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  1. #76
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    Nov 2002
    Posts
    14,877
    Originally posted by marcorandazza
    Under Medinol v. Neuro Vasx, that registration wouldn't survive a challenge.
    I'm not a lawyer but:

    Is'nt that part of what law is all about? That folks can disagree with FMA's claim? But is'nt that also a whole lot different than calling the claim a fraud (versus loophole)?

    Who knows, maybe the legal system might actually get caught up with technology instead of forever lagging and conclude that FMA is spot on and thus our industry take a legal step forward ..... Would'nt that be a day to celebrate ..... Not that there would'nt be disagreements. (Legal version of "zero sum game" here)

  2. #77
    Join Date
    Sep 2008
    Location
    Florida and Massachusetts
    Posts
    102
    No, it is a "fraud." If you read the Medinol case, it clearly states that.
    Marc J. Randazza, Esq.
    http://www.legalsatyricon.com

  3. #78
    Join Date
    Nov 2002
    Posts
    14,877
    Originally posted by marcorandazza
    No, it is a "fraud." If you read the Medinol case, it clearly states that.
    I beleive regarding:

    http://ttabvue.uspto.gov/ttabvue/tta...535-CAN-15.pdf

    On May 1, 2002, petitioner filed a petition for
    cancellation of the ‘883 Registration, alleging that at the
    time respondent submitted its statement of use to the United
    States Patent and Trademark Office (“USPTO” or “office”), it
    had not used the mark on or in connection with stents, and
    indeed has not done so since. Petitioner alleged that the
    ‘883 Registration was procured by respondent’s knowingly
    false or fraudulent statements
    , and that “said false
    statements were made with the intent to induce authorized
    agents of the PTO to grant said registration, and reasonably
    relying upon the truth of said false statements, the PTO
    did, in fact, grant said registration to Registrant.”

    [...]

    Discussion
    There is no genuine issue of material fact at hand. It
    is undisputed that respondent filed an intent-to-use based
    application reciting its intended goods as “medical devices,
    namely, neurological stents and catheters.” It is also
    undisputed that at the time registrant filed its statement
    of use (and at all times since), it has used the mark on
    catheters but not on stents.
    And for Elequa:

    Code:
    -----------------------------------------------------------------------
    
    Word Mark  	 		JACKASS
    Serial Number  			78348436
    Filing Date 			January 6, 2004
    Published for Opposition  	June 14, 2005
    Registration Number 		2991817
    Registration Date 		September 6, 2005
    First Use Date: 		2003-12-15
    First Use in Commerce Date: 	2003-12-15
    
    -----------------------------------------------------------------------
    
    Domain:   	jackass.com   - Domain History
    Cache Date: 	2002-11-18
    Registrar: 	ENOM, INC.
    Registrant Search: 1@1tv.tv
    
    Registration Service Provided By: Future Media Architects, Inc
    Contact: 1@1tv.tv
    Visit: http://www.fma.com
    
    Domain name: jackass.com
    
    Registrant Contact:
       Future Media Architects, Inc
       FMA.com .   (1@1tv.tv)
       +1.7038686000
       FAX: +1.7037804738
       P.O. Box 71
       Road Town, Tortola 99999
       VG
    
    -----------------------------------------------------------------------
    
    http://web.archive.org/web/200211250...w.jackass.com/ (Nov 25, 2002)
    
    -----------------------------------------------------------------------

    I'm still scraching my head to reconcile the 2.

    Elequa's still looking squeeky clean to me, at least regarding the existance of use *PREDATING* the stated first use ... Unless that is what you are getting at .... But such a clarical error does not seem to me to deserve the title of "fraud".

    I am also scratching my head over why someone thought www.neurovasx.com, a BioTech startup, was worth their effort to bring this to the attention of the USPTO.

  4. #79
    Join Date
    Sep 2002
    Posts
    1,808
    Originally posted by marcorandazza
    That is disgusting. If you'll lie to keep a "generic" name (in your opinion), then why shouldn't a complainant lie to take it away from you? Then the process becomes who is the better liar.

    I don't know if you retain counsel to represent you in these matters ever, but I can assure you that I wouldn't ever represent you for as long as you maintain the above statement. I'd bet my ass that JB wouldn't either, nor would any attorney worth his bar license.
    I don't care if you're a lawyer or not, but you sure have an anti-domainer attitude in all your posts.
    "I think there is a world market for maybe five computers." --Thomas Watson, Chairman of IBM, 1943

  5. #80
    Join Date
    Sep 2002
    Location
    Internet
    Posts
    498
    Originally posted by marcorandazza
    John,

    Under Medinol v. Neuro Vasx, that registration wouldn't survive a challenge.

    "Creating indexes of information, sites and other resources"

    I don't see FMA creating any such thing under the JACKASS. mark. In fact, I'm not even sure they are "providing search engines," but I can see how one could credibly argue that they are.

    Having a "service" and slapping a sticker on it is not the entire race to the trademark finish line. No consumer says "lets go use the JACKASS search engine." The term is merely decorative, at best. C'mon, you know that registration is fraudulent.

    It is a clever move that would survive the scrutiny of an overworked examining attorney, but if push comes to shove on it, it is going to crumble. Take a look at the specimens and compare them to the internet archive. It looks like more fraud to me, but maybe I'm missing something.
    Looks like I am totally lost. Now tell me why the other jackass tm is not fraud then? why do they have more rights on jackass then FMA????? I don´t get it. just because jackass movie is know in us, nad elequas search is not? or what are you trying to say? Where I am , I could say I have never heard off the mtv show jackass, never seen the movie, but I have seen elequas search. I don´t get the us system
    Nothing here

  6. #81
    Join Date
    Sep 2008
    Location
    Florida and Massachusetts
    Posts
    102
    Originally posted by
    I don't care if you're a lawyer or not, but you sure have an anti-domainer attitude in all your posts.
    I have an anti lowlife-liar attitude. That describes some domainers. The lowlives and liars make it very difficult for the honest domainers to make a living and for the industry to gain traction in the credibility department.

    I happen to represent a lot of domainers. However, I counsel them on how to stay out of trouble and how to comply with the law -- not how to lie, cheat, and steal. I turn away domainer clients who call me and ask me for that kind of service.
    Marc J. Randazza, Esq.
    http://www.legalsatyricon.com

  7. #82
    Join Date
    Sep 2003
    Location
    USA Philadelphia, PA
    Posts
    337
    Originally posted by stuff
    Looks like I am totally lost. Now tell me why the other jackass tm is not fraud then? why do they have more rights on jackass then FMA????? I don´t get it. just because jackass movie is know in us, nad elequas search is not? or what are you trying to say? Where I am , I could say I have never heard off the mtv show jackass, never seen the movie, but I have seen elequas search. I don´t get the us system
    This is not aimed at any particular members of the legal community, but if you understand too that some lawyers and their clients can be jackasses then you understand the US system. What is right or wrong may not have to do with what is legal or not. What it comes down to is where you decide to take an ethical stand and how much pain you are willing to take for principle.

    The decision on how to balance something being legal vs being the right thing to do is a personal one. For me - looking from the outside in - the easiest way to get the gist of a situation is to consider the apparent intent and not just that it is legal. However, unless you are totally aware of all facts in a case, it can be hard to make an absolute judgment regarding the choices others have made which is why I am also quite skeptical of the absolute ethical stand and black/white views posted in this thread.

    Holier-than-thou generally fails to be maintained under scrutiny.

  8. #83
    Join Date
    Nov 2002
    Location
    Athens, Greece
    Posts
    1,938
    Would you represent FMA?

    Lying is different than stealing. Lying so that someone doesn't steal from you is different as well.

    Originally posted by marcorandazza

    I happen to represent a lot of domainers. However, I counsel them on how to stay out of trouble and how to comply with the law -- not how to lie, cheat, and steal. I turn away domainer clients who call me and ask me for that kind of service.

  9. #84
    Join Date
    Sep 2008
    Location
    Florida and Massachusetts
    Posts
    102
    I can't say whether I would represent FMA or not without speaking to them.

    I wouldn't disqualify a potential client because they had been dishonest in the past, or even every single day of their lives. I would refuse to represent a client who demanded that I take a dishonest position in representing them. My ethics are not for sale.

    Also, tangentially, understand that the word "fraud" has one meaning under the criminal laws and another before the USPTO (which is why I cited Medinol).
    Marc J. Randazza, Esq.
    http://www.legalsatyricon.com

  10. #85
    Join Date
    Nov 2002
    Location
    Athens, Greece
    Posts
    1,938
    Why can't you say? You said that their TM is a lie.

    Originally posted by marcorandazza
    [B]I can't say whether I would represent FMA or not without speaking to them.

    HHmmm... You said you will not represent me ever if I don't retract my statement that I might/would lie.

    Originally posted by marcorandazza

    I wouldn't disqualify a potential client because they had been dishonest in the past, or even every single day of their lives. I would refuse to represent a client who demanded that I take a dishonest position in representing them. My ethics are not for sale.


    And lying to UDRP is completely different than lying to a judge or jury.

    Originally posted by marcorandazza

    Also, tangentially, understand that the word "fraud" has one meaning under the criminal laws and another before the USPTO (which is why I cited Medinol).

  11. #86
    Join Date
    Aug 2003
    Posts
    535
    And lying to UDRP is completely different than lying to a judge or jury.
    No it isn't.

  12. #87
    Join Date
    Aug 2003
    Posts
    535
    C'mon, you know that registration is fraudulent.
    Marc, you are going to have to learn that "disagreeing with Marc Randazza" is not a symptom of a character defect, personality disorder, or dishonesty.

    You are confusing two different things.

    1. Whether it is a valid registration that would survive a challenge.

    and

    2. Whether it is fraudulent.

    You appear to have your mind made up on point 1, and the shocking thing is that you believe point 2 follows as a matter of course from point 1.

    It does not.

    The only activity performed by many of the most famous and familar brand owners is (a) choosing a factory in China to make the stuff, and (b) slapping their name on it.

    You have something of a blinkered view of the "quality control" aspect embodied in (a) above.

    Absolutely, if you limit your consideration to say, Domainsponsor template pages, then you can argue there is no quality control. You seem to be forgetting that the domain registrant has chosen Domainsponsor from among several competing back-end services for providing directory and search functions on a web page.

    But you must believe the USPTO is rife with criminal abuse, since you don't seem to believe that reasonable minds can differ in good faith.

  13. #88
    Join Date
    Aug 2003
    Posts
    535
    I would add that if you believe that FMA's intent was to develop the site for something else, or to sell the domain name, then you are not at all familiar with FMA. I don't know if anyone has ever successfully bought a domain name from them. I know a lot of people have tried.

  14. #89
    Join Date
    Sep 2008
    Location
    Florida and Massachusetts
    Posts
    102
    John,

    I think you're confused about my use of "fraud." I don't mean fraud as in handcuffs and prison -- I mean the use of the term the way the TTAB defines it in Medinol.

    As far as what FMA's intent was, I don't have any idea. However, either of those purposes would seem legitimate. Accordingly, the fraudulent (Medinol definition) registration was unnecessary. Heck, they could even have filed a 1(b) application and then kept it from being fraudulent. The way it is now, it is toast.
    Marc J. Randazza, Esq.
    http://www.legalsatyricon.com

  15. #90
    Join Date
    Sep 2008
    Location
    Florida and Massachusetts
    Posts
    102
    HHmmm... You said you will not represent me ever if I don't retract my statement that I might/would lie.
    Correct. Given that you've clearly stated that you would lie to keep a domain, I couldn't represent you because I couldn't trust you. If I take your case, you lie to me, then I present your lies as facts and they are later exposed as lies, well... that puts me in a bad spot. I can always truthfully say "but my client told me this was the case." But, I never want to be in that position. I've been there before, and not only do I dislike being in that position, I immediately terminated representation of the client.

    A lawyer's job is to take the facts as they are, and argue how they apply to the law, or to even argue for a change in the law. A lawyer's job is not to present lies to a tribunal -- whether it is in a court of law or a UDRP panel.
    Marc J. Randazza, Esq.
    http://www.legalsatyricon.com

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