Zix noted early on that TWI can produce witnesses who say there was no Internet ban just as easily as Pat could produce witnesses who say there was.
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.
But yes I am actually. Part of ruling may be irrevelant to Pat's case, but I do not think it is compleletly irrelevant. The cases are similar enough that I believe that parts of this ruling may indeed apply. I will not go into details here.
The Landham Act is just now really being tested in the courts. The Internet is new territory in regards to trademark law and as more and more cases are going to appeal, these rulings become more and more important to folks like Pat - And ones like this should not be dismissed as irrelevant to Pat's case without extreme scrutiny. This is not the only one - there are quite a few others that have not been posted for obvious reasons.
That quote is accurate. He also said that there is a lot of evil on the www, such as pornography and ex-way sites. You could get possessed by going to one of those type sites, the ex-way ones that is.
Other times he commented about what a great wealth of information was available, but it was also the devil’s playground.
That suit that Goey found, am I missing something here? The right to free speech and having a gripe site was upheld because the owner of the gripe site didn’t cross any lines where it could be proven he profited from it. Interesting that he could offer the domain up for an auction, a sure plus for the case being discussed here.
But then I have some trouble understanding beating the obtaining in bad faith. Yes, I am clueless as to how the law defines this. But, TWI goes after someone over a mark issue, (not sure reasons for dropping it are relevant,) and the domain name is changed. Then their name shows up as a domain name and the same person has it?
Now, I find the history troubling. That and the $$$ issues combined complicates, at the least; defending against TWI’s claims.
My LC directly told me to Mark & Avoid the internet. Really. No kidding.
I asked him if he was going to tell every person in the limb to not use email
at work anymore. Believe it or not, he hadn't thought about it! Typical HQ order. Make some doofus command and don't think about the real world. The sad thing is that I wish I were making this up.
JT
p.s. You have no idea how hard it was to not just laugh in his face.
[That suit that Goey found, am I missing something here? The right to free speech and having a gripe site was upheld because the owner of the gripe site didn’t cross any lines where it could be proven he profited from it. Interesting that he could offer the domain up for an auction, a sure plus for the case being discussed here.
I suppose it boils down to if the site is considered by the court to be a "gripe site" or a commercial site.
I think Longone's position is that Pat's Site was commercial - where I see it as being primarily a gripe site and non-commercial.
The intent that Pat has declared here is that it would be a gripe site, but I do not recall whether he ever actually used it as a gripe site. Perhaps he can answer that if he so chooses. Or not, if he so doesn't.
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.
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.
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.
What makes a site "commercial"? -- Is teaching the Bible considered "Commerce"?
Is pointing people to online Bible resources considered commerce ?
Is accepting a donation (one-way transaction) cosidered "commerce" ?
I thought that commerce meant the exchange of goods or services (something of value) between two parties.
Longone, where is the exchange of goods and services on the links you posted?
Is GS cafe "Commercial". Does the sale of a few T -Shirts make it "commercial" even though vast majority of it is editorial comment, information or discussion?
To sue in Federal Court, TWI or anyone else has to have 2 things and there are no exceptions in the USA:
1) Diversity of citizenship (The parties involved are from different states)
and
2) The amount of controversy ($) has to be $75,000 or more not counting court, attorney fees, punitive damages.
The questions are:
A) How will TWI prove that my alleged use of the domain name and trademarked "The way" lost them business profits for the religious goods and services that were bought from my sites without there being any religious goods and services sold that directly competed with TWI's products?
B) Asmuming that the link to PR Computers is considered part of the mix(it isn't in real life), can TWI make a case that the webhosting and website design services offered were competing religious goods and services?
C) If no to A or B above, then how will TWI prove losses of business to my alleged "competing goods" of $75000 or more to qualify for the Federal Court to hear the case at all?
NOTICE: PAT IS SPECIFICALLY ASKING FOR "ARMCHAIR LEGAL BUFFS," NOT PROFESSIONAL OPINIONS. HE IS SPECIFICALLY SOLICITING THESE RESPONSES. SO IF YOU DON'T LIKE NON-PROFESSIONALS OFFERING LEGAL OPINIONS, TAKE IT UP WITH PAT.
Pat,
Presuming your premise to be correct, it would appear the answer is:
a. The information you previously provided on the site offers a distilled version of the principles taught in the foundational class. Someone connecting to thewayinternational.com would have obtained the information that TWI sells, without paying TWI. The fact that you gave it away for free is not relevant. You gave away a competing product. Someone looking for info from and about TWI obtained it, and TWI lost money in the process.
It should be noted that it doesn't matter that they could have gotten the information elsewhere, because the people who looked for the information didn't go elsewhere; they went to thewayinternational.com.
In your defense, I would argue that the majority of hits you received were from people who had already taken PFAL, and thus TWI would not have received any additional money from those visitors.
b. They probably can't make that case.
c. Short answer: they can't. Skip the long answer if that's all you wanted to hear.
quote:Not a quote: this is the long answer: It depends on how many hits you got in the answer to "A." More accurately, it depends on how many unique visits you got in A. And even MORE accurately, it depends on how many different individuals who had never taken PFAL or WAP in the past visited your site. I don't know how much WAP cost, but let's say it was $40 for the sake of consistency (the last known price of the PFAL class was $40). To arrive at $75,000 in damages, TWI would have to prove that at least 1,875 of your site's visits were from people who had never taken PFAL or WAP before. Those visits would have to have taken place in the specific time period when you had that information posted.
To put the matter in perspective: the Living Epistles Society site gets an average of 300-400 unique visits per month. If I visit the site today, and visit again tomorrow, that's two visits. So on average, I would say those 400 visits came from somewhere between 40-50 people, (in about 16 countries, according to the stats I read).
While it's impossible to calculate, I would call it "inconceivable" that my site could attract 1,875 different people. My hit counter would spin like a slot machine.
Of course, more people have heard of "the way international" than "the living epistles society." But I'd wager that during the time period when you had the relevant info up, you did not have 1,875 visits at all; much less 1,875 visits from different people, none of whom had taken PFAL or WAP.
quote:NOTICE: PAT IS SPECIFICALLY ASKING FOR "ARMCHAIR LEGAL BUFFS," NOT PROFESSIONAL OPINIONS. HE IS SPECIFICALLY SOLICITING THESE RESPONSES. SO IF YOU DON'T LIKE NON-PROFESSIONALS OFFERING LEGAL OPINIONS, TAKE IT UP WITH PAT.
quote:Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.
Pat, you know there are legal forums where you can post questions/comments like this and probably get better answers than you can here.
How wise is to have TWI and their attorneys see this kind of stuff? You know they are checking this thread daily, so I have to assume that you actually want them to see it. It beats me as to why.
To sue in Federal Court, TWI or anyone else has to have 2 things and there are no exceptions in the USA:...
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.
quote:The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States
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.
do you think twi or their lawyers might read this thread and it will help them be ready?
If TWI's lawyers are getting their legal strategies and advice from Long Gone, Goey and me, then don't worry: Pat will win hands down. Not because he's smarter than we are, but because TWI's lawyers, if they're relying on us for ideas, are idiots.
On the other hand, it's been said before (and bears repeating) that Pat does himself no favors by posting his legal opinions and strategy all over these threads. He assures us that he's taking that into consideration, which is his business.
I answered his question presuming that the premise of his question was true. Goey and Long Gone are challenging the premise of his question. TWI's lawyers will handle him far more harshly than anyone here.
NOTICE: PAT IS SPECIFICALLY ASKING FOR "ARMCHAIR LEGAL BUFFS," NOT PROFESSIONAL OPINIONS. HE IS SPECIFICALLY SOLICITING THESE RESPONSES. SO IF YOU DON'T LIKE NON-PROFESSIONALS OFFERING LEGAL OPINIONS, TAKE IT UP WITH PAT.
>>
So would I be correct in assumming that PR
is asking for advice from armchair legal buffs ? ;>
Sure they always operate that way. There is the official word from the pulpit and the real word in the fellowships. As long as they can keep the right hand from knowing what the left hand is doing it is very hard to corner them legally.
There was a couple that the woman testified in court, lying about what the official definition and practice of M&A is. Now this was some of the very few lower than RC’s that were kept on full time pay. Not even Lcs and had towed the line perfectly, M&Aing numerous people and dividing families. Soon after they fulfilled their *function* in court, they went after the couple and ripped them apart. Rumor was that the women ended up a wreck and in therapy. Word on the street verses word from the top.
Goey,
I see your point, however the exchange of information in exchange for donations may bring a gripe site into another category. That and it is not the usual gripe site, they have that license and claim to be a news group, or net magazine. Don’t know, but there are many web mags and many collect donations. Wonder if they have all their non-profit stuff in place to avoid crossing any legal lines.
And why do I get the feeling that the defendant feels he is dealing with idiots, looking for that missed little detail that some how all those lawyers have missed and he will find? I don’t think they were bluffing. Might be reading to much into this all, but it seems to look that way to me.
Also, let's remember that we're dealing with "common sense" definitions of what it means to be a "commercial" site. The legal definition may (or may not) be trickier. I've heard (must have been an old piece of literature) that if you're a ".com," the site is commercial, period. I offer this not as legal opinion, but to remind you that our definitions and legal definitions aren't always the same thing.
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.
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Goey
Me? Disagree with Longone? God forbid.
But yes I am actually. Part of ruling may be irrevelant to Pat's case, but I do not think it is compleletly irrelevant. The cases are similar enough that I believe that parts of this ruling may indeed apply. I will not go into details here.
The Landham Act is just now really being tested in the courts. The Internet is new territory in regards to trademark law and as more and more cases are going to appeal, these rulings become more and more important to folks like Pat - And ones like this should not be dismissed as irrelevant to Pat's case without extreme scrutiny. This is not the only one - there are quite a few others that have not been posted for obvious reasons.
---- Rant deleted ---
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Grizzy
Longgone,
That quote is accurate. He also said that there is a lot of evil on the www, such as pornography and ex-way sites. You could get possessed by going to one of those type sites, the ex-way ones that is.
Other times he commented about what a great wealth of information was available, but it was also the devil’s playground.
That suit that Goey found, am I missing something here? The right to free speech and having a gripe site was upheld because the owner of the gripe site didn’t cross any lines where it could be proven he profited from it. Interesting that he could offer the domain up for an auction, a sure plus for the case being discussed here.
But then I have some trouble understanding beating the obtaining in bad faith. Yes, I am clueless as to how the law defines this. But, TWI goes after someone over a mark issue, (not sure reasons for dropping it are relevant,) and the domain name is changed. Then their name shows up as a domain name and the same person has it?
Now, I find the history troubling. That and the $$$ issues combined complicates, at the least; defending against TWI’s claims.
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JustThinking
LongGone, Grizzy,
My LC directly told me to Mark & Avoid the internet. Really. No kidding.
I asked him if he was going to tell every person in the limb to not use email
at work anymore. Believe it or not, he hadn't thought about it! Typical HQ order. Make some doofus command and don't think about the real world. The sad thing is that I wish I were making this up.
JT
p.s. You have no idea how hard it was to not just laugh in his face.
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Goey
Grizz,
[That suit that Goey found, am I missing something here? The right to free speech and having a gripe site was upheld because the owner of the gripe site didn’t cross any lines where it could be proven he profited from it. Interesting that he could offer the domain up for an auction, a sure plus for the case being discussed here.
I suppose it boils down to if the site is considered by the court to be a "gripe site" or a commercial site.
I think Longone's position is that Pat's Site was commercial - where I see it as being primarily a gripe site and non-commercial.
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Raf
The intent that Pat has declared here is that it would be a gripe site, but I do not recall whether he ever actually used it as a gripe site. Perhaps he can answer that if he so chooses. Or not, if he so doesn't.
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LG
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.
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LG
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
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LG
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.
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Goey
Maybe I am missing something here.
What makes a site "commercial"? -- Is teaching the Bible considered "Commerce"?
Is pointing people to online Bible resources considered commerce ?
Is accepting a donation (one-way transaction) cosidered "commerce" ?
I thought that commerce meant the exchange of goods or services (something of value) between two parties.
Longone, where is the exchange of goods and services on the links you posted?
Is GS cafe "Commercial". Does the sale of a few T -Shirts make it "commercial" even though vast majority of it is editorial comment, information or discussion?
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pjroberge
A question for the armchair legal buffs:
To sue in Federal Court, TWI or anyone else has to have 2 things and there are no exceptions in the USA:
1) Diversity of citizenship (The parties involved are from different states)
and
2) The amount of controversy ($) has to be $75,000 or more not counting court, attorney fees, punitive damages.
The questions are:
A) How will TWI prove that my alleged use of the domain name and trademarked "The way" lost them business profits for the religious goods and services that were bought from my sites without there being any religious goods and services sold that directly competed with TWI's products?
B) Asmuming that the link to PR Computers is considered part of the mix(it isn't in real life), can TWI make a case that the webhosting and website design services offered were competing religious goods and services?
C) If no to A or B above, then how will TWI prove losses of business to my alleged "competing goods" of $75000 or more to qualify for the Federal Court to hear the case at all?
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Raf
NOTICE: PAT IS SPECIFICALLY ASKING FOR "ARMCHAIR LEGAL BUFFS," NOT PROFESSIONAL OPINIONS. HE IS SPECIFICALLY SOLICITING THESE RESPONSES. SO IF YOU DON'T LIKE NON-PROFESSIONALS OFFERING LEGAL OPINIONS, TAKE IT UP WITH PAT.
Pat,
Presuming your premise to be correct, it would appear the answer is:
a. The information you previously provided on the site offers a distilled version of the principles taught in the foundational class. Someone connecting to thewayinternational.com would have obtained the information that TWI sells, without paying TWI. The fact that you gave it away for free is not relevant. You gave away a competing product. Someone looking for info from and about TWI obtained it, and TWI lost money in the process.
It should be noted that it doesn't matter that they could have gotten the information elsewhere, because the people who looked for the information didn't go elsewhere; they went to thewayinternational.com.
In your defense, I would argue that the majority of hits you received were from people who had already taken PFAL, and thus TWI would not have received any additional money from those visitors.
b. They probably can't make that case.
c. Short answer: they can't. Skip the long answer if that's all you wanted to hear.
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GarthP2000
Dropping a hint for anybody in particular, Raf?
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Raf
Not at all.
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Goey
Pat,
I am not so sure that this applies in your case or to the Lanham Act in general.
I think your case has to be in Federal Court because of the multiple claims including a claim against Vermont's unfair competetion laws.
What Law are you quoting from ?
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excathedra
question
do you think twi or their lawyers might read this thread and it will help them be ready ?
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Goey
Pat,
Look at Title 28 - Part IV - Ch 85 - Sec 1332 (B)
Pat, you know there are legal forums where you can post questions/comments like this and probably get better answers than you can here.
How wise is to have TWI and their attorneys see this kind of stuff? You know they are checking this thread daily, so I have to assume that you actually want them to see it. It beats me as to why.
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LG
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.Link to comment
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Raf
If TWI's lawyers are getting their legal strategies and advice from Long Gone, Goey and me, then don't worry: Pat will win hands down. Not because he's smarter than we are, but because TWI's lawyers, if they're relying on us for ideas, are idiots.
On the other hand, it's been said before (and bears repeating) that Pat does himself no favors by posting his legal opinions and strategy all over these threads. He assures us that he's taking that into consideration, which is his business.
I answered his question presuming that the premise of his question was true. Goey and Long Gone are challenging the premise of his question. TWI's lawyers will handle him far more harshly than anyone here.
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diazbro
Pat said:
A question for the armchair legal buffs:
>>
Raf said:
NOTICE: PAT IS SPECIFICALLY ASKING FOR "ARMCHAIR LEGAL BUFFS," NOT PROFESSIONAL OPINIONS. HE IS SPECIFICALLY SOLICITING THESE RESPONSES. SO IF YOU DON'T LIKE NON-PROFESSIONALS OFFERING LEGAL OPINIONS, TAKE IT UP WITH PAT.
>>
So would I be correct in assumming that PR
is asking for advice from armchair legal buffs ? ;>
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Raf
But, but, but,...
if you took that position...
how could I disagree with you? What would we have to talk about?
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Grizzy
Just Thinking,
Sure they always operate that way. There is the official word from the pulpit and the real word in the fellowships. As long as they can keep the right hand from knowing what the left hand is doing it is very hard to corner them legally.
There was a couple that the woman testified in court, lying about what the official definition and practice of M&A is. Now this was some of the very few lower than RC’s that were kept on full time pay. Not even Lcs and had towed the line perfectly, M&Aing numerous people and dividing families. Soon after they fulfilled their *function* in court, they went after the couple and ripped them apart. Rumor was that the women ended up a wreck and in therapy. Word on the street verses word from the top.
Goey,
I see your point, however the exchange of information in exchange for donations may bring a gripe site into another category. That and it is not the usual gripe site, they have that license and claim to be a news group, or net magazine. Don’t know, but there are many web mags and many collect donations. Wonder if they have all their non-profit stuff in place to avoid crossing any legal lines.
And why do I get the feeling that the defendant feels he is dealing with idiots, looking for that missed little detail that some how all those lawyers have missed and he will find? I don’t think they were bluffing. Might be reading to much into this all, but it seems to look that way to me.
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Raf
Also, let's remember that we're dealing with "common sense" definitions of what it means to be a "commercial" site. The legal definition may (or may not) be trickier. I've heard (must have been an old piece of literature) that if you're a ".com," the site is commercial, period. I offer this not as legal opinion, but to remind you that our definitions and legal definitions aren't always the same thing.
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LG
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.
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