Ed McBain_Matthew Hope 12 (36 page)

“Here’s where it begins to get speculative,” Skye said. “Bear with me,” I said.

“None of this jibes with the deposition you took on the eighteenth,” Folger said.

“She was lying under oath, Pete.”

“The rest of her story is true,” I said.

“I ask you again, Matthew. What do you want us to do?”

“You know what he wants,” Frank said. “He wants you to stay all proceedings until you further investigate Etta Toland. That’s
what he wants.”

“Show me a way out,” Skye said.

“You’ve got the black clothes…”

“Maybe.”

“…and a witness who saw her going aboard twenty-five minutes before the murder,” Frank said. “You’ve got her lying about Brett
calling Lainie from the boat instead of the house, where she overheard the call. “You’ve also got her lying about when she
herself
called the boat. “You’ve got witnesses who saw a dark, expensive car parked on Silver Creek Road, which is where she herself
told Matthew she…”

“What she told Matthew doesn’t interest me!”

“She says she didn’t get to the club till twelve-sixteen. Witnesses saw this dark, expensive car between eleven-thirty and
midnight. Etta drives a dark green Infiniti. That puts her at the club while the murders…”

“You call that reliable?” Folger asked. “A half-hour time span?”

“Gentlemen, I need proof,” Skye said. “You can’t expect me to…”

“Will tire tracks do?” I asked.

“What do you mean?”

“Matching tire tracks?”

“Do you
have
matching tire tracks?”

“I have a cast of the track found where the witnesses say they saw the car.”

“Does the track match the tires on Etta Toland’s car?”

“I don’t know yet.”

“Well, when you
do
know…”

“You can find out quicker than I can, Skye.”

“Oh? How can…?”

“The police department’s been sitting on the cast since Wednesday.”

“Who’s got it?”

“Nick Alston.”

“Find him,” Skye snapped.

Folger went to the phone.

“If we get a match…” I said.

“You get a stay,” Skye said.

We got a match.

Nick Alston reported that he’d heard from the FBI late that afternoon, and that the tire in question was a Toyo A05 all-season,
steel-belted radial tire in size P215/60R15 manufactured by Toyo Tire and Rubber Company Ltd. as standard factory-issued equipment
on Nissan’s Infiniti J30 luxury sedan—the car Etta Toland drove.

Pete Folger merely asked for a court order to seize the car.

The rest was a piece of cake.

Patricia, I said, there are things we have to talk about. I know I have a reputation for being a sensitive, understanding,
violin-playing, macho-loathing male, but I have to tell you I learned a great many things about myself after my accident—if
you can call getting shot an accident—and I’m not sure the person who got out of that hospital bed is the same person who…no,
please let me finish.

To begin with, I no longer have any patience with stupidity. I cannot abide stupid people. Nor can I abide amateurs. I’m not
saying you’re a dumb amateur, don’t misunderstand me. In fact, I respect and admire you as a highly intelligent professional,
which is really the only sort of woman I’ve ever been involved with…well, that’s not entirely true, I
have
known some pretty dumb broads, to tell the truth, and if you take exception to the use of that word, I can tell you here
and now I don’t give a damn. Anyway, that was in another country, and the wench is dead, so to speak. That was then and this
is now, and what we’re talking about, Patricia, is
now.

So if I seem impatient with the
trivia
of life and living, it’s because I was in that valley, Patricia, I was walking in the valley of the shadow of death, and
there was no one walking beside me, no one who’d gladly bear the cross of extinction for me. I wandered all alone in that
valley with the clouds gathering black on the horizon, I came
this
close, Patricia, and I don’t ever want to come that close again. Ever.

So, yes, I may be cranky and grouchy these days, I may be a fucking
grizzly,
I may be short-tempered with all the ignorant, insolent, intolerant, self-centered, self-righteous, abusive, oblivious, suspicious,
distrustful, blithely unaware people who would enjoy nothing better than to impose
their
narrow views and beliefs upon
me,
who would love to limit
my
right to choose a path appropriate to
my
needs and
my
wishes—which are very strong these days, my needs and wishes, I can tell you that, Patricia, very strong. I see things a
lot more clearly now, Patricia. Getting shot did that to me. Coming close did that. I don’t care
who
marches in the St. Patrick’s Day parade. I just don’t want to march in any parade but my
own.

Which brings me to what I’ve been trying to express for the past four months now, ever since I got out of the hospital, but
which for a lawyer who’s been called glib at times, I’ve had a difficult time putting into words. I have to tell you I’ve
been noticing other women, Patricia…no, please, no objections, counselor, let me finish, please. I’ve been noticing their
legs and their thighs and their breasts, I sound like someone ordering a bucket of fried chicken, I know. And I know it’s
politically incorrect and possibly sexist to take notice of a woman’s parts, but I really don’t care about political correctness
anymore, I don’t care about
any
labels anymore. In fact, I find them boring. In fact, they piss me off.

A lot of things piss me off these days.

My own mortality pisses me off.

Patricia…

What I’m trying to say…

I’m okay now.

I’ve been okay for the past four months.

I want to make love to you.

I want you to stop feeling I’m not quite whole, I want you to stop thinking of me as an invalid. I was there, Patricia, but
I’m back.

I’m here now.

I’m alive.

Can we start again?

Please?

“Okay,” she said.

On Monday, the twenty-fifth of September, a hot, sunny, sticky Rosh Hashanah morning, Judge Anthony Santos handed down his
decision in the
Commins v. Toyland, Toyland
copyright, trademark, and trade dress infringement action. It read in part:

Since the early 1900s, millions of teddy bears have been sold worldwide by thousands of different manufacturers. Teddy bears
trace their name to Theodore “Teddy” Roosevelt, the 26th president of the United States.

Shortly before Christmas in the year 1902, the President took his family away from Washington on a four-day bear-hunting trip
in the state of Mississippi. Although he was a skilled hunter, his fortunes ran against him, and the only bear he had an opportunity
to shoot was a cub trapped in a tree. He chose not to take advantage of the poor frightened creature.

This episode was widely reported and became the basis of a cartoon by Clifford K. Berryman, which appeared in the
Washington Post.
Berryman later drew the bear in many other cartoons, utilizing the cuddly little cub as a symbol for the President. It was
not long before an enterprising toy manufacturer brought out a stuffed toy in the cub’s image. Dubbed the “Teddy” bear, after
the President, it immediately captured the public imagination.

Elaine Commins moves for preliminary injunction, alleging that Toyland, Toyland’s
Gladys
the Cross-Eyed Bear (“the Toyland bear”) infringes her company’s
Gladly
the Cross-Eyed Bear (“the Commins bear”). Commins’s complaint contains three counts. Count I is a copyright infringement
claim under the United States Copyright Act. Count II is a trademark infringement claim under §32(l)(a) of the Federal trademark
law. Count III is an unfair competition or trade dress infringement claim under §43(a) of the same statute.

Toyland moves for summary judgment on all three counts.

Impatiently, I began scanning the document.

…after examining the Commins and Toyland bears, the Court makes the following findings regarding Commins’s assertions of substantial
similarity: (1) Commins contends that both bears are identical in size, shape, color and fur length. The bears are roughly
the same size, approximately nineteen inches in height, although the Toyland bear is noticeably fatter and heavier. There
is nothing unusual about this. In fact, teddy bears of this size are the most popular among consumers, and thus are produced…

I kept turning pages…

…asserts that both bears are cross-eyed and both wear corrective eyeglasses. This is true, but the button eyes on the bears
are very different, as are the eyeglasses themselves. On the Toyland bear, the eyes are almost completely hidden by fur. On
the Commins bear, the eyes are larger, more visible and better defined, with dark irises and white pupils. The Toyland eyeglasses
are simple piano lenses behind which straightened eyes have been painted. The Commins eyeglasses make use of mirrors to…

And turned yet more pages…

…are the very same features that are so inherent in the abstract idea of a teddy bear that they are not subject to copyright
protection. Based upon these findings, the Court concludes that the Toyland bear’s “total concept and feel” is significantly
different from that of the Commins bear, and no reasonable juror would find the Toyland bear substantially similar to the
Commins bear.

Accordingly, Toyland’s motion for summary judgment on Count I is granted.

My heart sank.

Count II alleges trademark infringement…

I kept searching ahead.

And once again…

…upon these findings, the Court concludes that no reasonable juror would determine that there is any likelihood of consumer
confusion between the trademarks Gladys and Gladly. Accordingly, Toyland’s motion for summary judgment on Count II is granted.

I took a deep breath.

Count III alleges unfair competition, or more specifically, trade dress infringement. Here again, and despite the superficial
similarities of crossed eyes and corrective eyeglasses, the Court finds that no reasonable juror would conclude that there
is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused,
as to the origin of the two bears. Accordingly, Toyland’s motion for summary judgment on Count III is granted.

And finally…

Plaintiff’s motion for preliminary injunction is denied. Defendant is entitled to judgment as a matter of law. Judgment is
entered
for
the defendant Toyland, Toy-land and
against
plaintiff Elaine Commins.

Some you win, some you lose.

ED MCBAIN
is one of the most illustrious names in crime fiction and a holder of the Mystery Writers of America’s coveted Grand Master
Award. He has written more than eighty works of fiction, including the heralded 87th Precinct novels and the acclaimed Matthew
Hope series. He lives in Connecticut.