I think it is worth noting in this regard that the study has been praised by Carl
Oppedahl and G. Gervaise Davis III, two of the most prominent *practitioners* of
domain name-trademark law.
Martin B. Schwimmer wrote:
> "Prof. Mueller argues that name speculation should not be
> counted, as �to classify it as infringement stretches trademark concepts
> far beyond their traditional meaning.� Perhaps traditional meanings need
> to be expanded when dealing with technological domains that are radically
> different than those heretofore available. Regardless, it is not at all
> clear what in Prof. Mueller�s formal education qualifies him to render such
> opinions on the law."
These comments come from a social psychologist and a business consultant who have
less formal educational training in law than I do (a dissertation on
telecommunications regulation and constant involvement in federal, state, and
international telecom proceedings does acquaint one with legal and regulatory
processes.) More to the point, the passage in question was a conclusion that
followed analysis and quotations from the relevant cases (Panavision, Intermatic,
One-in-a-Million). I would not claim vast expertise in trademark law, but if
examining hundreds of cases and reading over 50 legal decisions on the topic
doesn't count as "knowing squat," I'd like to know.....well, more about this
"squat." It seems to be an elusive substance.
> then, in my view, in the best light to Mueller (there are worse lights to
> view this type of utterly wrong remark) he is a biased advocate making
> sloppy mistakes in order to "prove" his pre-conceived prejudices (it is
> ludicrous to characterize him as a neutral academic). This disregard for
> the facts is similar to the time that he actually posted on his web site as
> a "fact" that INTA had paid for the critique (it was pro bono). There was
> not a single fact to support that assertion, but it fit in with his prior
> worldview and therefore did not need to be verified (like most of his study).
Pro bono in what sense? If Jacoby and Kaplan make thousands of dollars as
consultants and expert witnesses for trademark clients, and those clients then
ask them to hack out a two-page commentary on a nettlesome study, is this done
out of an altruistic concern for academic truth? At any rate, I posted a question
about this to you immediately and you failed to answer it for three or four days.
I mistook your silence for a guilty admission of sin. You fail to note here that
I publicly asked you again to clarify the fact and publicly said I would correct
the original assertion, which was on the web for a grand total of 48 hours.
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