jcldragon

Coca-Karma: The Very Secret Battle of Bob Kolody vs. Coca-Cola (KO)

Prologue: April 18, 2001

When the shareholders of Coca-Cola filed into the Playhouse Theatre in Wilmington, Delaware on the morning of April 18 for their annual meeting, you can bet that the last name they had on their minds was that of Bob Kolody. What with the recent resignation of President and COO Jack Stahl, Chairman Doug Daft’s failed attempt to buy Quaker Oats, and the Atlanta court ruling that awarded close to $200 million dollars in damages to Johnny Cochran’s racial discrimination suit, they had enough names to worry about. Not to mention the fact that their stock was selling for $45, thirty percent off the 52 week high of $64. Right about where it was 5 years ago.

But if some of those shareholders had known the story that you are about to read, they would have had good reason to question Coca-Cola Chairman Doug Daft about Bob Kolody. They would have been fascinated to know that for the past four years Coke has employed one of the country’s top intellectual property lawyers to defend a case that it has never identified in its annual SEC filings. What’s more, the $4 billion lawsuit has gone totally unreported by a national media that has, of late, reveled in the prospect of major U.S. corporations involved in trials that could cost hundreds of millions of dollars in damages.

Over the next ten installments of an exclusive Special Report, GNN breaks wide open one of the most intriguing cases in corporate legal history. The story begins with a major advertising agency stealing an independent consultant's story-boards and culminates with allegations that Coke filed fraudulent copyright applications and enacted a high-level form of espionage against their legal opponent. What's more, the federal judge in the case has been accused of having links to organized crime. Tantalizing? You bet. And we’re only getting started…

Coca-Karma: The Very Secret Battle of Bob Kolody vs. Coca-Cola

http://www.gnn.tv/cocakarma/

You'll have to click the link to read the whole story...

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Introduction: Coca-Karma Synopsis

At the heart of the story is an independent marketing consultant named Bob Kolody who claims he owns the copyright to an image that has been used on Coke Classic cans since 1993. The basic facts of the case are as follows:

Back in 1989, Kolody pitched Simon Marketing (Coke's ad agency) on a game concept that involved a graphic collusion of Coca-Cola and automobile memorabilia. Kolody heard nothing back from Simon but, nine months later, learned that aspects of his campaign were being disseminated through Coke's new Cherry Coke can designs. When Kolody attempted to discuss the matter with Simon's executives he was rebuffed and they claimed to have lost his story-boards.

Even more interesting is that at the same time that Kolody was pitching Simon, Coke failed to renew their copyright on a very famous image that appeared on their first soda can in 1961: the 'contour bottle on the Coca-Cola can' image. When Coke failed to renew the 1961 copyright (as they must do after 28 years) Kolody, the suit claims, became the de facto rights holder because he had created a derivative work of the image for his pitch with Simon.

This was all unbeknownst to Kolody, who was still trying to fight Simon on his infringement suit.

Then, in 1993, Coke resurrected the 'contour bottle' image for their Classic Coke cans and, the suit documents, filed a fraudulent copyright application in order to protect it. This is the legal crux of the case and demands elaboration. A fundamental precept of intellectual property law stipulates that an entity is not allowed to file for a copyright on an image that has already been published and then released into the public domain or adopted by someone else. In the case of the 'contour bottle', Coke either forgot to renew their copyright or did not understand the law. When they re-filed in 1993, the copyright office warned them that to file for a copyright which has already been published is fraud. Coke went ahead and did it regardless.

In 1994 Kolody saw the 'contour bottle' on a Coke Classic Can in a Chicago airport and realized what that Coke had now adopted another of his original concepts. For three years he could not get a lawyer to file his case against Coca-Cola and Simon Marketing.

Finally, in 1997, he got John De Camp - a one-time Nebraska state senator and friend of former CIA-head Bill Colby - to file. But De Camp could not afford to continue on contingency so Kolody was forced to forge on pro se (without legal representation). Kolody learned the law from every conceivable source and fought his case in court against one of the country's top intellectual property lawyers (Jerold Jacover). Using every imaginable legal dirty trick, Coca-Cola's legal team hampered Kolody's case and successfully avoided publicity on what has evolved into a $4 billion lawsuit. Furthermore, Judge Blanche Manning (the judge in this case) refused to compel Coca-Cola to demonstrate that they held the legal registrations of copyright on the contour bottle. When Kolody attained the application independently from the U.S, copyright office, Manning would not allow him introduce the document as new evidence. This was a crushing blow to Kolody who had finally discovered proof that Coke failed to renew its copyright and then filed a fraudulent copyright application to protect themselves.

In 1999, Kolody successfully retained renowned Arkansas federal attorney Dan Ivy to fight his case. As soon as he came onto the scene, Ivy discovered a series of judicial improprieties emanating from the bench. In response, he filed several motions of 'judicial perjury' - a motion that accuses the judge of committing fraud upon the court in her blatantly favorable rulings for Coca-Cola. This is the first time in Chicago judicial history that a lawyer has leveled such a serious charge against a federal judge. But Judge Manning, instead of stepping aside to have her improprieties assessed by an independent Judge, ruled on these charges herself - a practice that defies the principles of Anglo-Saxon law.

What happened next is like a plot from a John Grisham novel. After Judge Manning dismissed Kolody's lawsuit with a summary judgment, Ivy moved the case to the Appellate Court. But, in an apparent effort to censure the crusading attorney for his conduct, the 7th Circuit Court of Appeals denied his entrance to the bar, leaving Kolody without an attorney. What makes this even more intriguing is that all eleven Judges of the Appellate met in a rare, closed-door 'en banc' hearing to deny his request and offered no elaboration for their decision. After filing a motion for clarification of their ruling (under the 14th Amendment), Ivy, was denied 'en banc' a second time and given no reason given for the refusal.

There have also been a number of suspicious coincidences surrounding Kolody's case. Most shocking was that Kolody's own local counsel, Daniel Hanley, admitted under questioning to have a sister who was a major media buyer for Coca-Cola in the United States and that he had been feeding her information of Kolody's legal strategy. What's more, an affidavit was filed by famed court reformer Sherman Skolnick (who has had more judges imprisoned and disbarred for judicial misconduct than any other person in U.S. history) that ties Judge Manning to major Chicago underworld figure William F. Cellini and asserts that her Judgeship was bought through a corrupt system of dealings. Both of these charges were made in a heated court hearing that saw a group of six armed police officers enter the courtroom. To date, Hanley has not been sanctioned for his admission and neither Judge Manning nor Bill Cellini have refuted the claims made in Skolnick's affidavit.

Interesting, too, is that Coke has disregarded the case in their SEC filings. Initially this may sound innocuous, but not when you remember that Coke's entire business is the sale of their syrup formula and licensing of their logo to bottlers. This means that the bottlers have been paying license fees to a fraudulent copyright owner for seven years. Combine this with the fact that tensions between bottlers and Coke reached an all-time high last year when Coke was accused, in a major lawsuit, of dumping syrup on their bottlers in order to bolster a sagging fourth quarter earnings report.

The case is currently being appealed to Supreme Court Justice John Paul Stevens (supervisor of the 7th Circuit) under a special application for 'chamber business'. This is especially dramatic considering the fact that it was Justice Stevens who, when he was a young lawyer on the 7th Circuit, headed up a special committee that presided over what became known as the 'biggest judicial bribery scandal in United States history'. The allegations surfaced publicly when, in 1969, a maverick public crusader by the name of Sherman Skolnick brought charges against a group of Judges for bribery.

Due to the complexity of this case and the verifiable evidence of judicial misconduct on the part of Coca-Cola's lawyers and Judge Manning, we recommend that you take the time to read the entire story. We are confident that you will be neither bored nor disappointed with the dramatic recounting of this tale.

http://www.gnn.tv/cocakarma/

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grumpydawn

I have to admit, I read the whole article before going to bed. I kept thinking, "That poor man!"

I just goes to show how absolute power corrupts absolutely.

jcldragon

Imagine the enormous expense CocaCola has gone to, in not simply paying the guy for his ad campaign ideas? I'm not drinking their products anymore...

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http://money.cnn.com/2004/06/09/news...ex.htm?cnn=yes


Coke president Heyer steps down
Executive who lost out in bid for top job will leave soft drink maker "by mutual agreement."
June 9, 2004: 9:01 AM EDT

NEW YORK (CNN/Money) - Coca-Cola Co. President and Chief Operating Officer Steven Heyer is leaving the company, a month after he lost the competition for the company's top job.

The world's largest soft drink maker said Wednesday that Heyer would leave the company "by mutual agreement" after what it said would be "an orderly transition period."

Coke (KO: Research, Estimates) named retired executive Neville Isdell, a 60-year-old former company insider, as its chairman and chief executive-elect May 4, ending a three-month search. He will succeed Douglas Daft, who plans to retire this summer.

At the time Daft's retirement plans were announced in February, Heyer was seen as the leading candidate to succeed him. But published reports suggest that members of the Coca-Cola board were uncomfortable turning the company over to someone who had only been with Coke for three years. Heyer, a former executive of Turner Broadcasting, joined Coke in April 2001 and was named president and COO in December 2002.

"In discussions over the past week, Steve and I have looked at how he could best realize his personal goals given my election as chairman and chief executive officer of this company," said a statement from Isdell. "We agreed that Steve could best realize his aspirations by pursuing opportunities outside of the company."

The company has been dogged by a falling stock price, the effects of a global economic slowdown, marketing miscues and, most recently, U.S. government investigations into its business practices during much of Daft's, and Heyer's, tenures.

"I have enjoyed my tenure at the Coca-Cola Co. and am proud of what we have been able to accomplish," said a statement from Heyer released by the company. "I believe that the Coca-Cola Co. today is on a well-conceived strategic course and is hitting its stride both financially and operationally."

Shares of Coke (KO: Research, Estimates), a component of the Dow Jones industrial average, lost 10 cents to $52.61 in trading Tuesday.

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blue ginger

i couldn't find anything on the story after aug. 2003, has anything else developed?
thanks for providing the interesting read, i couldn't help but feel more infuriated by the end of the article... it just reminded me of catch-22, there's no way THAT many bad things could happen to him...it just kept getting worse!

jcldragon

They have some update material at the end, but I'm sure this struggle will be continuing. Here's the next segment...

Part One: Classic Coke, Classic Cars

The first time I hear about Bob Kolody, I’m sitting in the kitchen of a mansion owned by a renegade (Fortune 500) accountant down in Tennessee. I’m on assignment, shooting interviews for an upcoming Guerrilla NewsVideo and my subject has taken a break to fill his glass with more premium Scotch. Intermittently dragging on a Camel cigarette and taking bold gulps from his crystal snifter, he is breaking down the complex structure of Warren Buffett's stock operation. I sit at the table, mesmerized by the sheer complexity of this realm of corporate intelligence. Suddenly, he throws me a look that blurs the line between threat and curiosity.

"You want to know something that will really blow your mind?"

"Of course."

"You ever hear of Bob Kolody?"

"Who?"

"Bob Kolody vs. Coca-Cola. It’s a case being tried on the 7th Circuit. Check it out. It’s probably the best kept secret in the United States federal court system and, if exposed for what it is, could critically damage Coca-Cola’s entire corporate stability."

Now hit the skip button. It’s one month later. I’m grabbing my bags from the overhead compartment in a crowded American Trans Airways plane. Passengers are shuffling past, getting ready to disembark for the 2 hour layover between San Francisco and New York at Chicago’s Midway Airport. Suddenly the speaker next to my ear crackles and announces that I am to report to the ATA desk at the arrival gate.

I’ve never heard my name announced on a plane before. It gives me the uncomfortable feeling of simultaneous exultation and dread; ephemeral omens that inaugurate my relationship with Bob Kolody.

Disembarking, I approach the gate and see a tall, gangly, white-haired man standing next to the flight attendant. He spies my dreads and immediately extends his hand to take my bag. If nothing else, Bob Kolody is polite to a fault and a very quick study.

"Steve, thanks for coming."

This airport meeting is the culmination of a series of extended phone calls initiated by my Tennessee source. Over the past month I have been thrown into the information maelstrom that is Bob Kolody and his tireless crusade to exact justice from the world’s single most powerful brand commodity. Since my first discussion with Kolody from GNN’s west coast bunker, my life has become saturated with the legal minutiae that confirms at every level the fact that this may just be the most potently disastrous legal entanglement that Coca-Cola has ever attracted. And to think it is all because of the slightly rumpled individual leading me through the crowded terminal to Midway’s confectionary…

To know the facts is almost to disbelieve them.



A Corporate Theft

Back in January 1989 an independent marketing consultant named Bob Kolody pitched Simon Marketing - the national ad agency for Coca-Cola - with a game concept that played off the company’s new brand identity: Classic Coke. His idea was to revitalize the 60's era Coca-Cola can designs and create a nostalgic 'educational' gaming experience which he called Name That Car. Images of old cars would adorn the cans and they would do a tie in with Ford and McDonald’s that linked the 35th anniversary of the Ford Thunderbird and the 30th anniversary of the original Coke can. Consumers could win prizes by correctly guessing the make, model and year of the car featured on the can.

Pretty innocuous stuff. But Simon Marketing liked it so much they asked Kolody to come back down to Los Angeles for further meetings with a full presentation of his game concept. For this second round pitch, Kolody created an extensive story-board elaboration of his idea which incorporated a graphic collusion of Coca-Cola and automobile memorabilia. Once again, the concept was met with enthusiastic response and Kolody was booked for a final meeting at Simon’s Chicago office. After this presentation, Simon’s executives asked if they could use his boards in their presentation to their superiors. Kolody was excited. He agreed to leave them with all of his original story-boards, returned home and waited to be contacted.

After a few months and minimal response, Kolody called Simon Marketing in an attempt to get his story-boards back. No one would return his messages. He then instructed his lawyer, Bob Ward, to initiate correspondence with Simon's attorneys. These efforts yielded minimal results. Simon claimed to have lost the boards and were completely inattentive to the distress Kolody felt about their abrupt about-face and lack of respect for his lost property.

Fast forward to September, 1989. Kolody is in a 7-11 when he spots a Cherry Coke can with a new design graphic: emblazoned on the can's cover is a '59 Cadillac convertible, just as it had appeared on his story-boards. Concerned that the design is an infringement of his game concept, Kolody instructs Ward to investigate Simon’s breach of the confidentiality agreement. In a long trail of letters and phone calls, Simon totally denies any connection between the Cherry Coke campaign and Kolody’s presentation. With little choice left but to press his case in court, Kolody approaches Ward with a proposal to represent him on contingency. Ward is sympathetic but his firm refuses to sanction the deal on the basis that they deem the case too risky (and potentially costly) of an undertaking.

Kolody is disappointed but not diverted. Never one to abandon a fight, he begins a meticulous pattern of correspondence with various Simon Marketing executives and associated lawyers. And though no one will help him directly, several do confirm that there are certainly aspects of his claim that deserve independent scrutiny. At the least, he maintains, he wants his story-boards back. Finally, a year and a half after his Classic Coke, Classic Cars pitch , Kolody receives some of his original story-boards from Simon Marketing. The rest, Simon claims, are lost. Feeling cheated, Kolody begins his own campaign to reach Coca-Cola directly but to no avail. He has been shut out by the vast, inhuman corporate machine.

Now this is where it gets complicated… and nefarious. So stick with me:

Kolody’s game concept was based on revitalizing the nostalgia for late 50’s and early 60’s soda pop and car culture. Coca-Cola’s launch of New Coke had totally failed and he saw an opportunity to use their hasty re-introduction of Classic Coke as a vehicle for combining these aspects into a national campaign of collectible memorabilia. This is the reason that Simon Marketing was so attracted to the idea. By tapping into the historical depth of Coke’s one hundred year-old brand, they could create an endless array of designs and products to capture the minds of children and baby boomers alike. And few images have the power to conjure memories like the original Coke can that Kolody had used so prominently in his pitch. Here’s why:

Back in 1960, when Coke first introduced the revolutionary notion of canned soft drinks, they were faced with a serious problem. People had always consumed soda out of glass bottles and were skeptical of the new innovation and its unverifiable contents. Coca-Cola’s marketing team, ever faithful in the power of suggestion, reasoned that the image of the bottle might be enough to re-assure them that the product was still the same, just in a new package. So they placed a graphic image of the old-fashioned ‘contour bottle’ on the new can and rolled out the product with a big campaign. It was a huge hit with consumers and cans became a regular form of drink packaging. This implementation, referred to as the ‘contour bottle on the can’, lasted only a few years before being replaced by Coke’s trademark ‘contour ribbon’ of the 1970’s.

That is, until Bob Kolody resuscitated it for his Classic Coke, Classic Cars pitch to Simon Marketing in 1989. His story-boards were covered with various re-incorporations (derivatives) of the old Coke can designs and, more importantly, the now forgotten image of the "contour bottle on the Coca-Cola can." And Bob Kolody, who had now become resigned to the fact that he had been the victim of an unrecoverable corporate theft, was about to realize just how valuable his ideas had become.

In January, 1994 Kolody was walking through Chicago’s Midway Airport on his way to Boulder for a meeting with Schwinn Bicycle. As he was boarding the plane he spotted a woman holding a Classic Coke can. Suddenly he stopped and felt the blood rush from his face. Something about the label had caught him off guard. As the woman tilted the can to her mouth, he saw what it was. There, on the side of the can, was a full-length detailed image of the contour bottle.

Kolody boarded the plane in shock. Immediately upon landing in Denver, he went to an airport bar and bought a can of Coke. The contour bottle image was just as he had seen it at Midway. Kolody contacted Ward and explained what he had discovered. Though Ward was still unable to devote the kind of time that a major suit against Coca-Cola would require, he agreed to donate administrative assistance to Kolody’s case that Simon and Coca-Cola were potentially guilty of copyright infringement and the calculated dissemination of his intellectual property. At that moment Kolody decided to quit his private ad agency and devote the entirety of his efforts to attaining justice from one of the most successful corporate litigants of the 20th Century.

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blue ginger

i read all of the update stuff at the end and it stopped after aug. 2003
it's just a shame that a larger news source hasn't picked this up, it's an outrage.
i've been fowarding the website to everyone i know; more people need to read this!

jcldragon

Thank you

Part Two: The Plot Thickens

Bob Kolody is sitting across from me in the crowded and noisy bar at Chicago Midway. I have exactly one hour to complete our interview before my plane takes off and there is a lot of ground to cover. We both set to work immediately. As I prop the small digital camera up on our table, Bob begins to pull thick packets of documentation from his weathered leather briefcase. Turning on the camera, I pick up his image, pull the lens wide and stop to observe him for a moment.

Kolody is dressed in a conservative dress shirt and striped tie. His short white hair is combed over so that the most dominant characteristics of his face are the thick mustache that veils his lip and the wizened eyes that calculate unknown quantities of paper and fact. As he piles the documents in neat, systematically ordered rows, I cannot help but be taken by the sadness that penetrates the casual deliberation of his otherwise meticulous organizing. The feeling that arises within me is not one of pity but, rather, one of discreet compassion and solidarity.

For all his maddening attention to detail and incessant regurgitation of legal terminology, Bob Kolody is truly a rare breed of human. His path is one that few people tread in a world that has forsaken individual justice for corporate domination. He is the victim without an Erin Brockovich, the whistleblower without a Lowell Bergman. And I can’t help but feel the immensity of his journey as it piles up with unruly height on the table in front of me.

He pulls out the last articles from his case and, with one final scan of the material, looks up at me with calm determination.

"OK?"

"OK."

I begin to roll the video. Kolody immediately launches into an account of the most recent events in his case. It has to be one of the strangest occurrences to take place in a U.S. court since the acquittal of OJ Simpson. On August 22, 2000 nine U.S. Marshals swarmed into the courtroom after Kolody’s lawyer filed a formal statement accusing Coca-Cola of espionage and Judge Blanche Manning of having ties to the Chicago underworld. But to understand how it is that a simple copyright infringement suit evolved to this level of intrigue, we must look back at the history of Kolody’s dealings with Coca-Cola and Simon Marketing and the entire culture of obfuscation that surrounds their approach to his claims. In fact, deception has been a key aspect of this case since Kolody discovered the original theft of his concept back in 1989.



Caught in a Lie

After seeing the Cherry Coke can that incorporated his Classic Coke, Classic Cars design, Kolody repeatedly tried to contact Simon Marketing through his lawyer Bob Ward, an attorney at a prestigious Chicago law firm.

They received no reply.

Finally, after harassing and pushing his case to lawyers and executives at McDonald’s — another Simon client — Kolody began to receive some answers to his questions about Coca-Cola’s blatant rip-off of his idea. He was told by Simon Marketing executive Dean Barrett that no presentation had ever been made to Coca-Cola regarding his Classic Coke, Classic Cars concept and that any similarities between the Cherry Coke campaign and his original pitch were mere coincidence. But since Simon had been so delinquent in returning his story-boards, Kolody felt that there was something they were not telling him. He kept the pressure on and slowly the true story began to unravel.

In June 1992, Kolody procured a meeting at Chicago’s O’Hare Airport with another Simon executive, Bruce Bailey. At the O’Hare meeting, Bailey, after being informed that Kolody was taping all his conversations with Simon’s executives, pulled a total reversal of Simon’s position. Bailey admitted that Dean Barrett had brought Kolody’s concept to Coke but that their client had not been interested. Kolody was elated to finally have caught them in a lie and felt the first taste of vindication for enduring what had now been over two years of ritual deception by Simon’s top executives.

But the sensation was short-lived and bittersweet. For though the admission seemed like a major breakthrough in the case, Kolody was still without the financial means to take on one of the largest marketing firms in the country - a process that could cost millions. And Simon was not about to unforceably admit that his ideas had been used in designing the Cherry Coke can for Coca-Cola. In order to make them pay for their breach of trust, Kolody would need more substantial proof to convince an attorney of the validity of his case so that they would fight it on a contingency fee basis. This breakthrough came in 1994 when Kolody first saw the ‘contour bottle’ on the Coke can at Chicago’s Midway airport. Once he confirmed that Coca-Cola had, in fact, incorporated the design that he had presented to Simon back in 1989, Kolody felt sure that he had conclusive evidence that Coca-Cola and Simon Marketing had stolen his ideas and conspired to keep him from knowing about it.

From his law offices at the Chicago firm of Hill, Steadman and Simpson, Bob Ward sent letters to Coca-Cola asking for clarification of their position on the matter. There was no reply. In Ward’s second letter to Coca-Cola, dated June 1995, he included records of Kolody’s copyright registration of his storyboards for the Classic Coke, Classic Cars presentation. This drew immediate response from Dexter Brooks, Coke’s chief attorney:

Our files clearly reflect that our efforts (i.e. conception, design, testing, and implementation) of the "Coca-Cola Can incorporating the Contour Bottle" were conducted entirely independent of any proposals submitted by Mr.Kolody. In fact, not only is our Company the owner of proprietary and trademark rights concerning the contour bottle design, but we also obtained a Certificate of Registration at the U.S. Copyright Office in 1993 covering the "Coca-Cola Can Incorporating the Contour Bottle."

At first glance it seemed like a pretty standard denial of Kolody’s accusation. But, in fact, this letter held the key to Kolody’s future $4 billion case against Coca-Cola and Simon Marketing. In order to understand this you must first grasp a few key aspects of copyright law. Check this out:



Date of Creation

Under the 1909 Copyright Act, a registered copyright for artwork must be renewed every 28 years. In the case of the "Coca-Cola can incorporating the Contour Bottle," the work had been created for a highly publicized campaign in 1961. This means that the date of renewal would have been somewhere in 1989, not 1993 as is stated in the letter from Coke’s attorney Brooks. So what happened between 1989 and 1993? This is a very important question because if a work is not ‘timely renewed’ then that copyright slips into the public domain and becomes unrecoverable by the original author. Unless someone else attains ownership of the copyright. Here’s where it gets a little tricky.

Kolody’s copyright application registered the drawings he had produced of the "contour bottle on the Coca-Cola can". In his drawings, Kolody had integrated the pre-existing icon (the contour bottle) into a new design of their can. Under copyright law an applicant may register work that incorporates aspects of another person’s work as a ‘derivative’. Which Kolody did.

More importantly, the registration of a copyright commences on the ‘date of creation’. For Kolody this was in 1989, the year that he pitched Simon Marketing and, coincidentally, the year that Coke lapsed on its renewal for the copyright on the "contour bottle" image. Though Kolody did not know it at the time, the reason for the massive cover-up that had begun with Simon Marketing and which had now extended to Coke’s own attorneys was based in part on the fact that Coke had failed to renew their copyright on the "contour bottle" image in 1989 and had then filed a new copyright application in 1993 to cover it up. In so doing they committed an act of fraud which is a punishable offense that few corporations would have risked. But, as Kolody was about to discover, Coca-Cola was no ordinary corporation.

Now that Coke had formally entered the dispute vis-à-vis their correspondence with Ward, Kolody stepped up his search for an attorney with enough chutzpah to file his case against Coca-Cola and Simon Marketing. While Ward’s firm would not formally commit to the case, they did give him the license to help Kolody craft letters of legal substance so that he could maintain a strong front and stay in the game. Meanwhile, Kolody spent hours at Indiana’s Valporaiso Law Library researching any and every aspect of intellectual property law that might help him develop a better case. He also began hanging around a certain Chicago area bar to soak up the pain of his now seemingly endless battle for justice and retribution.

It was during one of those late nights that Kolody first met a powerful businessman who, through his own intricate past, had developed strong ties to the intelligence community. This person was our aforementioned Tennessee contact. As an accountant to Fortune 500 companies, he must remain nameless in order to protect his current business practice. For our purposes we’ll call him Echelon.



Echelon

Echelon studied the facts of the case and, seeing the potential damage that a massive fraud and copyright infringement suit could pose to Coke’s bottom line, decided to help Kolody get to the next level. He began by warning Kolody that he was not dealing with a regular corporation. Kolody begged for elaboration. In a long and detailed explanation Echelon broke down the facts of Coke’s links to the CIA and its historical role as a global front for the U.S. intelligence community. It was this topic that had so fascinated me upon my first meeting with him and one that I will touch upon briefly before getting back to Kolody.

Throughout the late 1950’s and early 60’s the CIA began expanding its operations. In order to effectively fight the Cold War on a global scale, it needed to establish bases in every major country. This meant that agents would need a plausible cover in order to penetrate the borders of international frontiers. They couldn’t just show up with CIA stamped on their passport and foreign governments were getting wise to the tricks the Company had been employing to get their agents across borders. As a solution to the problem the CIA was able to convince Coca-Cola, one of the first truly globalized companies with product distribution operations in virtually every corner of the world, to be used as a cover for the U.S. intelligence agency. It was a brilliant maneuver and one that rewarded Coke with benefits and opportunities that few corporations could ever dream possible.

It was for this reason that a lengthy battle with Coca-Cola over something as potentially costly as copyright infringement would need to be incredibly well planned. Echelon surmised that if Kolody was, indeed, going to take Coca-Cola to court then he would need a lawyer who fully understood the nature of Coca-Cola’s power and the forces it could summon in order to protect itself from unwanted attack, from a solitary individual. Kolody agreed and Echelon initiated a series of conversations that would change the course of Kolody’s life forever.

Through a contact who was a former Los Angeles FBI Station Chief, Echelon was able to set up a meeting for Kolody with John DeCamp, a federal attorney based in Nebraska. To Kolody, DeCamp seemed like the perfect choice. He was a former Nebraska state senator turned professional litigant with a good practice and, more importantly, he was no stranger to controversy. In the early 1990's DeCamp had been an attorney involved with a bizarre trial that had become known as the Franklin Cover-Up. A close friend of former (and now deceased) CIA director William Colby, DeCamp survived the trial unscathed and published a riveting novel about the events surrounding the case.

After hearing the substance of Kolody’s case DeCamp agreed to file under a contingency basis but warned Kolody that he would only be able to devote a limited amount of resources to the battle. Kolody agreed and, in January 1997, Civil Action Number 97 C 0190: Robert Kolody vs. Simon Marketing and the Coca-Cola Company was filed in the District of Illinois. As their lawyer, Coca-Cola named Jerold Jacover, one of the top intellectual property lawyers in the United States.

But within months of filing, DeCamp was forced to abandon the case due to a series of crises at his firm. Kolody was left with only two options… drop the case and return to his normal life or take on the invincible corporate attorney Jacover and his behemoth client Coca-Cola as an unrepresented (pro se) litigant. Armed only with his binders of photocopied legal texts and an irrational belief in the due process of the United States legal system, Bob Kolody chose the latter. It would become, as you will see, one of the most brutal and fascinating David and Goliath stories of the modern judicial era.

http://www.gnn.tv/cocakarma/

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Part Three: David and Goliath

The bar at Chicago Midway is filling with smoke and garrulous chatter. Next to our table are a couple of businessmen who have been drinking heavily and intermittently raising the volume of their conversation until I can barely hear what Bob Kolody is saying. Suddenly one of them interrupts our interview to ask for the time. Bob is in mid-sentence and looks over distractedly at the disheveled boozer.

"Excuse me?"

"You got the time, buddy?"

Kolody impatiently looks down at his watch,

"8:30"

As he turns back to me, Kolody hears the man mumble something under his breath. I look over to see them staring in glassy-eyed mockery at the spectacle of our makeshift interview and the unlikely nature of Kolody’s improbable celebrity. The pair burst out into laughter. Kolody turns back to me with a look of pained annoyance. Clearly, this isn’t the first time he has been maligned and underestimated by the coarse hearts of the corporate world.

Realizing that my plane is boarding in a few minutes, I tell Kolody that we need to wrap it up. He begins handing me packets of documentation, explaining the contents of each as I shove them into my shoulder bag. By the time we are done I am carting a small forest of recycled paper through the scanners and security check.

As I rush toward the departure gate Kolody continues to feed me information about the case. My head is swirling with data and I am verifiably drunk from the information. When we arrive at the gate I slip into line behind a gaggle of cheap-seat travelers and try to remember something I was going to say. There is a question I have been meaning to ask him since the very beginning. Suddenly it materializes:

"Bob, why do you think that Coke would take such a big risk to cover up a stupid, little mistake? I mean... they could have just paid you off."

Kolody reaches for my arm and holds me back for a moment. He looks at me with the kind of intensity that a football coach reserves for his quarterback on the last play of the game.

"Because, it isn’t just a stupid little mistake, ok? You have to understand Coke’s business. How does Coke make money?

"They sell syrup to bottlers."

"Right. And…"

"And?"

"And they license the rights to print their corporate art on the cans and bottles to those bottlers. So what are those bottlers going to say after finding out they’ve been paying twelve years worth of licensing fees for a fraudulent copyright?"

"Shit."

"These guys are global. They have bottlers all over the world. And Coke hasn’t exactly been the best master to them, if you know what I mean."

The ATA stewardess announces the final boarding call for my flight. Kolody doesn’t let go of my arm.

"And to answer your question about the risk they took."

"Yeah?"

"They didn’t think they were taking a risk by messing with me."

"Why? You had all the evidence -"

"Doesn’t matter. You have to understand how it works at that level. Coke did a profile on me. They looked at my financial situation and my total lack of legal knowledge and they figured I would never have the intelligence or resources to pursue this case. And that’s why they perpetrated the fraud. Because as long as I could not press them in court, they would be able to protect themselves from investigation. And no one would ever find out about what happened."

Kolody lets go of my arm and slips his hand down to mine. Gripping it firmly, he shakes it goodbye.

"Just remember, Stephen, the cover-up is always worse than the crime."



Intellectual Property

Intellectual property law is one of the more complicated and prohibitive realms of the legal domain. It is loaded with technical nuances and formal minutiae that few laymen can navigate successfully without the help of a lawyer. But since John DeCamp had dropped out as his federal attorney, Bob Kolody knew that he had no choice but to learn aspects of the law if he was going to make any progress toward the resolution of his claims against Simon Marketing and Coca-Cola. And so, as is his nature, Bob Kolody spent endless hours on the phone coaxing advice from lawyers and legal experts.

One of the people that Kolody turned to for advice was Tom Field, a professor at Franklin Pierce Law School. Consistently listed as one of the top intellectual property schools in the country, Kolody cold-called the faculty and got one of its founding members, Professor Field, on the line.

I recently spoke to Professor Field about that initial encounter and his opinion of Kolody’s maverick approach to the law. Like me, Field was at first amused by his tenacity and obsession with details but when it came to Kolody’s ability to absorb and interpret technical legal issues, his opinion is unequivocal:

"I have huge admiration for Bob for all the law that he has learned, cumulatively and substantively."

But when I asked him about how he regarded Bob’s chances of successfully convincing a judge to accept his arguments as a pro se litigant against a massive corporate entity like Coke, Professor Field likened it to shopping for canned soup on a rainy day.

"It’s almost like a branding issue when you’ve got the judge and you’ve got a respectable company and a respectable law firm in front of the judge — somebody she knows and has come to rely on — and they’ve got their name on the line. And then they’ve got someone they’ve never heard of who’s on the other side. In a close case, she’s going to go with the name that she’s come to rely on."

Yet, despite the obvious perils of his situation, Kolody felt sure enough about the facts of his case to fight it pro se against Jerold Jacover, the well-respected litigator from Chicago’s prestigious law firm Brinks, Hofer, Gilson, and Lione. He also had the added assurance that as a pro se litigant he would be guaranteed certain latitude by the court in order to gain equal access to justice without representation by a qualified attorney. But, as Kolody would soon discover, justice is no longer the blind matriarch it once was. Especially when it comes in the form of a judge by the name of Blanche Manning, one of the most controversial members of the Chicago bench.

Appointed in 1994 by President Clinton, Manning has gained a reputation for being unable to handle the full extent of her duties as a federal judge. In the Almanac of the Federal Judiciary, a publication that lists and evaluates members of the various national benches, Manning was given the following critiques by lawyers that have dealt with her in the courtroom.

"Her level of ability is fair. If she could concentrate on just one case, she would be absolutely fine, but she can’t handle a docket of 300 cases. Her decisions are extremely delayed and belated. She often overlooks crucial points because she is in such a rush."

"She really is in over her head. I don’t think she grasps the law. She doesn’t really comprehend what’s going on, and she’s not able to make decisions."

"She’s a disaster as a federal judge."

Yet Judge Manning consistently draws to her docket some of the most high-profile cases on the 7th Circuit, from the infamous 1998 Archer Daniels Midland price fixing scandal to the recent trial of a high-level Chicago police officer for drug trafficking. Kolody’s case was no exception as Coca-Cola was facing one of the most potentially damaging legal battles in the history of the corporation. And so, as he entered the courtroom to begin the adjudication of his copyright infringement suit against one of the country's top intellectual property lawyers, Bob Kolody walked into a scene that had all the surrealism of Alice in Wonderland.

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Part Four: Alice in Wonderland

Kolody’s case against Coca-Cola is a complicated series of claims and counter-claims, motions and dismissals, orders and responses that, if fully documented, would exhaust the patience of even the most attentive reader. In order to best understand the tactics that Coke deployed to protect themselves from a proper level of judicial enquiry into their fraudulent application of a copyright and the cover-up of that crime, we need only elaborate on a few aspects of the court proceedings. As they unfold you will see how Coke’s attorneys were able not only to manipulate and deceive the court into accepting false arguments but also to manufacture an irrefutable level of collusion between the judge and their interests.

Once again, I must warn readers that this recounting of the legal battle between Bob Kolody and Coca-Cola’s lawyers requires some concentration and patience. But understanding these aspects of the case will give you a powerful insight into how justice has been so blatantly denied in a lawsuit that is potentially worth billions of dollars. Please try to stick with me…



Coca-Cola's Defense

Jerold Jacover’s initial response to Kolody’s copyright infringement suit was to file a counter-claim and motion for summary judgment. What this means, in essence, is that Coke was seeking a favorable ruling from the Court that would move against Kolody and pre-empt the possibility of a trial. In order to attain a summary judgment the party must prove through documentation and argument that the suit has no basis in fact and that it should be dismissed. Jacover’s strategy for accomplishing this was to prove the invalidity of Kolody’s copyright. This argument can be summarized in three key points:

1. Lack of Originality

The foundation of Coca-Cola’s refutation of Kolody’s claim was to prove that his copyright was invalid and thus inadmissible as proof that they had infringed on his property. In his defense of Coca-Cola’s use of the contour bottle on their can, Jacover argued that Kolody’s copyright application, which was based on his story-board drawings of the contour bottle, lacked the requisite level of originality to be a legitimate copyright. Therefore Kolody could not legally claim that Coke had stolen his property.

Now, on the surface, this sounded very convincing. If, in fact, Kolody’s drawings lacked originality and were thus not sufficient for a copyright then his argument that Coke stole his property would be null and void. But instead of pin-pointing a crucial Achilles Heel in his opponent’s case, Jacover gave Kolody ammunition with which to question the validity of Coca-Cola’s own application for a copyright. Check this out:

You may recall that in his initial letter to Kolody, Dexter Brooks, Coke’s corporate lawyer, defended their alleged ownership of the contour bottle design by asserting that they had registered a copyright for the image in 1993. One of the reasons Kolody felt so confident about his case against Coke was that, by virtue of the 1989 ‘date of creation’ on his drawings of the contour bottle, he had legally beaten them to it. That is why they needed to come up with a way to discredit his application. Hence the argument that his copyright was invalid.

But, as Kolody soon realized, Coca-Cola wasn’t that smart in their connivance.

By asserting that Coke had registered a new copyright on the contour bottle image in 1993, Dexter Brooks admitted that they had submitted derivative art for the application. Yet, it only takes one glance at the contour bottle Coca-Cola uses on their can to see how strikingly similar it is to the story-boards Kolody presented to Simon Marketing as part of his original pitch. And so the question begged, if Kolody’s derivative drawings of the contour bottle and the original Coca-Cola can designs were lacking in significant originality for them to warrant a copyright, then how could Coke’s revisions of the can, which were nearly identical to Kolody’s, be sufficient?

They cannot.

But Judge Manning did not take the time to investigate Kolody’s side of the issue. In fact, she was so blinded by Jacover’s high-profile status that he was able to further mislead her in the hearings by misconstruing an entire facet of Copyright Law and confusing it with that of Trademarks, two very different aspects of intellectual property law.

2. Non-Copyrightability of Trademarks

Beyond his assertion that Kolody’s drawings were not sufficiently original, Jacover also made the argument that Kolody’s copyrighted drawings contained elements that could not legally be copyrighted. Namely Coke’s trademarked image of the contour bottle.

Once the world-famous [Coca-Cola] trademarks that Kolody copied from [Coca-Cola] are excluded from Kolody’s copyrighted drawings, as the law demands, those drawings contain only common, trite, and familiar words and symbols which do not warrant copyright protection.

In other words, Jacover was trying to claim that trademarks cannot be copyrighted and that, therefore, Kolody’s incorporation of Coca-Cola’s trademarked images into his copyright application was somehow against the law. But that is simply not true. In fact, the very nature of commercial design, and the creation of derivative works that allow for its evolution, depends on the legal right of individuals and corporations (even those who own the trademark) to create new, copyrightable art of those trademarks. That is how independent designers like Kolody are supposed to be protected from corporations stealing their concepts for new trademark designs. But maybe this point would be better elucidated with a brief explanation of the difference between a trademark and a copyright.

A trademark is basically the registered logo or distinctive mark of a business. It is representative of the goodwill of the corporation. An example of this would be the Nike (NKE) swoosh. It is trademarked as their brand’s unique symbol and identifies Nike products for consumers.

A copyright is essentially defined as the right to publish an artistic expression and/or rendition of a work, including trademarked images. For example, the Campbell Soup can is a trademark owned by the Campbell Soup Company (CPB). Andy Warhol was able to copyright his famed paintings of the Campbell Soup can, which were derivative works of Campbell Soup’s trademark. This is why Kolody’s derivative drawings of the contour bottle were granted copyrights by the Copyright Office

Therein lies the difference between the two. Trademarks are the exclusive property of a company as long as they renew them as their emblem. Copyrights evolve through derivative creations, they share owners through licensing arrangements and, to Coke’s major chagrin, they expire.

So, by claiming that Kolody could not, as a fact of law, copyright Coke’s trademarked image of the contour bottle, Jacover misled the Judge. And Judge Manning never questioned the fact that his presentation of the law was completely fallacious. Even worse, she did not see the most striking inconsistency of his argument: that, in filing for their own copyright on the contour bottle in 1993, Coke admitted that the trademark was copyrightable, an admission that directly contradicted their argument against Kolody.

Now this may sound a little trifling but, in the realm of federal judicial practice, it is a crucial point. It is called admissions against interest and constitutes a major breach in the procedural law of the Court; one that calls for the Judge to issue an estoppel upon the offending side, essentially blocking their use of the contradictory arguments. But again, Judge Manning either did not understand that aspect of the law or was simply ruling in favor of the establishment attorney and his gargantuan client. Kolody, acting as a pro se litigant had no recourse but to accept the Judge’s decision and continue to press his case on other fronts.

In any event, this wasn’t the worst of her transgressions. Perhaps the most staggering miscarriage of justice in the Kolody hearings occurred when Coke refused to submit documents substantiating another aspect of their argument against the validity of Kolody’s copyright.

3. Exclusivity

In Coke’s reply to the suit, Jacover asserted that it was Kolody and not Coca-Cola who was guilty of submitting a fraudulent copyright application. It was his argument that "Coke is the author and sole and lawful owner of any copyright on the Work". In other words, that Coca-Cola had the exclusive right to a copyright on the contour bottle on the Coca-Cola can.

Again, on the surface it sounded like an excellent defense and one that, even Kolody admits, should have been enough to close the door on his claim. Except for the fact that when he asked for the documents to prove their certification of the copyright in discovery, Coke refused to submit them. In fact, they did everything in their power to subvert Kolody’s legal right of due process governed by the professional rules of conduct which stipulate that Coke must provide all relevant documents and cannot conceal them from either Kolody or the Court. Each time Kolody would request the documents, Jacover would respond with a new and more ridiculous objection.

First it was that Kolody’s request sought documents "not reasonably calculated to lead to the discovery of admissible evidence". Then, after Kolody filed a request for the original 1961 copyright registration, Jacover responded saying that "Coca-Cola objects on grounds that it is irrelevant and cannot possibly lead to any relevant information". How could these requests be considered irrelevant and unreasonably calculated if their intention was purely to substantiate Coca-Cola’s own argument for the dismissal of Kolody’s claim? And if Coke was, indeed, the exclusive owner of the copyright, why not just produce the documents and be done with it?

Kolody pleaded with Judge Manning to sanction Coke for failing to provide him with adequate information in order to press his case. But Manning would not compel Jacover to produce their copyright registration for the contour bottle. And, what is worse, she never investigated Coca-Cola’s claims that they had a legitimate copyright on the contour bottle.

Frustrated, Kolody filed another motion claiming that Coke "has resisted discovery, denying Kolody the opportunity to fully explore the issues of infringement". Again, Jacover responded to Kolody’s complaint with condescension and blatant lies:

[Coca-Cola’s] counsel voluntarily stated that it would be willing to respond to Kolody’s discovery "to the extent that it’s relevant to the summary judgment motion." Thereafter, [Coca-Cola] made a good faith effort to respond to Kolody’s written discovery, even though [Coca-Cola] believed it to be largely incoherent and objectionable. Documents were produced and interrogatories were answered in accordance with Federal Rules. In summary, Kolody was given a full opportunity to pursue whatever discovery he wanted…

Fearing that he would never see justice on this issue, Kolody humbled his attack and submitted a request for the judge’s reconsideration:

Coke offers that ‘it made a good faith effort’ to respond to the written discovery. Yet, Coke, alone, sat in judgment as to what it felt was irrelevant and what was not. Necessarily, these documents were relevant.

But Judge Manning had seen enough of Bob Kolody and his unique brand of pro se litigation. On September 2, 1998 she awarded Coke Summary Judgment against his claim stating, in essence, that Kolody’s copyright was invalid.

Kolody was crushed. On each one of Jacover’s arguments against the validity of his claim, he had uncovered major barriers of credibility. But instead of listening to him, the judge had sided with Coca-Cola and shut Kolody out of a fair and reasonable hearing of his arguments. Never one to quit and now possessed by an Quixotic surety of his democratic right to a fair trial, Kolody began preparing an Amended Complaint to contest the Judge’s decision. Little did he know that he was about to stumble on the most powerful evidence of Coca-Cola’s verifiable fraud and cover-up of that crime.



Original Sin

Working on a hunch and the advice of Steve Kelber, a Washington, DC based attorney who was contributing to his pro se effort, Kolody contacted the U.S. Copyright Office to see if he could get a copy of Coca-Cola’s Copyright Registration. Though the Copyright Office does not habitually disseminate the files of other registrants, Kolody discovered a provision that allowed for individuals involved in litigation over a copyright to gain access to the documents in question. So Kolody filled out a formal request and, within days, was analyzing Coke’s 1993 Registration for Copyright of the Contour Bottle on the Coca-Cola Can. Attached to the document was a letter from the Copyright Office that made it clear why Jacover had been so vigilant in his denial of Kolody’s access to the Copyright Registration.

In the letter, Copyright Examiner John Ashley warns Coke:

Certainly, we will issue copyright registration for the interpretive drawing of a bottle that has been added to this label, but only if this is new art. Of course, if it is pre-existing art that has been borrowed from some other source and then merely formatted into a new layout for this particular label, then there is no basis for issuing a registration based on this label. The first-published edition of a work must be used to request copyright registration.

What this letter represents is a warning to Coke that they can only file for a copyright on a work that is "new art". Furthermore, that the ‘first-published’ edition of the work must be used in the application. This presented a huge dilemma for Coca-Cola. Not only were they unable to present the contour bottle as ‘new art’ (since it had first been published in 1961), but they could not use the ‘first-published edition’ of the contour bottle in their 1993 application because then it would have become clear to the Copyright Office that they had allowed the 1961 copyright registration to lapse. Remember, the law governing copyright renewal states that: in order for a party to maintain exclusive control over a copyright they must renew that registration every twenty-eight years. So let’s do the math. Take the date of creation for the original image of the contour bottle and add twenty-eight years.

1961 + 28 years = 1989.

What happened between 1989 and 1993? Even by Coke’s own admission, the registration lapsed. And when a registration lapses, the copyright either goes into the public domain or becomes the property of a new applicant who registers it. In the case of the contour bottle, Bob Kolody’s copyright registration commenced at the date of creation or, in other words, around the time of his pitch to Simon Marketing.

1989. Making him the legal owner of the copyright of the contour bottle.

Did Coke discover that Kolody had become the de facto owner of their most famous copyrighted image due to their failure to renew it after 28 years? We’ll never know. But it is interesting to note that Coke filed their second, amended application to the copyright office on April 14, 1994, just three days after Kolody’s attorney Bob Ward’s second conversation with Coca-Cola’s attorneys.

In that amended application, Coke filed for a copyright on a derivative of the contour bottle despite the Copyright Office’s warning about the limitations governing its legal registration. And in order to avoid scrutiny on the issues raised by the letter of warning, Coke committed a fraud upon the U.S. Copyright Office by intentionally omitting the original date of the design. What’s more, in filing for copyright on a derivative design of the contour bottle, they used the very same argument that Kolody had used in justifying the validity of his copyright in court. This is the essence of estoppel and why Jacover would never allow Kolody or Judge Manning to see the application, because it was the smoking gun that proved Coke’s manipulation of the Court and the Copyright Office; arguing one side to the Judge in order to invalidate Kolody’s copyright after pressing the other side to the Copyright Office in order to justify theirs.

Now the question may arise: Why didn’t the Copyright Office investigate Coke’s second application? The answer is: that it is not within the realm of their mandate to verify copyrights. They are only expected to forewarn applicants about the validity of their registrations. The rest is left up to the courts. Coke’s lawyers knew this and were willing to take a gamble that Kolody would never have the money or intellect to challenge them in court. But, as Kolody met their lies head-on at each stage of the game, they were forced to dig themselves deeper and deeper into the cover-up and deception. Hence the impeccable truth of Kolody’s favorite expression concerning the relative evils of the cover-up and the crime.

Looking back, one really can’t fault Coke on their logic. What were they to do? Accept the fact that they had lost one of their most sacred images to a freelance designer who got his story-boards ripped off by a couple of advertising hacks at Simon Marketing?

This was not in the cards for a company as powerful as Coca-Cola.

And consider this, by the time Kolody got them to trial they had already been licensing the image to their worldwide network of bottlers for five years. We are talking about damages that run into the hundreds of millions of dollars — not only from Kolody but also from the bottlers who had been paying for the rights to use a fraudulent copyright. In order to protect themselves from that humiliation, Coke had taken the ultimate risk and lost. After years of concealment, humiliation and blatant lies, Kolody now held the key to their destruction in his hands.



The Red Queen

Excited by his discovery and confident that he finally had all the evidence necessary to demonstrate that Coca-Cola had not only defrauded him but also the U.S. Copyright Office - a crime equal to perjury in a courtroom - Kolody submitted his Amended Complaint to the 7th Circuit and secured a new date in court with Judge Manning. In the Amended Complaint he introduced the new evidence and outlined the various aspects of Coke’s contradictory arguments, calling on the Judge to ‘estop’ Coke from using those claims as a basis for their argument against the validity of his copyright. Furthermore, he asserted that Jacover had unlawfully concealed evidence which proved that Coke had infringed on his property.

As Kolody prepared for what he expected to be his last day in court as a pro se litigant, he permitted a ray of optimism to penetrate the otherwise darkened gloom that the prolonged legal battle had cast onto his world. I imagine him treading lightly on his weathered soles as he made his way up the steps of the Chicago courthouse. Whistling even.

He never saw it coming.

After reading the substance of his Amended Complaint, Judge Manning refused Kolody’s request for admission of new evidence. She would not even hear his arguments. When he recalls that day in the courtroom, Kolody says that he did not feel as if he was in America. And if that is not true geographically, then it is philosophically. The American Constitution guarantees the right of any litigant to produce new evidence that may alter the Court’s determination of their fate. If you need a more local reference, just look at Timothy McVeigh. The U.S. government delayed the execution of a person they consider to be the worst domestic terrorist in the history of the United States because of the submission of new discovery documents. Furthermore, Judge Manning, as an officer of the U.S. government, has a judicial obligation to investigate any evidence of fraud committed on another branch of the government.

Namely, the U.S. Copyright Office.

With this one stroke of her judicial wand Judge Blanche Manning decimated Kolody’s perfectly crafted argument for the overturning of her Summary Judgment against his claim against Coca-Cola. But, in her blatant disregard for Kolody’s due process rights and her duty as a federal judge, she also broke the law and set into motion a series of events that drew in a cast of players so intriguing, treacherous and divergent that even John Grisham will envy our approach to the dramatic conclusion of Coca-Karma.

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Part Five: The Beginning of the End

I'm lying on the floor of the GNN bunker going through tapes of the various interviews that I have conducted over the past month in order to learn more about Kolody's case. Scattered around me in a semi-circular matrix are hundreds of pages of faxes and random dictation that I have compiled since beginning my research. I have notes scratched onto everything from sticky pads to take-out bags and even the blank surfaces of record sleeves. Ever since we began this odyssey together, Bob Kolody's phone line has been the source of an unending flow of judicial and corporate intelligence. Either in the form of Kolody's daily faxes, consisting of relevant newspaper clippings and legal documents or, as phone calls that inspired cryptic scribblings inked with the rapid-fire annotation derived from attempting to capture the exact combination of Kolody's legal terminology. In short, I feel like a prisoner trapped in the chamber of Kolody's casefile, surrounded by a moat of unending legalese. One step too far and I'll drown...

Meanwhile, the DAT player lies on the ground beside me, transforming a steady stream of 1 and 0's into the sonic manifestation of a uniquely cantankerous vocal signature. I can't help chuckling as I listen to the impatient voice of Sherman Skolnick, the legendary judicial activist and founder of the Citizen's Committee to Clean Up the Courts, as he intermittently admonishes and ridicules me for my gaping lack of legal expertise. But when it comes to stating the facts about Kolody's case, he does not mince words about why it is worthy of even my unschooled analysis:

"I would say that it is one of the more important cases I have come across because it involves a major enterprise that is generally not criticized in the media because of their advertising budget. And, secondly, because they have done favors for the American CIA in every corner of the world. So, you can see the importance of that. In other words, they’ve been given a pass."

Given a pass. Interesting terminology. Almost makes you think that he is intimating some form of collusion between the Court and Coca-Cola. I stop the tape and reach over to pull out a copy of Skolnick's Declaration to the Court, the substance of which was so threatening to Judge Manning that he was nearly thrown out of her courtroom by six US Marshals on August 22, 2000. Surely one of the wildest hearings the old Chicago courthouse has endured, it involved testimony and allegations that Coke had used espionage as a means of derailing Kolody's case and that Judge Manning had been bought off by the Chicago Mafia. But I am getting ahead of my self…



The Attorney from Arkansas

After Judge Manning shut down Kolody's attempt to bring new evidence into the courtroom, he turned back to the one person who had never failed him and asked for help. Echelon, our Tennessee contact, was not surprised by the turn of events that had left Kolody without justice on his case. He also realized that if Kolody was going to effectively drive his Appeal through the 7th Circuit, the romantic ideal of his pro se litigation would no longer suffice. So he flipped open the pages of his little black book and came up with the name of a federal prosecutor whose brushes with the Arkansas political elite had made him a legend in the eyes of some of Echelon's sources. Tearing open his newly emptied box of Marlboro Reds, Echelon copied the name and number of Daniel Ivy inside the pack and handed it to Kolody.

"If this guy won't take it, then no one will."

Dan Ivy's practice is based on fighting the toughest and highest-profile cases that he can find. Among a select group of the most successful prosecutors in Arkansas, Ivy once had offices throughout the state and his own private airplane. But, after a series of dramatic cases in which he became intimately acquainted with the drug smuggling operation at Mena Airport, Ivy decided to run for Attorney General as a Republican nominee. His platform was based on the destruction and arrest of then Governor Bill Clinton. Suffice it to say that he ran into a political juggernaut that eventually destroyed his practice and left him nearly penniless after a messy divorce from his former wife, the daughter of a highly placed Democratic judge.

Kolody immediately called Ivy at his law offices in Fayetteville, Arkansas and launched into an explanation of his lawsuit against Coca-Cola. Ivy listened carefully to Bob's recounting of his case and the events that had led to the recent denial of his attempts to introduce evidence of Coke's fraudulent copyright. His first reaction was one of incredulity and doubt.

"See, I get a lot of people who call that really don’t have cases. [Kolody's] case sounded so unbelievable that I had real questions about if he was telling me the truth because of what he told me about what had happened in the courtroom and so forth and so on. And because he said he was having difficulty finding an attorney to represent him. See, if you’ve got a high dollar case against Coca-Cola, some attorney is going to jump in there and sue them because you are talking about a case that could be worth, potentially, a very large sum of money. Possibly billions of dollars."

Never one to look a gift horse in the mouth, Ivy had Kolody send down the documentation on his case. After carefully reviewing the substance of Kolody's exhibits, court transcripts and legal correspondence, Ivy determined that the claim was valid and that Kolody had been terribly wronged. This was all he needed to know. On February 12, 1999, less than two months after their initial conversation, Dan Ivy agreed to represent Bob Kolody in his fight against Judge Manning and Coca-Cola's superstar attorney, Jerold Jacover.

One of the first actions Ivy took was to surgically examine the court records and begin drafting a second Amended Complaint to Manning's Summary Judgment. But as soon as Ivy came on the scene he began to notice severe irregularities surrounding Kolody's case.

The Missing File

First and foremost was the disappearance from the court record of Kolody's first Amended Complaint which had been filed as a response to Judge Manning's Summary Judgment. You will remember that this is the document that Kolody filed articulating the various aspects of Jacover's fraud upon the court and Kolody's evidentiary findings that proved the validity of his copyright. As Ivy explained to me, every document submitted to the Court is stored in the courthouse and made available for public scrutiny. This protects the judicial process from fraud by making transparent its proceedings for the media and objective observers. But when Ivy sent Kolody to look for the Amended Complaint in the file room, it was gone. Even more suspicious was the fact that when Kolody went to check the log (which must be signed by any person who examines the file) there was no other signature other than his own.

Where did the file go?

Kolody asked the clerk who guards and releases documents if he could remember anyone suspicious asking about his file. But he could not. In fact, the guard told him, no one can access the file without first signing it out. Even Judge Manning would have had to sign the log if she wanted to access the document. So the file had been removed by someone who had direct access to the court records. And they had done so in order to remove the possibility of any third party learning about the frauds committed by Jacover in his defense of Coca-Cola's fraudulent copyright application.

Ivy asked Manning for an extension to reconstruct Kolody's Amended Complaint. She agreed, but, just as they were completing their work, the file mysteriously re-appeared in the court docket. Kolody and Ivy were mystified. Clearly there were clandestine forces working from within the court system to aid Coca-Cola's fight against Kolody and his new lawyer. And if having files stolen from the court wasn't bad enough, Kolody and Ivy were further sabotaged by their opponent's use of dirty tricks.

Failure to Notify

On April 30, 1999 Kolody's local counsel received a FEDEX package containing a notice to appear at an important hearing regarding his case. As it was a hearing called by his opponents, the responsibility fell on their lawyers to notify Kolody of the date and time that his presence was required in the Chicago courthouse. The only problem was that Kolody received the notification of the hearing a few hours after it had already taken place.

Outraged, Dan Ivy contacted the Court and discovered that Judge Manning had, indeed, proceeded without either Kolody or his counsel present. Furthermore, she had ruled against his second Amended Complaint and terminated the case. As far as she was concerned, it was over. Kolody was done.

To compound the blatant unfairness of the situation, when the Minute Order issued by Judge Manning as a summary of her decision was faxed out to his lawyer on May 10, 1999, Kolody saw that the Judge had erroneously referred to his case as a "federal trademark claim." This was proof once again that she had totally misrepresented and/or misunderstood the basis of his case. Kolody's lawsuit against Coke was pertaining to copyright infringement, not trademark. As explained earlier, the difference between copyright and trademark is significant to a major degree. Here was a federal judge deciding the fate of a $4 billion lawsuit on the basis of a falsely conceived interpretation while Kolody's attorney had been given no opportunity to rebut the arguments presented therein.

And it only gets nuttier.

Judicial Error

Now that Kolody's case was officially terminated with Judge Manning, it was up to Dan Ivy to begin the process of 'appealing' her decision. You see, the way it works in the federal court system is that once the 'lower' court has decided on a case, the plaintiff can take it up to the 'higher' court of appeals and ask that they review that decision. In order for this to occur the contested aspects of the Judge's decision must be summarized in complete detail and submitted as a brief to the Appeals court. And so, once Ivy was ready to bring Kolody's case through the appeal process, he prepared a notice of filing and submitted it to the 7th Circuit Court of Appeals. The judge in the Appellate court reviewed the documents and, on June 11, 1999, sent down a reply stating that Kolody's case had been prematurely submitted. His reasoning went as follows:

Generally, an appeal may not be taken in a civil case until a final judgment disposing of all claims against all parties is entered on the district court's civil docket. Coca-Cola filed a counterclaim against Robert Kolody on March 13, 1997. It does not appear, however, that the district court disposed of the counterclaim. As such, this appeal appears premature.

Incredibly, Judge Manning had neglected to rule on an entire aspect of Kolody's case, specifically Coke's counter-claim. Could she have just forgotten or was this, as Kolody and Ivy were beginning to suspect, an aspect of her now undeniably questionable collusion with the interests of Jerold Jacover and Coca-Cola? To answer that we must re-examine the contents of Coke's counter-claim and how its exclusion from judgment directly benefited Coke's strategy of protecting their fraudulent copyright application from examination.

To recap… the essence of the argument in Coke's counter-claim to Kolody's infringement suit was that Kolody's copyright registration was invalid and thus unenforceable. As part of the motion, Coke maintained that if Judge Manning ruled in their favor, Kolody's copyright should be ordered cancelled by the Court. Furthermore, they contended, he should be liable for all costs he had incurred on Coca-Cola (and their shareholders) for his case. But since she neglected to rule on the counter-claim, the Appellate Court remanded the case back to the lower court saying, in essence, that the case was, as yet, unfinished. She would have to hear out the arguments from both sides regarding the counter-claim. Then Kolody's case would be ready for Appeal.

At first this seemed like a major blow to Kolody's case. If he returned to the lower court, where Judge Manning would most likely order the Copyright Office to cancel his registration on the contour bottle, he would have no basis for suing Coke for infringement. And, even more troubling, convincing the Court of Appeals to overturn Manning's judgment as well as re-instating a cancelled copyright registration was pushing the bounds of rational speculation. Or so it appeared. Through his own judicial kaleidoscope, Dan Ivy saw a very different scenario and one that posed very serious problems for Coca-Cola.

Check it out…


An Ironic Disposition

Ivy realized that if Manning was going to hear arguments on the counter-claim, then Coke's lawyers would be forced to submit to an entirely new hearing and, thus, a new process of discovery. This was disastrous news for Coca-Cola for it offered Kolody a new opportunity to expose what Jacover had plotted so deviously to protect; the fraudulent 1993 Copyright Application. And Ivy knew it.

And Coca-Cola's lawyers knew that Ivy knew it.

So it came as no surprise to them when Jacover's office received a motion from Ivy asking Judge Manning to reopen discovery and set a date for the counterclaim to be heard in front of a jury. In other words, Ivy was now fighting to have Judge Manning hold hearings to rule:

1. on the cancellation of his client's copyright, and

2. to make him accountable for any and all expenses incurred by Coke's lawyers.

To an outside observer this would have seemed tantamount to judicial suicide and malpractice by Kolody's lawyer; Ivy was enacting the ultimate gamble with his client's fate.

But was he really?

No. Because Coke's lawyers, with no choice but to avoid a new round of discovery by any means, filed their own motion two weeks later asking Manning for the voluntary dismissal of their counterclaim. In other words, not only were they dismissing their motion for the cancellation of Kolody's copyright, the most tangible implication of their victory in the lower court, but also that he be responsible for paying the considerable expenses incurred by their attorneys in fighting his 'fraudulent' case. One can only wonder at how Coca-Cola's shareholders would have reacted knowing they had been left on the hook for the hundreds of thousands of dollars spent on invalidating