Over a year ago, something which was my co-op’s responsibility malfunctioned, causing damage in my apartment.  Things dragged and I notified my insurance company (Insurance Company One) of my intent to file a claim.  I received a claim number, but never actually filed a claim, because the co-op (finally) repaired the damage (at its expense).

Fast forward a year.  I am shopping for homeowner’s insurance.  Insurance Company Two reports that it will not write me a policy because it is aware that I received a claim number a year ago. 

Let’s not focus on the fact that I did not actually file a claim, and that even if I had properly exercised that contractual right, there is no logical relation between the co-op’s behavior and my status as an insurance risk.

Instead, I wonder about the privacy issue.  Company One disclosed (without my actual knowledge or consent) information about my claim to Company Two (and an unknown number of other insurance companies), with the result that Company Two refused to do business with me.  Bear in mind that no action disclosing the existence of the event, such as the filing of a lawsuit, had been necessary.

I’m not going to pursue this because my damages are de minimis and speculative (I found another insurance company to write me a policy).  However, the thought that Company Two refuses to deal with me without even getting to know me, wounds me deeply.  If you know the law on this, consider clicking on the envelope to the left and dropping me a line.

 

 

 

Bello Sankoh of the Ivory Coast has just offered me $2.3 million to help him expropriate funds, and therefore I have to retract my acceptance of Mr. Al-Mustapha’s offer of $1.2 million.  The trick is to play these guys off against each other and get the best bid.

I’m now working on the weight loss people.  Losing 14 lbs. in 7 days is the best offer so far.

Three things have been annoying me about the DAVEZILLA mess.  The first is that I can’t get the Blue Oyster Cult song out of my head every time I read something on this.

The second thing is that the news accounts aren’t precise.  The demand letter doesn’t say that DAVEZILLA infringes GODZILLA.  The letter alleges that Dave referred to his lizard figure as GODZILLA (a fact I believe Dave denies), and that the use of a lizard named GODZILLA on a site named DAVEZILLA is infringing.  The letter does not ask that Dave change the name of the site, merely that he stop using the lizard.

I won’t comment on Toho’s infringement claim – I just note that I have seen incorrect characterizations of the claim and the relief requested.

Third, the news accounts are focusing on the infringement aspect – namely whether someone believes whether the DAVEZILLA website somehow originates with or is endorsed by Toho.  Many observers undertandably conclude: “no way anybody is confused” and view the claim as frivolous, and that this is a form of corporate bullying. (Toho did fail to stop BAGZILLA for “monstrously strong bags” on an infringement theory).

However, it may be the case that the use of DAVEZILLA with use of lizard imagery (I typed Lizardry just now by accident), might cause damage (perhaps not actionable damage) by diluting the mark.  It’s not a question of confusion and a disclaimer doesn’t solve the problem.

I note that the attorney for Toho did not mention the dilution prong of the Lanham Act in the demand letter.  Nevertheless, it can be argued that the use of the lizard figure in connection with the term DAVEZILLA might be dilutive, not by tarnishment, but by blurring the ability of GODZILLA to act as a strong distinct mark.  Whether it’s too late for Toho to stop third party -ZILLA marks (there are already third-party federal trademark registrations for -ZILLA marks, and multiple third-party usages (it’s unclear what is the present status of MOZILLA ), is the question (but it’s not a frivolous question). 

As an aside, There is an aspect of policing “blurring” dilution where the recipient of the demand letter feels that he/she is the one driver the cop pulled over when everybody was speeding.

For more on dilution, start with articles by Jerre Swann of the Kilpatrick Stockton firm.

My take on the -ZILLA thing?  In the age of the blog, the trademark lawyer has to be extremely cautious as to how to proceed, because a subtle claim can become a public brouhaha (and in fact the shrewd defendant will want it so).

BYSTANDER DISCLAIMER: I try not to comment on the specifics merits of pending disputes as I just don’t know the full story.

 

In a Southern District of New York decision, TOMMY HILFIGER has failed to enjoin use of TIMMY HOLEDIGGER, a parody cologne for pets.  The decision has not been posted as of yet, but the analysis of the parody defense to infringement and tarnishment in the case of a competitive product, should be of interest

Of immediate import is that, according to this law.com account, the judge referred to plaintiff’s lack of sense of humor, and, citing the language of the Ninth Circuit in the recent Mattel v. MCA case, ordered the plaintiff “to chill.”  As the influential Second and Ninth Circuits have now adopted this concept, we may soon see an Order to Chill as a common form of injunctive relief.

 

Dean Peters maintains the healyourchurchwebsite.com, committed to ” teaching, rebuking, correcting & training in righteous web design” and “constantly challenging churches to have a better web presence.”  Dean provided some advice on obtaining domain names today and he makes some points of both secular and sacred significance.

1. Register the variants of your “guessable” name.  As Dean points out,  $35 for a domain name is less expensive than $1200 for a UDRP proceeding.  This is true in any denomination. There are various variants.  There are alternate names, nick-names, mis-spellings and plausible alternate TLD versions (as in firstbaptist.com, .net, .org, .info and, perhaps, .biz (insert your views on religion here)).  I would draw the line at  implausible variants.

2. Religious names muddies the waters.  The domain name [denominational]church.org reasonably might be understood to refer to a specific entity (perhaps the national governing body of that sect) or to the sect itself or to the doctrine of the sect.  This ambiguity gives rise to both good-faith and bad-faith disputes.  The UDRP only resolves disputes which involve names used as trademarks (which can be the case in many situations – trademark use does not have to be for-profit), but it is not intended to resolve complex fact patterns.  And no UDRP panelist (and no civil judge for that matter) will resolve a case which poses a question such as: “ownership of the disputed property will go to the true adherents of the [denominational] church.”

3.  The domain name system, given its flat structure, does not serve as a good directory for local institutions.  You can add 50 TLDs tomorrow and will not accomodate all the entities who might reasonably be located at firstbaptist.org or holycross.org or templebethshalom.org.   See my previous rants.

Not trademark law but I couldn’t resist raising my hand in class:

Dave wonders aloud:

“What is the origin of the word “trust” in the context of “anti-trust” or “trust-busters.” What does it have to do with the word trust, as in “trustworthy computing.”

The Sherman Anti-Trust Act and Teddy Roosevelt, the trust-buster, targeted “trusts” and other “combinations,” using ‘trust’ to roughly mean cartel or some other formal or informal agreement among competitors to pool assets or otherwise restrain trade.  Here’s some background with photos.  This is related to and but not precisely the same sense as the legal instrument, the trust, in which assets are placed under the stewardship of the trustee, who performs under a duty of care to the beneficial owner of the assets (such as the spendthrift trust).

When Bill Gates speaks of trustworthy computing, he is using it as an umbrella concept covering reliability, security and availability. I would say his use is more analogous to the trustee concept – we deposit the asset (our credit card number) with the computer system and expect that the system will execute its function under a duty of care to us (not disclose or lose the credit card number).

The trust as cartel meaning is just an unfortunate coincidence.