January 2020 Millar's JurisDiction – Simon Says

by Richard W. Millar, Jr.

I vaguely recall playing Simon Says as a child. For that matter, I only vaguely recall being a child despite occasionally being chided for never having grown up.

At any rate, I had to look up the game to refresh my memory. It requires three or more players with one being Simon. Simon will tell the players to do an act: “Simon says raise your right hand!” If you fail to comply, you’re out. Sometimes Simon will just say “raise your right hand” without preceding it with “Simon says.” If you comply, you’re out. The trick is to distinguish real commands (“Simon says”) from false commands (those that are not preceded with “Simon says”). According to the internet, my source of all knowledge, the game is centuries old and, roughly translated from Latin, was called “Cicero says do this.” I took a lot of Latin in school and had the impression that Cicero was quite bossy so that could well be true.

If I were to play that game today, I’d be out quickly given my ever drifting attention span. And, some of you are already wondering why I brought the whole thing up.

The answer is, of course, a lawsuit.

Not just any lawsuit. A federal suit. In Florida, where the average age is “retired.”

Your first question probably is who could possibly sue over Simon Says, followed closely by who could possibly be sued over Simon Says?

The answer to both is: Simon.

The plaintiff Simon and the defendant Simon are both lawyers, which may be all the explanation you need.

The plaintiffs are Ortavia D. Simon and his firm the Simon Law Group which according to its website, specializes in mortuary law. (See “retired,” supra.)

The defendants are Nicholson Injury Law PA and David Simon Nicholson.

Unfortunately, the judge is not named Simon as that would be a perfect trifecta.

The plaintiffs allege that, since 2016, the year Mr. Simon was admitted to practice, they have used the “tagline” “Simon Says You Deserve Justice,” throughout Florida. The defendants allegedly “recently began use of the tagline ‘Simon Says Justice.’”

The plaintiff Simon claims a common law trademark which “though . . . it includes Simon’s surname, does not merely describe Simon, but points to the provision of legal services in the area of funeral service law . . .” as well as personal injury, criminal, landlord tenant, family, and wrongful death law. I have to say that when I hear the word “justice,” my mind does not immediately jump to “funeral,” but, then again, I am probably not the target audience.

Mr. Simon states that he has applied for federal registration of the trademark “Simon Says,” and that the trademark distinguishes plaintiffs’ services from those of other firms. My guess is that if Cicero had a trademark, it’s probably expired.

The plaintiffs’ ex parte motion for a temporary restraining order was denied for not showing immediate irreparable harm and they have since filed a motion for preliminary injunction while the case has been referred to mediation.

Jury trial has been set for May. Not next May, but May of 2021, so it will be a while before we know the answer to the deathless question of whether “Simon Says You Deserve Justice” trumps “Simon Says Justice.”

The one thing we do know is that it will be the jury, not Simon, who says.

Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.