This is beginning to bore me as much as everyone else so this is my last exchange
on this topic with this individual. Buried within the usual array of inaccurate
accusations is the following retraction:
Martin B. Schwimmer wrote:
> My reference to burger.king.co.uk had a mistake in that
> I typed "left out of the study" instead of "left out of the definition of
> infringement"
I don't accept this as a suitable retraction. You accused me of "excluding from
the study" numerous cases. This clearly implies that I deliberately left cases out
of the ones classified in order to manipulate the results. After being proved
wrong in this misleading statement, you shift words around to cover yourself, but
the phrase "left out of the study" bears no resemblance to the phrase "left out
of the definition of infringement." I leave it to others to decide whether they
accept your claim that this was a "typing error." Either way, it is typical of how
prejudiced and inaccurate your accusations have been.
> My point is that your treatment of obvious cyber-squatting cases under the
> more palatable name of speculation is a deliberate attempt to minimize the
> scope of the cyber-piracy problem.
This is nonsense. Counting them and classifying them accurately neither minimizes
nor maximizes the problem. The term "piracy" is unacceptable precisely because it
does not distinguish between two very distinct aspects of the problem. Your spin
on this issue has gone beyond the bounds of honest discussion. David Toeppen was a
name speculator. So were the One in a Million guys. They registered domain names
and attempted to resell them. They were not using the domain names to identify
goods and services at all, much less in a deceptive or confusing way. Ergo, they
were not infringers in the traditional sense. And when they registered the names
it was by no means obvious that such activity would be declared a form of dilution
by the courts. Any attempt on your part to take issue with the classification
reveals clearly just how weak and ill-motivated your attacks on the study are.
Worse, the study contains a long discussion of whether name speculation can be
automatically counted as infringement. In other words, it dealt extensively with
the issue you are raising. It noted explicitly that courts were beginning to rule
that name speculators were diluters. It argued that "the classification of name
speculation as trademark infringement constitutes a novel and expansive
interpretation of trademark protection, and all legal decisions regarding name
speculation have been forced to recognize this." Cases were cited. I bounced this
argument off several legal scholars before it was published; most concurred.
As usual, you do everything possible to avoid facing the obvious and extremely
important fact that string conflicts constitute almost half of the cases. You show
a lack of knowledge of the cases, such as, for example, that "mikasa" is a
legitimate name of two longstanding companies in completely different industries.
You also show that personal attacks are the real point of these exchanges, because
in other contexts, you recognize quite readily that NSI's drp encourages companies
to use TM law to control names in string conflicts. Apparently you have trouble
facing the facts about how extensive this practice is.
Now, counselor Schwimmer, sooner or later you will come to the realization that
the only people reading these exchanges are you and I. I have just determined that
engaging in email conversation with you is not worth a single minute more of my
time.
Cheers,
--MM
