[IP] Paying the price for a dumb theat of litigation
Begin forwarded message:
From: Paul Levy <plevy@xxxxxxxxxxx>
Date: February 27, 2006 2:38:26 PM EST
To: dave@xxxxxxxxxx
Subject: Paying the price for a dumb theat of litigation
I want to call your attention to the amusing consequences of a
foolish cease and desist letter that a trademark lawyer sent to
Karen Dudnikov. Dudnikov is an eBay seller and an activist in
opposing corporate abuse of the trademark and copyright laws to
suppress the use of eBay as a secondary market in goods produced by
intellectual property owners.
I learned of it from my new colleague Greg Beck, who has been
developing a series of cases to put a stop to the abuse. Typically,
eBay responds to notices claiming that the sale of goods infringes
intellectual property rights by removing the sales regardless of the
merits of the claim of infringement. Not surprisingly, some
companies and lawyers respond to this incentive by making bogus
claims. Greg is trying to develop new ways of rectifying these abuses.
Dudnikov has created a Hall of Shame featuring what she regards as
particularly egregious takedown notices. http://www.tabberone.com/
Trademarks/HallOfShame/HallOfShame.shtml. One member of her Hall of
Shame is Sy Garfinkel, who sells fabric licensed by the National
Football League and other sports organizations, and who objects to
the sale of goods made from the fabric he sells. http://
www.tabberone.com/Trademarks/HallOfShame/Sykel/Sykel.
Dudnikov went through Garfinkel's cease and desist letter, pointing
out a number of ways in which she felt he had misstated the law or
otherwise displayed ignorance or stupidity. Apparently unhappy at
being nominated by Dudnikov for the"Pompous Twit of the Year" award,
Garfinkel threatened to sue Dudnikov for libel on the ground that she
had mischaracterized his legal position. Unfortunately, a lawyer at
Reed Smith lent himself to this sorry endeavor, authoring a letter
which, among other things, warned Dudnikov not to post his letter
online because she would only provoke litigation by doing so.
So, what did he think would happen? Far from deterring Dudnikov,
this line apparently provoked Dudnikov into inducting Reed Smith
itself into her Hall of Shame: http://www.tabberone.com/Trademarks/
HallOfShame/ReedSmith/ReedSmith.shtml, and posting the letter along
with her notations of the ways in which THAT letter seemed to her
false or misleading:
http://www.tabberone.com/Trademarks/HallOfShame/ReedSmith/
CeaseAndDesist.shtml
She also posted Greg's response to the threat of litigation. http://
www.tabberone.com/Trademarks/HallOfShame/ReedSmith/
LetterToCohen_20060224.shtml Greg pointed out that each of
Dudnikov's statements about Garfinkel's legal position was in fact a
quotation from his nastygram.
The demand letter was quite definite and unqualified in its threat of
litigation: "We will be perfectly clear, Ms. Dudnikov. Unless you or
your company immediately takes down the offensive and defamatory
pages concerning Mr. Garfinkel and his company from the "Hall of
Shame" portion of your web site, and promises to refrain from such
actions in the future, we will bring suit against you and your
company without hesitation." So, has Reed Smith, in addition to
putting itself into an uncomfortable position by sending a laughable
cease and desist letter that cannot help making its sender look
silly, boxed itself into a position where it has to file a frivolous
lawsuit in order to maintain the credibility of its threats of
litigation? Or will cooler heads prevail once the grownups at this
law firm look at the situation, read what their colleague has
threatened, and put a muzzle on him? Stay tuned.....
Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation
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