In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2083

CENTRAL MANUFACTURING, INCORPORATED,

a Delaware corporation, doing business as

Central Manufacturing Company and Central

Manufacturing Company of Illinois, and

STEALTH INDUSTRIES, INCORPORATED,

Plaintiffs-Appellants,

v.

GEORGE BRETT and BRETT BROTHERS SPORTS

INTERNATIONAL, INCORPORATED,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 3049—David H. Coar, Judge.

____________

ARGUED MAY 2, 2007—DECIDED JULY 9, 2007

____________

Before EVANS, WILLIAMS, and SYKES, Circuit Judges.

EVANS, Circuit Judge.

The Pine Tar Incident

It’s undisputed: George Brett was a great baseball

player. The statistics from his 21 years in The Show, all

with the Kansas City Royals, seal the deal: 3,154 hits, 317
2 No. 06-2083

home runs, and a career batting average of .305. Only

three other players—Stan Musial, Hank Aaron, and Willie

Mays—ended their careers with more than 3,000 hits

and 300 home runs, while still maintaining a lifetime

batting average over .300. Brett’s selection to the Hall of

Fame, on the first ballot in 1999, was richly deserved. Yet

for all his accomplishments, many who love baseball will

always think of the “Pine Tar Incident” as the capstone

of his career. It is a joy to recall.

It was July 24, 1983, and the Royals, trailing 4-3 to the

New York Yankees, had a man on first but were down to

their final out in the top half of the ninth inning. Brett

was at the plate. The Yankees’ ace closer, “Goose” Gossage,

was on the mound. And Brett crushed an 0-1 fastball over

the 353-foot mark into the right field seats, giving Kansas

City the lead, 5-4. Pandemonium broke out in the

Royals’ dugout. The Yankee Stadium crowd fell silent.

But things were about to change.

While the Royals were celebrating, the Yankees’ fiery

manager, Billy Martin, walked calmly (unusual for him) to

home plate where he engaged the umpire, Tim McClelland,

in quiet conversation. Martin pointed to an obscure rule

(and we sometimes think the Federal Rules of Appellate

Procedure are obscure!), which provides that any substance (including pine tar) that a player might rub on his

bat handle for a better grip cannot extend more than

18 inches. See Major League Baseball Official Rules

§ 1.10(b). Martin, pointing to a lot of pine tar on the bat

Brett left behind as he circled the bases, asked McClelland

to check it out. McClelland, using home plate as a ruler,

determined that pine tar covered 24 inches of the bat

handle. So the bat, McClelland ruled, was illegal.

With his ruling ready for delivery, McClelland took a

few steps toward the jubilant Royals’ dugout and gave

the signal: for using an illegal bat, the home run was
No. 06-2083 3

nullified, and Brett was out. Game over. Yankees win 4-3.

And all hell broke loose. An infuriated George Brett

charged out of the dugout and rushed McClelland as

Martin, who looked like the cat who ate the canary, stood

off to the side. It was one of the great all-time rhubarbs

in baseball history. And that’s how it ended, at least for

July 24, 1983.

But baseball, like our legal system, has appellate review. The Royals protested the game and, as luck would

have it, American League President Lee MacPhail (to use

a phrase with which we are accustomed) “reversed and

remanded for further proceedings.” The game resumed

three weeks later with Kansas City ahead, 5-4. It ended

after 12 minutes when Royals’ closer Dan Quisenberry

shut the door on the Yankees in their half of the ninth to

seal the win. The whole colorful episode is preserved, in

all its glory, on YouTube, at http://www.youtube.com/

watch?v=4Cu1WXylkto (last visited June 6, 2007). See also

Retrosheet Boxscore, Kansas City Royals 5, New York

Yankees 4, at http://www.retrosheet.org/boxesetc/1983/

B07240NYA1983.htm (last visited June 6, 2007).

Our Case Today

And so, at last, we come to this case which presents

another (albeit a less compelling) appeal of a dispute

involving George Brett and a baseball bat. We begin with

the facts.

In 2001, Brett joined Tridiamond Sports, Inc., a manufacturer of baseballs, baseball bats, gloves, and other

related accessories, to form Brett Brothers Sports International, Inc. (Brett Brothers). Tridiamond was incorporated in 1997 by Joe Sample, a former airline executive

who had served as vice-president and president of International Ambassador, a company specializing in the
4 No. 06-2083

1 This consensus has played a role in the recent movement

against the use of metal bats in youth and high school baseball,

which is motivated by the concern that the use of metal bats

might increase the risk of serious or even fatal injury for a

player hit by a batted ball. Jim Ritter, Aluminum Bat Backlash,

Chi. Sun-Times, May 10, 2007, at 6.

organization of travel programs. International Ambassador

was purchased in 1996 by former Major League Baseball

Commissioner Peter Ueberroth, and informal conversations with Ueberroth soon gave Sample an idea. Ueberroth

mentioned the difficulty some players had in adjusting

from the use of metal baseball bats at the high school and

collegiate levels to the wood bats of professional baseball.

Initially introduced in the early 1970s as a cost-saving

alternative for leagues operating under a smaller budget

due to the breakability of wood bats, metal bats were

eventually believed to generally outperform wood ones,

Joseph J. Crisco et al., Batting Performance of Wood and

Metal Baseball Bats, 34 Med. & Sci. in Sports & Exercise

1675, 1675 (2002), a consensus more or less confirmed by

scientific studies, see, e.g., id. at 1683; Fred O. Bryant et

al., Dynamic and Performance Characteristics of Baseball

Bats, 48 Research Quarterly 505 (1977).1

 Because the use

of metal bats may inflate hitting statistics, a player’s

professional prospects may be misevaluated, and the

shift to wood bats may reveal a great player to be merely

a very good one—the difference, potentially, between a

highly compensated major league career and a decade

spent on buses shuttling from Appleton to the Quad Cities.

Sample realized that the uncertainty of the switch

potentially created a market niche for a bat that combined the best of both worlds: the production and feel of

the wood bat with the break-resistance of the metal bat.

He thus formed Tridiamond and initiated research on the

construction of a more durable wood bat. Eventually the
No. 06-2083 5

company developed a specialized process of grading,

lamination, and fiberglass reinforcement that enabled the

product they were looking for. Tridiamond initially sold

three bat models with names inspired by Sample’s background in aviation: the Mirador, the Stealth, and the

Bomber.

Brett Brothers now sells eight different models of wood

bats used throughout all levels of amateur and professional baseball. Relevant for our purposes is the Stealth

model, which the Brett Brothers’ Web site describes as

follows:

The stealth bats are constructed of laminates from

hand selected and graded hardwoods. The patented

“Boa” reinforcement on the handle significantly

enhances durability. The choice of wood for the barrel

has proven to greatly reduce the chipping and flaking

characteristic in one-piece ash bats.

This model has NCAA approval for all levels of play

and is also BESR Certified.

The Stealth bat is available in 31", 32", 33", and 34”

lengths with weight drops up to -3 ounce.

Brett Bros. Sports International, Inc.—The Very Best in

Baseball—Bats, at http://shopsite.brettbats.com/shopbats.

html (last visited June 6, 2007). The first recorded sale of

the Stealth bat occurred on July 13, 1999, when twelve

bats were sold to Tim Nolan of Pro-Cut in Rockford,

Illinois. Brett Brothers has since sold more than 25,000

Stealth bats to all manner of customers worldwide,

including through retail outlets in 48 states and via its

Web site.

The plaintiffs in this action, Central Manufacturing,

Inc. and Stealth Industries (collectively “Central”), are

both controlled by Leo Stoller, who serves as president and

sole shareholder. Stoller similarly operates a number of
6 No. 06-2083

other companies, including Rentamark.com, S Industries,

Inc., and Sentra Manufacturing. Stoller alleges that his

companies have been using the “Stealth” trade name and

mark for a wide range of products since at least 1982.

Indeed, Stoller has registered the Stealth mark for things

like boats, motorcycles, bicycles, microwave-absorbing

automobile paint, billiard and dart equipment, auto locks,

window locks, comic books, lawn sprinklers, metal alloys,

pest elimination devices, and other products. S Industries,

Inc. v. Ecolab, Inc., 1999 WL 162785, at *1 (N.D. Ill.). In

1984, Stoller, through Sentra Manufacturing, filed a

trademark registration with the United States Patent

and Trademark Office (PTO) claiming ownership of the

Stealth mark for “[s]porting goods, specifically, tennis

rackets, golf clubs, tennis balls, basketballs, baseballs,

soccer balls, golf balls, cross bows, tennis racket strings

and shuttle cocks.” Sentra was awarded the mark in 1985;

it was eventually transferred to Central in 1997.

In 2001, Central filed a mark application with the PTO

for using the Stealth word mark on “baseball bats, softball

bats and t-ball bats.” Later that year, Central entered

into a licensing agreement with Blackwrap, Inc. for the use

of the Stealth word mark on its bats; a similar agreement was reached (for $800) with Easton Sports, Inc. in

2003. In 2004 (five years after the first Brett Brothers

sale of Stealth-model bats), the U.S. PTO granted the

mark for baseball bats. Central soon became aware of

Brett Brothers’ use of the Stealth word mark and filed suit

in the Northern District of Illinois, alleging violations of

the Lanham Act, 15 U.S.C. § 1051 et seq., and the Illinois

Deceptive Trade Practices Act, 815 ILCS 510/1 et seq.

Central believes that because they registered the “Stealth”

mark for baseballs and other sporting goods in 1985, they

have priority of use of the mark for baseball bats, and

Brett Brothers is guilty of infringement and unfair competition. See 15 U.S.C. §§ 1114, 1125(a). (The inquiry under
No. 06-2083 7

Illinois law mirrors the federal. See James Burrough Ltd.

v. Sign of Beefeater, Inc., 540 F.2d 266, 274 (7th Cir.

1976)).

Leo Stoller is no stranger to trademark litigation.

Indeed, one might say it is the essential part of his business strategy. In fact, were there a Hall of Fame for

hyperactive trademark litigators, Stoller would be in it.

And, like George Brett, he would have gotten in on the

first ballot. Acting as a sort of intellectual property

entrepreneur, Stoller has federally registered scores of

trademarks with the U.S. PTO (Central lists upwards of

50 that are actual or pending for just the “Stealth” mark),

many containing everyday words that regularly pop up

in commercial enterprise. When other companies or

individuals inevitably make use of these words, Stoller

issues cease-and-desist letters in the hopes that the user

will blanche at the prospect of litigation and either agree

to pay him a “licensing fee” or yield to his claims of

ownership and stop using the alleged mark altogether.

“Essentially, if an entity markets a product with some

version of the name ‘Stealth’ or otherwise with a

‘stealth’-like description, Plaintiff has elected to sue that

entity.” S Industries, Inc. v. JL Audio, Inc., 29 F. Supp. 2d

878, 881 (N.D. Ill. 1998).

In a small handful of cases this has paid off. The electronics makers JVC and Panasonic and the retailer Kmart,

for example, have each removed the word “stealth” from

their respective Web sites after receiving letters from

Stoller or one of his companies. Northrop Grumman, the

maker of the famed stealth bomber fighter plane, even

agreed to pay Stoller $10 and refrain from using the term

on any spinoff products. See generally, Colin Moynihan, He

Says He Owns the Word “Stealth” (Actually, He Claims

“Chutzpah,” Too), N.Y. Times, July 4, 2005, at C5.

More often, however, Stoller has resorted to litigation in

the face of “noncompliance”—usually without success. See,
8 No. 06-2083

e.g., S Industries, Inc. v. Ecolab, Inc., 1999 WL 162785

(N.D. Ill.) (rejecting claim that Ecolab infringed the

“Stealth” mark in conjunction with certain pest elimination

products); S Industries, Inc. v. JL Audio, Inc., 29 F. Supp.

2d at 888 (“At a minimum, Plaintiff has failed to establish . . . that it has conducted sufficient use of any kind but

particularly use as to audio products to justify the validity

of its trademark.”); S Industries, Inc. v. Stone Age Equip.,

Inc., 12 F. Supp. 2d 796, 820 (N.D. Ill. 1998) (declining to

find trademark infringement against athletic shoe manufacturer because of SI’s failure to produce evidence it ever

used such a mark); S Industries, Inc. v. Centra 2000, Inc.,

1998 WL 157067 (N.D. Ill.); S Industries, Inc. v. Diamond

Multimedia Sys., Inc., 991 F. Supp. 1012 (N.D. Ill. 1998);

S Industries, Inc. v. Hobbico, Inc., 940 F. Supp. 210 (N.D.

Ill. 1996). In fact, Stoller’s cases have generally proven so

frivolous and wasteful of court resources that since this

appeal was filed the Northern District of Illinois has

enjoined him or any of his companies from filing any new

civil action in the district’s courts without first obtaining

the court’s permission. See Executive Committee Order, In

re Leo Stoller, No. 07 C 1435 (N.D. Ill. Mar. 8, 2007).

A similar sequence of events unfolded here. Upon

learning of Brett Brothers’ Stealth bat, Stoller sent the

company a cease-and-desist letter claiming ownership of

the “Stealth” mark for use on baseball bats, alleging

infringement, and demanding a $100,000 licensing fee.

Brett Brothers refused, and Stoller (through Central)

instituted this litigation.

An action for trademark infringement can only succeed

if, among other things, the plaintiff owns the mark.

Registration provides prima facie evidence of ownership,

but this can be rebutted by competent evidence. See 15

U.S.C. § 1115(a). Ultimately, it is not the fact of registration that matters so much as the use of the mark in
No. 06-2083 9

commerce; “[b]y insisting that firms use marks to obtain

rights in them, the law prevents entrepreneurs from

reserving brand names in order to make their rivals’

marketing more costly.” Zazu Designs v. L’Oreal, S.A., 979

F.2d 499, 503 (7th Cir. 1992). Established use by a

nonregistrant is a valid defense to a registrant’s infringement claim. 15 U.S.C. § 1115(b)(5).

With this in mind, the district court judge (the Honorable David H. Coar) had no trouble concluding that

Brett Brothers’ established use of the “Stealth” mark on

baseball bats since 1999 precluded any infringement on the

basis of Central’s 2004 registration (thus also destroying

the probative value, if any, of Central’s 2003 and 2004

licensing agreements with Blackwrap and Easton). Central

relies instead on the theory that its 1985 registration of

the “Stealth” mark for baseballs and other sporting goods

gave it rights to the mark on baseball bats as “closely

related” products. See Sands, Taylor & Wood Co. v. Quaker

Oats Co., 978 F.2d 947, 958 (7th Cir. 1992), cert. denied,

507 U.S. 1042 (1993). Rather than address the relationship

between bats and balls, Brett Brothers challenged the

validity of the 1985 trademark in the first place and

sought to introduce evidence establishing that Central and

its predecessors never used the mark in commerce.

As part of this effort, Brett Brothers requested that

Stoller produce any documents related to the development,

commercial use, and sales volume of any goods bearing the

“Stealth” mark. Receiving no answer, they moved to

compel compliance. Judge Coar granted the motion and

gave Stoller three weeks to respond. Stoller missed the

deadline, and his eventual response made only vague

promises of documents to come. Finally, at his deposition,

Stoller produced a single softball bearing the “Stealth”

mark and an advertising flyer with a picture of a similar

ball. He testified that he had at various points sold

baseball bats to Walmart, Kmart, Montgomery Ward,
10 No. 06-2083

Venture, Sears, Sportmart, Brown’s Sporting Goods, and

Zaire’s, among others. He insisted that he had some

invoices and purchase orders related to these sales, but he

could not specify where these were or to which customers

they corresponded. (Stoller never followed through on

promises to produce these documents.) Asked for a sales

total of Stealth bats, Stoller offered the number $10,000

from “memory” but could not confirm possession of records

to support that figure. He also could not name the bat

manufacturer.

Stoller eventually produced several documents. First

was a sheet titled “Stealth Brand Baseball Sales” (not

“Baseball Bat Sales”) that simply provided a dollar amount

for each year from 1996 to 2003. It offered nothing about

any specific transactions—nothing about quantity, particular products, names of buyers, or dates of sale. Next were

four similar looking “Sales Quote Sheets”—effectively price

lists for four different alleged customers, all of whom are

now out of business. One was addressed to Best Products

in 1988, another to Venture Stores in 1991, a third to F.W.

Woolworth in 1994, and one more to Montgomery Ward in

1997. Despite the apparent three-year interval between

each document, the prices varied little. The aluminum

bats were listed at $102 per bat in 1988, $103 in 1991,

$104 in 1994, and $105 in 1997. Other products were also

priced with small changes of identical increment. None of

the quote sheets evidenced any actual orders or sales of the

listed products. Finally, Stoller produced a spreadsheet listing itemized annual sales of a wide array of

“Stealth” sports-related products. Though it lists baseballs, no baseball bats are referenced anywhere.

Judge Coar rejected this evidence in an analysis that

warrants repeating:

Plaintiffs produced a table of “Stealth Brand Baseball

Sales” between 1996 and 2003, but could provide
No. 06-2083 11

absolutely no information to justify the lump sum

“sales” figures listed. There is no way for this Court to

know that this alleged sales sheet bears any relation

to reality and is not simply something Plaintiffs

generated on a home computer for the purposes of this

litigation. This spreadsheet is conclusory and, in any

event, makes no attempt to itemize sales by product

description or type. Without documentation to show to

whom the alleged sales were made or whether the

goods involved were in fact “Stealth” brand, it is not

valid evidence. The alleged “Sales Quote Sheets”

Plaintiffs claim they provided to various corporations

between 1988 and 1997 are likewise inadmissible.

They purport to be a list of various Stealth products

with corresponding prices. There is absolutely no

evidence that these products ever existed except as

lines on a piece of promotional paper or that any of

these corporations ordered even one item from Plaintiffs. Moreover, these “Sales Quote Sheets” fail to rise

above “mere advertising of a product” and are insufficient to establish continuous use. In short, Plaintiffs

have failed completely to support their claim that

they actually used the “Stealth” mark in connection

with an established, presently existing, and ongoing

business prior to Brett Bros. use of the word “Stealth”

on baseball bats in 1999.

(Citation omitted.)

We agree. As the Lanham Act defines in relevant part:

The word “commerce” means all commerce which may

lawfully be regulated by Congress.

. . . .

The term “use in commerce” means the bona fide use of

a mark in the ordinary course of trade, and not made

merely to reserve a right in a mark. For purposes of
12 No. 06-2083

this Act, a mark shall be deemed to be in use in

commerce—

(1) on goods when—

. . . .

(B) the goods are sold or transported in commerce . . . .

15 U.S.C. § 1127 (emphasis added). Even if the sufficiency

of Central’s use were not a question of fact warranting

deferential treatment on appellate review, see Zazu

Designs, 979 F.2d at 505, it would not be a close

question: there is absolutely nothing in the record upon

which any reasonable person could conclude that Central

and its predecessors actually sold “Stealth” baseballs

prior to Brett Brothers first use of the mark in 1999.

Stoller has repeatedly sought ways to get around trademark law’s prohibition on the stockpiling of unused marks,

and this case is no different. It is unfathomable that a

company claiming to have engaged in thousands of dollars

of sales of a product for more than a decade would be

unable to produce even a single purchase order or invoice

as proof. Self-serving deposition testimony is not enough to

defeat a motion for summary judgment. By exposing

Central’s failure to make bona fide use of the “Stealth”

mark for baseballs, Brett Brothers met its burden to

overcome the presumption afforded by the 1985 registration, and summary judgment in its favor was the appropriate course.

Judge Coar went further. Invoking the authority granted

by 15 U.S.C. § 1119, he ordered the cancellation of Central’s 2005 registration of the “Stealth” mark for baseball

bats. We find no error in this decision, which we review

for abuse of discretion. Brett Brothers could have asserted its rights earlier by petitioning the PTO for cancellation, see id. § 1064, but nothing in § 1119 requires such
No. 06-2083 13

a step. Instead, the provision arms courts with the power

to effectively put the public on notice of its trademarkrelated judgments. Because a court’s decision may raise

doubts about the validity of a trademark registration,

§ 1119 arms the court with the power to update the federal trademark register to account for a mark’s actual legal

status (or lack thereof) after it has been adjudicated,

thereby reducing the potential for future uncertainty over

the rights in a particular mark. Where, as here, a registrant’s asserted rights to a mark are shown to be invalid,

cancellation is not merely appropriate, it is the best course.

Finally, we consider the award to Brett Brothers of

attorney fees and defense costs under 15 U.S.C. § 1117,

which permits the court to award fees to the prevailing

party “in exceptional circumstances.” We review a grant

of attorney fees to a prevailing party defendant under the

Lanham Act only for clear error. Door Systems, Inc. v. ProLine Door Systems, Inc., 126 F.3d 1028, 1031 (7th Cir.

1997). And we will not reverse a determination for clear

error unless it “strike[s] us as wrong with the force of a 5-

week-old, unrefrigerated dead fish.” Parts and Elec.

Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th

Cir. 1988) (Bauer, C.J.).

The question (notwithstanding Central’s completely

unsubstantiated allegation that the award was motivated

by judicial bias) is whether Central’s actions in bringing

this lawsuit were “oppressive.” Door Systems, 126 F.3d at

1032. And for the answer to that question, citing another

Leo Stoller case, we evaluate whether the case “lacked

merit, had elements of an abuse of process claim, and

[whether] plaintiff’s conduct unreasonably increased the

cost of defending against the suit.” S Industries, Inc. v.

Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir. 2001).

Central’s actions qualify on all counts! It filed an infringement lawsuit without evidence of any sales of
14 No. 06-2083

baseballs or baseball bats to support its claim to rights

in the “Stealth” mark for such products. It ignored requests to produce documents to support its claim, forcing

the defendants’ lawyers to go to court to compel action.

Stoller offered confused, misleading deposition testimony

with unfulfilled promises of cooperation. And the documents eventually produced effectively made a mockery of

the entire proceeding. We have no trouble upholding the

award of fees and costs.

The judgment of the district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-9-07