≡ Menu

Trademark foolishness

A long description of a trademark dispute. Apparently, Shops At Willow Bend have pitbulls as attorneys.

A few superficial observations.

First, try, just try, to guess how many pages of steps are in this website. Just try.

Second, although I understand the victim’s desire to try to defend himself on his own, it’s clear he was overwhelmed by the legal niceties, as would even a reasonably intelligent person. In contrast, the other side seemed to throw any legal argument (however ludicrous) and legal traps to get a default judgment rendered against him. These sort of shenanigans illustrate why lawyers serve some purpose–to prevent corporate attorneys from abusing their knowledge of legal procedures. The battle often was not about the substance but about flooding the other side in paperwork and driving up the other party’s attorney’s fees.

Third, it’s clear from this case that trademark and copyright is a muddy area. Clearly website owners need to bend over backwards to avoid these kinds of copyright or trademark problems.
The best solution is due diligence.

Fourth, although I did enjoy reading the briefs, this saga reminded me of how tiresome and soulless the legal profession can be (and how accurately William Gaddis describes legal monomania).

Fifth, although I admire the man’s effort to defend himself, I have to wonder whether hiring an attorney could have brought a settlement any earlier. He ended up wasting a lot of time on this foolish lawsuit, however much he was in the right. Lawfirms are expert at bleeding both their client and opponent dry (look at what Taubman’s attorneys did).

Sixth, the expert witness on domain names was very interesting. It’s well worth reading all three pages of his testimony here.

As an experiment, contrast the registration and use of with the use of . If defendant runs a short radio or television ad, or proselytizes by word of mouth, imagine the difficulty of trying to speak or display the latter URL in a manner that viewers or listeners will be able to remember, write down, and type in correctly. I recommend that the reader try speaking each of these URLs out loud once, in front of someone who has never heard of this case, and attempt to get them to reproduce each URL. I am confident that attaching a semantically unrelated term to the desired message dramatically diminishes the ability of listeners or viewers to correctly recall and use the address. Thus, in order to fully exercise his right to express his opinion that “Taubman sucks,” defendant has a right to select a domain name that best achieves his desired objective, which is to attract people to the message. Taking away the domain name interferes with the registrant’s ability to communicate with potentially willing site visitors.

The fact is though that trademark owners need to protect their trademarks. And although Hank Mishkoff had no malicious intent here, he could have easily damaged the Taubman shopping mall and caused them lots of trouble. But as Mishkoff points out, Taubman could have easily turned the matter over to ICANN arbitration and minimized the overall costs.

I don’t recommend reading the entire saga. Even I (normally interested in legal matters) found that by midway through I could only skim the briefs and Mishkoff’s commentary.

One point of dispute had to do with Taubman’s insistence on a gag order. This is another case where the lawfirm’s attempt to seize maximum control only ends up harming themselves. People who accept settlements but assent to limitations on free speech are doing the world an injustice (and we have Mishkoff to thank for having the guts to stick to his guns all the way).

This story is a triumph of an individual over the rigors of the legal system, over attorneys consumed with their own importance and businesses determined to suppress all sorts of inconvenient speech .

Comments on this entry are closed.