Wednesday

WHAT'S THIS SOCIAL MEDIA THING ALL ABOUT ANYWAY? THE PERILS OF PURSUING A BAD TRADEMARK LAWSUIT

Recently, I got a call for advice from an out of state colleague. His client had been sued by another company claiming trademark infringement.

Just a garden-variety trademark case? Not exactly.

Imagine (as a hypothetical) a California dentist named Jones suing a Maine dentist named Jones. The California dentist claimed that, by his actions, the Maine dentist was confusing the California dentist's patients. If you're  like me your first reaction would be Huh? Even in the Internet age there are some businesses that are undeniably local. For the facts at hand the relevant radius for customers is five to ten miles.

Oh sure there are the usual trademark litigation suspects: who was first to use? who has the federal registration? how similar are the respective trademarks?

Layered on top of this are issues of personal jurisdiction, subject matter jurisdiction, improper venue and improper service. But what makes this matter most intriguing is a tidbit that my buddy mentioned almost as an afterthought.

Turns out his guy, the defendant, got an email note from one of the plaintiff's customers. The customer was very upset with his "Jones". He made it clear that his Jones had no business messing with a "dentist" so far away. And besides that, nobody should be able to make a legal claim to "Jones the dentist".

But the most amazing part of the story? The customer copied the plaintiff on the email! So, standing in the shoes of the plaintiff, I've ____off a customer. I've got a case with major problems. And if I get a slam dunk victory it won't mean a thin dime for me.

I should add that both companies are new. And neither "dentist" appears to be made of money. I should also mention the all too familiar overreaching letter by the lawyer for the California Mr.Jones. Written as though either the COKE or MICROSOFT brands was being sullied.

I gave my buddy  some suggestions. With luck this matter will settle quickly with only modest amounts of money wasted. For the sake of both parties I sure hope so.

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