One can sense the desperation and frustration in Mary Gravino’s voice as she talks about the problem that has overwhelmed her and her husband, Sam, for the past 15 months.
“I don’t know who I’m talking to on the phone anymore,” she says.
Gravino was relating how people keep calling her and Sam because of a case of mistaken identity involving the Las Vegas couple’s business. The confused callers are actually looking for a business owned by another Las Vegas couple: Ken Jagmin and his wife, Melissa.
Melissa Jagmin expresses frustration, too, over the mistaken identity problem — but for a different reason.
In a January e-mail, she pleads with an Internet advertising company to immediately remove the online information promoting her company — information at the heart of the identify confusion.
It must be removed, she says, because a judge has ordered it deleted as part of a lawsuit filed by the Gravinos against the Jagmins.
“This could very well cost us our business and we are not OK with this,” she writes. “The lawsuit says STOP NOW. It doesn’t say ‘stop when you feel like it.’”
The problem both couples face is a dispute over the identities of their competing small Las Vegas appliance repair businesses — a dispute that has resulted in a financially-punishing lawsuit, the bankruptcy of the Jagmins and, soon, the bankruptcy of the Gravinos.
Sam, who also goes by “Doc,” and Mary Gravino say they have done business in Las Vegas since 1989 under the name Appliance Doctor LLC. Mary, who also goes by “Marie,” runs the office-side of the business out of their home while Sam makes service calls.
The “Appliance Doctor” name isn’t considered to be original; it’s used by numerous small businesses around the country. But in Las Vegas, it belongs to the Gravinos, and they have city of Las Vegas and Clark County business licenses to prove it dating to 1989 and 2003, respectively — along with registration under that name with the Nevada secretary of state in 2003.
The Appliance Doctor business appeared to be running smoothly for two decades until the summer of 2009, when Sam was picking up supplies at an appliance parts depot when he heard a repairman say he, too, was there picking up parts for the Appliance Doctor.
“I said, ‘Wait, I’m the Appliance Doctor,’” Sam recalled.
Soon after, the Gravinos say, they started receiving calls from disgruntled customers of the Appliance Doctor. But the customers were confused, the Gravinos say. They were really trying to contact a newly-formed business called The Appliance Doctor of Las Vegas.
Sam Gravino says he learned then the Jagmins had started using The Appliance Doctor of Las Vegas name. The Appliance Doctor of Las Vegas name would later start showing up in print and online versions of local telephone directories, thanks to marketing efforts by the Jagmins, who had previously operated under other names including Mr. Appliance and Aaron’s Appliance Inc.
Local appliance parts suppliers got confused, too, mixing up the companies’ orders, the Gravinos say.
Sam Gravino contacted an attorney, who suggested the Gravinos send the Jagmins a letter demanding they stop using that name. Sam says he did so and when they refused, he had his attorney sue them in Clark County District Court in October 2009.
The suit alleged the Jagmins were trading off the goodwill the Gravinos had accumulated over two decades and were diverting business from the Gravinos. The suit demanded more than $20,000 in compensatory and punitive damages and an injunction against the Jagmins.
In court papers, the Jagmins said they had never heard of the Appliance Doctor name in Las Vegas when they chose that title for their company. The Gravinos find that claim remarkable, because they’ve been advertising in phone directories and other publications for years.
The Jagmins, too, obtained city of Las Vegas and Clark County business licenses under The Appliance Doctor of Las Vegas name, both in 2009.
A spokesman for the city said licensing authorities don’t typically investigate whether proposed business names infringe on others but will require that business licensees comply with court orders should trade name or trademark disputes break out.
Ken Jagmin told the Las Vegas Sun in October 2009 that he was unaware of any trademark covering the Appliance Doctor name and that the name of his company was different than the name of the Gravinos’ company because the Jagmins’ name includes the phrase “of Las Vegas.”
Ryan Gile, a Las Vegas trademark attorney with the firm Weide & Miller Ltd., at the time commented on the case in his blog.
“Someone might want to explain to Mr. Jagmin that additional geographically descriptive words don’t really carry much weight in analyzing whether two marks are likely to cause confusion, especially when the services rendered by ‘Appliance Doctor’ are in the Las Vegas area. I’m thinking about opening a competing hotel/casino called ‘Red Rock of Las Vegas’ — no one would confuse that with ‘Red Rock’ Hotel and Casino in Las Vegas, right?”
Lawsuits common
Trademark lawsuits are fairly common in Las Vegas.
The same month the Gravinos filed their lawsuit, for instance, the owner of the Subway restaurant chain filed
a trademark infringement suit against a Las Vegas sandwich shop called Subway Avenue.
That case was quickly settled after the defendant changed the name of the business to Sub Avenue and stopped using a Subway Avenue website.
In another case,
litigation is pending between the Egg World restaurant and the Egg Works restaurants in Las Vegas.
And on Oct. 28, Corona, Calif.-based Caliber Automotive Liquidators Inc. sued Chapman Las Vegas Dodge Chrysler Jeep, charging the Las Vegas dealership had used without authorization the trademarked phrase “Slasher Sale” to promote vehicle sales. Chapman has declined comment on the allegation.
Many Las Vegas trademark lawsuits involve hotel-casinos, which typically aggressively protect their brands.
In
a case that was resolved this year, for instance, MGM Resorts International was represented by a team of four Las Vegas attorneys specializing in trademark law with the prominent law firm Brownstein Hyatt Farber Schreck.
In that case, the attorneys for MGM Resorts overwhelmed the defendant, an individual who had no attorney, and won for the company the rights to the potentially valuable website domain name newyorknewyork.com.
A federal judge awarded the domain name to MGM Resorts in a lawsuit in which MGM Resorts accused the defendant of “cybersquatting,” or using the website name in violation of federal law to unfairly profit by associating it with MGM Resorts’ New York-New York hotel-casino on the Las Vegas Strip.
Some of the Jagmins’ alleged infringements involved their now-closed website www.appliancedoctorlv.com and a site that is still active, www.atcherservice.com. But because their suit was filed in state court rather than federal court, there are no cybersquatting claims in the Gravinos’ lawsuit.
Injunction issued
The Gravinos in their lawsuit scored an initial victory over the Jagmins — at least on paper.
Judge Valorie Vega on Oct. 27, 2009, issued a preliminary injunction ordering the Jagmins and their companies, The Appliance Doctor of Las Vegas and Atcher Service LLC, to stop using the Appliance Doctor of Las Vegas name.
Because of the ruling, the Gravinos say, they’ve also been assured The Appliance Doctor of Las Vegas phone number won’t be appearing again in future print editions of local telephone directories.
Vega found that the name “Appliance Doctor” is not generic and is a protectable name, that the Gravinos had used it locally since 1989, that the defendants had used it for just three months and that the defendants’ name “is greatly similar and has caused actual confusion to customers and members of the Southern Nevada community and that it provides the same type of services as does the plaintiff.”
After that, the case deteriorated for both parties.
The Jagmins and their attorney couldn’t be reached for comment.
But court records show the Jagmins were found in contempt of court, ordered to pay $37,425 in attorneys’ fees and costs and fined $200 after the Gravinos’ attorney, Joseph Hong, complained that in November 2009, even after Vega’s injunction, the Jagmins were continuing to use the “Appliance Doctor” name in their Internet advertising and promotional efforts including their Facebook page.
“If a consumer seeking appliance repair services in Las Vegas enters the words ‘Appliance Doctor of Las Vegas’ on a search engine website like Google, they will be directed to defendants’ website for ‘At’Cher Service,’” Hong charged in court papers at the time.
He also complained a Jagmin website continued to use the Appliance Doctor of Las Vegas logo and that on Nov. 19, 2009, Sam Gravino had spotted a van displaying the Appliance Doctor of Las Vegas logo.
The Jagmins were found in contempt even after their attorney at the time, Rebecca Fuller, argued the Jagmins, because of the preliminary injunction, had been working to “diligently and proactively disassociate themselves” from the Appliance Doctor of Las Vegas trade name.
She said they were removing that name from company logos, removing references to that name on Internet sites they directly control and were answering business calls as “At’Cher Service.”
“Defendants’ extensive networking efforts at the inception of their business operations have made it difficult to timely dispose of each and every reference to the trade name at issue,” Fuller wrote. “Many such references are embedded in Internet sites — most of which are operated by independent third parties — and thus have been difficult to immediately remove.”
By January 2010, the Jagmins were represented by attorneys Peter Mortenson and Jason Peck, who said in court papers the Jagmins have “a small business, providing seven jobs to the community, and have attempted to address this matter in the right way. They have incurred well over $3,000 in expenses to comply with the preliminary injunction, which has caused an extreme hardship on their business.”
“The defendants have done their best to completely comply with, and exceed, the terms of the preliminary injunction. There is currently no known reference to ‘Appliance Doctor of Las Vegas’ anywhere on the defendants’ website, service van, uniforms, stationary, invoices, advertising or promotional items,” a court filing said.
Receiver appointed
Later in 2010, though, after the Gravinos charged continued violations of the court order, Vega ordered that Atcher Services be placed under control of a receiver. That order was later extended to include another Jagmin company, Bowdrie Inc. Bowdrie was included after Hong, the Gravinos’ attorney, complained the Jagmins appeared to be transferring assets to Bowdrie.
The Jagmins, who in March filed for personal bankruptcy protection, through their attorneys, planned to appeal to the Nevada Supreme Court the receivership orders.
“There is no law or legal theory in this case that prevents the Jagmins from conducting an appliance repair business and earning a living,” a filing by the Jagmins’ attorneys said. “The Jagmins have an absolute right to start over again. That is the main premise upon which bankruptcy law is founded.”
“In starting anew their business, the Jagmins have been very careful not to use or transfer assets from Atcher Service LLC. There have been new contracts entered with all of the manufacturers for the repair of appliances. Accordingly, the calls that come in from those companies are not assets of Atcher Services,” the Jagmins’ attorneys wrote.
As for the Atcher employees going to work for Bowdrie, the Jagmins’ attorneys wrote: “Each of those employees tendered their immediate resignation from Atcher Service and expressed interest in going to work for the new company.”
Settlement offer
The appeal of the receivership order was put on hold, pending settlement talks. It’s now unclear if the appeal will proceed because the Gravinos refuse to settle, charging there’s nothing in the $12,000 settlement offer that was on the table that will solve their problem.
The Gravinos say they were unwilling to settle during talks in June because the old The Appliance Doctor of Las Vegas phone number was still active and the The Appliance Doctor of Las Vegas name kept coming up in Internet searches — as it continued to do through Tuesday.
There were other complications, too.
The law firm that initially filed their suit placed a $67,000 lien against any of the Gravinos’ lawsuit winnings after Hong, the Gravinos’ lawyer, left the firm and took the Gravinos’ case with him. Unless it’s modified, the lien appears to give Hong’s old firm the rights to the proposed $12,000 settlement.
Also, the Jagmins filed for personal bankruptcy protection in March, listing $500,000 in liabilities against $27,900 in assets. They filed for bankruptcy on the same day they were supposed to report to Vega, the state judge, on the status of their $37,425 payment in legal fees for the contempt of court order — a payment that was not made.
Among the Jagmins’ liabilities in the bankruptcy case were debts associated with several of the couple’s past and present businesses, including a $39,000 claim related to the Gravinos’ lawsuit, apparently for the contempt of court order legal fees.
The bankruptcy case was closed this summer after the Chapter 7 bankruptcy trustee reported there were no assets available for distribution to creditors above assets exempted by law, and that claims to be canceled without payment totaled more than $546,000.
Unanswered questions
It’s been eight months since the court started taking control of the Jagmins’ businesses by appointing a receiver — an action intended to benefit the Gravinos.
The receivership was supposed to freeze the companies’ assets, which the Gravinos had a claim to. It was also intended to prevent the Jagmin companies from violating the October 2009 injunction.
The Gravinos remain unsatisfied.
The last the Gravinos heard of the receiver was that his work was on hold while the bankruptcy court sorted out which of the Jagmins’ assets were off-limits from any liability in the lawsuit.
The bankruptcy case was closed in July and still they’ve heard nothing. They can’t find out much on their own as Vega, the state court judge, specifically told the receiver not to file any public documents so as not to expose trade secrets held by Atcher and Bowdrie.
After putting up $5,000 for legal fees and owing another $2,500 to Hong, the Gravinos haven’t received any damages and say they face $25,000 in additional legal fees if the receivership order is appealed.
They say the trademark confusion has slashed their revenue by 50 percent — monthly revenue of $8,000 to $10,000 per month is now $4,000 to $5,000.
The Gravinos say the Internet is still littered with references to The Appliance Doctor of Las Vegas and its phone number — references the Gravinos say continue to divert business away from their company. As recently as the first week of November, they received a call from someone looking for the Jagmins.
The Gravinos’ lawsuit appears to be stalled, with the court record through Tuesday showing no filings by their attorney since May and no movement toward a financial judgment against the Jagmins in the form of a summary judgment motion or motions advancing the case toward a trial.
For reasons unknown to the Gravinos, there were no objections filed in their behalf in the Jagmins’ personal bankruptcy case to protect the financial interest of the Gravinos.
Hong, the Gravinos’ attorney, couldn’t be reached for comment.
The Gravinos have many unanswered questions. For instance, why does The Appliance Doctor of Las Vegas name and phone number keep popping up in Internet searches?
A spokesman for Google said search engines can’t change those results. What must happen is someone has to ask or tell underlying websites to delete The Appliance Doctor of Las Vegas name and number. Those sites include local.yahoo.com, superpages.com and dexknows.com (the online version of CenturyLink’s Las Vegas phone book).
Because they’re not commenting on the case, it’s unclear if the Jagmins are still working on that.
The loss of revenue has left the Gravinos short of cash and headed toward personal bankruptcy. At ages 79 for Mary and 77 for Sam, the trademark dispute is likely to push back their retirement date. They had planned to sell the business and retire in two to three years.
Being short of cash, the Gravinos say, they couldn’t shut down now even if they wanted to and have no alternative but to keep their business afloat.
“Who’s going to hire us? We can’t start over again. We’re too old,” Mary says.
Sam Gravino is so frustrated he’s writing a book and hopes to find a publisher so other small businesses can avoid the ordeal he and Mary have been through.
“They’ve destroyed us,” he says.
Wednesday, Nov. 17, 2010 | 2:05 a.m.
For the past three weeks, we've been experimenting with dozens of social media ideas for 
