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  1. #91
    Join Date
    Sep 2008
    Location
    Florida and Massachusetts
    Posts
    102
    Originally posted by jberryhill
    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.
    Actually, you have it reversed. I think that the record pretty clearly shows that #2 is true. Therefore, I think that #1 is most likely true.
    Marc J. Randazza, Esq.
    http://www.legalsatyricon.com

  2. #92
    Join Date
    Nov 2002
    Location
    Athens, Greece
    Posts
    1,938
    This is not what you said earlier:
    "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 you still have not replied as to why you might represent FMA although you said he lied.

    You contradict yourself.

    Originally posted by marcorandazza
    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.

  3. #93
    Join Date
    Sep 2008
    Location
    Florida and Massachusetts
    Posts
    102
    Originally posted by jberryhill
    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.
    And I'm not sure where you're getting that from. I prefer to surround myself with people who disagree with me. Keeps me sharper and better informed. Much to my chagrin, most of my friends are right-wing federalists, christians, and other kinds of people that I disagree with.

    However, honesty isn't really a gray area. There's nothing necessarily wrong with packaging the facts in a way that makes them seem more favorable to your client. But flat out lying to a tribunal is different. On that, it appears that you and I do agree.
    Marc J. Randazza, Esq.
    http://www.legalsatyricon.com

  4. #94
    Join Date
    Nov 2002
    Posts
    14,877
    Originally posted by marcorandazza
    And I'm not sure where you're getting that from.
    Same place I am?


    Originally posted by marcorandazza
    I prefer to surround myself with people who disagree with me.
    Cool.




    Originally posted by marcorandazza
    However, honesty isn't really a gray area. There's nothing necessarily wrong with packaging the facts in a way that makes them seem more favorable to your client. But flat out lying to a tribunal is different.
    Look at me as being the stupiest person you've ever met ...

    I'm still not following your logic and I've been trying my best.

    Please spell out the lie for me so even I can follow. Thanks!

  5. #95
    Join Date
    Nov 2002
    Location
    Athens, Greece
    Posts
    1,938

    I always loved the reindeer red nosed dog.
    Online Domain - OnlineDomain.com Domain Name News and Legal Review

  6. #96
    Join Date
    Aug 2003
    Posts
    535
    I prefer to surround myself with people who disagree with me.
    You seem to have a talent for it, I'll say that much.

    Seriously folks, not long after entering a room, Marc is often surrounded by people who disagree with him.

    Anyhow, what is it I'm missing with the jackass thing.

    FMA gets a lot of domains and uses them to provide search and index pages wherein the domain name is prominently displayed on the page (i.e. not merely as an address).

    Did I miss something with the dates in the TM or something?

    For the benefit of an aging lawyer... what, in 25 words or less, is the fraud that's so apparent here?

    And fraud is fraud - 18 USC 1001 applies to statements made in the course of a TM application (perjury, not fraud, but whatever)

  7. #97
    Join Date
    Aug 2003
    Posts
    535
    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.
    It's happened to everyone, and it really sucks.

    One has to keep an open mind, because the truth is often stranger than fiction, and people can be genuinely confused, mistaken, or the unwitting victims of their own wishful thinking.

    There are a few situations I've dealt with, in which the facts presented by both sides were so diametrically opposed, but various bits and pieces supported by extrinsic evidence, that I'll go to my grave scratching my head over who was telling the "truth".

  8. #98
    Join Date
    Sep 2008
    Location
    Florida and Massachusetts
    Posts
    102
    One has to keep an open mind, because the truth is often stranger than fiction, and people can be genuinely confused, mistaken, or the unwitting victims of their own wishful thinking.
    Agreed. And when a party is the unwitting victim of their own wishful thinking (elegant phrase, btw), I don't really get all that upset. When I get upset is when I walk right into a buzzsaw because my client sent me into battle with a sword made of lies.

    I cross examine my potential clients harder than any opposing attorney could.

    There are a few situations I've dealt with, in which the facts presented by both sides were so diametrically opposed, but various bits and pieces supported by extrinsic evidence, that I'll go to my grave scratching my head over who was telling the "truth".
    Describes MOST cases!

    But I think we're on the same page here -- that a client who simply drank their own Kool Aid is one thing. But a client who knowingly misleads his attorney, who then by extension misleads a tribunal, is a client none of us want. The only thing worse than that is a lawyer who knowingly (or willfully blindly) participates in that kind of thing.
    Marc J. Randazza, Esq.
    http://www.legalsatyricon.com

  9. #99
    Join Date
    Sep 2008
    Location
    Florida and Massachusetts
    Posts
    102
    FMA gets a lot of domains and uses them to provide search and index pages wherein the domain name is prominently displayed on the page (i.e. not merely as an address).
    I can see how you could package the facts to fit this argument. However, you can't take a fire extinguisher and slap a label on it that says "breath spray" and say that you're providing breath spray. It is still a fire extinguisher.

    Did I miss something with the dates in the TM or something?

    For the benefit of an aging lawyer... what, in 25 words or less, is the fraud that's so apparent here?
    1) FMA isn't, nor has it, provided the goods and services in the description. 2) The specimens don't appear to have actually ever been used in commerce (if you compare the date they were allegedly in use with the archive.org for the page, this appears to be the case).

    And fraud is fraud - 18 USC 1001 applies to statements made in the course of a TM application (perjury, not fraud, but whatever)
    Yeah, "fraud is fraud," but I think that the Medinol v. Neuro Vasx standard turns "honest mistakes" (which very well may have been present in the FMA application) into "fraud." Medinol really applies a constructive knowledge on steroids standard to trademark applications. Even a god's honest mistake equals "fraud" under Medinol. I'm not entirely sure I disagree with the rationale, because absent that, we could have all kinds of goofing around in TM applications that can be cured later on. However, I do think that their use of the term "fraud" is a little overly aggressive and I wish they had used a less charged term.
    Marc J. Randazza, Esq.
    http://www.legalsatyricon.com

  10. #100
    Join Date
    Sep 2002
    Location
    Wales (UK)
    Posts
    24,745
    you can't take a fire extinguisher and slap a label on it that says "breath spray" and say that you're providing breath spray. It is still a fire extinguisher.
    the more you drill down into what makes a breath spray a breath spray, the more obvious it is that a fire extinguisher isn't one.

    the opposite is true of whether a park page is a search engine.
    When using google for counts - use double quotes for usage counts for multiword terms and set "match type" to "exact" for all search volume lookups. Click here for more info

  11. #101
    Join Date
    Sep 2008
    Location
    Florida and Massachusetts
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    102
    the more you drill down into what makes a breath spray a breath spray, the more obvious it is that a fire extinguisher isn't one.

    the opposite is true of whether a park page is a search engine.
    This is a factual question upon which reasonable minds can differ.
    Marc J. Randazza, Esq.
    http://www.legalsatyricon.com

  12. #102
    Join Date
    Dec 2006
    Location
    under a tinfoil hat
    Posts
    748
    Originally posted by marcorandazza
    This is a factual question upon which reasonable minds can differ.
    So, I'm sure with this well-formed opinion, you have considered FMA's search engine
    http://www.oxide.com/

    http://web.archive.org/web/200501130...p://oxide.com/

    And also Google provided search service for yahoo for a number of years...

    Are you saying you have to operate your own index to call yourself a search engine?

  13. #103
    Join Date
    Aug 2003
    Posts
    535

    1) FMA isn't, nor has it, provided the goods and services in the description. 2) The specimens don't appear to have actually ever been used in commerce (if you compare the date they were allegedly in use with the archive.org for the page, this appears to be the case).
    I disagree on point 1, and we aren't going to agree on point 1.

    Point 2 I haven't looked at.

  14. #104
    Join Date
    Aug 2003
    Posts
    535
    The specimens don't appear to have actually ever been used in commerce (if you compare the date they were allegedly in use with the archive.org for the page, this appears to be the case).
    I still haven't looked a the file and the archive, but I do hope you understand the specimen does not have to match the date of first use, yes?

  15. #105
    Join Date
    Aug 2003
    Posts
    535
    The specimens don't appear to have actually ever been used in commerce (if you compare the date they were allegedly in use with the archive.org for the page, this appears to be the case).
    Okay, now I've looked at it and, no, your position is not supported.

    You have got to play around a lot more with archive.org and websites with active-content or which are generated on the fly from data in an http request and served from a database.

    Based on the way FMA has run its sites, among other things, I do not believe that what you pull out of archive.org for December 2003 is an accurate represenation of what a user saw at jackass.com on that date.

    There's this odd notion that archive.org is a collection of "screenshots" from sites. It isn't.

    Among other things, you'll notice that the archive page for that date has a "placeholder" spot for the output of a php script that was apparently hosted at mp3.tv.

    Input to that script likely included information from the http request used to generate output displayed on the page. You are not in a position to say with the certainty of "fraud" that the script did not generate a display of the claimed "JACKASS" mark "in substantially the manner" shown in the specimen.

    Otherwise, then you tell me what was actually visible to a user in the big "empty spot" in the December 18 2003 cache of jackass.com.

    This is what I'm looking at:

    http://web.archive.org/web/200312180...//jackass.com/

    You are essentially telling me that you know what was in that empty spot, and that it did not, for example, generate code for opening another window, display graphics, or any number of other things.

    Either that or you are speaking from your memory of visiting the site in 2003, because there is absolutely no way to look at archive.org and know what that blank spot, reserved for a php script, did on that date.

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