Where There’s Smoke
Another Part of the City
AND AS EVAN HUNTER
The Blackboard Jungle
Strangers When We Meet
A Matter of Conviction
Mothers and Daughters
The Paper Dragon
A Horse’s Head
Nobody Knew They Were There
Every Little Crook and Nanny
Streets of Gold
Far From the Sea
Short Story Collections
Happy New Year, Herbie
The Easter Man
Find the Feathered Serpent
The Remarkable Harry
The Wonderful Button
Me and Mr. Stenner
Strangers When We Meet
The Legend of Walks Far Woman
This is for
n the state of Florida, it doesn’t matter if it’s day or night as concerns the burglary statutes. You can go in at any hour,
it doesn’t affect the punishment. What matters is if you’re armed or if you assault someone, that’s Burglary One, and they
can put you away for as long as the rest of your natural life. If the structure you enter happens to be a dwelling or if somebody’s
on the premises when you go in, why that’s a Burg Two, and they can lock you up for fifteen years.
Warren was going in during the daytime—if she ever got the hell out of there—and he wasn’t armed, though he did own a license
to carry. The condo was a dwelling, so if he got caught in there he was looking at a max of fifteen because in the state of
Florida, if you stealthily entered any structure or conveyance without consent of the owner or occupant, that was considered
prima facie evidence of entering with intent to commit an offense.
But he had to get in there, anyway.
If only she would hurry up and go about her business.
He turned on the car radio.
I had filed my complaint in Calusa’s federal court for the Middle District of Florida, asking for an order to show cause.
Judge Anthony Santos had signed a temporary restraining order and had set a hearing for the twelfth day of September. A U.S.
marshal had then served papers on Brett and Etta Toland, the owners of Toyland, Toyland, ordering their appearance at the
hearing. It was now nine o’clock on the morning of the twelfth, a blistering hot Tuesday in Calusa, Florida.
The first thing Santos said to me was, “How are you feeling, Matthew?”
I wished people would stop asking me how I was feeling.
Or what it had felt like.
It had felt like all the lights suddenly coming on after a power failure. One moment there was utter darkness below, while
above a raging electrical storm flashed intermittent white tendrils of lightning and boomed ugly blue thunder. I was standing
in a deep black pit slowly filling with oily black water that rose inexorably to my waist, and then my chest, and then my
throat. I was chained to the walls of this fathomless black pit while above lightning crackled and thunder roared and the
fetid black water inched up toward my mouth and then my nostrils. And all at once there was a crashing bolt of lightning and
a shattering thunderclap so close they seemed to be inside the pit itself, shaking its wet stone walls, filling my eyes and
my head with bursting sound and blinding incandescence and…
With a mighty leap, I sprang out of the pit.
That’s what it had felt like for me.
Maybe if you came out of a coma five months ago, it was different for you.
“I’m fine, Your Honor,” I said.
“Are both sides ready?” Santos asked.
“Matthew Hope, representing the plaintiff, Elaine Commins.”
“Sidney Brackett, representing the defendant, Toyland, Toyland.”
Brackett was Calusa’s best man for legal matters pertaining to copyright or trademark, famous for having successfully defended
the landmark Opal Oranges infringement suit. I was Calusa’s best man for all seasons, famous for having got shot twice—once
in the shoulder and once in the chest—last April. I’m fine now. Really. I’m
“I’ve reviewed the complaint, the affidavits, and the legal briefs from both sides,” Santos said, “so I think we can do without
any lengthy opening statements. I hope you’ve explained to your respective clients…”
“Yes, Your Honor…”
“…that the purpose of this hearing is to determine whether Toyland, Toyland—hereinafter referred to as Toyland—should be enjoined
on a preliminary basis from further production, distribution or sale of a teddy bear they call Gladys the Cross-Eyed Bear,
for which Ms. Commins is claiming copyright, trademark, and trade dress infringement. It is your burden, Ms. Commins, to prove
ownership of a valid copyright and trademark for the bear you call
and—as to Count I—to further prove unlawful copying of protected components. As for Counts II and III, it is your burden
to prove infringement of the trademark and trade dress. Does everyone understand this?”
“Yes, Your Honor, this was all explained to my client.”
“My clients as well, Your Honor.”
“As I’m sure counsel has further explained,” Santos said, “
cannot be copyrighted. Protection is afforded only to the
of ideas. For example, it’s not enough to show that both plaintiff and defendant used the
of a cross-eyed bear whose vision is corrected by eyeglasses. In order to prove copyright infringement, it must be shown
of this idea was copied. The essence of copyright infringement lies not in the defendant’s taking of the general idea or
theme of the plaintiff’s work, but in the taking of the particular
in which the plaintiff has expressed those ideas in the copyrighted work.
“Similarly, in order to prove trademark and trade dress infringement, it must be shown that a similar use of names and design
features would be likely to cause confusion in the marketplace. The design features of a product may be given trade dress
protection, but only if they are inherently distinctive or have achieved secondary meaning in the marketplace. Is all of that
“Yes, Your Honor.”
“Yes, Your Honor.”
“Has it also been explained that a
injunction cannot be granted until after a trial on the merits?”
“Yes, Your Honor.”
“Before we proceed, then, I should mention that the Court fully recognizes the exigencies of the case, Christmas being right
around the corner, so to speak, in terms of getting one of these bears into the stores, whichever party may prevail. At the
same time, and exactly
of the very real and pressing commercial considerations for both sides, the Court does not intend to be rushed into any decision.”
On the other side of the courtroom, seated at the defense table with his clients, Sidney Brackett sat stone-faced. Or bored.
Or both. A squat chubby little man who bore an unfortunate resemblance to Newt Gingrich, he sat flanked by two of the more
attractive people on this planet, Mr. and Mrs. Brett Toland, accused teddy-bear thieves.
“I should also mention that the rules of procedure in a hearing are identical to those in a trial,” Santos said. “There is
no jury, but everything else is the same. The plaintiff presents
I was thinking that everyone in the world already
all this, at least insofar as it bore similarities to
law. Everyone in the world had watched the Simpson trial for the past twenty-two years, six months, three weeks and twelve
days and knew all this procedure stuff even better than I myself did. I was thinking it was too bad there wasn’t a jury here
because then ordinary citizens who weren’t lawyers could catch any mistakes I made, and maybe write to tell me all about what
a lousy lawyer I was, I just
getting “Gotcha!” mail. When I woke up at Good Samaritan Hospital, in fact, I’d found a pile of letters from strangers who
felt I was somehow responsible for having got myself shot, and somehow derelict in not coming out of the coma soon enough
to suit them. Actually, I’d have enjoyed popping off that table in ten minutes flat, but medical problems prevented me from
doing so. Better yet, I would have preferred not having the medical problems to begin with. Even better, I would have preferred
not getting shot at all.
try getting shot sometime, and I’ll write
a letter when you refuse to come out of a goddamn coma.
Then again, people keep telling me I seem a bit crotchety since I woke up.
examination of each witness,” Santos was saying, “followed by the defense’s
-examination. The plaintiff is then allowed a
direct, and the defense a
-cross. After the plaintiff has rested its case, the defense then calls
witnesses, and the same rules of questioning and requestioning apply. If there are any questions from either of the contesting
parties, please let me hear them now. I want everyone to understand exactly what’s about to transpire.”