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Re: Cease and Desist! (fwd)

DISCLAIMER:  This is information culled by my husband who is a patent 
agent at a firm in NYC. He is not an attorney. He is restricted by law 
from giving legal advice.

Cil (Priscilla Purnick)


---------- Forwarded message ----------
Date: Thu, 6 Jun 1996 16:44:06 -0400
From: Thomas Phalen <TPhalen@kayescholer.com>
To: Priscilla Purnick <purnick@aecom.yu.edu>
Subject: Re: Cease and Desist! (fwd)

     I have spoken with one of our senior associates about this situation 
     and the answer is not that the complaintant does not have a leg to 
     stand on but rather that he does not have a winning case.  The 
     complaintant has the right to challenge the use of his copyrighted 
     term "Mystical Crossroads", but he would have to prove the following 
     to be awarded anything:
     1)  CONFUSION
        The infringed use of a MOO room entitled - Mystical Crossroads - 
     causes confusion with his company Mystical Crossroads.  This could be 
     possible if the company deals with the internet or was so well known 
     that a person would assume association with that company when they see 
     anything using its name.  If I went to BAYMOO and saw a room called 
     Microsoft, I might think that it was operated and owned by Bill Gates. 
      My confusion could lead me to believe that what was posted in that 
     room was sanctioned by Bill Gates and his cronies.  Accordingly, Bill 
     Gates would request that the room not be named Microsoft for fear that 
     people would associate material produced by this room with his 
     company.  This leads me to my next point.
     2) DAMAGES
        The infringed use of the room entitled Mystical Crossroads has 
     caused loss of revenue or potential revenue.  Again, I will use the 
     Microsoft analogy - In the room entitled Microsoft is a posting 
     stating that Microsoft's most recent software is buggy.  Records at 
     the MOO reveal 500 visitors to the room, all of whom obviously utilize 
     computers.  Microsoft can estimate damages to the sales of their 
     software from these facts alone.  Also, if a scandal erupts wherein an 
     infamous pedophile was reported in the news to use "Microsoft" to lure 
     children, Microsoft would claim huge damages.  The fact that the 
     pedophile used the room entitled Microsoft at a MOO which is not 
     sanctioned by Microsoft to lure children means nothing.  When people 
     read the news report, they associate the term Microsoft with the 
     company.   
        Clearly the aforementioned scenario is not the case here, but you 
     have to understand the sensitivity of a company when they see 
     something with their name on it.  An explaination to the President of 
     the company concerning the nature of the room and how it could not 
     possibly be confused with his company may not persuade him to stop 
     demanding that the room's name be changed.  He will never be able to 
     prove damages if nothing is done to cause confusion with his company, 
     but he may continue in his efforts to stop all use of the term 
     "Mystical Crossroads" for fear that at some time in the future the 
     room might cause harm to the name of his company. 
        A defense against his complaint is if you can prove that the room 
     Mystical Crossroads has simularities with a famous and noncopyrighted 
     use of the term.  In other words, if Shakespeare used the term in one 
     of his published works and the room is filled with articles from that 
     Shakespearian reference, the confusion would clearly not be with a map 
     company.

NOTE DISCLAIMER AT THE TOP....these are only suggestions, not legal advise.

       I may suprise you with my advise here but I feel it is prudent, 
     BAYMOO should first try to discuss what the point of the MOO rooms are 
     with Richard Kowalski and alleviate his fears that they would be 
     confused with his company.  If that does not work, they should request 
     proof of copyright from Richard Kowalski.  If he supplies it, they 
     should rename the room.  Litigation is expensive.  He would probably 
     not be awarded a penny, but the cost of defending a suit is not worth 
     defending the name of a room.
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