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Act 24: I Oppose the Amended Injunction

This is the big one.

While filing and responding to motions has been amusing (in a perverse kind of way), Taubman's motion to have the Court order me to remove this website is deadly serious. I know that previous rulings are on my side, but I also suspect that the individuals who won those cases were represented by lawyers, which I'm not.

I spent about a week writing my response – and on October 25, 2001, when it reached the point where I felt that I wasn't going to be able to make it any better, I packed it up and sent it off to the Court. I wasn't entirely satisfied with it – but frankly, I simply didn't have the time to conduct the kind of research that I would have liked to do. Anyway, here's what it looked like.

(Note: I have not included the exhibits or the "Certificate of Service.")


UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THE TAUBMAN COMPANY LIMITED
PARTNERSHIP,
 
Plaintiff, 
 
 Civil Action No. 01-72987
v.
 Honorable Lawrence P. Zatkoff
WEBFEATS and HENRY MISHKOFF, Magistrate Judge Komives
 
Defendants. 


DEFENDANTS' MEMORANDUM IN OPPOSITION TO
PLAINTIFF'S EXPEDITED MOTION TO
AMEND PRELIMINARY INJUNCTION

Defendants hereby request that this action be transferred to the United States District Court for the Northern District of Texas which is located in Dallas, Texas, Defendants' city of residence.

Plaintiff's Expedited Motion To Amend Preliminary Injunction is filled with distortions, half-truths, misleading and inaccurate information, irrelevancies, and technical errors. The motion has so little chance of succeeding on its merits that it was clearly submitted as part of Plaintiff's continuing campaign to harass Defendants, rather than to litigate its case.

Additionally, Plaintiff's Proposed Modified Order is so confusing that it would be difficult for Defendants to interpret should it be issued by the Court.

The major problems with Plaintiff's motion include the following:

  • Much of Plaintiff's argument is based on the contention that Defendants are "proven infringers," which they are not.

  • Plaintiff claims that Defendants disparaged the Court's authority by publishing additional websites after being enjoined by the Court, which is untrue.

  • Plaintiff claims trademark rights in several domains and websites for which it has introduced no evidence that such trademark rights exist.

  • Plaintiff accuses Defendants of defamation and of violation of confidentiality, which is not only false but which is totally irrelevant to these proceedings.

  • Plaintiff characterizes Defendants' websites and domain names as "continu[ing] business with a slight change in mark" after being enjoined by the Court, but Plaintiff is well aware that, in the only related case to date that has been decided under the Lanham Act, the Court unequivocally rejected the idea that attaching "sucks.com" to a trademark could possibly be considered to be a minor change.

  • Although the possibility of confusion is an essential element of trademark infringement, Plaintiff offers no evidence of the possibility of such confusion. That is because there is no possibility of such confusion.

Plaintiff's mark is suffering no harm whatsoever from the websites and domain names that are the subject of Plaintiff's motion. However, Defendants will clearly suffer grievous and irreparable harm if the Court grants Plaintiff's motion. Defendants are using the referenced domain names and websites to exercise their right of free expression and as an integral component of Defendants' strategy to defend themselves from Plaintiff's onslaught. Depriving Defendants of these domain names and websites would seriously impede Defendants' ability to defend themselves. This, rather than any valid trademark issue, is the very reason that Plaintiff seeks the amended injunction.

For these reasons, for which elaboration will be provided in the following brief, Defendants respectfully request that the Court reject Plaintiff's motion.

Respectfully submitted,

Henry Mishkoff
WebFeats
2661 Midway Road, #224-225
Carrollton, TX 75006
972.931.5421

Defendants

Dated: October 25, 2001


Next: Brief

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