Tuesday, July 26, 2005

Shame on MediaWatch

Earlier in the day, I posted, verbatim, the most recent MediaWatch fax. If you haven't seen it yet, here it is. (If you've already read it, scroll down to the end of it for my response.)
Shame on Leo Morris

So far Leo Morris has not removed a link at his personal blog to another blog using a trademark we own.

Mr. Morris has not called us about this although he has been notified that he is directing readers of his blog to a site that is misappropriating our legal mark.

NEW SENTINEL (sic) Publisher Mary Jacobus informed us that the newspaper is trying to figure out if they can legally cite a blog that seems to be infringing on a trademark. The paper doesn’t want to be bullied into removing links it thinks are worthy to be noted.

Even explaining the circumstances about our registration of the trademark and its use by another person, N-S and Leo Morris are unmoved, flouting the law and causing us irreparable harm in the process.

We are suing the infringer and will be suing Leo Morris, personally. If the newspaper decides to provide him legal support, we will sue N-S also, as complicit in this matter, as Mr. Morris seems to be with the person who continues to intrude on our legal ownership.

But more than that, Mr. Morris, who touts obeying the law as a requisite of good citizenship and the requirements of an ethical journalist, appears to be hypocritical. He is trying to slip through some kind of Kafkaesque loophole in continuing to ballyhoo a blog that is outside the law at this very moment.

Is Mr. Morris in collusion with the scofflaw? How else to explain his intransigence in this matter?

That Mr. Morris represents the editorial stance of a prominent newspaper but is in a kind of ethical dither about a matter that seems clear to us and our legal advisors calls for a look, a serious look, by this community and Knight Ridder, his bosses. Mr. Morris has descended into a moral and ethical relativism which calls for his resignation as editorialist for a newspaper which supposedly has the highest journalistic standards as its “raison d'être.”

Now Mr. Morris can say he is protecting the rights of a person who is operating outside the law, but then Mr. Morris would have to condone activities by those who who (sic) also operate outside the law, to be consistent, and no one expects a major newspaper editorialist to do that.

So we are forced to activate legalities to settle this matter, but the cost won’t be to us but the person infringing on our trademark and Mr. Morris who seems to be in bed, in collusion as we said, with the lawbreaker.

And we shall pursue this matter until either Mr. Morris relents or he is wiped clean monetarily, which perhaps will get his attention, finally.

Meanwhile, this community, and journalists here, should see Mr. Morris for what he is: a man who thinks the law can be finagled with, when it suits him.
First, some information: the blog that Rich Reynolds (the man responsible for the content of the MediaWatch fax) is referring to is this one -- Fort Wayne Media Notes -- though you probably already had that figured out.

The backstory: on May 22, 2005, I started this blog, and named it "Fort Wayne Media Notes." Here's my first post, clearly featuring that date at the top. (In case you're wondering, "Elliott Marcus" was a pseudonym I used in my first few posts; I soon decided I ought to be blogging under my real name.)

Then, on June 23, I noticed that MediaWatch had started two new blogs (they already had several others), both titled, "Fort Wayne Media Notes."

On June 30th, Rich Reynolds filled out an application with the state of Indiana to register a trademark on the term "Fort Wayne Media Notes." On that application (available here), he claimed that the mark was first used on June 8, 2005 -- 17 days after I started this blog. (Never mind that the "sample of the trademark" that accompanied the application was a photocopy of one of their "Fort Wayne Media Notes" blogs with a single post dated June 22, 2005.)

That application was received by the Secretary of State's office and on July 5, a trademark for "Fort Wayne Media Notes" was registered in Reynolds' name, according to this trademark registration certificate.

I spoke with an attorney this afternoon and asked him if was I infringing on Reynolds' trademark by continuing to call this blog Fort Wayne Media Notes. "Go tell [Reynolds] to jump in a lake," he said. "He doesn't have a case."

Why? For one, because I already had a common law trademark on the term "Fort Wayne Media Notes" before Reynolds applied for his "official" trademark from the state. From expertlaw.com:
At common law, a trademark is obtained by adopting and using the trademark in association with goods or services. The mark must be placed in actual use before protection is available. Once the mark becomes associated in the mind of the public with the particular good or service, the common law trademark is established. Ordinarily, the geographic scope of the common law trademark is limited to the area of use.
I've already established that I began using "Fort Wayne Media Notes" weeks before he did; for third party corroboration, see this article in Greater Fort Wayne Business Weekly. And, as this FAQ on trademarks from the Indiana Secretary of State's office notes, when you discover that someone else is using your registered trademark, "A general rule of thumb is first in use, first in right."

And I was clearly -- clearly -- first in using Fort Wayne Media Notes.

Think about it -- Reynolds registered a trademark that he knew I was using but hadn't officially registered. What else could his goal have been but to trademark my site's name and sue me for infringing on that trademark? But if he could legally do that, what would stop anyone from registering a trademark for the name of a business or organization -- or blog -- already in existence that had not officially trademarked its name first? Not everyone pays the $10.00 registration fee to officially register their name as a trademark. Does that mean you should be able to register it yourself and then sue them for trademark infringement?

If anyone should be threatening litigation, it should be me. After all, Rich Reynolds fraudulently applied for that trademark, claiming on his application that the first use of "Fort Wayne Media Notes" in the United States was on June 8, 2005 (see that form), even though he knew that was false because the MediaWatch assistant director had posted a comment on my very first post, which clearly used "Fort Wayne Media Notes," on May 22!

By signing his name to the bottom of that trademark application, Reynolds claimed:
I, [the undersigned], affirm under penalty of perjury that (1) I am: [title] of applicant; (2) I have read this application and its contents / specimens are true and complete to the best of my knowledge; (3) The Mark is now used in commerce; (4) (i) I am the owner of the applied for Mark and no other person or organization has the right to use this trademark /service mark in Indiana either in identical form or in a form so resembling it as might be calculated to deceive or be mistaken for it, or (ii) written consent by the registrant to applicant's use has been filed with the Secretary of State."
Except that (2) he knew that the June 8 date he listed for the first use of "Fort Wayne Media Notes" in commerce in the United States was not true. And (4) he wasn't the owner of the "applied for Mark" -- I was, because I used it before he did, which established a common law trademark.

Remember, Reynolds had no claim to the trademark for "Fort Wayne Media Notes" until the Secretary of State's office approved the application form in question, because the state doesn't create the owner of a particular trademark -- it only legally recognizes that person as its owner. In this case, it recognized Reynolds -- but only because he lied on the trademark application form.

And in lying, he committed perjury.

It's right there in the verification statement I quoted above:
I, [the undersigned], affirm under penalty of perjury...
I expect that Todd Rokita, the Indiana Secretary of State, would be interested to know that he approved a false claim and that the applicant, by lying, committed perjury. I'll be urging Rokita's office in the coming days to pursue this matter to the full extent of the law.

But make no mistake; these threats of lawsuits were not really about a trademark. They were Richard R. Reynolds' method to try to intimidate me into closing this blog, and intimidate others in local media to ignore this blog.

That's why he threatened Leo Morris and the News-Sentinel with litigation for the egregious offense of -- brace yourself -- linking to my blog. He alleged that I was infringing upon his trademark (which I have clearly established was not the case), and that by linking to me, Leo was effectively acting in collusion with a "lawbreaker." When Leo didn't remove the link fast enough, Reynolds devoted an entire MediaWatch fax to attacking him -- calling for his resignation and vowing to bankrupt him.

Here's the irony: the link to my site had already been removed from Leo's blog by a Knight-Ridder staffer by the time the fax went out. I spoke with Leo today about this situation; my sense is that he wanted desperately to respond to the MediaWatch fax -- after all, Reynolds spent the whole thing smearing him -- but he told me that though he would like to comment, based on advice from a Knight-Ridder attorney, he can't at this time.

As a fellow blogger, I'm disappointed that Leo was unable to respond to Reynolds' remarks -- after all, answering your critics unfiltered is one of the great things about the blogosphere -- but I understand his employers' consternation about the potential legal ramifications of him allowing him to do that.

I get the feeling that the link to my site was removed because Knight-Ridder's lawyers didn't want to expose the company to a lawsuit from Reynolds, not because Leo Morris decided to give in to MediaWatch's demands. Thus I've got no quarrel with Leo; he works for Knight-Ridder and has an obligation as their employee not to be attracting lawsuits.

I just hope that now that I've conclusively discredited Reynolds' claims of trademark infringements, the Knight-Ridder lawyers will allow Leo to resume linking to my blog. After all, if I could disprove those allegations in a single post, it ought to be a walk in the park for any self-respecting attorney, and I'm sure Knight-Ridder has plenty of those on retainer.

It's worth remembering how unjustifiably nasty (and personal) Reynolds got with Leo in the MediaWatch fax -- if you were as outraged about what Reynolds wrote as I was, I would encourage you to take a minute to send Leo an email or leave a comment on his blog letting him know that you support him. I'm sure it's been difficult for him not to be able to respond.

And if you want to leave a comment at the end of this post letting Rich Reynolds know what you think of what he's been trying to do to me and Leo, well, I wouldn't exactly mind.

To Reynolds, I say this:
I don't know whether you're going to sue me or not, and frankly, I don't care. If you do file suit, you're certainly not going to win -- we both know that. So if I were you, I would stop threatening to sue people and just focus on sending out your faxes and running your many blogs. And I would find a good lawyer -- one who knows a lot about perjury.

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