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Bar News - August 20, 2014


The Yankee Lawyer: How Dave Nixon Disarmed Publishing Giant Golden Books with a Few Short Letters

By:

Not long after David Nixon moved to New Boston, NH, in June 1960, word began to spread that there was a lawyer in town.

Among those who sought Nixon’s counsel back then – just a few years after he had passed the bar exam – was Clarence “Red” Farrar, who lived on a dirt road in Francestown, not far from the New Boston line. Farrar, who had been publishing books of poetry out of a converted silo on his property for several years under the name The Golden Quill Press, received a letter in February 1964 from a New York City lawyer representing Golden Books.

Known to generations of families for its many thousands of best-selling titles, the publishing giant demanded that Farrar “immediately cease doing business under, or using the name ‘Golden Quill Press,’ or any other name containing the word ‘GOLDEN,’ which would tend to confuse or cause deception in connection with publications originating with you.”

When he first saw the letter, Nixon was shocked. “I just couldn’t believe that Golden Books would be bothering with a guy on a dirt road in New Boston, New Hampshire,” he said recently, after his daughter, attorney Leslie Nixon, unearthed the 50-year-old correspondence that ensued.

The letters highlight the Yankee tradition of law practice that is at once pragmatic and idealistic – the kind of advocacy that many fear represents a bygone era, when rational problem-solving was based on respect, trust and fairness.

Nixon responded to the cease-and-desist letter in the expected fashion, explaining that Farrar’s books were in no way competing with those of Golden Books, “and that the word ‘Golden’ is neither copyrighted nor eligible for exclusive use, it being a common word or adjective.” He suggested that “Perhaps you could have your New Hampshire counsel communicate with me, or provide me with the statutory or case law upon which you rely as a basis for your demand.”

Attorney Selig Levitan, responding in late winter from his office on Fifth Avenue in New York, argued that the word “golden” was, in fact, protectable. “We are aware of the existence of publishing firms using the word “Golden” in their titles, but none of those coming to our attention to date has adopted a name so confusingly similar to that of our client, Golden Press, Inc. as Golden Quill Press.”

Levitan enclosed a copy of a Trademark Trial and Appeal Board decision against Golden Enterprises of Florida “in which it is stated that ‘Golden’ has acquired a secondary meaning” as applied to Golden Books’ products. In his response, Nixon points out the differences between the Florida case and Farrar’s situation and includes a list of other publishers using the word “golden” in their names. He also sends Levitan a copy of Farrar’s catalogue of poetry titles and requests the same from Golden Books.

Levitan writes back that he was “inclined to believe that a reasonable accommodation can be affected,” given that Farrar’s books of poetry are in fact unlikely to be confused with Golden Books. He proposes to withdraw the company’s objections to Farrar’s business name “provided Golden Quill Press agrees that it is not now, nor will it in the future use the name ‘GOLDEN’ in any manner in connection with the publishing or distributing of children’s books.”

Writing on April 10, 1964, Nixon responds that he will be glad to recommend the agreement to his client, so long as Golden Books agrees likewise not to use “golden” in relation to the publication of any books of poetry.

“What’s fair for one is fair for the other,” he concludes. “Kindly advise.”

Levitan, with an incredulous tone, fires back that Nixon’s proposal “cannot be seriously considered,” even though Golden Books was not presently publishing poetry books. “We are understandably anxious to prevent erosion of a mark that is identified with children’s books in almost every literate household in the land.

“May I again suggest that you consider disposition in a friendly and practical manner along the lines indicated in our letter of April 7.”

It’s as if this phrase, “friendly and practical manner,” raises Nixon’s fervor. In his final letter, he invites the Big Apple lawyer to visit the Granite State, with the kind of detailed language for which Nixon, now 82 and one of the most well respected members of the New Hampshire bar, has become known. The full letter reads as follows:

“Your clients are nationally-known, employ thousands, make millions, and are apparently a permanent fixture on the American scene. I can personally attest to the quality of their publications, as I have bought dozens of their books for my four daughters (my first son was born last Saturday), and when they go food shopping with me they camp at the magazine counter and devour the latest Golden Books.”

“On the other hand, the Golden Quill Press, which is a one-man operation run in a converted barn and silo by my neighbor, Clarence (“Red”) Farrar in the woods of Francestown, New Hampshire, near my home in New Boston, cannot afford the luxury of lawyers, even New Hampshire lawyers.”

“For these reasons, wholly apart from the merits of this matter, I would be inclined to advise Red Farrar to go along with your strictly one-sided proposition of April 7th, were it not for the fact that we, like you, are Yankees. Red has no intention of publishing children’s books, and furthermore has never considered the possibility. If he added to his poetry line at present, I think he would go in for baseball books, since he’s the most loyal fan our hometown baseball team, the New Boston (NH) Red Sox has ever had. Incidentally, we’ve heard no objection from Mr. Yawkey of the Boston Red Flops to our outright infringement upon his trade name rights.

“I think the reason your clients got upset, and justifiably so, was due to the cheap attempt by that Florida outfit to establish prior rights to the word ‘golden’ and thereby cash in on your clients’ success. I think you were right in fighting this move, and congratulate you on the effort and results.

“However, I do not think that this is just cause for your client to start chasing around the dirt roads of New Hampshire in attempts to bother Red Farrar, who has about as much chance of ever being a competitive threat to your clients as I have to you.

“Therefore, I request that you suggest to your clients that they have the word of Red Farrar that he won’t use the words ‘Golden Books’ in connection with any of his publications, and that his word in this respect is at least as good as a signed and sealed contract with Golden Enterprises, Inc. of Florida. If this won’t satisfy them, then have them send you up to Francestown, and I’ll have Red give you his word personally. On the way, maybe we can stop in New Boston and see the Red Sox in action, get some homemade maple syrup from Greg Peirce, inspect Paul Saltmarsh’s vinegar mill, and perhaps sample some of George Smith’s dirt cellar applejack. I think you’d find the trip worthwhile. I’d much rather accompany you on such a trip than try to justify for Red Farrar his signing a formal agreement to refrain, for your clients’ benefit, from doing something he doesn’t want to do, has no intention of doing, and can’t afford to do, without your clients at least reciprocating.

“On the other hand, if your clients want to go to the law, I’ll do my best I can to oblige them.

“Please advise. Thank you very much. Very truly yours, David L. Nixon.”

•••

“I was half-joking and half-serious,” Nixon said recently, recalling the invitation.

His letter had the desired effect. Amused, Levitan backs down: “I am satisfied – and I believe my client will be too – to accept your assurance that Mr. Farrar has no intention that The Golden Quill Press will go into the business of publishing children’s books.

“I find your invitation to visit Francestown all but irresistible, and will have no embarrassment in yielding to temptation if, sometime during the summer, I should have occasion to visit in New England.

“In the meantime, assuming that my client will go along, I shall mark this file closed and hope that your children will continue to enjoy Golden Books.”

Nixon, of the Manchester firm Nixon, Vogelman, Barry, Slawsky & Simoneau, recalls the exchange as one of his favorites.

“I’m not sure I can think of another situation where I disarmed the opposition with a couple of letters.”

For his efforts, Nixon says he received the “princely sum” of $25. Farrar, acknowledging the friendly rate, promised to give autographed copies of an Ezra Pound book he was binding to Nixon and Governor John W. King, whose Manchester law office Nixon had just recently inherited.

In a letter to Nixon, Farrar writes: “I still think you are getting gypped with this small check and when I expand and get to be as large as Golden Press (sic) perhaps we could hire you on a retainer fee basis. Of course you know how much I want to expand so don’t turn down all other cases for now.”

Read the full series of letters.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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