Precedent setting ruling READ THIS

[AdsenseGuy]

Today I spent the day in court, As I have told you all previously I where I work. This gives me an advantage to an extent in information that may or not come to fruition, due to some contract restraints there is some information i can use to my advantage and some I cant. On that note please read on.

About a year ago i regged a domain googleemail.com and google caught wind of it and promptly issued me a UDRP, Guess what They won big surprise. While under the rules of NAF i was entitled to file court action to keep my domain, and the domain was to remain mine until the courts decided. My registrar ENOM was supposed to keep this domain locked and in my account until the court proceedings where finished. They did not do this what they actually did was let google's registrar have this domain and they placed it into googles account.

Well as of today and todays PRECEDENT setting ruling I have been granted by the courts I am the rightful owner of this domain as well as the courts have indicated that they see no trademark infringement, The order goes somewhat like this I am the owner of this domain and Enom should never have transfered this domain while it was under the courts juridiction, It is so ordered that the domain be transferred back into my name it is also ordered that I am given the right to sue Enom if they cannot get my domain back. I was also granted exclusive use and ownership of this domain. The judge also indicated that by google now being in posession of my legally owned domain that I may sue them for damages resulting if they refuse to hand it back over to me. I was also awarded damages in cash from this lawsuit.

My question to you all is as follows. I will not have a copy of the judgement transcript until Friday at the earliest. Once I have these documents I want them to hit the internet like wildfire can anyone here help me get these documents into the right hands. I will be sending ENOM and Google a copy of the transcript but I want this to be as public as possible. Google DIDNT win one for a change. The judge clearly and decisively covered all aspects concerning this ruling even more so than I expected. They have had my domain for 3 months now and I want it back to be able to do with it as I want. But I need your help fellow NPers I want the world to know what I have had to deal with and what ENOM did to me as the judge did not place any restrictions on publicity....OH isnt the IPO coming out soon.....

Please if you can help me I will remember your helpfulness Also Namepros was brought up in court and researched by the presiding judge for information.

Please post links or emails of media outlets that you think may be interested in recieving this information. I will attach the actual judgment transcript Friday afternoon

 

[jberryhill]

The right to go out and register coca-cola-sucks.com, or any
other such coca-cola domain that is available, is a right
that is protected by the first admendment of the United States.
I don’t know why you are rambling on about the “U.S.
takeover of Canada” and about Afgahanistan and Iraq.

Because Adsenseguy says that his lawsuit was in Canada, where nothing is protected by anything in the U.S. Constitution. If you think any legal precedent in Canada is going to be based on the First Amendment to the U.S. Constitution, then one of us is tremendously misinformed on the subject of Canada not being part of the United States.

Even in the US, "-sucks" names are generally okay, if actually used in connection with legitimate criticism instead of as a cheap form of extortion. Not even Adsenseguy has claimed that "googleemail.com" was registered for non-commercial commentary and criticism of Google. So what does your point about coca-cola-sucks.com have to do with anything?

Yes, there are lots of people who have domain names with "Google" in them. I don't know what that proves either.

And when you say that a company “prevailed over an attempt
to invalidate” a trademark, this could just mean that they
reached a settlement so as to not further risk their trademark.

No. Settling is not "prevailing". It was a decision by the Trademark Trial and Appeal Board here:

http://tools.schwimmerlegal.com/realtor.pdf

That's not settling, that's winning.

"This is what Apple Computer did."

No. Apple Computer may have reached a settlement with Apple Records over Apple Computer's sale of musical recordings, but that has nothing to do with whether "Apple" was ever in jeopardy of becoming a generic term for computers. Please provide a link to any challenge they faced on whether their mark had become generic.

And do you deny that trademarks expire because they become
part of the language (dictionary words)?

I don't deny that at all. It happened to cellophane, escalator, aspirin, nylon.... lots of things. The words became the generic term for the thing.

I sincerely doubt that has happened to Google. Most obviously because people who use "google" as a verb are referring to using Google - the trademarked product itself. But, to make sure whether I understand you here, you seriously believe that if you go off to some country-code TLD, say ".xyz", and you register Google.xyz and run a search engine, then you would not be infringing a trademark.

Federal Rule 11 is not "keeping [me] honest". Since you seem to believe I would take money to argue that the earth is flat, I thought I might mention that, no, there are some things lawyers can't even take money to do.

I'm puzzled by your last two sentences. AdSenseGuy started the thread to solicit media attention for a great legal precedent which he is going to publish, oh, any day now one supposes. For some reason, there seems to be a whole lot of curiousity as to why I joined the discussion.

 

[Badger]

I dont think curious as to why you joined the thread JB, more that what you say is so succinct and above what, I am sure what most of us here would say is, so much "above our station", we are just fascinated by what you are about to say next.

Education is a drug and you are the teacher.

In my country listening to your views tis like watching David Gower hit a perfect square cut. (cricket)

Now can I have ny tongue back please.

 

[wlspro]

Originally posted by dna
The right to go out and register coca-cola-sucks.com, or any
other such coca-cola domain that is available, is a right
that is protected by the first admendment of the United States.

Where does the "First Amendment" give the "right to go out and register [a domain name]?" Do you know what the First Amendment is about and have you even read it?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

http://caselaw.lp.findlaw.com/data/constitution/amendment01/

Registering a domain name (acquisition of property and the right to use it under the provisions of an agreement governed by rules and policies set by governing bodies) is not a "right" protected by this or any other provision of the US Constitution.

Even if US laws did apply, ie if AdsenseGuy was a US person, which he has presumably denied when filing a complaint in Canada and availing himself to the jurisdiction of the Canadian laws, the First Amendment would not in any way give him the "right to go out and register [a domain name]?"

Simply put the First Amendment does not provide any foreign nationals any rights in their countries of domicile, and it does not provide any US persons with any rights to register any domain names in the US whatsoever.

 

[Dave_Z]

Originally posted by wlspro
Where does the "First Amendment" give the "right to go out and register [a domain name]?" Do you know what the First Amendment is about and have you even read it?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

http://caselaw.lp.findlaw.com/data/constitution/amendment01/

Registering a domain name (acquisition of property and the right to use it under the provisions of an agreement governed by rules and policies set by governing bodies) is not a "right" protected by this or any other provision of the US Constitution.

Even if US laws did apply, ie if AdsenseGuy was a US person, which he has presumably denied when filing a complaint in Canada and availing himself to the jurisdiction of the Canadian laws, the First Amendment would not in any way give him the "right to go out and register [a domain name]?"

Simply put the First Amendment does not provide any foreign nationals any rights in their countries of domicile, and it does not provide any US persons with any rights to register any domain names in the US whatsoever.

Sheesh, here we are discussing about the thread
AdsenseGuy started, and now we're talking about
Federal Rule 11 and the First Amendment! :lol:

So should there be a law as to who can register
what?

Anytime you're ready with those transcripts,
AdsenseGuy! :blink:

 

[dna]

Jberryhill,

It is obvious that you are an advocate for Google.
Otherwise you would have admitted from the beginning
that once a word enters the language as the “generic term”
it loses its trademark. Instead, you only mentioned
that Kleenex and Xerox were “generic terms” that
never lost their trademarks. When in truth, they
are well known examples of trademarks that
never quite became dictionary words for
tissue and copy. Pulling the truth out of you
is like pulling teeth out of an alligator.

Google and googling have come to mean searching the
web using any search engine. People who never
use google.com use the term for searching with
their favorite engines. And unlike Kleenix and Xerox,
there is no current dictionary word that
can really substitute for google or googling.
If I was Adsenseguy, I would insist that google, was
in the public domain and there are no
trademark rights to violate.

Obviously, the internet didn’t exist when the first
amendment was written. But, it has always been
interpeated to protect free speech rights in new
medias, which no doubt includes the right to register
a domain name, as this is a method of communication.

 

[Badger]

Originally posted by dna
Jberryhill,

Pulling the truth out of you
is like pulling teeth out of an alligator.

Hey man,

if someone makes you look small no need to revert to cheap insults.

And you say insults are "sleazy and irrelevant"

Make your mind up!

 

[lotsofissues]

Lets take a survey. Who agrees with DNA? Raise your hand if you think the instruction "Go google it" could reasonably mean visit lycos.com

 

[armstrong]

Has anyone tried to yahoo the googlee bear?

I think one reason google will never become public domain is because of the existence of other strong brands in the same industry (like yahoo). This was not the case with xerox the first few years after the photocopying technology first came out.

 

[Darkfire001]

Guys stop trying to insult JB it is futile. JB is providing helpful legal advice that would often times cost you a pretty penny, for free.

Obviously the members insulting him are most likely not members of other large domain forums, and do not realize that JB has quite a solid reputation on many other forums and his advice is often times like gold.


I would really like to see Adsense's reactions to the questions posed in this thread, so that we can all see what the whole deal is.

 

[bensontwenty]

Couldn't agree more Darkfire - JB is extremely well respected on other large forums and I think it is great that he has popped in here to give his take on one of our threads.

JB - Welcome to NPs and we hope to see you around for quite some time.

Originally posted by Darkfire001
I would really like to see Adsense's reactions to the questions posed in this thread, so that we can all see what the whole deal is.

Seconded - also, we are still waiting for the court transcript - its nearly a week overdue now.

Come on AdsenseGuy - put us all out of our misery and post the transcript for us to read

 

[jroy]

good job AG, i only read the first and last pages of this thread, but all that matters is that you won the domain

 

[jberryhill]

DNA, I am not an "advocate for Google" as much as simply trying to get to the truth of whatever it is that AdSenseGuy claims has happened in a court in Canada. There are aspects of his story which do not seem to make sense. There have also been assertions, such as in connection with Section 4(k) of the UDRP, which are demonstrably not true.

You are entitled to your own opinion about whether "Google" or "Googling" is a generic term. In the real world of trademark litigation, issues such as that are determined by factual inquiries such as consumer surveys, and not whether one person thinks it 'tis or 'taint. There are two kinds of questions in a legal dispute - questions of fact, and questions of law. Factual questions, i.e. is a term "generic", are decided on evidence, and the standard of proof is fairly high since there is a presumption of validity attached to registered trademarks. Legal questions are determined on the basis of precedent. A "legal" question would be under what conditions the First Amendment provides a defense to use of a trademark.

On the legal question here, you are further entitled to your own opinion about the First Amendment, and why you think it is relevant to a legal dispute in Canada. You are also entitled to your opinion about what the law should be. In the real world, court cases where the First Amendment "parody" defense was raised in connection with domain names have come out like the two cases described below my comments.

However, the parody defense is what is called an "affirmative defense" - i.e. one claiming the defense affirmatively admits having appropriated a trademark, but has done so for the purpose of conveying a satirical message of some kind. It is not "advocating for Google" that makes me ask "What is the satire in Googleemail?" It is a question about why you believe that there is some kind of "satire" involved in using that as a name for a children's email service based on a cartoon bear.

Now I have offered $100 for several days to an unknown number of strangers to find the centerpiece of this Googlee Bear defense. The absence of attempts is not the product of everyone else having also become an "advocate for Google". However, REAL advocates for Google making a major killing in fees and not having anything else to do, would have also expended considerable effort in finding this bear, and would have challenged someone in a real court to produce evidence of this bear's existence.

On the First Amendment and domain names, I also did not make up the outcomes in these real cases:

Planned Parenthood Federation of America, Inc. v. Richard Bucci, d/b/a Catholic Radio

97 Civ. 0629 (KNW)(S.D.N.Y. March 26, 1997), aff'd. 152 F. 3d 920 (2d Cir., Feb. 9, 1998), cert. denied, 525 U.S. 834 (1998)

In this case, the Southern District enjoined defendant from continuing to utilize plaintiff's service mark "Planned Parenthood" in its domain name, at which was found a web site featuring references to a book espousing anti-abortion positions. Such use was held to violate the Lanham Act and not to be protected by First Amendment. Plaintiff Planned Parenthood Federation of America ("Planned Parenthood") is a not-for-profit organization that, among other things, offers information to the public about contraceptives and abortions. Plaintiff is the owner of the service mark "Planned Parenthood" and operates a web site at www.ppfa.org.
[...]
Defendant's conduct was not protected by the First Amendment because the mark was used to identify defendant's site, and not as part of a communicative message about plaintiff or its organization. Said the court: " By using the mark as a domain name and home page address and by welcoming users to the home page with the message "welcome to the Planned Parenthood Home Page!" defendant identifies the web site and home page as being the product, or forum, of plaintiff. I therefore determine that, because defendant's use of the term "planned parenthood" is not part of a communicative message, his infringement on plaintiff's mark is not protected by the First Amendment."

See also....

http://www.haledorr.com/publications/pub_detail.aspx?ID=1629&Type=5543

The US Fourth Circuit Court of Appeals recently surprised some trademark law experts in People For The Ethical Treatment of Animals ("PETA") v. Doughney by dismissing the defendant’s parody defense and deciding in favor of the plaintiff, the animal advocacy group, People for the Ethical Treatment of Animals ("PETA"). The court found that the registration of the domain name www.peta.org, used by the defendant to direct Internet users to a "parody" web site called "People Eating Tasty Animals," was not a legally valid parody and, therefore, constituted cybersquatting (see our December 7, 1999 Internet Alert) and trademark infringement.
[...]
Thus, although the court recognized and stressed the validity and importance of a party’s First Amendment right to parody a trademark or service mark, the practical ramifications of the PETA decision may result in a narrowing of this right, even beyond parody uses.

Instead, you only mentioned
that Kleenex and Xerox were “generic terms” that
never lost their trademarks. When in truth, they
are well known examples of trademarks that
never quite became dictionary words for
tissue and copy.

No, I mentioned a list of several former trademarks that HAVE become generic - cellophane, escalator, nylon, zipper, aspirin. It certainly does happen.

Your assertion is that it has happened to "Google". The only evidence we have on that point is an online dictionary entry which defines the term by reference to the trademark owner. If you have some other dictionary you'd like to introduce into the record, you may certainly point us to it.

It is extremely common for people in the southern United States to call every carbonated soft drink a "coke", too.

I do hope you see the logical disconnect between simultaneously calling it a "satire" of Google, and a generic term. If it is a generic term, and thus not distinctively associated with one particular entity, then how can it be a satire of that particular entity. A satire, to be effective, must make a reference to its subject.

 

[jberryhill]

Time's up! No bear. I am taking my $100 to Las Vegas in the morning.

 

[Dave_Z]

Originally posted by jberryhill
Time's up! No bear. I am taking my $100 to Las Vegas in the morning.

Noooooooooooooooooooooooooooooo!!!!!!

Have fun w/ the slot machine, JB! :hehe:

What's the deal w/ JB posting here? Every
registered member has the right to post
to anything he/she/it sees fit.

At least JB's posts are more relevant than
ours can ever hope to be. :]

 

[PolurNET]

Wow, this is the most interesting post in the forum, so far Well I'm not going to base any opinion, till AG answers some of the most basic questions JB was trying to ask!

 

[Grrilla]

Time's up! No bear. I am taking my $100 to Las Vegas in the morning.

Hey, has Vegas set odds, yet, for the ultimate disposition of this case and this domain name?:hehe:

 

[wlspro]

till AG answers some of the most basic questions JB was trying to ask!

Up until the recent revelations AG visited NP daily and submitted an average of 6 posts each day. He seems to be busy with the reporters who have been hoarding him since his big victory over Google.

The last time he visited NP was 3 days ago and his last post was 6 days ago. Hope he is not spending all his settlement money at once (buying up domain names which include the terms google, yahoo, msn, hilton, … which he believes are names of cartoon characters and which some here find to be common terms not protected under trademark laws).

By the way googleemail.com is still owned by Google with last update on May 4, 2004. And Google's IPO deadline is set for one hour from now at 2PM PDT on Thursday August 12.

http://zdnet.com.com/2100-1104_2-5303731.html

 

[PolurNET]

Yeah, I'm wondering if he has any updates for us, we're still waiting

 

[Mark]

PR 2 Googlee Bear ?

Could this be it ? -
Not a bad looking bear to me - lol
http://www.cutiekewpie.com/othercuties/googlybear.htm


... and here's another pr 2 that came up Using term as typo - It mentions Monsters Inc.

http://www.geocities.com/sailormoonsugargrl/mikeindex.html

 

[Coastalguy]

That's the second time we've seen that bear (not THE BEAR but that bear).

ST