LG

I said I wouldn’t try to warn Pat again. I didn’t say I’d shut up. Zix, I’m sure you know this, but I want to clarify that “best case” does not mean “most likely.” I believe that there is virtually no chance of a better outcome for Pat, but a high probability of a worse one.

Goey, If you and I were in a bank and you wanted to put on a mask and run out, pointing a gun at some police officers in the parking lot, I would probably try to get you to consider the likely problems with that plan. If you were still determined to go through with it, I’d try one last time, by saying something like, “ “Don’t do it! You’ll be killed!” That wouldn’t be claiming omniscience, it would be stating an opinion, rather forcefully, as a warning. Not a perfect analogy, but not much different than I’ve done here. I’ve looked hard for a way for Pat to come out of this unscathed, or relatively so. I simply can’t see any reasonable expectation of a better outcome than the one I presented above. Rather, I see the likelihood that this could get much worse than Pat imagines. I decided to drop the niceties and try to warn him one last time. I won’t again.

Pat, I am quite serious. I realize that. I hope you aren’t hurt too badly.

The District Court has that authority, but it won’t happen. That counterclaim will be dismissed. THIS sets forth the standards for cancellation of registration. First of all, Pat is not and will not be damaged by TWI’s marks being registered. Secondly, TWI’s marks are not generic, not functional, have not been abandoned, and their registration was not obtained fraudulently. Read THIS, if you’re interested. Go down about halfway, to "Plaintiffs Motion to Dismiss the Federal Counterclaim." There simply are no grounds for canceling the registration of any of TWI’s marks. Even if there were, Pat would still lose on Count III, because TWI’s name, The Way International, would qualify as a name protected as a mark for the purposes of 15 U.S.C. § 1125(d).Pat’s other counterclaims will be dismissed too. At best, the first count addresses a few errors that can be corrected with an amended complaint. The second count is nothing but complaining about TWI exercising their rights, in accordance with accepted business and legal procedures. The third count is essentially the same thing, regarding the current suit. The fourth count I addressed above. TWI has nothing to lose in this, except the difference between their costs of prosecuting it and whatever damages they are awarded and manage to collect. TWI won’t even suffer any significant negative publicity because nobody is going to care, except for a few ex-TWI folks and whoever Pat might get excited with his letter-writing campaign, none of whom are of any consequence to TWI. It’s not far-fetched at all. It’s the best-case outcome for Pat. TWI will prevail on Count III, if not all counts. The minimum consequence to Pat is loss of the domain and payment of $1000.00 statutory damages. The damages could be more (up to $100,000.00, as the court considers just) and that’s only considering Count III. (TWI is currently requesting Pat’s profits, TWI’s damages, costs, and attorney’s fees but I suspect they’ll exercise their right to elect statutory damages. Either way, it will be at least $1000.00.)

Pat, I could post a detailed and thoroughly documented explanation of why you don’t stand a chance of prevailing on Count III, but to be brutally frank, I don’t think you’d understand it. Just yesterday, you demonstrated that you don’t understand the relatively simple matter of the District Court’s jurisdiction. The reason I have concentrated on Count III is because it is the most straightforward, and the easiest to understand and prove. It is also the count for which the consequences are most clear. Pat, even if you were represented by a competent attorney, the best outcome you could reasonably expect, based on Count III alone, would be to lose the domain and pay TWI $1000.00 statutory damages. The actual outcome could be much worse. If you persist, TWI’s attorneys will put you down hard. You will lose the domain. You will lose thousands of dollars. You may end up bankrupt. I don’t know how solid your marriage is (don’t tell me) but such things can destroy a marriage. The combination of bankruptcy and a ruined marriage can destroy a man’s life. You have nothing to gain by this. You have much, possibly everything, to lose. For your own good, settle this thing, even if you have to get down on your knees and beg for mercy.

Vickles, Imagine this. You are incorporated under the name, Victoria Lee Services, Inc. (inspired by your nick). I am one of your former low-level managers, who participated in your management training program. I have registered the domain name victorialeeservices.com and have incorporated under the name, Victoria Lee Genuine Services, Inc. (Pat did incorporate under the name, The Way of Christ Ministry.) I use victorialeeservices.com as the website of my corporation and place in large letters at the top of each page, Victoria Lee Genuine Services, with "genuine" underscored. One page on my site is entitled, "To Current Victoria Lee Customers." That page links to other pages. One is entitled, "Is Vickles the Service Queen?" Another is entitled, "About Ex-Vic Sites." Is this acceptable to you?

Whether or not the site of "The Way of Christ Ministry" was actually commercial or not really doesn’t make much difference. Either way, Pat loses on Count III, IMO. In his application to register THE WAY OF CHRIST MINISTRY as his service mark, Pat claimed that the mark was used in commerce and had been since mid-1999. If that was so, then the site of that ministry, thewayinternational.com, was used in connection with the offering of services, which could weigh in Pat’s favor in determining bad faith, if the offering was bona fide. However, if Pat was using the site in commerce, then TWI’s claims of trademark infringement and unfair competition are reasonable and I think provable. That Pat acceded to TWI’s demands in 2000 and stopped using both the name “The Way of Christ Ministry” and the domain where its site was located supports TWI’s claims. That Pat abandoned his trademark application in 2002, after TWI opposed it, also supports those claims. So do the two pages I linked earlier, if they were used in commerce, as Pat said they were. What does all that have to do with Count III? It indicates bad faith. On the other hand, if the site was really strictly noncommercial in 1999 and 2000, but Pat represented it to be commercial, then that also indicates bad faith. Other indicators of bad faith weigh against Pat as well. The one element of Count III that would have been difficult to prove until February is intent to profit. Pat provided ample proof of that when he offered to sell the domain for $15,000.

Pat, you're mistaken, apparently because of having misinterpreted 28 U.S.C. § 1332, which is not the basis for the District Court's original jurisdiction in your case. Look up the references in paragraph 2 of TWI's complaint. You should read and understand every one of them.For anyone who doesn't want to do what I just suggested to Pat, 28 U.S.C. § 1331 gives enough of a short answer. All parties in a federal suit may be citizens of the same State and there is no lower limit on the amounts of money at issue.

I'd like to emphasize something here. Other than improper (IMO) use of TWI's name, there is nothing wrong with Pat's old site. In fact, I think the intent is honorable and the content helpful to a lot of people. I just felt the need to say that.

TWI included copies of the two pages linked below among their exhibits, so this is not providing them with information they don’t already have. The first could easily be presented as an attempt to entice then-current followers and others away from TWI and to Pat’s ministry. The second arguably infringes on TWI’s marks by providing religious educational services. Neither looks much to me like the content of a noncommercial gripe site. For Current Way How to series

Goey, Perhaps “irrelevant” was a poor choice of words. If I were arguing on Pat’s behalf, I’d probably do so along the lines you’ve suggested. I just don’t think such an argument would be very persuasive. If “The Way of Christ Ministry” really was a ministry, with a name that could legitimately be registered as mark used in commerce, in the offering of ministerial services, then it’s hard to argue that the ministry’s website was a noncommercial gripe site. If it really wasn’t a ministry but was represented to be one, then it’s hard to argue any bona fide use, whether commercial or noncommercial. Concerning Pat’s later use of the domain to link to ExCultworld, it doesn’t matter whether or not the use was commercial. The use of the domain name wasn’t in connection with the bona fide offering of any goods or services, nor was there any bona fide noncommercial or fair use of the marks in question in a site accessible under the domain name. Both of those facts weigh against Pat in the “bad faith” department. So does his offer to sell the domain for a profit. Maybe there’s something I’m not thinking of, but I just don’t see any way for Pat to prevail on Count III.

Did TWI actually have an Internet ban? I seem to recall somebody quoting Martindale as saying something to the effect of "get on, get the information you need, and get off." That comes across to me as discouraging Web surfing (which can be a huge waste of time, even if it is enjoyable and informative) but not all Internet use. I really don't think it would weigh heavily one way or another. I'm just curious.

Goey, “This claim” in paragraph 48 means Count III, not the entire case. As I said, “The only law common to both is ACPA (15 U.S.C. § 1125(d)), concerning cybersquatting. (Count III of TWI’s complaint.)” If the facts relative to that law were similar in both cases, then the portion of the decision you cited that concerns that law would be applicable to Count III, and only Count III, of TWI’s case. The facts related to that law are not similar, IMO. Rather, they are quite different. Maxwell’s site was a non-commercial gripe site. Pat’s thewayinternational.com site never was a non-commercial gripe site. Maxwell never used his site to advertise services he provided at other sites. Pat did. Maxwell never offered to sell his site. Pat did. Three of the four counts in TWI’s complaint are not based on 15 U.S.C. § 1125(d) and do not concern cybersquatting, either “particularly” or otherwise. Count I is based on 15 U.S.C. § 1114(1) and concerns trademark infringement under federal law. Count III is based on 15 U.S.C. § 1125(a)(1)(B) and concerns unfair competition under federal law. Count IV is based on Vermont Common Law and concerns trademark infringement and unfair competition under that law. None of those laws were even mentioned in the TMI v. Maxwell decision. Because the facts are so very different relative to the one area of law the two cases have in common, the TMI v. Maxwell decision does not apply to Count III in Pat’s case. Because it does not even deal with the applicable laws in the other three counts, it does not apply at all to Pat’s case. In other words, as I said, it is irrelevant to Pat’s case. At least that is what I think.

Do you know the statute for this? I have been looking... I was going on memory but my memory was faulty. What I had read previously concerned copyright violations, not trademark infringements. The Lanham Act doesn't contain a statute of limitations. You'll find THIS DECISION to be informative. (Look near the bottom, under "Statute of Limitations.")

I don't know. It could be insignificant. It could indicate that they have decided to go after you more agressively than they originally intended. I doubt if it indicates that you have them running scared.

After looking again at TWI’s complaint, I think the decision Goey cited is irrelevant to Pat’s case. The only law common to both is ACPA (15 U.S.C. § 1125(d), concerning cybersquatting. (Count III of TWI’s complaint.) The facts related to ACPA are quite different in the two cases. The laws on which TWI’s other three counts are based are not mentioned at all in the decision Goey cited. Concerning Pat’s statement about TWI’s marks not being famous, that doesn’t really matter. It’s completely irrelevant to Counts I, II, and IV and not necessary to Count III. All TWI has to prove on that count is bad faith intent to profit from TWI’s mark, that the mark was distinctive at the time the domain was registered, and that the domain name is identical or confusingly similar to the mark. I think TWI wins hands down on that count. The others could be difficult to prove regarding Pat’s recent activities but less so regarding his activities of a few years ago. The following is intended to be helpful: Pat, if you’re going to proceed with this thing, which I think is dangerous and foolish, at least carefully consider whether or not you are protected by a three-year time limit for action against trademark infringement and unfair competition related to “The Way of Christ Ministry” website. I think you are protected by the statute of limitations but if not, I think you’re far more vulnerable than you think you are.

I think it improves his chances somewhat but I also think he faces some formidable obstacles.Pat’s original use of the domain (thewayinternational.com) was not merely as a “gripe site” but as the website for The Way of Christ Ministry. Whether or not Pat actually competed with The Way International is arguable, but Pat stated that “The Way of Christ Ministry” mark was used in commerce in his application to register that mark. His application was for a different class than TWI’s marks but “ministerial services” is pretty vague and does not exclude the possibility of infringement. TWI claimed that and opposed Pat’s application. The underlying issues were never settled, because Pat abandoned his application. He had previously stopped using the disputed domain and changed the name to The Path of Christ Ministry, which he hosted at waychrist.com. BTW, check your PM’s for a little something I discovered that I don’t want to post here. If the factual statements in the TWI complaint are correct, Pat later used thewayinternational.com to advertise both ExCultworld and PR Computer Services, and to solicit donations. I don’t know how a court would rule on that but it is at least arguable that those constitute “commercial use in commerce.” That is exactly what TWI is claiming. Finally, it is indisputable that Pat offered the domain for sale, at an asking price of $15,000.00.

I’ll ignore criticism but not misrepresentations or falsehoods. 1) I’ve never criticized anyone, including Pat, for not being a lawyer. 2) I have never acted like a lawyer or represented myself to be anything but a layman. 3) I have said that Pat should consult with a lawyer and employ one if he proceeds with this. 4) I would say the same regarding anyone being sued in anything but small claims court. 5) If I were being sued, I would consult with and be represented by one or more lawyers. 6) I have been sued. I did employ an attorney. 7) I have sued. I did employ an attorney. 8) There is no hypocrisy or double standard in anything I’ve written on this subject or how that relates to my real-life actions. 9) I have not “come on with the Perry Mason routine.” I have discussed legal matters, as a layman who cares to inform himself before expressing an opinion and who accompanies his opinions with reasons behind them. 10) I have never suggested that it is not OK for others to do likewise. Rather, I encourage that. 11) I think you know all of the above. Yes, vanity. I wrote that on April 4, on page 5 of that thread. That was three days after Pat started his “Lawsuit contest” thread, which provided part of the basis for my conclusion, as did other sources (primarily Pat’s own words elsewhere). I don’t form opinions in a vacuum. I also don’t base my opinions regarding the issues on my opinions of the parties. If I did, I would lean towards supporting Pat’s position because my opinion of him is far better than my opinion of TWI.Now, if you wish to discuss the topic, please do. Hint: I am not the topic.

That is very recent, Goey. That could actually give Pat a shot (regarding the counts in the original complaint, not his counterclaims) but there are some potential problems. Pat used the disputed domain (indirectly) to solicit donations and to advertise his computer services. He also put it up for sale. None of those were factors in the TMI v. Maxwell case.

Diazbro, I ignored your post of May 7, but I’ll go ahead and respond to it now, as well as to your posts of today. I’m not fighting anyone or anything. I’m simply participating in a public discussion that Pat started on a public forum. That’s fine by me. Pat can do whatever he wants, but if he “just won’t stop” posting about it here, then he can’t very well expect others to just stop commenting, can he? Neither can you. If I thought the person was wrong, I’d say so. If I wanted to discuss facts, law, or strategy regarding the case, I’d do so, if the litigant brought them up first. Whether or not I agreed with the person, I’d probably suggest not discussing the case in detail in public. Many people suggested that to Pat but he “just won’t stop” (your words) so it’s all fair game. It wasn’t anyone’s first conclusion, so far as I know. It certainly wasn’t mine. You’re welcome to that opinion. I happen to be interested in such things. Some people are interested in theology. Do those who cite the Bible in doctrinal discussions take things to the extreme relative to the theological stuff? Should they not express opinions on theological matters and cite reasons for those opinions, unless they have degrees in theology? Maybe you should go gripe at them.If you have comments about the substance of anything I’ve written, I’ll be happy to discuss it. If all you want to do is gripe at me for writing it, I’ll ignore you.

I can't see there being grounds for a class action suit or for a suit of any kind by most GS participants. Anyone who has been out a year and hasn't filed a suit can pretty much forget it.

You could try something novel. You could do the right thing and stop using any form of TWI's name as your own. Do that and TWI will leave you alone.

That was your intent, Pat, but you made a procedural error that resulted in a judgment against you. Your error was in not getting written consent to your abandonment from TWI and filing that along with it, or making sure that TWI filed such consent before you abandoned your application. Avoiding such mistakes is one of many reasons for having a competent attorney to represent you. That "Oh, really?" in my preceding post is a link to a document. You can see the same document by clicking HERE. The relevant text is quoted below.

Oh, really?