C&D Letter TRADEMARK BS It Don`t seem right

[AlwaysSomething]

They don''t draw the line....They already earased it!

sure seems that way don`t it

[AlwaysSomething]

contact one or more of us attorneys who contribute to this board and let us know what the URL that they are claiming as a Trademark infringement may be. We will all provide you with an honest opinion as to your chance of keeping the domain or losing it in a UDRP or ACPA action. .

Thanks

PM sent yesterday Did you get it?

[Garry Anderson]

AlwaysSomething sent PM to me last night with the domain names in question.

For the record - these domains contain a generic term - it is my belief he certainly does nothing wrong.

[jberryhill]

For the record, your communications with AlwaysSomething are not protected by any privilege, and conducting those communications via a third-party-controlled messaging system, which is discoverable and not confidential, is irresponsible. That is one reason why I refuse to discuss legal matters in PM's here (per my signature).

Secondly, making a change to whois data from "for sale" to "not for sale" in response to receiving a c&d letter, as if the sender did not save copies of the "before" and "after" versions, is precisely the kind of "shifting intent" that UDRP complainants and panelists will seize upon as evidence of knowledge of wrongdoing.

You may find this interesting:

http://pacer.ca4.uscourts.gov/opinion.pdf/012028.P.pdf

...if only for the caption of the case, if nothing else.

We now return to our regularly scheduled nonsense...

[Garry Anderson]

John> For the record, your communications with AlwaysSomething are not protected by any privilege, and conducting those communications via a third-party-controlled messaging system, which is discoverable and not confidential, is irresponsible. That is one reason why I refuse to discuss legal matters in PM's here (per my signature).

Thank you very much for this advice John.

However - were my advice is "mere opinion" (e.g. I believe these guys trying to take your domain are obviously crooks - I would take these scum for reverse hijacking) - yours is "legal advice" - it is of higher status.

Secondly, how does "shifting intent", AFTER THE FACT, preclude the fact that he "could have LEGALLY started his own company with it or LEGALLY sold it to another person for this purpose"?

You still have not answered this crucial question.

I believe you are right about UDRP panelists:

They certainly "seize upon" anything they can - to take the domain from the lawful owner and to give their customers - to whom they clearly are biased in both principle and with cash$$$.

Changing from "for sale" to "not for sale", they were obviously trying to prevent NHN Corporation from taking the domain in the corrupt UDRP - to prevent NHN Corporation overreaching mark.

[jberryhill]

Garry, you have a very childish "black and white", concrete reasoning approach to the world, and if you want to con people into thinking you are anything other than a crank, while they bear all of the potential liability of listening to your rantings, then you are surely entitled to your hobbies. The real world operates differently, and people who change their tune to invent post-hoc rationalizations for prior behavior do not come across as credible. That is precisely why the phrase "prior to notification of a dispute" is written into the UDRP.

It is also precisely why Martha Stewart is going to jail - she COULD HAVE put in a sell order at $60 - but the fact is that her post-hoc antics showed her original intent to have been something else.

And if others want to drive off a cliff with you, that is their problem. It's not as if you are going to be around when they reach the bottom of that cliff.

In any event, since nobody bothered to answer this question:

"What`s the worst they can do If I just don`t respond?"

The worst? If their claims are any good, obtain a default judgment against you for cybersquatting in the amount of $100K per domain name, and then hound you for years trying to collect, follow you through bankruptcy proceedings, and ruin your chance of ever having normal credit with which to qualify for things like mortgages and car loans.

But, hey, you have a gen-u-wine DnForum PM from Garry Anderson with his "informed opinion" that you are fine. So, what's to worry? If he's wrong, I'm sure he won't mind buying you a house.

[jberryhill]

"my advice is 'mere opinion'"

No, Garry, the PM correspondence you elicit from people is much more than that. It can be damaging evidence, since it is not subject to attorney client privilege. It is stored on a machine operated in the US, and can be subpoenaed by a litigant without requiring the cooperation of you or the other party. I don't care what madness you choose to inflict on others, but they should be aware that their correspondence *to* you can be used against them in court.

[Garry Anderson]

Oh dear - you have got out of bed the wrong side this morning - I am sorry

You certainly got up very early - 09:48 AM here - what time is it there?

John> It's not as if you are going to be around when they reach the bottom of that cliff...But, hey, you have a gen-u-wine DnForum PM from Garry Anderson with his "informed opinion" that you are fine. So, what's to worry? If he's wrong, I'm sure he won't mind buying you a house.

I have always gave due respect for your skill's and work - I remember saying a while back, something like, you could bash me about the courtroom with ease.

I did show were my opinion ranked next to you when sent - quote, "I may not be as much help as real lawyers, JB etc. - but I can certainly give my view on it."

As you are being so personal about me; if you want the truth about my opinion - you are clearly a kind and good man - although somewhat blinkered - anybody would be lucky for you to consider them a friend.

Unfortunately for me, I consider it a lot more important to search for truth than friends - as you can tell

Back on subject "TRADEMARK BS".

FACT: Any system that fails miserably on objective criticism is a load of kack.

Some scrutinised systems, including US Registered Trademarks and UDRP, are so fatally flawed they are absolutely useless for any legal purpose.

I can assure you that I see the world in more than "black and white" - just distill this to make it simple for you.

I was responsible for turning large amounts of raw data into information, simple enough for senior managers, directors and chairman to understand.

I can demonstrate reasonably good logic skills.

I am sure you are well aware that some people (usually politicians) use shades of gray to decieve others when the truth is lot more simple - I am not like that.

The fact is, you cannot answer these simple "black and white" questions - can you?

I guess owner did not ask question, "What's the worst they can do If I just don't respond?" - is because it was such an obvious case of trademark overreach.

Sorry - it seems most obvious to me - a judge would have to be a monkey brained moron or just plain corrupt not to see this.

Martha Stewart is a different case altogether - didn't she have other evidence against her - including phone calls from financial adviser?

Well then - "prior to notification of a dispute" - is it not a fact - that he "could have LEGALLY started his own company with domain or LEGALLY sold it to another person for this purpose and the WIPO panelists should know this"?

AND "after notification of a dispute" - is it not OBVIOUS - they were trying to prevent NHN Corporation from taking the domain in the corrupt UDRP - to prevent NHN Corporation overreaching mark?

Aren't the makers of UDRP, UN WIPO, clearly biased in both principle and with cash$$$?

As you know; Lois Boland, director of international relations for USPTO, identified this bias when talking about open-source software.

Have I not made it simple enough for you?

;-)

Hopefully - you will take this as a challenge to your skills and knowledge - and not get the hump again

Your knowledge in this area is certainly much greater than mine - please demonstrate your logic skills.

[Garry Anderson]

"my advice is 'mere opinion'"

No, Garry, the PM correspondence you elicit from people is much more than that. It can be damaging evidence, since it is not subject to attorney client privilege. It is stored on a machine operated in the US, and can be subpoenaed by a litigant without requiring the cooperation of you or the other party. I don't care what madness you choose to inflict on others, but they should be aware that their correspondence *to* you can be used against them in court.

Sorry - I misunderstood - when you said "your communications", I thought you was talking about my opinion.

[jberryhill]

"Martha Stewart is a different case altogether - didn't she have other evidence against her - including phone calls from financial adviser?"

That's what I'm driving at here. Your idea of "helping" people can do them more harm than you realize. It's not a matter of what your opinion is. I don't care what your opinion is. The communications themselves, however, are not privileged against discovery and use as evidence.

And when someone asks "What is the worst that can happen", then it is best to state the worst that can happen. THEY are at risk. Not YOU. If the trademark claimant brings a suit, then about the *best* that can happen is that they will spend several thousand dollars defending themselves - because, monkey-brained moron or not, if they don't show up in a possibly remote jurisdiction, then they can receive a default judgment that can be imported into their jurisdiction. I've seen peoples' lives severely disrupted this way by precisely the same mix of bad advice and misplaced ego.

Next to that, a UDRP is a relative blessing.

[Garry Anderson]

As stated in my previous post above - I take your point - thank you.

I always tell people my informed opinion and to get legal advice before taking opponent on.

When asked in future if they can PM the details - I will just say no!

Does that mean you do not want to answer the other simple questions ;-)