Subject: Re: [NEXTEL-1] ACLU Goes To Battle With Nextel On Behalf of "NEXTELSUCKS.ORG"

From: [email-masked]
Date: Sun, 17 Aug 2003 17:27:59 EDT

As usual, I disagree.  The is not a "just getting billable hours" issue.  IF 
the trademark holder is aware of the infringement (or potential infringement, 
depending on what court you ask), NOT doing something results in a dilution of 
the trademark, which has very significant consequences for the mark holder.  
In short, dilution weakens the protectability for the mark holder against 
OTHER infringers, so it has VERY significant consequences.  It also represents a 
clash between trademark law, the First Amendment and the new cybersquating laws 
(for which we're still waiting for some case law to develop).

Now, would one expect this 800 lb. guerilla (or any other similar 800 lb. 
guerilla) to flex its legal muscle to try to bully someone? You betcha.  
Unfortunately, we often face this in representing clients against large corporations 
in a number of fields, the large corporations (in particular those with in 
house counsel) have the ability to smother the little guy.  I face this a LOT in 
my entertainment practice, where we often wind up with potential clients who 
claim that such-and-such star stole their song, or such-and-such record company 
burned them in a contract.  It's the reality of present day society, and we'll 
have to keep dealing with it.

Alan T.

In a message dated 8/17/2003 5:09:19 PM Eastern Standard Time, 
[email-masked] writes:
This VERY interesting......

The "Taubmansucks.com" site is similar to The "NEXTELSUCKS.ORG"  however the
original case pits the Lanham Act against the Constitution namely his First
Amendment right of Free Speech. Since the "NEXTELSUCKS.ORG" case is in the
"posturing" phase I can only assume ACLU would mount a similar defense to
represent Mr. Hither if he should become a defendant in any action by Nextel.

On The Other Hand-

This whole thing might be all about nothing. It could simply be Nextel's law 
firm
Trying to rack up some "Billiable"
hours to offset their large retainer and maintain the relationship with 
Nextel.
Some people would run and hide after receiving
a letter from an attorney making implying they are infringing rather than 
fight
it. There is no telling how many people Nextel
has intimidated using this "Scare" tactic-

Nextel "How Business Gets Done"
                                                              -We Intimidate 
you!

---

From: [email-masked]
Date: Sun, 17 Aug 2003 18:29:00 -0400

I thought you would disagree......

Regarding the "just getting billable hours" issue. Without knowing the motivation
of the attorney or the firm we are both speculating. That is why I prefaced my
statement with: "It COULD" to squelch any potential rebuttal arguments.

Dilution of the trademark-

The infringement or potential infringement is non-existent here . Applying the
same methodology as used by the Court of Appeals in Taubman v. Webfeats,
Nextelsucks.org will pass the following test.

1) Defendant's use of domain name was not commercial

2) No risk of confusion as to source.

3) Cybergriping site created no potential for confusion as to source.

Clash between trademark law, the First Amendment and the new cybersquating laws-

Cybergriping sites, with domain names formed by attaching trademarks to
"sucks.com," created no potential for confusion as to source, and thus were not
violative of Lanham Act; rather, use of non-misleading names was protected free
speech.  U.S.C.A. Const.Amend. 1; Lanham Trade-Mark Act, Â§  32, 15 U.S.C.A. Â§
1114.

800 lb. guerilla-

I  disagree (surprised?) on this point The 800 lb. guerilla is jumping up and down
for nothing. If  he used Nextel.com I would agree but here we have a situation
where the two donaims are unlike and there is NO potential for confusion as
demonstrated above.

I agree with  "It's the reality of present day society, and we'll have to keep
dealing with it".

Footnote:
Researchers have reported IP law firms profits have incresed steadily since the
late 90's and they expect them surpass profits of non-specilized firms by 2006.

[email-masked] wrote:

>  As usual, I disagree.
>
> The is not a "just getting billable hours" issue.  IF the trademark holder is
> aware of the infringement (or potential infringement, depending on what court
> you ask), NOT doing something results in a dilution of the trademark, which has
> very significant consequences for the mark holder.  In short, dilution weakens
> the protectability for the mark holder against OTHER infringers, so it has VERY
> significant consequences.  It also represents a clash between trademark law, the
> First Amendment and the new cybersquating laws (for which we're still waiting
> for some case law to develop). Now, would one expect this 800 lb. guerilla (or
> any other similar 800 lb. guerilla) to flex its legal muscle to try to bully
> someone? You betcha.  Unfortunately, we often face this in representing clients
> against large corporations in a number of fields, the large corporations (in
> particular those with in house counsel) have the ability to smother the little
> guy.  I face this a LOT in my entertainment practice, where we often wind up
> with potential clients who claim that such-and-such star stole their song, or
> such-and-such record company burned them in a contract.  It's the reality of
> present day society, and we'll have to keep dealing with it. Alan T.

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---

From: sparkie_rf <[email-masked]>
Date: Sun, 17 Aug 2003 23:23:49 -0000

> speech.  U.S.C.A. Const.Amend. 1; Lanham Trade-Mark Act, Â§  32, 

Doesn't simple common sense tell us that absent the right of satire 
and other attempts at social commentary, we are in very big trouble.

This also starts to get at the paradox of current DRM solutions. The 
solutions evitability extent the rights of owners way beyond the 
balance sought in the original bargain.

Lets all keep in mind that at the core, Copyrights, Trademarks, and 
Patents, are NOT rights at all, but mere privaleges, a practical 
matter of social policy.

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From: [email-masked]
Date: Mon, 18 Aug 2003 18:58:38 -0400

Alan,

Here are some West Headnotes from Westlaw regarding Nextelsuks.org case.

350.1
382k350.1 -Cybergriping
 http://www.westlaw.com/KeyNumber/Default.wl?rs=++++1.0&vr=2.0&CMD=KEY&DocName=382K350.1

Most Cited Cases
 http://www.westlaw.com/Digest/Default.wl?rs=++++1.0&vr=2.0&CMD=MCC&DocName=382K350.1

134
Lanham Act and First Amendment free speech rights
382k134
 http://www.westlaw.com/KeyNumber/Default.wl?rs=++++1.0&vr=2.0&CMD=KEY&DocName=382K134

Most Cited Cases
 http://www.westlaw.com/Digest/Default.wl?rs=++++1.0&vr=2.0&CMD=MCC&DocName=382K134

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