The wizards behind the curtain:
Ron Coleman and Colby Springer took this case on pro bono, and it was their work and dedication that formed the successful defense against Intel Corporation's lawsuit.
Stepping up to defend against a challenge from a monster like Intel Corporation's legal department is not decided lightly. Many other attorneys turned me down before I met Ron and Colby. But they not only accepted this case, they did so with enthusiasm, and they showed unwavering, bedrock support throughout this ordeal. And I received without doubt the same attention and resources as any paying client would have. In fact, rather than me having to prod them to do more work, it was usually the other way around.
As is often the case in life, it was not their legal counsel so much as their friendship that made the real difference. At the end of the day their optimism, humor, and intelligence kept me motivated and in good spirits throughout a long and trying process.
I owe them great thanks.
Jeffrey Wright
Their bios:
Ron Coleman
Goetz Fitzpatrick LLP, New York & New Jersey
Author of one of the top American legal blogs, http://www.likelihoodofconfusion.com
Ron Coleman is a commercial litigator and business attorney whose work focuses on copyright and trademark infringement claims involving the Internet--including advising clients how to avoid them. He is an expert on First Amendment and intellectual property rights, especially pertaining to the Internet. Coleman, general counsel for the Media Bloggers Association, has published numerous articles about intellectual property rights and the Internet; in fact, the first piece published on this topic by the American Bar Association Journal was written by Coleman in 1995.
Colby Springer
Carr & Ferrell, Palo Alto
Colby Springer is a partner in the Intellectual Property and Litigation Practice Groups of Carr & Ferrell. Mr. Springer has experience in all fields of intellectual property law, advising clientele at every level of business development—from start ups to public companies. Mr. Springer counsels clients on acquisition and protection of intellectual property portfolios, specifically with regard to patents and copyrights. Mr. Springer has also represented a number of companies in patent, trade secret, copyright and antitrust suits. Additionally, Mr. Springer has provided counsel to various clients on interference and re-examination proceedings pending before the United States Patent Office.
Tuesday, November 30, 2010
Friday, November 26, 2010
Thursday, November 25, 2010
Intel Corporation SURRENDERS!!!!!
Just before the Thanksgiving holiday, we received notice that Intel Corporation was dropping its case against us.
The reason, they said, it because we are making, "no current use [of the intel string] in commerce." They mean that Americas News Intel Publishing LLC is not currently producing the Mexico Watch Intelligence Service newsletters.
But this, like so much of the disingenuous campaign they have waged against us, is patently bogus.
From the beginning, and throughout our settlement talks, our written discovery, and our deposition testimony, we asserted our right to use "intel" in our name and in our domain, for commercial uses or otherwise.
We reserved the right to resume its use at any point in the future for business purposes or otherwise.
We specified very carefully (and the deposition record will confirm this when it is published) that we only stopped publishing our Mexico Watch Intelligence Service at our latinintel.com site because negative prevailing economic conditions dovetailed with their lawsuit, forcing us to discontinue operations. We also specified very carefully that we may elect to revive or reorganize our service in the future.
This was not an operational issue. This was a LEGAL ISSUE through and through. And that was made explicit and abundantly clear throughout this entire case.
Intel Corporation dismissed this case not because we had suspended publishing. They dismissed it because they knew they would lose.
In coming days we will post more details, including information on refunds of the excess donations to the donors. We also will share some of the finer points of the legal process, in particular shedding some light on the brilliant roles played by our pro bono counsel.
So stay tuned.
In the meantime... for any other victims of trademark bullying, whether it be at the hands of Intel Corporation or another large company leveraging the federal court system to its advantage, please feel free to draw inspiration from this:
The reason, they said, it because we are making, "no current use [of the intel string] in commerce." They mean that Americas News Intel Publishing LLC is not currently producing the Mexico Watch Intelligence Service newsletters.
But this, like so much of the disingenuous campaign they have waged against us, is patently bogus.
From the beginning, and throughout our settlement talks, our written discovery, and our deposition testimony, we asserted our right to use "intel" in our name and in our domain, for commercial uses or otherwise.
We reserved the right to resume its use at any point in the future for business purposes or otherwise.
We specified very carefully (and the deposition record will confirm this when it is published) that we only stopped publishing our Mexico Watch Intelligence Service at our latinintel.com site because negative prevailing economic conditions dovetailed with their lawsuit, forcing us to discontinue operations. We also specified very carefully that we may elect to revive or reorganize our service in the future.
This was not an operational issue. This was a LEGAL ISSUE through and through. And that was made explicit and abundantly clear throughout this entire case.
Intel Corporation dismissed this case not because we had suspended publishing. They dismissed it because they knew they would lose.
In coming days we will post more details, including information on refunds of the excess donations to the donors. We also will share some of the finer points of the legal process, in particular shedding some light on the brilliant roles played by our pro bono counsel.
So stay tuned.
In the meantime... for any other victims of trademark bullying, whether it be at the hands of Intel Corporation or another large company leveraging the federal court system to its advantage, please feel free to draw inspiration from this:
Sunday, November 21, 2010
No Cash On The Barrel Head
Some people aware of this case are under the impression that a monetary settlement is at stake, and that the owner of Americas News Intel Publishing LLC stands to gain a considerable sum of money in the near future.
To set the record straight: The defendant is not seeking, nor is plaintiff Intel Corporation offering, a considerable sum of money. Financial settlement is not even being discussed.
In fact, though we had no concept that our name or domain would be coveted by Intel Corporation until the day that we read the C&D, once we appreciated the value this business asset might have to them we offered to sell it to them at a fair market value. Not for millions of dollars, as acquaintances urged, but for a reasonable and fair sum. This is no secret, we have disclosed this offer earlier in this blog, and the letter containing that offer is available for viewing at that post.
As time went on we became more informed about the problem of trademark bullies in general, and Intel Corporation's nefarious history of abusing its size and position in particular. A financial solution no longer seemed appropriate or desirable. Eventually we instructed Intel Corporation to cease and desist making settlement offers, which we advised their lawyers we would not even entertain, and this, too, has been documented and publicized in earlier posts in this blog.
Saturday, November 20, 2010
Deposed
I, Jeffrey Wright, was deposed by Intel Corporation as part of the process of the lawsuit against my company, Americas News Intel Publishing LLC.
In order to attend this deposition, I had to fly to the Bay Area. (The deposition took place in Menlo Park at the spanking new offices of Carr & Ferrell, one of the firms defending us.) Intel Corporation paid for half the trip. And, since it was their deposition, for the video and the court reporter, as well as the cost of having their lawyers, both internal and external, present. Billable hours, ladies and gentlemen, billable hours.
The deposition was remarkable.
And it was remarkable in that it was hugely uneventful. At this stage in the game we fully expected an aggressive deposition, a last-ditch fishing expedition to dredge up something to support their tenuous claims, and a rhetorical blitz aimed at producing a statement from me that would, in the proper twisted context, seem to work in their favor in the litigation.
But instead we had a polite and superficial discussion over coffee. The company used just over half of the time they were entitled to before packing it in. We started late morning and ended in early afternoon. We didn't even need a lunch break. One of the persons present on their side kept checking and typing into an iPad during the questioning. (Surely just taking careful notes on the deposition.)
The questions I was required to answer were, for the most part, very basic inquiries: Where did I go to high school? Where have I worked in the past? Or silly: Why I would purchase marketing lists rather than compiling them on my own? With what periodicity were the Monthly Reports produced?
The sharpest point of the deposition came at the end, when I was asked if I "hated" Intel Corporation lawyers (see the post below) and if I considered that Intel Corporation's brand policing efforts were indeed, as I had written in a blog post at some point, based on tactics similar to those employed by the Gestapo. Lawyers tend to be a very literal bunch.
As far as substantive legal queries, though, the plaintiff spent few energies.
They poked around the issue of intent, i.e. did I seek to gain advantage from using the English-language string 'intel' when I formed my company and selected the name. It is so patently clear that an intelligence business might choose 'intel' in its name or domain for prima facie reasons that we did not waste much time (or, from their perspective, shareholder money) thrashing around here.
They trotted out several examples of content from Mexico Watch newsletters in which Intel Corporation or chip-manufacturers or chip-manufacturing were mentioned in the content. The point being that we are competing in the same market. Recall that Intel Corporation is claiming to be in the newsletter business now, and so if we are both producing newsletters on microprocessors and semiconductor trends, then I could conceivably be held to be infringing or diluting. But obviously Intel Corporation is not a newsletter business, nor was Mexico Watch a technology information service. Technology is an important segment of the Mexican economy and the stories the lawyers cited during the deposition were simply part of the broader issue of foreign investment which we covered in our reporting. But we covered virtually every aspect of the economy at one time or another and mentioned thousands of companies, sectors, trends, and investments.
So the deposition ended without much to report. We bought tickets for a cage fight and saw some light sparring instead.
Why would a company who claims to be defending a $30-billion asset (the Intel brand name) from the "irreparable damage" of infringing and dilution by my company (oh, and cybersquatting) breeze casually through their single chance to directly question the company's principal? To hold me accountable? To beat a confession from me? Apparently my deposition is not relevant to their legal strategy at this point.
So what could this mean? Your guesses are as good as mine.
Jeffrey Wright
Hate
During the deposition, counsel for Intel Corporation produced a Facebook message between a personal friend and Jeffrey Wright. The attorney wanted to know, "Do you hate Intel Corporation's lawyers?" The message said as much.
You might wonder why they are going through these messages in the first place. And why they brought this point up. So do we.
How do Jeffrey Wright's personal sentiments bear on the legal issue in this case? We'll let you speculate for yourself, since we have no idea whatsoever.
But for the record, no, Jeffrey Wright not does harbor personal animosity for the individuals engaged in the prosecution of this case. Let's face it, they deserve some sympathy. They are tasked with defending a generic common English-language word as though it were private property belonging to their employer/client. (Some of the lawyers involved are in-house, others external.)
For whatever myopic reason, the company chose an English-language word as its name back in the late 1960s. Now the organization has made the collective policy decision to ignore the prior existence of the word in the public domain, and individuals in that organization are forced to act accordingly, should they wish to prosper there.
So the question is not a matter of intense personal dislike. They are probably not bad folks in their private lives, and in our experience with them they are usually cordial in speech and manner, and also very sharp dressers, be assured of that. And for whatever reason, Intel Corp. lawyers needed to hear this reassurance during the deposition. Now they can read it here, as well.
Nevertheless, Intel Corporation undeniably and inevitably generates and accrues animosity toward itself by choosing to use the legal system to steamroll small companies such as ours. Intel Corporation has a right to defend its trademark, as do all companies. But someone -- an individual, a person -- needs to stand up at some point and say: "This is wrong. We do not own this word in its generic sense. We know that, and we should not be leveraging the court systems in this way."
Sure, a systemic reform of federal trademark rules is necessary in order to curtail the trademark bullying that has become a truly endemic problem. Still, the fact remains that some companies are exploiting and abusing the system more than others, and Intel Corporation is among the worst offenders.
The individuals accepting pay in exchange for prosecuting these dark ambitions are to be pitied, not hated.
We wonder, though, how they would feel if their private Facebook conversations were demanded under litigation, scrutinized by strangers, and read for the public record? Jes' sayin'.
Friday, October 29, 2010
Nobody Likes A Bully
Slowly, the wicked anti-competitive abuses of the legal system by companies such as Intel Corporation are coming to light.
Exposure has been slow because trademark law is esoteric and does not command the public spotlight very often. But an untold number of small businesses have suffered this bullying.
Sooner or later, the aggressors will have to pay the costs of bad publicity.
Authorities are beginning to sniff around in this polluted, odoriferous recess of the business environment.
The U.S. Trademark Technical and Conforming Amendment Act of 2010 includes a provision that the Secretary of Commerce, in consultation with the Intellectual Property Enforcement Coordinator, shall conduct a study on “the extent to which small businesses may be harmed by litigation tactics by corporations attempting to enforce trademark rights beyond a reasonable interpretation of the scope of the rights granted to the trademark owner."
Have you been a victim? Here's your chance to be heard:
http://www.uspto.gov/trademarks/bullies_survey.jsp
Exposure has been slow because trademark law is esoteric and does not command the public spotlight very often. But an untold number of small businesses have suffered this bullying.
Sooner or later, the aggressors will have to pay the costs of bad publicity.
Authorities are beginning to sniff around in this polluted, odoriferous recess of the business environment.
The U.S. Trademark Technical and Conforming Amendment Act of 2010 includes a provision that the Secretary of Commerce, in consultation with the Intellectual Property Enforcement Coordinator, shall conduct a study on “the extent to which small businesses may be harmed by litigation tactics by corporations attempting to enforce trademark rights beyond a reasonable interpretation of the scope of the rights granted to the trademark owner."
Have you been a victim? Here's your chance to be heard:
http://www.uspto.gov/trademarks/bullies_survey.jsp
Friday, September 10, 2010
Monopolize And Poke Out Their Eyes
Intel Corporation is attempting to monopolize a word from the American English dictionary for its own private profit across all sectors of the economy.
On July 27, 2007, Intel Corporation sent a Cease and Desist order to the small U.S. enterprise Americas News Intel Publishing LLC, a publisher of business, political, and economic intelligence on Mexico.
The company charged that "because of the use of Intel's products and services across all business...the use of 'Americas New Intel Publishing' is likely to deceive and confuse consumers."
Intel Corporation's charges are without merit, and unsupported by state or federal law.
The word 'intel' as used in the intelligence and information services sectors may not be trademarked. The word 'intel' is an abbreviation for intelligence in the English language, and can be found in many dictionaries of record. The use of the word 'intel' as an abbreviation for intelligence is also common in public discourse, and used each and every day in the media.
Intel as a shorthand term in English pre-dates "INTEL" -- which is a portmanteau for "Integrated Electronics" created in 1967, by at least 10 years.
Intel Corporation coined a term identical to a pre-existing English-language word and then spent billions of dollars on its branding -- but this was at its own risk.
The right to use the word 'intel' to communicate with the public is protected by the First Amendment to the U.S. Constitution.
Americas News Intel Publishing has the right to use the word 'intel' to describe and sell intelligence products. 'Americas News Intel Publishing' and 'latinintel.com' both incorporate the term 'intel' in the generic sense as a descriptor for the firm's intelligence products.
All of ANIP's newsletters and website information clearly defines it as "an intelligence service" on economic and political matters, completely unrelated to the manufacture of technology.
No sum of money spent to secure the public's identification of the word 'intel' with the products produced by Intel Corporation can withdraw the word, as it is used in Standard English, from the public domain. Words, as used in their literal sense, may never be trademarked.
In some well-known cases, brands like 'Kleenex' or 'Thermos' become stripped of their identity, lose their value, and end up as "generic" terms. This is the converse. In this case, Intel Corporation is attempting to extract a generic word from the English language and claim it as private property under trademark laws.
Intel Corporation offered ANIP thousands of dollars in "goodwill" money to assist it with the costs of abandoning the term 'intel' in its name and domain.
On the other hand, if ANIP resisted the change, and was "unwilling to entertain the terms proposed," the company threatened aggressive and prohibitively expensive litigation in state and federal courts, seeking "injunctive relief, damages, and reimbursement for attorneys' fees and costs."
Intel Corporation routinely issues Cease & Desist orders to small companies involved in various information and intelligence services industries that have utilized the English word intel to describe their businesses. Intel Corporation does not consider nor care whether such a description is clear, helps identify a product or services customers, or falls clearly within the domain of fair use. Its stated policy is to attack every single usage of 'intel' in a trademark, name, or domain, regardless of the fairness or legality of said usage.
Most small companies cannot endure the staggering costs of fighting unfounded litigation brought by one of the largest legal forces in the world, and must accept the "goodwill" payoff.
In October of 2009, Intel Corporation sued ANIP in the US District Court for the Northern District of California on eight federal, state, and common-law charges: Trademark Infringement, False Designation of Origin, Federal Trademark Dilution, Injury To Business Reputation And Dilution Under California Law, Infringement Under California Law, Common Law Passing Off And Unfair Competition, Unfair Competition, Federal Cybersquatting.
Two prominent American trademark and intellectual property lawyers learned of the case, and took it on pro bono. Ron Coleman of Goetz Fitzpatrick of New York, and Colby Spring, a partner of Carr & Ferrell in Silicon Valley, are now defending ANIP against Intel Corporation and their legal representation, Harvey Siskind of San Francisco.
In April of 2010, Federal Judge Charles Breyer dismissed seven of these charges, but Intel Corporation filed an amended complaint. Charles Breyer admitted this new complaint, but said: "In this case, there is some force to ANIP's assertion that it is using the term 'intel' in connection with its generic meaning...ANIP's use of the term of 'intel' appears to be consistent with the term's common meaning...defining 'intel' as 'information, news'....If ANIP's assertion is true, then Intel's dilution claim, like its infringement claim, is not cognizable."
IN SHORT: If ANIP is using the term 'intel' as 'information, news' then the trademark claims against ANIP are bogus!
The trial is set for May 2011.
Intel Corporation has stated that it will appeal the case if and when it loses, and it has warned ANIP's owner that the case will go on for years. It has also stated that it will sue the owner separately. These threats have been made to compel ANIP to capitulate rather than fight the case in the court of law.
ANIP has appealed for financial help to fight this case. All funds raised go exclusively to costs associated with the defense. None are used to pay salaries or compensation. All surplus funds will be returned to donors on a proportionate basis at the conclusion of the legal process.
Donations may be made at the website http://intel4intelligence.blogspot.com/ or to the PayPal account donate@intelfortheintelligent.com.
More information and most of the court records associated with this case is available at the website http://intel4intelligence.blogspot.com/
On July 27, 2007, Intel Corporation sent a Cease and Desist order to the small U.S. enterprise Americas News Intel Publishing LLC, a publisher of business, political, and economic intelligence on Mexico.
The company charged that "because of the use of Intel's products and services across all business...the use of 'Americas New Intel Publishing' is likely to deceive and confuse consumers."
Intel Corporation's charges are without merit, and unsupported by state or federal law.
The word 'intel' as used in the intelligence and information services sectors may not be trademarked. The word 'intel' is an abbreviation for intelligence in the English language, and can be found in many dictionaries of record. The use of the word 'intel' as an abbreviation for intelligence is also common in public discourse, and used each and every day in the media.
Intel as a shorthand term in English pre-dates "INTEL" -- which is a portmanteau for "Integrated Electronics" created in 1967, by at least 10 years.
Intel Corporation coined a term identical to a pre-existing English-language word and then spent billions of dollars on its branding -- but this was at its own risk.
The right to use the word 'intel' to communicate with the public is protected by the First Amendment to the U.S. Constitution.
Americas News Intel Publishing has the right to use the word 'intel' to describe and sell intelligence products. 'Americas News Intel Publishing' and 'latinintel.com' both incorporate the term 'intel' in the generic sense as a descriptor for the firm's intelligence products.
All of ANIP's newsletters and website information clearly defines it as "an intelligence service" on economic and political matters, completely unrelated to the manufacture of technology.
No sum of money spent to secure the public's identification of the word 'intel' with the products produced by Intel Corporation can withdraw the word, as it is used in Standard English, from the public domain. Words, as used in their literal sense, may never be trademarked.
In some well-known cases, brands like 'Kleenex' or 'Thermos' become stripped of their identity, lose their value, and end up as "generic" terms. This is the converse. In this case, Intel Corporation is attempting to extract a generic word from the English language and claim it as private property under trademark laws.
Intel Corporation offered ANIP thousands of dollars in "goodwill" money to assist it with the costs of abandoning the term 'intel' in its name and domain.
On the other hand, if ANIP resisted the change, and was "unwilling to entertain the terms proposed," the company threatened aggressive and prohibitively expensive litigation in state and federal courts, seeking "injunctive relief, damages, and reimbursement for attorneys' fees and costs."
Intel Corporation routinely issues Cease & Desist orders to small companies involved in various information and intelligence services industries that have utilized the English word intel to describe their businesses. Intel Corporation does not consider nor care whether such a description is clear, helps identify a product or services customers, or falls clearly within the domain of fair use. Its stated policy is to attack every single usage of 'intel' in a trademark, name, or domain, regardless of the fairness or legality of said usage.
Most small companies cannot endure the staggering costs of fighting unfounded litigation brought by one of the largest legal forces in the world, and must accept the "goodwill" payoff.
In October of 2009, Intel Corporation sued ANIP in the US District Court for the Northern District of California on eight federal, state, and common-law charges: Trademark Infringement, False Designation of Origin, Federal Trademark Dilution, Injury To Business Reputation And Dilution Under California Law, Infringement Under California Law, Common Law Passing Off And Unfair Competition, Unfair Competition, Federal Cybersquatting.
Two prominent American trademark and intellectual property lawyers learned of the case, and took it on pro bono. Ron Coleman of Goetz Fitzpatrick of New York, and Colby Spring, a partner of Carr & Ferrell in Silicon Valley, are now defending ANIP against Intel Corporation and their legal representation, Harvey Siskind of San Francisco.
In April of 2010, Federal Judge Charles Breyer dismissed seven of these charges, but Intel Corporation filed an amended complaint. Charles Breyer admitted this new complaint, but said: "In this case, there is some force to ANIP's assertion that it is using the term 'intel' in connection with its generic meaning...ANIP's use of the term of 'intel' appears to be consistent with the term's common meaning...defining 'intel' as 'information, news'....If ANIP's assertion is true, then Intel's dilution claim, like its infringement claim, is not cognizable."
IN SHORT: If ANIP is using the term 'intel' as 'information, news' then the trademark claims against ANIP are bogus!
The trial is set for May 2011.
Intel Corporation has stated that it will appeal the case if and when it loses, and it has warned ANIP's owner that the case will go on for years. It has also stated that it will sue the owner separately. These threats have been made to compel ANIP to capitulate rather than fight the case in the court of law.
ANIP has appealed for financial help to fight this case. All funds raised go exclusively to costs associated with the defense. None are used to pay salaries or compensation. All surplus funds will be returned to donors on a proportionate basis at the conclusion of the legal process.
Donations may be made at the website http://intel4intelligence.blogspot.com/ or to the PayPal account donate@intelfortheintelligent.com.
More information and most of the court records associated with this case is available at the website http://intel4intelligence.blogspot.com/
Thursday, September 2, 2010
Just The Cold, Hard, Ugly Facts!
FACT #1: Intel Corporation routinely issued Cease & Desist orders to small companies involved in various information and intelligence services industries that have utilized the English word intel to describe their business.
FACT #2: Intel Corporation does not consider nor care whether such a description is clear, helps identify a product or services customers, or falls clearly within the domain of fair use. Its stated policy is to attack EVERY SINGLE USAGE of 'intel' in a trademark, name, or domain, regardless of the fairness or legality of said usage.
FACT #3: Intel Corporation routinely offers these small companies -- using 'intel' in the generic, English-language sense of the word -- THOUSANDS OF DOLLARS in order to compel them to accept a changeover without going to court.
FACT #4: Intel Corporation informs all of these same small companies that if they do not accept a "goodwill payment" and abandon any usage of 'intel' that it will mount a prohibitively expensive federal lawsuit against them, and spare no expense it its prosecution.
FACT #5: Despite what the company may say, this IS NOT STANDARD intellectual property policy for those firms that have ill-advisedly chosen English-language words as their trademark. Common examples are Shell, Apple, and Vans. These companies will police and defend their trademark when it is used outside of the fair-use public domain. INTEL CORPORATION IS ONE OF THE FEW LARGE COMPANIES THAT IS SO OPENLY AND AGGRESSIVELY PURSING THIS BLATANT ABUSE OF THE LEGAL SYSTEM, USING ITS FINANCIAL MIGHT TO FORCE CAPITULATION AND BANKRUPTCIES OF SMALL COMPANIES ACROSS AMERICA AND THE WORLD!!!
FACT #2: Intel Corporation does not consider nor care whether such a description is clear, helps identify a product or services customers, or falls clearly within the domain of fair use. Its stated policy is to attack EVERY SINGLE USAGE of 'intel' in a trademark, name, or domain, regardless of the fairness or legality of said usage.
FACT #3: Intel Corporation routinely offers these small companies -- using 'intel' in the generic, English-language sense of the word -- THOUSANDS OF DOLLARS in order to compel them to accept a changeover without going to court.
FACT #4: Intel Corporation informs all of these same small companies that if they do not accept a "goodwill payment" and abandon any usage of 'intel' that it will mount a prohibitively expensive federal lawsuit against them, and spare no expense it its prosecution.
FACT #5: Despite what the company may say, this IS NOT STANDARD intellectual property policy for those firms that have ill-advisedly chosen English-language words as their trademark. Common examples are Shell, Apple, and Vans. These companies will police and defend their trademark when it is used outside of the fair-use public domain. INTEL CORPORATION IS ONE OF THE FEW LARGE COMPANIES THAT IS SO OPENLY AND AGGRESSIVELY PURSING THIS BLATANT ABUSE OF THE LEGAL SYSTEM, USING ITS FINANCIAL MIGHT TO FORCE CAPITULATION AND BANKRUPTCIES OF SMALL COMPANIES ACROSS AMERICA AND THE WORLD!!!
FACT BOX: Intel Corp. -- Shoot First, Let Bankruptcy Sort Them Out
(Fact Box At End)
A few weeks ago, we received yet another communication from a company that had been sued by Intel Corporation. This company, like our own, used "intel" in its domain name. And this company, like our own, is engaged in the business of providing information and news. The owner of this small company told us that the legal costs associated with defending himself were beyond the capacity of his firm to absorb, and that he would probably be forced out of business. At best, the costs of rebranding and reworking his entire public relations network (social media website, etc.) would represent a crushing expense that the company may or may not survive.
We have received contact from numerous companies, and it is clear that there are multiple examples of Intel Corporation attacking private entities using the English-language word in its public usage context.
Let's set out some facts.
FACT #1: Intel Corporation routinely issued Cease & Desist orders to small companies involved in various information and intelligence services industries that have utilized the English word intel to describe their business.
FACT #2: Intel Corporation does not consider nor care whether such a description is clear, helps identify a product or services customers, or falls clearly within the domain of fair use. Its stated policy is to attack EVERY SINGLE USAGE of 'intel' in a trademark, name, or domain, regardless of the fairness or legality of said usage.
FACT #3: Intel Corporation routinely offers these small companies -- using 'intel' in the generic, English-language sense of the word -- THOUSANDS OF DOLLARS in order to compel them to accept a changeover without going to court.
FACT #4: Intel Corporation informs all of these same small companies that if they do not accept a "goodwill payment" and abandon any usage of 'intel' that it will mount a prohibitively expensive federal lawsuit against them, and spare no expense it its prosecution.
FACT #5: Despite what the company may say, this IS NOT STANDARD intellectual property policy for those firms that have ill-advisedly chosen English-language words as their trademark. Common examples are Shell, Apple, and Vans. These companies will police and defend their trademark when it is used outside of the fair-use public domain. INTEL CORPORATION IS ONE OF THE FEW LARGE COMPANIES THAT IS SO OPENLY AND AGGRESSIVELY PURSING THIS BLATANT ABUSE OF THE LEGAL SYSTEM, USING ITS FINANCIAL MIGHT TO FORCE CAPITULATION AND BANKRUPTCIES OF SMALL COMPANIES ACROSS AMERICA AND THE WORLD!!!
A few weeks ago, we received yet another communication from a company that had been sued by Intel Corporation. This company, like our own, used "intel" in its domain name. And this company, like our own, is engaged in the business of providing information and news. The owner of this small company told us that the legal costs associated with defending himself were beyond the capacity of his firm to absorb, and that he would probably be forced out of business. At best, the costs of rebranding and reworking his entire public relations network (social media website, etc.) would represent a crushing expense that the company may or may not survive.
We have received contact from numerous companies, and it is clear that there are multiple examples of Intel Corporation attacking private entities using the English-language word in its public usage context.
Let's set out some facts.
FACT #1: Intel Corporation routinely issued Cease & Desist orders to small companies involved in various information and intelligence services industries that have utilized the English word intel to describe their business.
FACT #2: Intel Corporation does not consider nor care whether such a description is clear, helps identify a product or services customers, or falls clearly within the domain of fair use. Its stated policy is to attack EVERY SINGLE USAGE of 'intel' in a trademark, name, or domain, regardless of the fairness or legality of said usage.
FACT #3: Intel Corporation routinely offers these small companies -- using 'intel' in the generic, English-language sense of the word -- THOUSANDS OF DOLLARS in order to compel them to accept a changeover without going to court.
FACT #4: Intel Corporation informs all of these same small companies that if they do not accept a "goodwill payment" and abandon any usage of 'intel' that it will mount a prohibitively expensive federal lawsuit against them, and spare no expense it its prosecution.
FACT #5: Despite what the company may say, this IS NOT STANDARD intellectual property policy for those firms that have ill-advisedly chosen English-language words as their trademark. Common examples are Shell, Apple, and Vans. These companies will police and defend their trademark when it is used outside of the fair-use public domain. INTEL CORPORATION IS ONE OF THE FEW LARGE COMPANIES THAT IS SO OPENLY AND AGGRESSIVELY PURSING THIS BLATANT ABUSE OF THE LEGAL SYSTEM, USING ITS FINANCIAL MIGHT TO FORCE CAPITULATION AND BANKRUPTCIES OF SMALL COMPANIES ACROSS AMERICA AND THE WORLD!!!
Monday, August 9, 2010
The War Of Attrition Grinds On
Here comes the expensive part, and we need your donations more than ever. Intel Corporation has stated that they will try and force us to surrender by making this case as long and as expensive as possible, and they have already stated an intention to appeal, even though they have not yet lost at the federal district level. (They will, and they will lose the appeal, too.)
Any amount will help. We encourage people to donate $5. We'll make you a cappuccino next time we see you. Use the link on the right-hand side of the page.
A very pithy and unbiased summary of the dispute to date may be found here.
The Court Management Conference yielded the following schedule for the trial proceedings:
• Lay Discovery Cut-off: December 1, 2010
• Designation of Experts Deadline: December 20, 2010
• Designation of Rebuttal Experts Deadline: January 5, 2011
• Expert Discovery Cut-off: February 1, 2011
• Last Day to File Dispositive Motions: February 16, 2011
• Pretrial Disclosures: March 25, 2011
• Pretrial Conference: April 8, 2011
• Trial: May 9, 2011
HOWEVER, it is important to note that we will be moving for a summary judgment, and this is a very likely scenario. The hearing for the motion for summary judgment is not until Mar. 4. Until that time, the rest of these dates apply.
This is where Intel Corporation will insist on a burdensome level of discovery and depositions, just to create a strain on our finances. But we've got enough canned food and bottled water for years, so bring it on!
Thursday, August 5, 2010
Court Management Conference
Friday, August 5th is the date for the Court Management Conference. We will have dates and a scenario for how this matter will proceed once we can digest the event.
Wednesday, August 4, 2010
VIDEO EDITING HELP!!!
We are currently working with the California rap artist Grammatical B to develop a music video for the Internet that documents Intel Corporation's greed and abuse in this lawsuit.
Anyone who can donate video-editing or production expertise to this cause please write to contact@intelfortheintelligent.com.
The video will be broadcast far and wide, creating embarrassment for Intel Corporation but also potentially bringing fame and accolades to any of the video's creators!
Intel Corporation's Complaints Not Cognizable!
We have been asked by followers of this blog to give a concise update to the trial's progress.
1) U.S. Federal Judge Charles Breyer has agreed to give Intel Corporation its day in court, though he made it clear that he is VERY skeptical of the company's bogus complaints. In fact, he said:
http://www.latinintel.com/Order_Denying_Motion_To_Dismiss.pdf
2) Intel Corporation has acknowledged that the generic sense of intel is "shorthand for gathering and analyzing information." And nobody has every disputed that is exactly what the Mexico Watch Intelligence Service did, when its newsletters and briefs were in publication. Therefore, UNLESS THE JUDGE CHANGES HIS MIND, WE WILL DEFINITELY WIN THIS CASE.
3) Intel Corporation responds to this quandary by stating that it will produce a survey that proves that people think of the company brand INTEL before they think of informational intel when they hear the word.
Under this standard, words like apple, converse, mango, puma, vans, and virgin would no longer belong to the public domain. Since that scenario is patently absurd, so is that standard, and we are confident that the judge in this case will agree and rule against these frivolous and abusive complaints.
Our Monopoly Abuse Is Not Like Your Monopoly Abuse
This blog is not about Intel Corporation's widespread and well-known abusive practices as a monopolist. That's gotten them into trouble in Korea, Japan, the European Union, the United States, and elsewhere. Plenty of bloggers are out there to document this.
But we like to 'chime' in from time to time. "Bum-bum-bum-buuuum. Our coercive practices aren't like YOUR coercive practices."
Many people are aware that on Wednesday, August 4, Intel Corporation "settled" the case brought against it by the Federal Trade Commission. What does a settlement mean here?
It means that Intel Corporation knew it would lose, and agreed to nearly all of the FTC's terms, but can now deny breaking the law and maintain the official position that the FTC's complaints are all false. It's akin to pleading 'no contest' rather than 'guilty' in a court of law.
What were the FTC's allegations? The answer would fill hundreds of pages, and in fact does. But a very brief version from The Washington Post:
"The agency investigated Intel's practices going back at least 10 years and found the company 'stepped well over the line.' The FTC said Intel told customers it would not sell products to them unless they agreed to stop doing business with Intel's rivals. The agency also said Intel redesigned its central processing units, or CPUs, to throw off competitors by making it harder for their chips to work with Intel's."
Sadly, in technology, monopoly abuses means essential consumer products are kept much more expensive and unnecessarily so -- a fact that widens the digital divide and keeps vital tools out of reach of billions. The only winners are the shareholders of Intel Corporation, who enjoy profits artificially inflated by rents. In addition, Intel Corporation has retarded innovation through its disregard for legal market practices.
But we like to 'chime' in from time to time. "Bum-bum-bum-buuuum. Our coercive practices aren't like YOUR coercive practices."
Many people are aware that on Wednesday, August 4, Intel Corporation "settled" the case brought against it by the Federal Trade Commission. What does a settlement mean here?
It means that Intel Corporation knew it would lose, and agreed to nearly all of the FTC's terms, but can now deny breaking the law and maintain the official position that the FTC's complaints are all false. It's akin to pleading 'no contest' rather than 'guilty' in a court of law.
What were the FTC's allegations? The answer would fill hundreds of pages, and in fact does. But a very brief version from The Washington Post:
"The agency investigated Intel's practices going back at least 10 years and found the company 'stepped well over the line.' The FTC said Intel told customers it would not sell products to them unless they agreed to stop doing business with Intel's rivals. The agency also said Intel redesigned its central processing units, or CPUs, to throw off competitors by making it harder for their chips to work with Intel's."
Sadly, in technology, monopoly abuses means essential consumer products are kept much more expensive and unnecessarily so -- a fact that widens the digital divide and keeps vital tools out of reach of billions. The only winners are the shareholders of Intel Corporation, who enjoy profits artificially inflated by rents. In addition, Intel Corporation has retarded innovation through its disregard for legal market practices.
Thursday, July 15, 2010
Overdue Update
We have been silent here for a while, and it is now time for an overdue update.
The reason we stopped publishing the blow-by-blow is because on July 13, we had a court-ordered mediation with Intel Corporation. It is always best to approach these matters with clear eyes in good faith, and so we wanted to static as low as possible.
Time to turn the volume back up. Mediation failed. We did not accept any settlement.
The case will move forward now, as Judge Charles Breyer has elected to give Intel Corporation its day in court, and so many months still lie ahead.
Intel Corporation has made it clear that they despise this blog. They think it improper, indecorous, outside the bounds of civilized courtroom battles.
But the fact is that Intel Corporation wields disproportionate advantage on the legal terrain. Its pockets are bottomless. Its legal army is the largest and most battle-hardened on the planet, at least in the private sector. It "polices its brand" like the Gestapo policed Germany.
So this blog is a vital tool in our effort to win justice for our cause and also to prevent Intel Corporation from obliterating small private individuals in its zeal to enhance its balance sheet. Sure, intellectual property protection, but the 'shoot-first-ask-questions-later' doctrine is vile and impermissible in a free and fair society.
This blog not only has the mission of shedding light on the process and providing guidance for others that may be facing a legal harassment campaign by Intel Corporation or any other large entity. It also has the mission of raising money to finance the campaign.
Our lawyers are representing us pro bono and it is because they believe in our cause, in our eventual triumph, and in the basic tenets of justice. Intel Corporation has told ANIP that it is "lucky" to have pro bono representation.
We are lucky to have Ron Coleman and Colby Spring on our side, of that there be no doubt. They are among the top lawyers in their field in the United States.
But it is not a matter of luck. It is our hard, tireless work to secure pro bono representation, to raise money to fund out-of-pocket legal expenses, and to publicize the affair via this blog that has enabled us to struggle against Goliath.
If you have read this far, please consider donating to this cause. You may donate via PayPal at donate@intelfortheintelligent.com or through the link at the right.
We are only using the money for necessary expenses, and much of the battle continues to be funded as much as possible by ANIP owner Jeffrey Wright, whose company was dragged under in part by Intel Corporation's legal abuses.
We pledge that we will use the money fairly and prudently, and that we will return any unused funds to donors when this case concludes.
So please, donate now; even an amount as small as $1 will be appreciated and wisely employed.
The reason we stopped publishing the blow-by-blow is because on July 13, we had a court-ordered mediation with Intel Corporation. It is always best to approach these matters with clear eyes in good faith, and so we wanted to static as low as possible.
Time to turn the volume back up. Mediation failed. We did not accept any settlement.
The case will move forward now, as Judge Charles Breyer has elected to give Intel Corporation its day in court, and so many months still lie ahead.
Intel Corporation has made it clear that they despise this blog. They think it improper, indecorous, outside the bounds of civilized courtroom battles.
But the fact is that Intel Corporation wields disproportionate advantage on the legal terrain. Its pockets are bottomless. Its legal army is the largest and most battle-hardened on the planet, at least in the private sector. It "polices its brand" like the Gestapo policed Germany.
So this blog is a vital tool in our effort to win justice for our cause and also to prevent Intel Corporation from obliterating small private individuals in its zeal to enhance its balance sheet. Sure, intellectual property protection, but the 'shoot-first-ask-questions-later' doctrine is vile and impermissible in a free and fair society.
This blog not only has the mission of shedding light on the process and providing guidance for others that may be facing a legal harassment campaign by Intel Corporation or any other large entity. It also has the mission of raising money to finance the campaign.
Our lawyers are representing us pro bono and it is because they believe in our cause, in our eventual triumph, and in the basic tenets of justice. Intel Corporation has told ANIP that it is "lucky" to have pro bono representation.
We are lucky to have Ron Coleman and Colby Spring on our side, of that there be no doubt. They are among the top lawyers in their field in the United States.
But it is not a matter of luck. It is our hard, tireless work to secure pro bono representation, to raise money to fund out-of-pocket legal expenses, and to publicize the affair via this blog that has enabled us to struggle against Goliath.
If you have read this far, please consider donating to this cause. You may donate via PayPal at donate@intelfortheintelligent.com or through the link at the right.
We are only using the money for necessary expenses, and much of the battle continues to be funded as much as possible by ANIP owner Jeffrey Wright, whose company was dragged under in part by Intel Corporation's legal abuses.
We pledge that we will use the money fairly and prudently, and that we will return any unused funds to donors when this case concludes.
So please, donate now; even an amount as small as $1 will be appreciated and wisely employed.
No Deal
On July 13, 2010, Jeffrey Wright, the owner of Americas News Intel Publishing LLC, traveled to San Francisco at his own expense to attend a court-ordered mediation with Intel Corporation and their lawyers.
The fact of this mediation is public record, but everything about it is confidential, according to the law.
Mr. Wright cannot, therefore, discuss whether or not Intel Corporation offered him a settlement payment. And if they were to have done so, he could not reveal just how large it was.
But there was no settlement agreement reached, no deal, no backing down. The matter will be decided in the courts.
Intel Corporation has vowed that "there will be no shelter" for Americas News Intel Publishing LLC. It has threatened to sue not only the company, but Mr. Wright personally, for damages, legal fees, and all the other avaricious relief it can obtain.
This a risk that Mr. Wright is clearly ready to assume. We invite you to stand with us!
The fact of this mediation is public record, but everything about it is confidential, according to the law.
Mr. Wright cannot, therefore, discuss whether or not Intel Corporation offered him a settlement payment. And if they were to have done so, he could not reveal just how large it was.
But there was no settlement agreement reached, no deal, no backing down. The matter will be decided in the courts.
Intel Corporation has vowed that "there will be no shelter" for Americas News Intel Publishing LLC. It has threatened to sue not only the company, but Mr. Wright personally, for damages, legal fees, and all the other avaricious relief it can obtain.
This a risk that Mr. Wright is clearly ready to assume. We invite you to stand with us!
Judge Declines To Dismiss
On July 12, 2010, the Honorable US Federal Judge Charles Breyer issued an order denying our motion to dismiss the 8-count complaint that Intel Corporation has lodged against our company.
This is, obviously, unfortunate news. It cannot alter the outcome and our ultimate, inescapable triumph. But it means that more time, more funds, more grating Intel verbiage, and more taxpayer resources will be spilled down the drain before it is all over.
In the first hearing, readers recall, Breyer did indeed dismiss all charges except for the cybersquatting charge, which is the most disingenuous of the complaints, and which only survived because our lawyers had not specifically addressed it in our first motion to dismiss.
A complete reversal now of his earlier position simply means that the trial will plod forward. But there is ample room for optimism within Breyer's order.
The text of the decision essentially says: Intel Corporation, your facts are porous and nescient, but you have piled on such a mountain of them that this court find itself in the tedious position of having to give you an audience.
To wit: "In this case, there is some force to ANIP's assertion that it is using the term 'itel' in connection with its generic meaning....Thus, ANIP's use of the term of 'intel' appears to be consistent with the term's common meaning...(defining 'intel' as 'information, news'). Despite the potential strength of ANIP's argument, the Court finds that dismissing Intel's Complaint on this ground would be premature."
And later: "Arguing to the contrary, ANIP maintains, in a repeat of a previous argument, that Intel's dilution claim fails because ANIP is using the term 'intel' in its generic sense. If ANIP's assertion is true, then Intel's dilution claim, like its infringement claim, is not cognizable."
So, Judge Breyer seems to be saying that if we can prove Americas News Intel Publishing and its latinintel.com website are in the intelligence business, offering news analysis and information, then Intel's infringement and dilution claims are patently bogus. The intelligence business is not that arcane, and it is pretty darn easy to see that ANIP and latinintel.com and Mexico Watch have been for years engaged in the very specialized but very straightforward business. This test resoundingly passes the 'moron in a hurry' test. Intel Corporation is wrong.
Indeed, everyone already knows this, including Intel Corporation, but legally the common understanding of this fact has not been codified or proven, so we all most go through the motions in order to put an end to Intel Corporation's multiple frivolous campaigns in this vein.
It bears consideration that dismissing a complaint is rather extraordinary. It means that the court deems the complaint to be so obviously lacking of merit, so flimsy and unfounded, that it is not even entitled to its day in court. The fact that the complaints were dismissed in the first hearing reflects just how vapid Intel Corporation's grievance is in terms of legal relevance.
Granting a hearing to the Plaintiff is almost a pro forma nod toward their civic rights. Rant incoherently, and you are just another madman upon a soapbox in the plaza. Furbish your rants with expert legal counsel, and a public magistrate will be compelled to sit and endure them.
This is, obviously, unfortunate news. It cannot alter the outcome and our ultimate, inescapable triumph. But it means that more time, more funds, more grating Intel verbiage, and more taxpayer resources will be spilled down the drain before it is all over.
In the first hearing, readers recall, Breyer did indeed dismiss all charges except for the cybersquatting charge, which is the most disingenuous of the complaints, and which only survived because our lawyers had not specifically addressed it in our first motion to dismiss.
A complete reversal now of his earlier position simply means that the trial will plod forward. But there is ample room for optimism within Breyer's order.
The text of the decision essentially says: Intel Corporation, your facts are porous and nescient, but you have piled on such a mountain of them that this court find itself in the tedious position of having to give you an audience.
To wit: "In this case, there is some force to ANIP's assertion that it is using the term 'itel' in connection with its generic meaning....Thus, ANIP's use of the term of 'intel' appears to be consistent with the term's common meaning...(defining 'intel' as 'information, news'). Despite the potential strength of ANIP's argument, the Court finds that dismissing Intel's Complaint on this ground would be premature."
And later: "Arguing to the contrary, ANIP maintains, in a repeat of a previous argument, that Intel's dilution claim fails because ANIP is using the term 'intel' in its generic sense. If ANIP's assertion is true, then Intel's dilution claim, like its infringement claim, is not cognizable."
So, Judge Breyer seems to be saying that if we can prove Americas News Intel Publishing and its latinintel.com website are in the intelligence business, offering news analysis and information, then Intel's infringement and dilution claims are patently bogus. The intelligence business is not that arcane, and it is pretty darn easy to see that ANIP and latinintel.com and Mexico Watch have been for years engaged in the very specialized but very straightforward business. This test resoundingly passes the 'moron in a hurry' test. Intel Corporation is wrong.
Indeed, everyone already knows this, including Intel Corporation, but legally the common understanding of this fact has not been codified or proven, so we all most go through the motions in order to put an end to Intel Corporation's multiple frivolous campaigns in this vein.
It bears consideration that dismissing a complaint is rather extraordinary. It means that the court deems the complaint to be so obviously lacking of merit, so flimsy and unfounded, that it is not even entitled to its day in court. The fact that the complaints were dismissed in the first hearing reflects just how vapid Intel Corporation's grievance is in terms of legal relevance.
Granting a hearing to the Plaintiff is almost a pro forma nod toward their civic rights. Rant incoherently, and you are just another madman upon a soapbox in the plaza. Furbish your rants with expert legal counsel, and a public magistrate will be compelled to sit and endure them.
Sunday, June 13, 2010
Intel Corporation Condemns Your Grassroots Donations
To be honest, we did not see this one coming. This is low even by Intel Corporation's mediocre standards.
In its June 11, 2010 filing, Intel Corporation informs the UNITED STATES FEDERAL COURT that:
"Defendant’s website also trumpets the fact that its counsel is representing it pro bono (while it curiously solicits donations for its lawsuit with Intel). A sensational claim by Defendant, yet one that is not only irrelevant but untrue."
This is not a sensational claim. This is not an untrue claim. And there is nothing curious about raising donations for a lawsuit that has pro bono representation. Intel Corporation and its counsel knows full well that pro bono representation does not typically cover out-of-pocket expenses.
For the record, and as we have previously stated here and elsewhere:
1) Our legal team is representing us 100% pro bono.
2) All monies that we raise by donations have been and will be used EXCLUSIVELY for incidental expenses incurred in the defense against the lawsuit by Intel Corporation.
3) Once we triumph, any surplus cash from donations will be returned to donors in a proportional amount. We are still running a surplus, and careful records are being kept to ensure just reimbursements.
4) Nobody in this defense is drawing upon donations for salary. Filing fees, courier services, and the like are examples of out-of-pocket incidentals being consumed. Hard costs deemed essential. Not so much as a cup of coffee has been purchased with the donation funds.
5) We have used all donations received to date with the utmost frugality.
The longer this trial lasts, the more it will cost us. Intel Corporation knows this. In fact, a reasonable person could easily conclude that Intel Corporation, with its immeasurably deep pockets, is counting on our limited resources eventually accruing in its favor. What should your response to this petty, bogus, and haughty charge be?
Look to your right and donate to our cause now!
In its June 11, 2010 filing, Intel Corporation informs the UNITED STATES FEDERAL COURT that:
"Defendant’s website also trumpets the fact that its counsel is representing it pro bono (while it curiously solicits donations for its lawsuit with Intel). A sensational claim by Defendant, yet one that is not only irrelevant but untrue."
This is not a sensational claim. This is not an untrue claim. And there is nothing curious about raising donations for a lawsuit that has pro bono representation. Intel Corporation and its counsel knows full well that pro bono representation does not typically cover out-of-pocket expenses.
For the record, and as we have previously stated here and elsewhere:
1) Our legal team is representing us 100% pro bono.
2) All monies that we raise by donations have been and will be used EXCLUSIVELY for incidental expenses incurred in the defense against the lawsuit by Intel Corporation.
3) Once we triumph, any surplus cash from donations will be returned to donors in a proportional amount. We are still running a surplus, and careful records are being kept to ensure just reimbursements.
4) Nobody in this defense is drawing upon donations for salary. Filing fees, courier services, and the like are examples of out-of-pocket incidentals being consumed. Hard costs deemed essential. Not so much as a cup of coffee has been purchased with the donation funds.
5) We have used all donations received to date with the utmost frugality.
The longer this trial lasts, the more it will cost us. Intel Corporation knows this. In fact, a reasonable person could easily conclude that Intel Corporation, with its immeasurably deep pockets, is counting on our limited resources eventually accruing in its favor. What should your response to this petty, bogus, and haughty charge be?
Look to your right and donate to our cause now!
Intel Corporation Asks Court To Deny
Intel Corporation has asked the Honorable Judge Charles Breyer to deny our motion to dismiss. The hearing on this motion is scheduled for July 2.
The Opposition To Defendant's Motion To Dismiss does proceed on the basis we predicted. Specifically, Intel Corporation has highlighted the improbable and almost borderline claim that our customers, actual or prospective, may overlap with their customers because Intel Corporation publishes newsletters:
• The parties each utilize INTEL-formative marks (e.g. INTEL v. LATIN INTEL) and Intel uses a large family of INTEL-formative marks;
• To offer related (if not competitive) products and services (e.g., newsletters that address business and economic developments in Latin America, among other regions);
• To a specifically identified and significantly overlapping customer base (e.g., executives of the majority of U.S. Fortune 500 companies); and
• Such conduct is likely to cause confusion amongst Defendant’s actual and prospective customers.
(The Plaintiff's "likelihood of confusion" argument is, in fact, so weak that they are now focusing on a dilution argument. Read on.)
Intel has pled that:
• An astounding 86% of consumers who associate the term 'intel' with any word, definition or mark (not just a trademark) associate the term with Intel Corporation; and
• Intel will make the requisite showing of the likelihood of the loss of such distinctiveness “through the submission of survey evidence,” which is the standard method to establish an actionable likelihood of dilution.
The Opposition To Defendant's Motion To Dismiss does proceed on the basis we predicted. Specifically, Intel Corporation has highlighted the improbable and almost borderline claim that our customers, actual or prospective, may overlap with their customers because Intel Corporation publishes newsletters:
• The parties each utilize INTEL-formative marks (e.g. INTEL v. LATIN INTEL) and Intel uses a large family of INTEL-formative marks;
(INTEL, a coined portmanteau for integrated electronics; LatinIntel, a generic English-language descriptor for Latin American intelligence gathering)
• To offer related (if not competitive) products and services (e.g., newsletters that address business and economic developments in Latin America, among other regions);
(Yes, this is where Intel Corporation asserts that among its many activities in Latin America, it publishes newsletters. Nobody, and certainly not a federal court judge, will for a second believe that the California-based technology manufacturer has any business as a "SPECIALIZED INFORMATION PUBLISHER.")
• To a specifically identified and significantly overlapping customer base (e.g., executives of the majority of U.S. Fortune 500 companies); and
(Yes, the type of customer base that the Mexico Watch Intelligence Service targeted was indeed top executives of global companies, executives with significant responsibilities in Mexico. From the Specialized Information Publishers Association: "The market consists of companies or individuals within companies who need specialized information about their industries that may not be available or is extremely difficult to find without the efforts of a specialized-information publisher and are willing to pay high prices for that information.")
• Such conduct is likely to cause confusion amongst Defendant’s actual and prospective customers.
(The Plaintiff's "likelihood of confusion" argument is, in fact, so weak that they are now focusing on a dilution argument. Read on.)
Intel has pled that:
• An astounding 86% of consumers who associate the term 'intel' with any word, definition or mark (not just a trademark) associate the term with Intel Corporation; and
(What is astounding about this sentence? How about the choice of the word astounding? This survey is surprising because it suggests 14% of people who think of intel as a word don't even recognize Intel Corp.?? We do not know, because this survey, its methodology, its authority, and its statistical confidence, have not been divulged. We conducted one unscientific online survey seeking one or more definitions for "intel" and found 33% thought it meant one thing, Intel Corporation; 33% thought it meant two things, shorthand for intelligence and Intel Corporation; 33% thought it meant more than two things, but at least the previous pair of definitions.)
• Intel will make the requisite showing of the likelihood of the loss of such distinctiveness “through the submission of survey evidence,” which is the standard method to establish an actionable likelihood of dilution.
(Would, not will. But only if Judge Charles Breyer lets Intel Corporation's flagitious complaint survive.)
Tuesday, June 8, 2010
Time To Cap The Well
We've endured the Intel Corporation's ruthless, disingenuous, and irresponsible attacks since July 2007, so their defeat will bring us some personal, emotional satisfaction. BUT THAT'S NOT THE POINT.
Because at the end of the day, this is a battle in the interest of reason and public good, not a quixotic matter for individual celebration. Quite the opposite.
The overriding goal here is (1) to establish some limits on the ability of private companies to hijack federal trademark law as they maneuver to strip the public domain of our words, symbols, images, and otherwise unravel the threads of our common fabric; and (2) to serve notice on corporate abusers that they may not usurp the legal system at will in order to undermine the spirit of the law and further narrow private agendas, especially at the expense of other people's livelihoods.
Both of these issues represent very real risks, and must be taken seriously, confronted with eternal, patient vigilance. At their dark heart, these issues are literally evil.
It's hard as hell to stand up to these egregious abuses. It is, in fact, terribly difficult to fathom the sacrifices one must endure until one has lived it. What a sickening, crushing injustice it would be if Intel Corporation were allowed to continue soiling our waters with their filth and for their profit.
So on July 2, everyone please give a little silent cheer at the sidelines for Ron Coleman and Colby Springer, the lawyers that have selflessly taken on one of the world's largest private legal forces history has ever known. That day, they will be arguing our case that Intel Corporation's legal complaint should be dismissed once and for all. Ron and Colby are doing this pro bono, and at the end of the day, and hopefully at the end of that day, when victory is ultimately achieved, they will remain the real heroes of this story. Let our thoughts give them wings.
Because at the end of the day, this is a battle in the interest of reason and public good, not a quixotic matter for individual celebration. Quite the opposite.
The overriding goal here is (1) to establish some limits on the ability of private companies to hijack federal trademark law as they maneuver to strip the public domain of our words, symbols, images, and otherwise unravel the threads of our common fabric; and (2) to serve notice on corporate abusers that they may not usurp the legal system at will in order to undermine the spirit of the law and further narrow private agendas, especially at the expense of other people's livelihoods.
Both of these issues represent very real risks, and must be taken seriously, confronted with eternal, patient vigilance. At their dark heart, these issues are literally evil.
It's hard as hell to stand up to these egregious abuses. It is, in fact, terribly difficult to fathom the sacrifices one must endure until one has lived it. What a sickening, crushing injustice it would be if Intel Corporation were allowed to continue soiling our waters with their filth and for their profit.
So on July 2, everyone please give a little silent cheer at the sidelines for Ron Coleman and Colby Springer, the lawyers that have selflessly taken on one of the world's largest private legal forces history has ever known. That day, they will be arguing our case that Intel Corporation's legal complaint should be dismissed once and for all. Ron and Colby are doing this pro bono, and at the end of the day, and hopefully at the end of that day, when victory is ultimately achieved, they will remain the real heroes of this story. Let our thoughts give them wings.
MOTION TO DISMISS HEARING IMMINENT
Fellow Abuse Watchers:
***THE MOST IMPORTANT DATE IN THREE YEARS OF PROCEEDINGS IS SET FOR JULY 2. ***
When it comes to legal proceedings with Intel Corporation, legal dates shift around so much that life-planning starts to feel like whacking moles. Except you never seem to whack anything, no matter how many quarters you empty into the slot.
Having said that, some new dates were finally set last week: (Spoiler alert, July 2 is the doozy.)
This Friday, June 11, Intel Corporation will file its opposition brief. It will oppose our Motion to Dismiss, possibly leading with its newest implausibly ludicrous claim that our use of the English word "intel" is hurting its newsletter publishing business.
We have one week to respond with a reply brief. On Friday, June 18, our legal team will reaffirm our motion to dismiss and refute any new points drummed up in the opposition brief -- undoubtedly bursting at the seams with every conceivable tangent that opposing counsel may dredge up during their billable hours orgies.
MOST IMPORTANTLY: The Motion to Dismiss Hearing, formerly scheduled for Friday, June 25, was moved to to Friday, July 2.
This is the hearing in which a Federal Judge will once and for all reject Intel Corporation's pernicious, abusive legal campaign to break the back our small company in a gross display of corporate greed.
Unless, of course, the Federal Judge lets some part of Intel Corporation's legal complaint survive.
***At this point, it looks highly likely that Intel Corporation will suffer a long-overdue, humiliating defeat.***
And sure, we've endured the company's ruthless, disingenuous, and irresponsible attacks since July 2007, so their defeat will bring us some personal, emotional satisfaction. BUT THAT'S NOT THE POINT.
Because at the end of the day, this is a battle in the interest of reason and public good, not a quixotic matter for individual celebration. Quite the opposite.
The overriding goal here is (1) to establish some limits on the ability of private companies to hijack federal trademark law as they maneuver to strip the public domain of our words, symbols, images, and otherwise unravel the threads of our common fabric; and (2) to serve notice on corporate abusers that they may not usurp the legal system at will in order to undermine the spirit of the law and further narrow, private agendas, especially at the expense of other people's livelihoods.
Both of these issues represent very real risks, and must be taken seriously, confronted with eternal, patient vigilance. At their dark heart, these issues are literally evil.
It's hard as hell to stand up to these egregious abuses. It is, in fact, terribly difficult to fathom the sacrifices one must endure until one has lived it. What a sickening, crushing injustice it would be if Intel Corporation were allowed to continue soiling our waters with their filth and for their profit.
So on July 2, everyone please give a little silent cheer at the sidelines for Ron Coleman and Colby Springer, the lawyers that have selflessly taken on one of the world's largest private legal forces history has ever known. That day, they will be arguing our case that Intel Corporation's legal complaint should be dismissed once and for all. Ron and Colby are doing this pro bono, and at the end of the day, and hopefully at the end of that day, when victory is ultimately achieved, they will remain the real heroes of this story. Let our thoughts give them wings.
***THE MOST IMPORTANT DATE IN THREE YEARS OF PROCEEDINGS IS SET FOR JULY 2. ***
When it comes to legal proceedings with Intel Corporation, legal dates shift around so much that life-planning starts to feel like whacking moles. Except you never seem to whack anything, no matter how many quarters you empty into the slot.
Having said that, some new dates were finally set last week: (Spoiler alert, July 2 is the doozy.)
This Friday, June 11, Intel Corporation will file its opposition brief. It will oppose our Motion to Dismiss, possibly leading with its newest implausibly ludicrous claim that our use of the English word "intel" is hurting its newsletter publishing business.
We have one week to respond with a reply brief. On Friday, June 18, our legal team will reaffirm our motion to dismiss and refute any new points drummed up in the opposition brief -- undoubtedly bursting at the seams with every conceivable tangent that opposing counsel may dredge up during their billable hours orgies.
MOST IMPORTANTLY: The Motion to Dismiss Hearing, formerly scheduled for Friday, June 25, was moved to to Friday, July 2.
This is the hearing in which a Federal Judge will once and for all reject Intel Corporation's pernicious, abusive legal campaign to break the back our small company in a gross display of corporate greed.
Unless, of course, the Federal Judge lets some part of Intel Corporation's legal complaint survive.
***At this point, it looks highly likely that Intel Corporation will suffer a long-overdue, humiliating defeat.***
And sure, we've endured the company's ruthless, disingenuous, and irresponsible attacks since July 2007, so their defeat will bring us some personal, emotional satisfaction. BUT THAT'S NOT THE POINT.
Because at the end of the day, this is a battle in the interest of reason and public good, not a quixotic matter for individual celebration. Quite the opposite.
The overriding goal here is (1) to establish some limits on the ability of private companies to hijack federal trademark law as they maneuver to strip the public domain of our words, symbols, images, and otherwise unravel the threads of our common fabric; and (2) to serve notice on corporate abusers that they may not usurp the legal system at will in order to undermine the spirit of the law and further narrow, private agendas, especially at the expense of other people's livelihoods.
Both of these issues represent very real risks, and must be taken seriously, confronted with eternal, patient vigilance. At their dark heart, these issues are literally evil.
It's hard as hell to stand up to these egregious abuses. It is, in fact, terribly difficult to fathom the sacrifices one must endure until one has lived it. What a sickening, crushing injustice it would be if Intel Corporation were allowed to continue soiling our waters with their filth and for their profit.
So on July 2, everyone please give a little silent cheer at the sidelines for Ron Coleman and Colby Springer, the lawyers that have selflessly taken on one of the world's largest private legal forces history has ever known. That day, they will be arguing our case that Intel Corporation's legal complaint should be dismissed once and for all. Ron and Colby are doing this pro bono, and at the end of the day, and hopefully at the end of that day, when victory is ultimately achieved, they will remain the real heroes of this story. Let our thoughts give them wings.
Monday, May 17, 2010
A Shred Of Intel... Corp.
The dynamic duo of Ronald Coleman and Colby Springer have produced a powerful, compelling legal argument for our second motion to dismiss Intel Corporation's now-infamous trademark and cybersquatting complaints against us.
http://www.likelihoodofconfusion.com/?p=5760
http://www.likelihoodofconfusion.com/?p=5760
Saturday, May 15, 2010
Flying Lawyers UPDATED
In the previous post, we examined this claim from the Plaintiff:
"Intel made numerous attempts to resolve the dispute amicably, including its offer to fly and meet with Defendant’s counsel in person to try to resolve the dispute, which Defendant rejected. Defendant’s infringing use of the AMERICAS NEWS INTEL PUBLISHING trade name and LATIN INTEL and LATIN INTEL TRADE CENTER trademarks persists, leaving Intel no choice but to pursue its claims."
What a crock. On the contrary, we initially tried to work out a compromise, and only out of goodwill and pity toward these belligerent jerks that had ignorantly selected an English-language word as their trademark and realized in hindsight the folly of their choice.
In July 2007, Intel Corporation started harassing us. In June 2008, we said LEAVE US ALONE.
When they refused to leave us alone, we set forth a very clear condition: Send us a clear good-faith offer in writing, and we will resume talks. Until then, confine your pestering to the snack room near the elevator. Read an excerpt:
"Thank you for your letter of June 23, 2008. I understand that you wish to resume negotiations by telephone for the sake of efficiency and you have expressed concern that we are declining this invitation. To address that concern, allow me to explain.
Intel has failed to engage in these negotiations with an earnest desire to reach a settlement, but rather is seeking to compel my client’s capitulation through a prolonged campaign of attrition. We have provided detailed estimates of the business costs and risks implied in changing the trade and domain names. These efforts have been met with summary dismissals.
After nearly one year of glacial progress, we view this process as harassment rather than a good-faith effort to reach an amicable settlement, and we fail to see how the goals of efficiency and expediency will be served by yet another phone call.
...
My client will not accept an unreasonable amount to settle this matter, and is not disposed to squander additional time and money on purposeless and desultory discussions. We are perfectly willing to resume and conclude this settlement process, which is why we have requested that Intel submit a good-faith offer in writing. Until we have a clear indication that your client intends to collaborate with us on reaching a mutually agreeable settlement, there is nothing further to discuss."
Of course, we have since learned that Intel Corporation and its legal toughs routinely and methodically use C&D harassment to force small businesses into capitulation.
This is not irrational behavior. Rather than painstakingly sift through the universe of people and companies that have any kind of overlap with what Intel Corporation believes to be its intellectual domain (which includes golf balls, newsletters, computer chips, refrigerator magnets and more), the company's lawyers simply blast away with a shotgun.
There will be some collateral killings of innocents, but that is an acceptable risk in the business of trademark war.
But war is not risk-free.
Sooner or later, one of these small business had to fight back. And then the harm served by the scattergun approach would accrue against Intel Corporation. And so one has, and so the injuriousness will be visited upon the dealer.
There is one very large and important difference between geopolitical and trademark war. At the end of the day, Intel Corporation is bound by the sanctity of the courts. The very system that its legal department has learned to exploit and abuse also serves as the full stop for its rogue behavior.
"Intel made numerous attempts to resolve the dispute amicably, including its offer to fly and meet with Defendant’s counsel in person to try to resolve the dispute, which Defendant rejected. Defendant’s infringing use of the AMERICAS NEWS INTEL PUBLISHING trade name and LATIN INTEL and LATIN INTEL TRADE CENTER trademarks persists, leaving Intel no choice but to pursue its claims."
What a crock. On the contrary, we initially tried to work out a compromise, and only out of goodwill and pity toward these belligerent jerks that had ignorantly selected an English-language word as their trademark and realized in hindsight the folly of their choice.
In July 2007, Intel Corporation started harassing us. In June 2008, we said LEAVE US ALONE.
When they refused to leave us alone, we set forth a very clear condition: Send us a clear good-faith offer in writing, and we will resume talks. Until then, confine your pestering to the snack room near the elevator. Read an excerpt:
"Thank you for your letter of June 23, 2008. I understand that you wish to resume negotiations by telephone for the sake of efficiency and you have expressed concern that we are declining this invitation. To address that concern, allow me to explain.
Intel has failed to engage in these negotiations with an earnest desire to reach a settlement, but rather is seeking to compel my client’s capitulation through a prolonged campaign of attrition. We have provided detailed estimates of the business costs and risks implied in changing the trade and domain names. These efforts have been met with summary dismissals.
After nearly one year of glacial progress, we view this process as harassment rather than a good-faith effort to reach an amicable settlement, and we fail to see how the goals of efficiency and expediency will be served by yet another phone call.
...
My client will not accept an unreasonable amount to settle this matter, and is not disposed to squander additional time and money on purposeless and desultory discussions. We are perfectly willing to resume and conclude this settlement process, which is why we have requested that Intel submit a good-faith offer in writing. Until we have a clear indication that your client intends to collaborate with us on reaching a mutually agreeable settlement, there is nothing further to discuss."
Of course, we have since learned that Intel Corporation and its legal toughs routinely and methodically use C&D harassment to force small businesses into capitulation.
This is not irrational behavior. Rather than painstakingly sift through the universe of people and companies that have any kind of overlap with what Intel Corporation believes to be its intellectual domain (which includes golf balls, newsletters, computer chips, refrigerator magnets and more), the company's lawyers simply blast away with a shotgun.
There will be some collateral killings of innocents, but that is an acceptable risk in the business of trademark war.
But war is not risk-free.
Sooner or later, one of these small business had to fight back. And then the harm served by the scattergun approach would accrue against Intel Corporation. And so one has, and so the injuriousness will be visited upon the dealer.
There is one very large and important difference between geopolitical and trademark war. At the end of the day, Intel Corporation is bound by the sanctity of the courts. The very system that its legal department has learned to exploit and abuse also serves as the full stop for its rogue behavior.
Tuesday, May 11, 2010
More Lies From The Plaintiff
Intel Corporation has filed its amended complaint in the federal courts after the Honorable Charles R. Breyer threw out the original frivolous complaints on trademark infringement.
This is how he explained his decision to the hapless plaintiffs:
"It really is lacking in enough specificity which would demonstrate that there was confusion or that you're even addressing the same markets. I mean, my understanding is that there may be no customer overlap at all in connection with this."
So they amended. And the amended complaint is stuffed with even more frivolity than the first, something likely to annoy Judge Breyer.
What do we mean? For example, the company tries to assert there is customer overlap through the following:
"Intel offers newsletters focusing on technology and business forecasting under its INTEL family of trademarks ... The intended audience for such publications includes individuals in the U.S. who are interested in technological business developments, trends and forecasts, both domestic and abroad."
Really? A newsletter publisher? The company is really going to assert that it competes with Mexico Watch Intelligence Service newsletters? I mean, that's just insulting.
Not to the judge -- though come to think of it, the Hon. Charles Breyer may feel this assertion insults his intelligence -- but rather it is an insult to our newsletters! Mexico Watch would never permit the shoddy handling of facts that Intel Corporation does. We've never seen their newsletters, nor do we know how much they cost to subscribe to, but to this budding Intel Corporation newsletter division we say: Don't quit your day job.
Speaking of facts, let's take a look at this amended complaint.
Yikes! Did you read all of that? Unless you are a trained lawyer, let's hope not. You would require advanced tedium therapy for years to come.
In this amended complaint, the plaintiff alleges:
"Intel made numerous attempts to resolve the dispute amicably, including its offer to fly and meet with Defendant’s counsel in person to try to resolve the dispute, which Defendant rejected."
You probably didn't know lawyers could fly. But this one can. Prior to joining Howrey, James Cady used to be the global trademark enforcer for Red Bull. So he's got wings.
But even though we knew this at the time, little notion had we that Cady had offered to fly out to meet with us. That's because he never said that. He said he would be in Washington DC and could swing by our lawyer's office for some face time.
So friendly! "I brought you a cigar and an energy drink. Want me to barnstorm you around the Washington Monument?"
What actually happened was the following: Howrey, which had initially started sending us Cease and Desist threats in July 2007, conducted a bizarre, stop-and-go, disingenuous harassment campaign for month after month. We've documented and posted the haphazard communications and inflexible positions that this campaign involved. After more than a year of their erratic badgering, during which time we were passed around among different Howrey lawyers, we said: "Enough."
In fact, we explicitly informed them that their repetitive, fickle, and bad faith settlement offers were not welcome. We also expressly accused Howrey of conducting a war of attrition, seeking to grind our resources down with chicanery and bluff. Intel Corporation and Howrey, at a jointly chaired seminar on trademark infringement, OPENLY declared that waiting out small companies while they collapse into bankruptcy IS PART OF THEIR LEGAL STRATEGY!!!
To paraphrase, we said: "Your communications are unhelpful and burdensome. If you have anything further to discuss, put a clear offer in writing. Until then, do not contact us."
Easy enough instructions to follow, right?
Immediately, the phone range. Crinkling aluminum cans of energy drink chirped in the background. It was the Howrey guy. Cady wanted to talk.
We firmly reiterated our instructions. Clear offer in writing first. Resumption of talks second. A very lucid directive from us. Easy. It was then that the Calfornia-based lawyer suggested a personal meeting while he was in Washington DC. Not so easy? Not when you're hopped up on energy drinks. But he wasn't, right? So what gives?
If we had any reason to regard Howrey's tactics as underhanded, and, quite frankly, we do, we would conjecture that this offer was simply another way to log billable hours to meet a quota.
But that's ancient history. What's new in this case is that Intel Corporation and the Harvey Siskind law firm that represents the California-based technology maker in this case are misconstruing the facts in a legal complaint before a federal judge. Some would say that's naughty.
The fact is that Intel Corporation, via its Howrey counsel, made numerous demands that we accept their terms to cease and desist. The terms they presented us were insulting, unrealistic, and absurd, and we told them exactly that using exactly those words at the time.
When we asked them to discontinue their harassment, they did not. They stepped it up. Now they seek to paint us as intransigent? Unfortunately for them, we have the paper trail.
This is how he explained his decision to the hapless plaintiffs:
"It really is lacking in enough specificity which would demonstrate that there was confusion or that you're even addressing the same markets. I mean, my understanding is that there may be no customer overlap at all in connection with this."
So they amended. And the amended complaint is stuffed with even more frivolity than the first, something likely to annoy Judge Breyer.
What do we mean? For example, the company tries to assert there is customer overlap through the following:
"Intel offers newsletters focusing on technology and business forecasting under its INTEL family of trademarks ... The intended audience for such publications includes individuals in the U.S. who are interested in technological business developments, trends and forecasts, both domestic and abroad."
Really? A newsletter publisher? The company is really going to assert that it competes with Mexico Watch Intelligence Service newsletters? I mean, that's just insulting.
Not to the judge -- though come to think of it, the Hon. Charles Breyer may feel this assertion insults his intelligence -- but rather it is an insult to our newsletters! Mexico Watch would never permit the shoddy handling of facts that Intel Corporation does. We've never seen their newsletters, nor do we know how much they cost to subscribe to, but to this budding Intel Corporation newsletter division we say: Don't quit your day job.
Speaking of facts, let's take a look at this amended complaint.
Yikes! Did you read all of that? Unless you are a trained lawyer, let's hope not. You would require advanced tedium therapy for years to come.
In this amended complaint, the plaintiff alleges:
"Intel made numerous attempts to resolve the dispute amicably, including its offer to fly and meet with Defendant’s counsel in person to try to resolve the dispute, which Defendant rejected."
You probably didn't know lawyers could fly. But this one can. Prior to joining Howrey, James Cady used to be the global trademark enforcer for Red Bull. So he's got wings.
But even though we knew this at the time, little notion had we that Cady had offered to fly out to meet with us. That's because he never said that. He said he would be in Washington DC and could swing by our lawyer's office for some face time.
So friendly! "I brought you a cigar and an energy drink. Want me to barnstorm you around the Washington Monument?"
What actually happened was the following: Howrey, which had initially started sending us Cease and Desist threats in July 2007, conducted a bizarre, stop-and-go, disingenuous harassment campaign for month after month. We've documented and posted the haphazard communications and inflexible positions that this campaign involved. After more than a year of their erratic badgering, during which time we were passed around among different Howrey lawyers, we said: "Enough."
In fact, we explicitly informed them that their repetitive, fickle, and bad faith settlement offers were not welcome. We also expressly accused Howrey of conducting a war of attrition, seeking to grind our resources down with chicanery and bluff. Intel Corporation and Howrey, at a jointly chaired seminar on trademark infringement, OPENLY declared that waiting out small companies while they collapse into bankruptcy IS PART OF THEIR LEGAL STRATEGY!!!
To paraphrase, we said: "Your communications are unhelpful and burdensome. If you have anything further to discuss, put a clear offer in writing. Until then, do not contact us."
Easy enough instructions to follow, right?
Immediately, the phone range. Crinkling aluminum cans of energy drink chirped in the background. It was the Howrey guy. Cady wanted to talk.
We firmly reiterated our instructions. Clear offer in writing first. Resumption of talks second. A very lucid directive from us. Easy. It was then that the Calfornia-based lawyer suggested a personal meeting while he was in Washington DC. Not so easy? Not when you're hopped up on energy drinks. But he wasn't, right? So what gives?
If we had any reason to regard Howrey's tactics as underhanded, and, quite frankly, we do, we would conjecture that this offer was simply another way to log billable hours to meet a quota.
But that's ancient history. What's new in this case is that Intel Corporation and the Harvey Siskind law firm that represents the California-based technology maker in this case are misconstruing the facts in a legal complaint before a federal judge. Some would say that's naughty.
The fact is that Intel Corporation, via its Howrey counsel, made numerous demands that we accept their terms to cease and desist. The terms they presented us were insulting, unrealistic, and absurd, and we told them exactly that using exactly those words at the time.
When we asked them to discontinue their harassment, they did not. They stepped it up. Now they seek to paint us as intransigent? Unfortunately for them, we have the paper trail.
Sunday, April 4, 2010
Props To Our Lawyers
It's time to heap praise upon the legal team that quashed Intel Corp.'s initial efforts in the Northern California Federal Court District to sue our tiny company on groundless, trumped up charges.
It is highly likely that Intel Corp. representatives at Harvey Siskind amend the legal complaint and throw it at us again. They have payments to make on their luxury cars, after all. Billable hours are billable hours. And at their prices, so much the more.
But in the meantime, a huge hurrah for the stellar, noble, pro bono work by our team. Both of the brilliant lawyers described in the bios below already enjoy enough national fame for their work in their fields. They hardly need to worry about defending a small company against the massive legal resources of the Intel Corporation legal department. Why do they? Simply put, they are two fine men with deep convictions and just sensibilities.
A grand, heartfelt thank you to both. It is a pleasure to work with them for their senses of humor, stunning insights, and amazing grasp of strategy.
Lead Counsel
Ron Coleman
Goetz Fitzpatrick LLP, New York & New Jersey
Author of one of the top American legal blogs, http://www.likelihoodofconfusion.com
Ron Coleman is a commercial litigator and business attorney whose work focuses on copyright and trademark infringement claims involving the Internet--including advising clients how to avoid them. He is an expert on First Amendment and intellectual property rights, especially pertaining to the Internet. Coleman, general counsel for the Media Bloggers Association, has published numerous articles about intellectual property rights and the Internet; in fact, the first piece published on this topic by the American Bar Association Journal was written by Coleman in 1995.
His scholarship may be viewed here: http://lawyers.law.cornell.edu/lawyer/ronald-d-coleman-1482337#publications
Local Counsel
Colby Springer
Carr & Ferrell, Palo Alto
Colby Springer has represented more companies than we can mention here, but a brief sample includes Sony Computer Entertainment; network security provider SonicWALL, Inc.; Ruckus Wireless, a leading supplier of wireless solutions; ZONARE Medical Systems, Inc. (makers of the world's first convertible ultrasound system); and engineering and research development firm Pax Scientific.
He is barred, of course, to practice in California State(a requirement for local counsel in the Northern California District), but he has also been admitted to numerous other federal district courts, the US Court of International Trade, the Federal Appeals Circuit, and the US Supreme Court.
Mr. Spring is a partner in the Intellectual Property and Litigation Practice Groups of Carr & Ferrell. Mr. Springer has experience in all fields of intellectual property law, advising clientele at every level of business development—from start ups to public companies. Mr. Springer counsels clients on acquisition and protection of intellectual property portfolios, specifically with regard to patents and copyrights. Mr. Springer has also represented a number of companies in patent, trade secret, copyright and antitrust suits. Additionally, Mr. Springer has provided counsel to various clients on interference and re-examination proceedings pending before the United States Patent Office.
Mr. Springer has published numerous articles on intellectual property law including the Section 271 Safeharbor and the Experimental Use Exception; trademark dilution; the intersection of copyright and trademark law as it pertains to false designations of origin; the interplay of the antitrust and intellectual property laws; collective publishing rights; the public domain; domain name litigation and UDRP cybersquatting proceedings. Mr. Springer is also a contributing author to the “Matthew Bender Practice Guide” for California Unfair Competition and Business Torts. In addition, Mr. Springer has given presentations on the Digital Millennium Copyright Act and the Patent Cooperation Treaty.
It is highly likely that Intel Corp. representatives at Harvey Siskind amend the legal complaint and throw it at us again. They have payments to make on their luxury cars, after all. Billable hours are billable hours. And at their prices, so much the more.
But in the meantime, a huge hurrah for the stellar, noble, pro bono work by our team. Both of the brilliant lawyers described in the bios below already enjoy enough national fame for their work in their fields. They hardly need to worry about defending a small company against the massive legal resources of the Intel Corporation legal department. Why do they? Simply put, they are two fine men with deep convictions and just sensibilities.
A grand, heartfelt thank you to both. It is a pleasure to work with them for their senses of humor, stunning insights, and amazing grasp of strategy.
Lead Counsel
Ron Coleman
Goetz Fitzpatrick LLP, New York & New Jersey
Author of one of the top American legal blogs, http://www.likelihoodofconfusion.com
Ron Coleman is a commercial litigator and business attorney whose work focuses on copyright and trademark infringement claims involving the Internet--including advising clients how to avoid them. He is an expert on First Amendment and intellectual property rights, especially pertaining to the Internet. Coleman, general counsel for the Media Bloggers Association, has published numerous articles about intellectual property rights and the Internet; in fact, the first piece published on this topic by the American Bar Association Journal was written by Coleman in 1995.
His scholarship may be viewed here: http://lawyers.law.cornell.edu/lawyer/ronald-d-coleman-1482337#publications
Local Counsel
Colby Springer
Carr & Ferrell, Palo Alto
Colby Springer has represented more companies than we can mention here, but a brief sample includes Sony Computer Entertainment; network security provider SonicWALL, Inc.; Ruckus Wireless, a leading supplier of wireless solutions; ZONARE Medical Systems, Inc. (makers of the world's first convertible ultrasound system); and engineering and research development firm Pax Scientific.
He is barred, of course, to practice in California State(a requirement for local counsel in the Northern California District), but he has also been admitted to numerous other federal district courts, the US Court of International Trade, the Federal Appeals Circuit, and the US Supreme Court.
Mr. Spring is a partner in the Intellectual Property and Litigation Practice Groups of Carr & Ferrell. Mr. Springer has experience in all fields of intellectual property law, advising clientele at every level of business development—from start ups to public companies. Mr. Springer counsels clients on acquisition and protection of intellectual property portfolios, specifically with regard to patents and copyrights. Mr. Springer has also represented a number of companies in patent, trade secret, copyright and antitrust suits. Additionally, Mr. Springer has provided counsel to various clients on interference and re-examination proceedings pending before the United States Patent Office.
Mr. Springer has published numerous articles on intellectual property law including the Section 271 Safeharbor and the Experimental Use Exception; trademark dilution; the intersection of copyright and trademark law as it pertains to false designations of origin; the interplay of the antitrust and intellectual property laws; collective publishing rights; the public domain; domain name litigation and UDRP cybersquatting proceedings. Mr. Springer is also a contributing author to the “Matthew Bender Practice Guide” for California Unfair Competition and Business Torts. In addition, Mr. Springer has given presentations on the Digital Millennium Copyright Act and the Patent Cooperation Treaty.
Friday, April 2, 2010
Judge Tosses Out Frivolous Intel Corp. Suit!!!
On April 2, our counsel argued our Motion To Dismiss Against Intel Corporation's now infamous frivolous lawsuit against Americas News Intel Publishing Corp.
This from our attorney's mobile device as he left the courthouse:
"Causes of action 1-7 dismissed with leave to amend. Claim 8 was denied but only because we didn't address it. 30 days to file an amended pleading. They also are going to request a different mediator because the current one has no real trademark law experience. I told them that was fine. Boom goes the dynamite."
In short, WE WIN!
At least this round. Intel Corporation's attorneys at Harvey Siskind had asked the Honorable Judge Charles Breyer to grant a leave to amend if our motion to dismiss was successful. Since Breyer did toss out essentially the entire case (Action 8 is an almost laughable complaint that we were "cybersquatting" an Intel domain property), plaintiff will have the option of amending and refiling.
Intel Corp. and its lawyers probably will. It's Intel Corp. They've got the deepest pockets imaginable for frivolous litigation. They can drag this out, so they probably will.
BUT THIS VICTORY IS HUGE!
It essentially nullifies the entire grounds for Intel Corp.'s whining legal complaints. We told Intel Corp. they were baseless. Now a federal district judge has, too.
So stay tuned. One way or the other, we'll know what happens next within 30 days.
This from our attorney's mobile device as he left the courthouse:
"Causes of action 1-7 dismissed with leave to amend. Claim 8 was denied but only because we didn't address it. 30 days to file an amended pleading. They also are going to request a different mediator because the current one has no real trademark law experience. I told them that was fine. Boom goes the dynamite."
In short, WE WIN!
At least this round. Intel Corporation's attorneys at Harvey Siskind had asked the Honorable Judge Charles Breyer to grant a leave to amend if our motion to dismiss was successful. Since Breyer did toss out essentially the entire case (Action 8 is an almost laughable complaint that we were "cybersquatting" an Intel domain property), plaintiff will have the option of amending and refiling.
Intel Corp. and its lawyers probably will. It's Intel Corp. They've got the deepest pockets imaginable for frivolous litigation. They can drag this out, so they probably will.
BUT THIS VICTORY IS HUGE!
It essentially nullifies the entire grounds for Intel Corp.'s whining legal complaints. We told Intel Corp. they were baseless. Now a federal district judge has, too.
So stay tuned. One way or the other, we'll know what happens next within 30 days.
Tuesday, March 30, 2010
UPDATE COMING!!!
On April 2, our lawyers will argue before the honorable Judge Charles Breyer our Motion to Dismiss. We need to post some update. For now, read the next post for some amusing harassment, crafted at considerable expense to Intel Corporation by its counselors at Harvey Siskind.
Pester, Pester, Let It Fester
In the run-up to the April 2 hearing at the California Northern District of the Federal Courts, Intel Corporation attorneys at Harvey-Siskind have a few needling questions they'd like answered. Just a few. Like some 150. How many billable hours do you think it took to dream up this laundry list of annoyances?
First_Set_of_Interrogatories
First_Set_of_Requests_for_Admission
First_Set_of_Requests_for_Production
First_Set_of_Interrogatories
First_Set_of_Requests_for_Admission
First_Set_of_Requests_for_Production
Friday, February 26, 2010
Defendant Briefs
On Friday, Feb. 19, the court received final briefs from the defendant. Following are the relevant documents:
BRIEF
Declaration Jeffrey Wright
Declaration Ronald Coleman
Exhibit A
Exhibit B
BRIEF
Declaration Jeffrey Wright
Declaration Ronald Coleman
Exhibit A
Exhibit B
Monday, February 22, 2010
Damning Screen Shots (Part III)
We only heard one comment on the screen shots posted last week. A supporter (and donor) asked: "I'm confused about the screenshot of the blonde girl ... isn't that just a page that shows the domain is no longer owned by you?"
Well, yes and no. The domain in question, latinintel-tc.com, was and is registered to Americas News Intel Publishing LLC. However, having fallen out of usage it had been abandoned and left unassigned at the Web hosting company Bluehost after that company canceled our hosting account.
Why would that happen? latinintel-tc.com became a major target for hacker attacks. Like most hosting companies, Bluehost has a policy of canceling accounts that suffer repeated security breaches in order to protect their IP range.
So while we controlled the domain, we did not control the content -- until Intel Corporation's filing drew our attention to the matter and we changed the name servers to regain it. Take a look at http://www.latinintel-tc.com now.
And, better yet, take a look at the excellent research by attorney Ronald Coleman on the Bluehost Blond:
Declaration
Exhibit A
Exhibit B
Intel Corporation's legal representation just shot the company in the foot. They introduced into evidence "proof" that Americas News Intel Publishing LLC was using its domain names to profit off of Intel's good name. But they built the argument on a house of cards and in court their entire evidentiary case will have the carpet pulled out from under, as tomorrow's postings will point up.
So the screen shots were damning, after all.
Well, yes and no. The domain in question, latinintel-tc.com, was and is registered to Americas News Intel Publishing LLC. However, having fallen out of usage it had been abandoned and left unassigned at the Web hosting company Bluehost after that company canceled our hosting account.
Why would that happen? latinintel-tc.com became a major target for hacker attacks. Like most hosting companies, Bluehost has a policy of canceling accounts that suffer repeated security breaches in order to protect their IP range.
So while we controlled the domain, we did not control the content -- until Intel Corporation's filing drew our attention to the matter and we changed the name servers to regain it. Take a look at http://www.latinintel-tc.com now.
And, better yet, take a look at the excellent research by attorney Ronald Coleman on the Bluehost Blond:
Declaration
Exhibit A
Exhibit B
Intel Corporation's legal representation just shot the company in the foot. They introduced into evidence "proof" that Americas News Intel Publishing LLC was using its domain names to profit off of Intel's good name. But they built the argument on a house of cards and in court their entire evidentiary case will have the carpet pulled out from under, as tomorrow's postings will point up.
So the screen shots were damning, after all.
Wednesday, February 17, 2010
Damning Screen Shots? (Part II)
Yesterday, we wrote:
"Intel Corporation has submitted to the courts three screen shots that intend to demonstrate their allegations that we have abused their trademark for personal and private gain....[W]e will post these screen shots and let readers muse over them."
***You can view the screen shots by clicking on this sentence.***
(The screen shots are at the end of the PDF document.)
They are from our domain http://www.latinintel-tc.com/ and they are:
1. A picture of a blond girl and a number of "related searches" links, mostly with the word "Intel" in them.
2. The results of clicking on the "Intel Drivers" link.
3. A WhoIs service identifying Americas News Intel Publishing LLC as the owner of the site.
This would appear to demonstrate that the defendant, our company, has indeed utilized at least one of the domain names in Intel Corporation's lawsuit in an abusive and illegal manner.
We invite you to view it for yourself. We'll have more on this topic next week.
"Intel Corporation has submitted to the courts three screen shots that intend to demonstrate their allegations that we have abused their trademark for personal and private gain....[W]e will post these screen shots and let readers muse over them."
***You can view the screen shots by clicking on this sentence.***
(The screen shots are at the end of the PDF document.)
They are from our domain http://www.latinintel-tc.com/ and they are:
1. A picture of a blond girl and a number of "related searches" links, mostly with the word "Intel" in them.
2. The results of clicking on the "Intel Drivers" link.
3. A WhoIs service identifying Americas News Intel Publishing LLC as the owner of the site.
This would appear to demonstrate that the defendant, our company, has indeed utilized at least one of the domain names in Intel Corporation's lawsuit in an abusive and illegal manner.
We invite you to view it for yourself. We'll have more on this topic next week.
Tuesday, February 16, 2010
REPOST: Cease & Desist, And Then Some
Please click on the links below to view:
The first letter we received from Intel Corporation...
Our lawyer's first response...
The final letter we received from Intel Corporation... (Spoiler alert: It's confidential.)
The final letter we sent to Intel Corporation before they filed suit...
The first letter we received from Intel Corporation...
Our lawyer's first response...
The final letter we received from Intel Corporation... (Spoiler alert: It's confidential.)
The final letter we sent to Intel Corporation before they filed suit...
Damning Screen Shots? (Part I)
Intel Corporation has submitted to the courts three screen shots that intend to demonstrate their allegations that we have abused their trademark for personal and private gain.
Before Friday, February 19, the day our briefs are due before the court, we will post these screen shots and let readers muse over them.
Stay tuned...
Before Friday, February 19, the day our briefs are due before the court, we will post these screen shots and let readers muse over them.
Stay tuned...
"Therefore Defendant's Motion fails."
Intel Corporation has filed its opposition to our Motion To Dismiss, per protocol.
The argument is divided into three sections:
1. Legal standard - motions to dismiss are rarely granted
2. Intel properly pled its case
3. Defendant inappropriately and incorrectly argues the merits of Intel’s claims, as opposed to the sufficiency of Intel’s pleading
If you don't want to suffer through the entire legalese, linked in a PDF to this post, the conclusion is:
"Tellingly, the crux of Defendant’s Motion is not that Intel neglected to include any necessary elements in its claims for relief, but that Defendant does not believe that Intel will ultimately receive the requested relief. That is not the test."
As a footnote, the Plaintiff adds: "Should the Court nonetheless dismiss all or part of any of Intel’s claims, Intel requests leave to amend." In other words, our motion "fails," but just in case it doesn't...
We are posting this document and summary not in the interest of providing a fair and balanced viewpoint. The document is already a matter of public record. The playing field is already tilted incredibly steeply to the advantage of Intel Corporation.
We are posting this document as a resource for anyone interested in this case, particularly those involved in their own fight with this corporate bully.
So, tellingly, we will resist the temptation to poke fun at their final sentence. Really.
The argument is divided into three sections:
1. Legal standard - motions to dismiss are rarely granted
2. Intel properly pled its case
3. Defendant inappropriately and incorrectly argues the merits of Intel’s claims, as opposed to the sufficiency of Intel’s pleading
If you don't want to suffer through the entire legalese, linked in a PDF to this post, the conclusion is:
"Tellingly, the crux of Defendant’s Motion is not that Intel neglected to include any necessary elements in its claims for relief, but that Defendant does not believe that Intel will ultimately receive the requested relief. That is not the test."
As a footnote, the Plaintiff adds: "Should the Court nonetheless dismiss all or part of any of Intel’s claims, Intel requests leave to amend." In other words, our motion "fails," but just in case it doesn't...
We are posting this document and summary not in the interest of providing a fair and balanced viewpoint. The document is already a matter of public record. The playing field is already tilted incredibly steeply to the advantage of Intel Corporation.
We are posting this document as a resource for anyone interested in this case, particularly those involved in their own fight with this corporate bully.
So, tellingly, we will resist the temptation to poke fun at their final sentence. Really.
Watcha Goin' Do When They Come For You?
We have received phone calls and emails from other companies currently in the cross hairs of Intel Corporation's belligerent legal army. Most people, having glimpsed the crushing might of their battle assets, are bewildered and frightened.
So we decided to offer some advice here on the blog. What to do if you receive a cease and desist order from Intel Corporation or one of its mercenary external counselors regarding trademark infringement -- and we refer specifically to the use of 'intel' in your company name or Internet domain.
But first the disclaimer: THE AUTHOR OF THIS BLOG IS NOT A LAWYER, AND IN NO WAY INTENDS TO CONSTRUE THE FOLLOWING OPINIONS AS LEGAL ADVICE. YOU ACCEPT TO READ AND FOLLOW, OR EVEN JUST TO READ, THE FOLLOWING COMMENTARY AT YOUR OWN RISK. PLEASE CONTACT AN ATTORNEY IF YOU ARE UNDER THREAT FOR TRADEMARK INFRINGEMENT CLAIMS.
Rule #1.
Ask yourself: Am I violating their intellectual property?
If you are, stop. It's wrong -- even if you are doing so unintentionally. Strong IP protection is highly correlated with an economy's tendency to innovate and invest in research and development. Why spend time, money, and your creativity to develop something if anyone can bootleg your creation? We strongly support trademark protection.
Having said that, there are various issues to consider.
Firstly, there is the fair-use doctrine, which seeks to prevent the private ownership of work that rightfully belongs in the public domain. The use of the word 'intel' in its generic English-language sense of shorthand for "intelligence" as the act of gathering and analyzing information, which is the point of contention in our case, is an example of the fair use of a word in the public domain. Intel Corporation, no matter how famous their mark, no matter how great its estimated brand value, no matter how weighty its investment to grow that worth, cannot withdraw a word from the public domain. So if you are in the intelligence business, and we know of a number of examples of companies that are and which employ 'intel' in their domain or mark, you would be doing yourself and the English language a disservice by acceding to legal pressure to surrender a public-domain word to a private company.
A good example of this doctrine is the fair use of the word 'apple.' The Beatles' Apple Corps. and California's Apple Computers may sue each other over the use of the word Apple until their lawyers all drive luxury sedans and retire to a tropical island. Neither company produces tree fruit. Both have produced or sold music and electronics in the past. And, in fact, there were numerous lawsuits between these companies in the period between 1978 and 2006. Almost three decades after the first complaint, they reached a settlement in 2007. Bully for them. But anyone can still produce apple pies and name their company [Generic Name Here] Delicious Apple Pies Inc.
Secondly, you must consider the likelihood of confusion. For trade or service mark purposes, here are the acid tests grouped under the umbrella test of likelihood of confusion: (1) the strength of the mark; (2) similarity of the marks; (3) proximity of the goods/services sold; (4) similarity in the marketing channels used; (5) the type of goods/services and the degree of care likely to be exercised by purchasers; (6) evidence of actual confusion; (7) defendant's intent in selecting its mark; and (8) likelihood of expansion into other markets.
If -- AND ONLY IF -- you believe that your use of 'intel' passes these tests, read on.
Rule #2.
Do not seek to contact Intel Corporation or their legal representation directly.
The first instinct of most people that receive a saber-rattling C&D notice from one of the world's largest companies is: "This is insane! Surely a mistake! This would ruin me; I'll explain the situation and they'll be reasonable."
They won't. No matter how reasonable the people you ultimately speak with are in their civilian lives, as Intel Corporation legal warriors, they have had to adopt an unquestioning faith in the following tenet: Intel is a portmanteau for integrated electronics; it does not and could not refer to anything else anywhere at any time in history; permitting a single company to employ it would invite utter ruin. In fact, their battle motto is: "Death By 1,000 Slices."
They will not be reasonable. They will not compromise. They will not allow you any room to maneuver.
Not only will you waste your time and become so frustrated with the monolithic philosophy you encounter that you want to rip out your own hair in clumps, you will weaken your case.
Lawyer up.
If you already have a trademark attorney or if you can afford to hire one, do not waste any time. Begin to plan your defense strategy. If you cannot afford one, don't despair. Many of the nation's finest attorneys would welcome a chance to defeat a nefarious corporate bully such as Intel Corporation on a pro bono basis.
Our legal team is proof of this statement. Our attorneys already enjoy national fame in their fields. Quashing another injustice by Intel Corporation is just their daily bread.
[NOTE THAT NONE OF THE OPINIONS EXPRESSED IN THIS BLOG REFLECT THEIR LEGAL COUNSEL, NOR HAVE THEY REVIEWED OR IN ANY WAY AUTHORIZED ANY OF THE OPINIONS EXPRESSED HERE.]
People will tell you that trademark lawyers almost never take on cases pro bono. Attorneys of all stripes told us the same for months. Major public interest groups, including Public Citizen and the ACLU, rebuffed our petitions for legal support. But keep at it. This is an important issue that could eventually receive Supreme Court scrutiny. You'll find suitable representation. And if not, consider a pro se defense. You'll still be better off than if you just fold under pressure.
Rule #3.
Their bark is worse than their bite.
"Intel has instructed this firm to seek all available remedies, including injunctive relief, damages, and reimbursement for attorneys' fees and costs." Sound familiar? Don't be intimidated. It is this author's reasoned and researched opinion that no federal judge in the United States would award Intel Corporation either damages or legal fees even if you do eventually receive an unfavorable injunctive ruling. Intel Corporation may win an enjoinder or restraining order, but they won't get more than that, presuming, of course, that you are either in the gray area of the law or simply operating without malice.
If you are intentionally or gratuitously infringing upon their trademark, either out of malice or for personal gain, then that is another question. However, if you are, you shouldn't be reading this posting, anyway. Refer back to rule #1.
So we decided to offer some advice here on the blog. What to do if you receive a cease and desist order from Intel Corporation or one of its mercenary external counselors regarding trademark infringement -- and we refer specifically to the use of 'intel' in your company name or Internet domain.
But first the disclaimer: THE AUTHOR OF THIS BLOG IS NOT A LAWYER, AND IN NO WAY INTENDS TO CONSTRUE THE FOLLOWING OPINIONS AS LEGAL ADVICE. YOU ACCEPT TO READ AND FOLLOW, OR EVEN JUST TO READ, THE FOLLOWING COMMENTARY AT YOUR OWN RISK. PLEASE CONTACT AN ATTORNEY IF YOU ARE UNDER THREAT FOR TRADEMARK INFRINGEMENT CLAIMS.
Rule #1.
Ask yourself: Am I violating their intellectual property?
If you are, stop. It's wrong -- even if you are doing so unintentionally. Strong IP protection is highly correlated with an economy's tendency to innovate and invest in research and development. Why spend time, money, and your creativity to develop something if anyone can bootleg your creation? We strongly support trademark protection.
Having said that, there are various issues to consider.
Firstly, there is the fair-use doctrine, which seeks to prevent the private ownership of work that rightfully belongs in the public domain. The use of the word 'intel' in its generic English-language sense of shorthand for "intelligence" as the act of gathering and analyzing information, which is the point of contention in our case, is an example of the fair use of a word in the public domain. Intel Corporation, no matter how famous their mark, no matter how great its estimated brand value, no matter how weighty its investment to grow that worth, cannot withdraw a word from the public domain. So if you are in the intelligence business, and we know of a number of examples of companies that are and which employ 'intel' in their domain or mark, you would be doing yourself and the English language a disservice by acceding to legal pressure to surrender a public-domain word to a private company.
A good example of this doctrine is the fair use of the word 'apple.' The Beatles' Apple Corps. and California's Apple Computers may sue each other over the use of the word Apple until their lawyers all drive luxury sedans and retire to a tropical island. Neither company produces tree fruit. Both have produced or sold music and electronics in the past. And, in fact, there were numerous lawsuits between these companies in the period between 1978 and 2006. Almost three decades after the first complaint, they reached a settlement in 2007. Bully for them. But anyone can still produce apple pies and name their company [Generic Name Here] Delicious Apple Pies Inc.
Secondly, you must consider the likelihood of confusion. For trade or service mark purposes, here are the acid tests grouped under the umbrella test of likelihood of confusion: (1) the strength of the mark; (2) similarity of the marks; (3) proximity of the goods/services sold; (4) similarity in the marketing channels used; (5) the type of goods/services and the degree of care likely to be exercised by purchasers; (6) evidence of actual confusion; (7) defendant's intent in selecting its mark; and (8) likelihood of expansion into other markets.
If -- AND ONLY IF -- you believe that your use of 'intel' passes these tests, read on.
Rule #2.
Do not seek to contact Intel Corporation or their legal representation directly.
The first instinct of most people that receive a saber-rattling C&D notice from one of the world's largest companies is: "This is insane! Surely a mistake! This would ruin me; I'll explain the situation and they'll be reasonable."
They won't. No matter how reasonable the people you ultimately speak with are in their civilian lives, as Intel Corporation legal warriors, they have had to adopt an unquestioning faith in the following tenet: Intel is a portmanteau for integrated electronics; it does not and could not refer to anything else anywhere at any time in history; permitting a single company to employ it would invite utter ruin. In fact, their battle motto is: "Death By 1,000 Slices."
They will not be reasonable. They will not compromise. They will not allow you any room to maneuver.
Not only will you waste your time and become so frustrated with the monolithic philosophy you encounter that you want to rip out your own hair in clumps, you will weaken your case.
Lawyer up.
If you already have a trademark attorney or if you can afford to hire one, do not waste any time. Begin to plan your defense strategy. If you cannot afford one, don't despair. Many of the nation's finest attorneys would welcome a chance to defeat a nefarious corporate bully such as Intel Corporation on a pro bono basis.
Our legal team is proof of this statement. Our attorneys already enjoy national fame in their fields. Quashing another injustice by Intel Corporation is just their daily bread.
[NOTE THAT NONE OF THE OPINIONS EXPRESSED IN THIS BLOG REFLECT THEIR LEGAL COUNSEL, NOR HAVE THEY REVIEWED OR IN ANY WAY AUTHORIZED ANY OF THE OPINIONS EXPRESSED HERE.]
People will tell you that trademark lawyers almost never take on cases pro bono. Attorneys of all stripes told us the same for months. Major public interest groups, including Public Citizen and the ACLU, rebuffed our petitions for legal support. But keep at it. This is an important issue that could eventually receive Supreme Court scrutiny. You'll find suitable representation. And if not, consider a pro se defense. You'll still be better off than if you just fold under pressure.
Rule #3.
Their bark is worse than their bite.
"Intel has instructed this firm to seek all available remedies, including injunctive relief, damages, and reimbursement for attorneys' fees and costs." Sound familiar? Don't be intimidated. It is this author's reasoned and researched opinion that no federal judge in the United States would award Intel Corporation either damages or legal fees even if you do eventually receive an unfavorable injunctive ruling. Intel Corporation may win an enjoinder or restraining order, but they won't get more than that, presuming, of course, that you are either in the gray area of the law or simply operating without malice.
If you are intentionally or gratuitously infringing upon their trademark, either out of malice or for personal gain, then that is another question. However, if you are, you shouldn't be reading this posting, anyway. Refer back to rule #1.
UPDATE: The Honorable Judge Charles R. Breyer, a United States District Judge in the Northern California District, has ordered that the motion hearings and the Court Management Conference be rescheduled to Mar. 19, 2010, a two-week delay from the original date of Mar. 5. The briefs must still be filed this Friday, Feb. 19.
Monday, February 8, 2010
Tuesday, February 2, 2010
Dismissal Motion Sends Intel Corp. Scrambling!!!
It's time for a long overdue update on the legal process unfolding as Intel Corporation sues us on groundless trademark infringement charges.
We've been busy closing down our Mexico City offices, moving our US headquarters, and, on top of the holidays, have not been very active here. But we're back!
At the end of December, our lead counsel, Ronald Coleman of New York-based Goetz Fitzpatrick LLP, and Colby Springer, our California attorney representing us in the Northern California federal district, of Silicon Valley-based Carr & Ferrell LLP, filed a Motion To Dismiss in response to Intel Corporation's frivolous lawsuit.
Apparently bowled back on their heels, on Jan. 14, Intel Corporation lawyers filed a request for reassignment to a United States District Judge!
What does this mean? The case was initially assigned to a magistrate judge, who would usually handle discovery matters and, if the parties both agree, the actual trial. But either party may bounce the magistrate and opt for an actual judge. The move was purely strategic as it gives them additional time to respond to our motion, and it raises our costs, because we have to "renotice".
In other words, this is great news. If Intel Corporation believed they had a slam-dunk case, they would have merely quashed us via the magistrate. Requesting reassignment elevates their legal costs as well, so it was not done sheerly to rattle our cage.
The case has now been reassigned to the Honorable Charles Breyer, a Harvard and Boalt graduate appointed as a federal judge by then-President Bill Clinton in 1997.
We now must gear up for a Case Management Conference on Mar. 5 with Judge Breyer. At that hearing, we will present our Motion To Dismiss once again.
PLEASE TAKE NOTE! EACH SILLY GAMBIT BY INTEL CORPORATION WILL CAUSE US ADDITIONAL EXPENSE. RON AND COLBY ARE, OF COURSE, CHAMPIONING THIS CAUSE PRO BONO, BUT AMERICAS NEWS INTEL PUBLICATIONS LLC MUST COVER THESE EXPENSES OUT-OF-POCKET.
WE ENCOURAGE YOU TO DONATE USING THE LINK ON THE RIGHT-HAND SIDE! EVEN A SMALL DONATION OF $20 WOULD HELP!!!
We've been busy closing down our Mexico City offices, moving our US headquarters, and, on top of the holidays, have not been very active here. But we're back!
At the end of December, our lead counsel, Ronald Coleman of New York-based Goetz Fitzpatrick LLP, and Colby Springer, our California attorney representing us in the Northern California federal district, of Silicon Valley-based Carr & Ferrell LLP, filed a Motion To Dismiss in response to Intel Corporation's frivolous lawsuit.
Apparently bowled back on their heels, on Jan. 14, Intel Corporation lawyers filed a request for reassignment to a United States District Judge!
What does this mean? The case was initially assigned to a magistrate judge, who would usually handle discovery matters and, if the parties both agree, the actual trial. But either party may bounce the magistrate and opt for an actual judge. The move was purely strategic as it gives them additional time to respond to our motion, and it raises our costs, because we have to "renotice".
In other words, this is great news. If Intel Corporation believed they had a slam-dunk case, they would have merely quashed us via the magistrate. Requesting reassignment elevates their legal costs as well, so it was not done sheerly to rattle our cage.
The case has now been reassigned to the Honorable Charles Breyer, a Harvard and Boalt graduate appointed as a federal judge by then-President Bill Clinton in 1997.
We now must gear up for a Case Management Conference on Mar. 5 with Judge Breyer. At that hearing, we will present our Motion To Dismiss once again.
PLEASE TAKE NOTE! EACH SILLY GAMBIT BY INTEL CORPORATION WILL CAUSE US ADDITIONAL EXPENSE. RON AND COLBY ARE, OF COURSE, CHAMPIONING THIS CAUSE PRO BONO, BUT AMERICAS NEWS INTEL PUBLICATIONS LLC MUST COVER THESE EXPENSES OUT-OF-POCKET.
WE ENCOURAGE YOU TO DONATE USING THE LINK ON THE RIGHT-HAND SIDE! EVEN A SMALL DONATION OF $20 WOULD HELP!!!
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