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Author Nancy Stouffer explains why she sued the author of the Harry Potter books

July 6, 2000
Web posted at: 4:07 p.m. EDT (2007 GMT)

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(CNN) -- Attorney Kevin Casey and his client Nancy Stouffer joined a Burden of Proof Chat on Wednesday, July 5, to discuss Stouffer's trademark infringment lawsuit against J. K. Rowling, author of the Harry Potter series of children's books. CNN provided a typist for Casey and Stouffer. The following is an edited transcript of the chat:

Chat Moderator: What exactly is the basis of Nancy Stouffer's lawsuit against J.K. Rowling?

Kevin Casey: The complaint states eight specific legal causes of action. To simplify and summarize, the causes of action are basically two: First, trademark infringement, for using the trademark "muggle" or "muggles," in connection with selling goods and services. Second, unfair competition. This includes "borrowing" character names, plot themes, and scenery.

Chat Moderator: Has Stouffer written several books using the term "muggle" and does she intend to write more?

Nancy Stouffer: Yes, I have written books in the past and a new book will be coming out by the end of the month. Originally, they were a series. The series of books was comprised so that there were educationally based support products with each specific volume of the book. At the time, there were 12 volumes of books. That was in 1987. In 1994, we came out with a promotional hardcover version, in preparation of a re-launch of this property, at approximately the same time that the Rowling books came out.

Question from genie2: Nancy, why has it taken you so long to proceed with legal action?

Nancy Stouffer: That's a question asked of me often. In the emails I receive at my own website, www.realmuggles.com, I'm often asked why I waited so long. The answer is that I did not wait. I immediately notified Scholastic, Inc. of the problems. I was in fact in negotiations with Scholastic until they filed suit.

Question from Stevetalk: Mr. Casey, please define: "level playing field".

Kevin Casey: One of the problems that Nancy has had due to the success of Rowling's books is that publishers have refused to become involved with Nancy in republishing her books. The books that Nancy is about to publish, she's having to publish on her own. We believe that once Nancy's rights are vindicated, that would remove a major obstacle now preventing other publishers from becoming involved. I should also add that living one's life out from under death threats could be included in a "level playing field."

Question from HanShann: Have you ever actually had a book published or just projects in the works?

Nancy Stouffer: Yes, I've had books published. This particular book was sold. It was sold in major grocery chains and drug stores. In fact, there were so many copies sold that it prompted Time-Warner, the parent company of CNN and CNN.com, to offer me a contract for these properties four different times.

Question from Mudd: Why did publishers back off on her books?

Kevin Casey: The short answer is that no one likes to become involved in a lawsuit. The perhaps cynical answer is that Time-Warner, Scholastic, Hasbro and Mattel are major players. One would hesitate to take a position adverse to them by publishing a book in competition with their own.

Question from hello: Do you feel Rowling got a free ride on your publicity and advertising?

Nancy Stouffer: I really don't know how to answer that, but I'll say that the vast amounts of money that we invested in my property are literally thrown to the wind, because we're incapable of marketing our products over a period of time. Even the money we invested in research, market research, development of licensable characters is gone. We've lost all that time and money. This is a very opportunistic-driven type of market. We've lost the ability to enter into the market using our own trademark because of the Rowling property. I don't know that she's ridden on my waves, but I shouldn't feel guilty about any coverage I receive as a result of their infringement.

Kevin Casey: From a legal perspective, this is a classic case of reverse trademark confusion. It's called reverse confusion because the infringer or second user of the mark is so big that they can swamp the innocent first user, who has the rights to the mark.

Question from genie2: Nancy, what proof do you have to offer that Rowling ever read your books with these characters in them? Nancy Stouffer: I think probably this question is asked of Kevin. I'll let him answer that.

Kevin Casey: There are two answers. The first answer is circumstantial evidence. That is, if there is one similar character, perhaps muggles, one doesn't think twice. If there are two similar names, Larry Potter and Harry Potter, one's curiosity is piqued. If there are three similar character names, such as Lilly Potter and Lily Potter, that might raise an eyebrow. If there are four, five or six similar characters, such as in this case, in the same genre of magical children's books, with the number of similar scenes and imagery, the circumstantial evidence that Rowling read Stouffer's books becomes at some point overwhelming. Second, my information and belief is that Rowling could have had access to Stouffer's books on at least four occasions.

Question from Cowhide: Why didn't you take the Time Warner offer? Most authors would have.

Nancy Stouffer: At that time, as a matter of fact, and this is a very good question, someone filed suit against me for ownership of my trademark and copyrights, who was my investor at the time. I would have taken the Warner contract at that time, if it were not for the fact that I had to litigate the trademark issue right then and there, before I could accept the contract. By the time I had successfully litigated those claims, the market timing was not appropriate for me to re-enter the market with these properties, and their offer was no longer on the table.

Question from St3o: How do you plan to go about obtaining benefits from this litigation?

Kevin Casey: We're essentially relying on the justice that we're hoping from the world-renowned American judicial system. We believe and certainly hope that a judge and jury will vindicate our rights. That said, however, we know that 95 percent of cases statistically settle before cases are resolved in court. We remain hopeful that Scholastic and the other defendants will return to the negotiation table in good faith.

Question from Raktajino: Please elaborate on the earlier stated timeline. In 1987, who had seen the books? Were you signed with a publisher prior to Rowling's publication in 1994?

Kevin Casey: Rowling, as I understand, was first published in the United Kingdom in 1997 and in the United States in 1998. Well before those dates, Nancy Stouffer was published through a number of different publishers. One was a publisher called Andé Publishing. The second publisher, once Andé became bankrupt, was Book Cook Incorporated. More recently, a third company is involved.

Question from Ashley: Nancy, how was the word "muggle" or "muggles" used in your books?

Nancy Stouffer: In almost an identical fashion as it is used in Rowling's, in the Harry Potter books. My muggles are small, human, non-magical characters. They essentially become the life-thread for two orphaned twin boys. In the Harry Potter books, there is one orphaned boy. These muggles raise the twin orphan boys in my book. In Rowling's book, the muggles raise Harry Potter. The characters themselves in the two books are identical, with the exception of the fact that mine are small people, and hers are full sized people. The way they function and the setting in which they operated their activities are very similar.

Question from St3o: Mr. Casey, since Rowling is a British citizen, will that affect your lawsuit?

Kevin Casey: No. They should also keep in mind that there is a question about citizenship. We have a copy of a copyright registration for Rowling's first book, which lists her as a U. S. citizen. Obviously, that was filed by Rowling or her representative. Second, the main players, at least in the trademark aspect of this suit, because they'll be merchandising the goods and services, are four huge companies, each with headquarters in the United States.

Question from Dave: Why didn't Rowling's attorney appear on "Burden of Proof" to defend Rowling?

Kevin Casey: We understand from CNN that they were asked to appear and that they declined. They did submit a written statement which was read by CNN at the outset of the show.

Question from cronVortex: Will you accept a financially based settlement if Rowling retains the rights to the characters?

Kevin Casey: It's a difficult question to answer, because it really goes to a public comment on a hypothetical settlement. Rather than completely duck the question, however, I would say that all possible settlement options are available, and would be considered.

Question from Raktajino: Do you wish to see J.K. Rowling stop publishing Harry Potter books? If so, wouldn't that hurt many children who love these books?

Nancy Stouffer: I can't tell you how many times I've confronted this question. It's probably been the most difficult part of this. It places me as both villain and victim. I've thought very hard, long and hard, about the injunctive relief that I have available to me. I can tell you that no matter what I do, I'll be harmed from a fair trade standpoint. If I filed for injunctive relief, and the court granted it, then I would be hurting the very children that I had hoped to sell my books to, and hoped to reach with ideas and thoughts that I have. So, it has put me in a very precarious situation, this infringement situation. I'm really darned if I do, and darned if I don't.

Question from joan: Mr. Casey, what is the next step now in the litigation process?

Kevin Casey: The very next step is for a decision to be published, determining where the merits of this litigation will be tried. The judge in the New York case, filed by Scholastic, must decide whether it has jurisdiction and will try the case. If the New York judge does not have jurisdiction, the case will be tried in Philadelphia. We are now waiting for the New York judge's ruling.

Chat Moderator: Do you have any final thoughts for us today?

Kevin Casey: We certainly appreciate the interest and the opportunity to clarify and educate. We hope that those who chatted or heard us have come away from their experience with more insight into Nancy Stouffer's plight.

Nancy Stouffer: I'm grateful for this opportunity to answer some of those very important questions that people had. I hope that I've clarified some of the issues. I'd like people to understand that as a creative person, if I would not have defended my rights in this case, I would have lost my rights. I was really left with no option.