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
Friday, February 26, 2010
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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