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An attorney who sought meritless sanctions against opposing counsel during a trademark dispute over pasta sauce has himself been sanctioned by a federal judge. U.S. District Judge John S. Martin Jr. of the Southern District of New York said that attorney Andrew Spinnell “brought a sanction motion against opposing counsel he knew to be without merit in order to prove to his client how tough he could be.” The judge ordered Spinnell to pay $5,000 in sanctions. Spinnell said he intended to appeal the judge’s ruling in Patsy’s Brand Inc. v. IOB Realty Inc., 99 Civ. 10175. Spinnell was the fourth attorney to defend IOB Realty, the owner of Patsy’s Pizzeria at First Avenue and 118 St., in a suit brought under the Lanham Act by Patsy’s Brand Inc., owners of Patsy’s Restaurant on 56th Street. Patsy’s Brand Inc., which began marketing its own marinara sauce in 1994, accused its rival of taking the “Patsy’s” mark and using it to sell its own pasta sauce. Judge Martin, who had issued a preliminary injunction in favor of Patsy’s Brand Inc. last year, granted summary judgment for the company in February 2001. In his February opinion, Martin instructed I.O.B. and its principal, Frank Brija, to show cause why they should not be sanctioned. Norman Zivin of Cooper & Dunham in New York, who represents Patsy’s Brand Inc., said the breakthrough in the case came in October 1999, when Brija submitted an invoice from a New Jersey label maker that Brija purportedly used in 1993 and 1994. “I kept staring at the invoice because it seemed unbelievable,” Zivin said. “Then I noticed that the invoice had a 973 area code — and they only started using that area code in New Jersey a few years ago.” In his order to show cause, Judge Martin said, “This lengthy opinion and much of the time and effort expended by plaintiff’s counsel would not have been necessary had I.O.B. and its principals simply told the truth and admitted they did not begin selling sauce until after plaintiff had launched its sauce business.” “Rather than admit this basic fact, I.O.B. submitted a fabricated document, made false assertions through counsel, and its principal, Mr. Brija, swore falsely on more than one occasion that he had created I.O.B. sauce labels in 1993 and 1994,” he said. HEARING CONDUCTED Judge Martin conducted a hearing in June and filed an opinion in the case Monday in which he found bad faith on the part of I.O.B. and Brija. Martin ordered I.O.B. and its principals to pay $250,351 in attorneys’ fees and costs to Patsy’s Brand Inc. He also found Brija guilty of contempt of court, and ordered him to pay 50 percent of the fees and costs incurred by Patsy’s Brand from the date “plaintiff’s attorneys began reviewing the false affidavit of Mr. Brija and the fraudulent documents” submitted to the court, an amount the judge set at $99,834. Martin said he was still awaiting further submissions on his order to show cause why I.O.B.’s prior counsel, New York-based Pennie & Edmonds, should not be sanctioned. Turning to Spinnell, Judge Martin said the $5,000 sanction was in response to Spinnell’s “frivolous” motion for sanctions against Zivin and co-counsel Robert Maldonado. After Spinnell was retained earlier this year, he charged that Zivin and Maldonado failed to bring to the court’s attention that a third party, hired to register Internet domain names for Patsy’s Brand Inc., had registered the name www.patsyspizza.com and linked it to Patsy’s Brand Web site. But Judge Martin said that “there is no reason to believe that plaintiff or their counsel was in any way responsible for this conduct.” Criticizing I.O.B. for having the “chutzpah” to bring the motion for sanctions, Martin noted that the party registering the domain name submitted an affidavit saying he was solely responsible for its registration, and therefore, “defendants’ counsel had no good faith basis for pursuing these motions.” “This is the type of unprofessional conduct that the court should publicly condemn and sanction,” he said. Judge Martin said that he would have awarded sanctions under Rule 11 of the Federal Rules of Civil Procedure, but Patsy’s Brand did not comply with the safe harbor provision of Rule 11 by giving counsel 21 days to withdraw the offending motion. So Martin turned to 28 U.S.C. �1927, which allows sanctions against a lawyer who “so multiplies the proceedings in any case unreasonably and vexatiously.” Not only did Spinnell bring meritless sanctions motions, Martin said, he also “continued to litigate the motions for sanctions against plaintiff after it became apparent that there was no good faith basis for it.” Spinnell said on Tuesday, “My guys will not take this sitting down.” “We believe that if push came to shove, we could show that Patsy’s Restaurant” hired a Web designer who “was behind the ‘patsyspizza’ [Web site] link,” he said. “The judge did not recognize the significance of what we put on. I think the 2nd Circuit will take a very different view of this.”

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