For Immediate Release
August 10, 2005

Contact:
Rand Ardell
(207) 774-1200
Beryl Wolfe
(207) 775-5115
E-mail: beryl@wolfenews.com
Web Site: http://www.bernsteinshur.com

A federal appeals court has upheld the dismissal of a lawsuit against a Japanese clothing company that happens to have the same name as a Yarmouth jazz musician.

Grammy-winning artist Cecil McBee had sued the Japanese company Delica Inc., which owns the popular Cecil McBee chain of stores, claiming the company stole his name. Delica attorney Todd Holbrook of Bernstein Shur said the similarity is a coincidence.

But before legal questions about the name could be resolved, the case got caught up in issues related to jurisdiction. The U.S. Court of Appeals for the First Circuit, in a decision dated August 2, 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.

Bernstein Shur’s Holbrook applauded the appeals court’s decision, saying that since Delica is a foreign company that conducts business only in Japan, the American court system is not the right venue to hear the case.

“It’s the right decision,” Holbrook said. “We were confident that we would have prevailed on the facts of the case, but we also felt strongly that a U.S. court is the wrong place to settle this matter. Delica is a Japanese company that does business only in Japan.”

Holbrook of Falmouth, who was assisted by Bernstein Shur lawyer John G. Osborn of Portland, said that McBee and his lawyers are considering appealing the case to the U.S. Supreme Court. Even then, he said, the end result will be the same.

“Just flip it around and think about the reaction if a Japanese citizen in Japan sued a Maine company that conducted business only in Maine. Most people would find that unreasonable,” Holbrook said.

Cecil McBee, the jazz musician, has performed for four decades, often touring the globe. He received a Grammy award in 1989 for his contribution to "Blues for John Coltrane."

Cecil McBee, the store chain, first appeared in 1984. The chain today is one of the hottest in Japan, comparable to Limited Too or Old Navy in the U.S. The stores sell a variety of goods, from Cecil McBee wines to doggie sweaters, but the primary line is clothes for teen and preteen girls.

Holbrook said that Delica Inc. didn't steal the name from the musician, but rather chose the name for its pleasant sound, and that the situation is nothing but a coincidence.

The musician had fought the company unsuccessfully for about nine years in the Japanese court system before filing the initial complaint in the American court system in 2002. Researchers hired by his attorneys attempted to show jurisdiction by purchasing goods for sale to the United States. Initially rebuffed by Delica’s web site administrator, then by store managers, the investigators finally succeeded in purchasing less than $2,500 in goods from Delica salesclerks and having the items sent first to Japan, and then later to Maine.

Holbrook argued that the Cecil McBee chain doesn’t have any stores, employees, or members of its board of directors in the United States (all are in Japan). Moreover, the company policy is to sell only in Japan.

About Todd Holbrook
Holbrook is the chair of Bernstein Shur’s Intellectual Property Practice Group and is a member of the Litigation Department, concentrating in the areas of intellectual property, products liability, toxic tort, and general commercial litigation.

A 1992 magna cum laude graduate of the University of Michigan Law School, Holbrook graduated from Bates College in 1987 and received his master’s degree in physics from Wesleyan University in 1990. Prior to joining the firm, he served as a clerk for the Honorable Daniel E. Wathen, then Chief Justice of the Maine Supreme Judicial Court.

About Bernstein Shur
Established in 1915, Bernstein Shur is one of northern New England’s largest full-service law firms. From offices in Maine and New Hampshire, the firm’s 85 attorneys provide practical legal counsel to a diverse group of public and private clients throughout the region and around the world. Bernstein Shur’s commercial, litigation, and municipal practices are complemented by the services of the firm’s wholly owned government consulting affiliate and its environmental and engineering consultancy. For more information, visit www.bernsteinshur.com.

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