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
Monday, May 17, 2010
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.
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