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About
the lawsuit regarding this domain name
anlinwindows.com.
Anlin
sued the operator of this site for alleged Trademark violations.
As Supreme Court Justice Holmes stated "When
the mark is used in a way that does not deceive the public,
we see no such sanctity in the word as to prevent its being
used to tell the truth. It is not taboo."
Prestonettes, Inc. v. Coty, 264 U.S. 359 (1924)
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| Why
Anlin's lawsuit for Trademark Infringement is frivolous and an abuse
of our court system. |
| Why
would a Corporation continue approximately four years of litigation
when the alleged misconduct the Plaintiff complains about in it's
amended complaint ceased approximately four years ago? The District
court has held and the Plaintiff conceded that Anlin has not suffered
any damages, and is not entitled to any legal fees. On April 14, 2009
Anlin filed for summary judgment seeking $65,338.00 this is the alleged
income the Defendant earned after receiving Anlin's cease and desist
letter. Anlin already received it's profits from the Defendant's hard
work after the cease and desist letter, because it was Anlin's windows
that the Defendant sold and installed to earn the $65,338.00 Anlin's
attempt to double dip on profit's from the sale and installation of
it's own windows proves it's desperate attempt to recover money to
pay attorney fees to rogue lawyer John G. Michael of Baker, Manock
& Jensen, Fresno, Ca. |
| In
the year 2005, Anlin sued me for alleged trademark violations after
consenting to my ownership and commercial use of
the web site for approximately twenty months. I designed a web site
under this domain name to help facilitate my efforts of selling and
installing Anlin windows. Anlin enjoyed all subsequent benefits from
this website. Anlin accepted, manufactured, and collected payment
for every window order generated from my original web site. Management
then changed their con senses as to who should own and operate the
web site. Anlin sent me a cease and desist letter demanding that I
immediately transfer anlinwindows.com to them. I declined Anlin's
request after advice from a trademark attorney and this lawsuit commenced
with the intentions of extracting this domain name
from its rightful owner. |
| A
special thanks is in order for Paul Alan Levy of Public Citizen, Washington
D.C. Mr. Levy has argued four cases in the Supreme Court of the United
States. He then argued on my behalf in the 9th Circuit Court of Appeals
and prevailed in front of a three Judge panel. Anlin is represented
by rogue lawyer John G. Michael of Baker, Manock & Jensen, Fresno,
CA. |
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The
Lanham Act codifies a "fair use" defense
to trademark infringement: "the use of a name, term or
device charged to be an infringement is a use, otherwise than
as a mark, of ...a term or device which is descriptive
of and used fairly and in good faith only to describe the
goods or services of such party...." 15 U.S.C. §1115(b)(4).
“§1115(b)(4)’s
“used fairly” requirement demands only that the
descriptive term describe the goods accurately.” KP
Permanent Makeup v. Lasting Impression, 543 U.S. 111
(2004).The 9th Circuit Court of Appeals has held that "The
Lanham Act does not prevent one from using a [trademark] truthfully
to identify the [trademark holder's] goods... This fair use
doctrine applies in cyberspace as it does
in the real world." Brookfield Communications, Inc.
v. West Coast Entertainment Corp. 174 F.3d 1036 (9th
Cir. 1999)
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| Why
did Anlin send me a cease and desist letter after consenting to my
ownership and use of the
domain name for approximately twenty months? |
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| In Anlin's lawsuit
it pleads "Anlin received complaints from at least four of its
authorized dealers." These four dealers complained to Anlin about
my use of the website anlinwindows.com to help facilitate the sale
of Anlin windows, while approximately fifty other
Anlin dealers said nothing during the approximately twenty months
of my commercial use of the website. In Anlin's initial disclosures,
it identified four dealers that they would rely on for testomony at
trial, but only submitted three declarations from the four complaining
dealers to the court. |
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These
dealers are Terri Zingarelli, one of the owners of JZ Construction,
Clovis Ca, Scott Sharples, General Manager of Mars Enterprises,
Southern, Ca, Annette Legaspi, owner of ALM Window & Door, Inc.
San Diego, CA. Anlin sent me a cease and desist letter demanding
that I immediately transfer anlinwindows.com to them. I declined
Anlin's request after advice from a trademark attorney and this
lawsuit commenced.
The three complaining
dealers didn't appreciate the fact that a potential customer could
easily obtain a competing bid from this website. If your prices
are reasonable, a dealer shouldn't fear a potential customer exercising
their right to obtain several bids. Doesn't the Contractors State
License Board recommend this? Comparing price and service is strongly
recommended and expected when window replacement could potentially
cost a hard working home owner thousand's of dollars. |
| Anlin
has not suffered any damages, as it has conceded. |
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| As
the District Court held in it's 2007 Summary Judgment opinion, |
"In
the instant case, Anlin neither proved nor alleged that it suffered
any damage. Although its dealers complained about Defendant’s
web site, there is no allegation that Anlin lost any window sales,
or dealers, as a result. Nor is there any proof of actual diversion.
Additionally, although intent is not a necessary element, Defendant’s
intent was to continue to sell windows, rather than wrongfully profit
from the website. Taking these factors into consideration, Anlin
has made no showing that Defendant interfered with its business
in any meaningful way, or was anything other than a nuisance."
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Anlin is not entitled to recover their legal fees after almost FOUR
wasted years of litigation. |
| As
the District Court held in it's 2007 Summary Judgment opinion, |
"Finally,
pursuant to 15 U.S.C. § 1117(a), Anlin requests an award of
awarded attorneys’
fees. Section 1117(a) allows the court to award attorneys’
fees to the prevailing party in
“exceptional cases.” The Committee for Idaho’s
High Desert, Inc. v. Yost, 92 F.3d 814 (9th Cir.1996) (a trademark
case is exceptional when the defendant’s conduct is malicious,
fraudulent, intentional or willful). The Court declines to award
attorneys’ fees for two reasons. First, the Court has not
disposed of all claims and the action has not been completely resolved.
Second, even if this motion disposed of the action, the
facts of this case are not “exceptional.”
Although
Defendant may have knowingly continued to use the web site for a
period of time after being notified to cease and desist, there is
not sufficient evidence of willful, deliberate or malicious intent.
Defendant’s status as a pro se litigant also weighs against
an award of attorneys’ fees. Therefore, Anlin’s request
is denied."
The
Trademark statute requires a prevailing Plaintiff to show that the
case is "exceptional" to be awarded attorney fees and
this case is a far cry from "exceptional." Anlin is wasting
their time paying legal fees upwards of three hundred dollars per
hour. (While laying off approximately thirty percent of their employees.)
My commercial use of the web site to help facilitate the sale of
Anlin windows was legal. The
9th Circuit Court of Appeals has held "The Lanham Act does
not prevent one from using a [trademark] truthfully to identify
the [trademark holder's] goods... This fair use doctrine applies
in cyberspace as it does in the real world."
Brookfield Communications, Inc. v. West Coast Entertainment
Corp. 174 F.3d 1036 (9th Cir. 1999) |
What
is a "nuisance" and does a "nuisance" translate
into Trademark Infringement?
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| Defendant
to argue on May 15, 2009 that Anlin's lawsuit for Trademark Infringement
fails as a matter of law, and is barred by the fair use defense. Plus,
defendant's commercial use of the domain name was protected by the
first amendment. |
DEFENDANT'S
ARGUMENT
ANLIN’S
COMPLAINT FOR TRADEMARK INFRINGEMENT AGAINST THE
DOMAIN NAME ANLINWINDOWS.COM FAILS AS A MATTER OF LAW
In
order to prevail on its trademark claims, plaintiff must show
that defendant used its
trademark in commerce and that the use was likely to confuse customers
as to the source of the product. Karl Storz Endoscopy AM.,
Inc. v. Surgical Techs., Inc. 285 F.3d 848, 853 (9th Cir.2002).
The Supreme Court held “Section §1114(1) in turn requires
a showing that the Defendant’s actual practice is “likely
to cause confusion, or to cause mistake, or to deceive”consumers
about the origin of the goods or services in question”...
KP Permanent Makeup, Inc. v. Lasting Impression, Inc.
543 U.S. 111 (2004).
Anlin's amended complaint (AAC) pleads the first element "used
it's trademark in
commerce"but fails to plead the second element "was
likely to confuse customers as to the source of the product."
against the domain name anlinwindows.com. Instead the basis for
which Anlin pleads it's trademark infringement claim against anlinwindows.com
has been held irrelevant by the Sixth Circuit. Anlin's basis for
it's trademark infringement claim revolves around "four dealers"
who were competitor's of the Defendant and complained to Anlin
of the Defendant's use of the domain name anlinwindows.com to
help facilitate the sale of Anlinwindows. page 4, ¶19. AAC
"Anlin received complaints from at least four of its authorized
dealers..." AAC page 5, ¶20, continues to plead that
the Defendant's web site"gave the impression the site was
Plaintiff's site, and created confusion on the internet..."The
Lanham Act protects consumers, not “dealers” of Anlin.
KP Permanent Makeup,Inc. v. Lasting Impression, Inc.
543 U.S. 111 (2004). "Section 1114(1) in turn requires a
showing that the defendant's actual practice is "likely to
cause confusion, or to cause mistake, or to deceive" consumers
about the origin of the goods or services in question..."
The complaints from the "four dealers" subsequently
does not establish the basis for a trademark infringement claim
and are outside the jurisdiction of the
Lanham Act.
Anlin's second
attempt to establish a claim for trademark infringement stated
"gave the
impression the site was Plaintiff's site," has been
held irrelevant by the Sixth Circuit. Under Lanham Act jurisprudence,
it is irrelevant whether customers would be confused
as to the origin of the websites, unless there
is confusion as to the origin of the respective products.”
Anlin's final attempt to establish a claim for infringement states
"and created confusion on the internet..."
The Supreme Court unanimously held "some possibilty of consumer
confusion is compatible with fair use" KP Permanent Makeup,
Inc. v. Lasting Impression, Inc. 543 U.S. 111 (2004). Anlin
does not plead that consumers were confused, just that Defendant's
website "gave the impression the site was Plaintiff's
site, and created confusion on the internet..." Anlin's
complaint for trademark infringement against the domain name anlinwindows.com
fails as a matter of law.
SUPREME
COURT ALLOWS FAIR USE DEFENSE TO TRADEMARK
INFRINGEMENT EVEN IF SOME CONFUSION IS LIKELY
The Lanham
Act codifies a "fair use" defense: "the use of
a name, term or device charged to be an infringement is a use,
otherwise than as a mark, of ...a term or device which is descriptive
of and used fairly and in good faith only to describe the goods
or services of such party...." 15 U.S.C. §1115(b)(4).
“§1115(b)(4)’s “used fairly” requirement
demands only that the descriptive term describe
the goods accurately.” KP Permanent Makeup v. Lasting
Impression, 543 U.S. 111 (2004). The 9th Circuit has held
that "The Lanham Act does not prevent one from using a [trademark]
truthfully to identify the [trademark holder's] goods... This
fair use doctrine applies in
cyberspace as it does in the real world." Brookfield
Communications, Inc. v. West Coast Entertainment Corp. 174
F.3d 1036 (9th Cir. 1999). The Supreme Court has unanimously held
that “fair use” is a defense to trademark infringement
and the Defendant must be able to assert the defense of fair use
even if confusion is present, KP Permanent Makeup, supra,
Defendant used the domain name anlinwindows.com truthfully, which
accurately depicted the subject of the website, which was the
sale of Anlin windows.
DEFENDANT'S
USE OF THE DOMAIN NAME ANLINWINDOWS.COM WAS
PROTECTED BY THE FIRST AMENDMANT
Commercial
speech is entitled to First Amendment protection, so long as that
speech is
truthful. Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council 425 U.S. 748, 96 S.Ct. 1817, (1976). Commercial
communication that does no more than propose a commercial transaction
is entitled to the coverage of the First Amendment. Edenfield
v. Fane 507 U.S.761,767 (1993). The Defendant's domain name
AnlinWindows.com accurately depicted the subject of the Defendant's
business, and the subject of the website, the sale of Anlin Windows.
It was truthful commercial speech. The First Amendment protected
the Defendant's right to use the domain
name anlinwindows.com and gave the Defendant right to use the
domain name accurately to depict his business of the sale of Anlin
Windows under the First Amendment.
|
Anlin
windows in the news! |
| The site will
have an Anlin windows in the news section and comment on: |
a) |
Anlin's
litigation with TruSeal Technologies, in which Anlin was sued by TruSeal.
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b) |
The effect the
economy is having on the window replacement business. "Anlin
lays off |
| The site will
have a comparative advertising section. How the Anlin brand compares
to other manufacturers. |
a) |
Do
the window manufacturers get their glass from the same source? |
b) |
How are the
rollers, locks, weather stripping different? |
c) |
What does the
Anlin lifetime warranty cover and how it measures up against it's
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