Subject:
addendum
Date:
Mon, 06 Dec 1999 11:32:44 -0600
From:
"Dr. John R Baker" <[email protected]>
To: [email protected], [email protected], [email protected]
This will hopefully be my last comment on your letter delivered through
express mail.
Number 1: I did NOT receive any email from you that I am aware of, nor
any other electronic conveyance of your letter.
Number 2. With regard to your remarks of my site constituting a
"dilution of Selective Insurance's trademark rights under federal and
state law", perhaps your interpretation of this law is somewhat
misinformed. There are certain things that are NOT actionable under the
The Federal Trademark Dilution Act of 1995 has been effective in the
United States since January 6, 1996. This Act is now Section 43 (c) of
the Lanham Act, 15 U.S.C. Section 1125(c).
Appendix A
United States Code
Title 15 - Commerce
Chapter 22 - Trademarks
(4) The following shall not be actionable under this section:
(A) Fair use of a famous mark by another person in comparative
commercial advertising or promotion
to identify the competing goods or services of the owner of the famous
mark.
(B) Noncommercial use of a mark.
(C) All forms of news reporting and news commentary.
Also, under the trademark dilution act, these are sine qua non as I
understand :
1. The plaintiff's "mark" must be "famous".
2. There must be commercial use by the defendant.
3. The offending mark must be used in commerce.
4. Defendant's use began after mark was famous.
5. Use causes dilution of the distinctive quality of the plaintiff's
mark.
If you , anyone at your firm, or Selective Insurance had actually
examined the page, you would have been aware that the page was not
commercial , was used to merely identify the company, and was a form of
commentary and reporting of news events of which I was aware, events
which I contend were NOT false (and to this date I still have not
received materials from your office showing that any comments I made
about Selective Insurance were false, and you are hereby requested to
prove that you, your firm, and Selective Insurance Company of Amercia
did not libel nor defame me to a trhid party by publishing (through the
United States Postal Service, letter) an allegation to Homepage.com that
I published lies on my page which they hosted).
Again, I would request PROOF of false statements which I made on the
page in reference ,i.e. the now defunct
http://selectiveinsurance.homepage.com. Also, please be aware that that
URL is considered a SUB-domain sir and not a domain, there is a
technical and legal difference.
Also, if you know much about the dilution act, you know that the
definition of "dilution" with respect to this secton of the Lanham Act
is as follows :
Dilution is defined by the Statute to mean:-
"the lessening of the capacity of a famous mark to identify and
distinguish goods or services regardless of the presence or absence of
either - (a) competition between the owner of the famous mark and other
parties or (b) likelihood of confusion, mistake or deception." 15 U.S.C.
Section 1127.
Thus, in dilution cases, where one alleges a dilution of the distinctive
quality of the mark, one must only prove a whittling away of the owner’s
mark by blurring, tarnishment, disparagement or alteration thereof.
Blurring has been defined as:-
"the gradual whittling away or dispersion of the identity and hold upon
the public mind of the mark or name by its use on non-competing goods" .
I believe you would have a difficult time demonstrating that a page,
which spelled out clearly that it was not the official website, was not
associated with nor controlled by that business, in any substantial
manner had blurred, in the minds of ANYONE the trademark of the company
identified.
Before you fire off a letter making allegations, and citing provisions
of law, either federal or state, I would advise you sir, that perhaps
further research needs to be done. Also, before you start alleging
someone has made "false,misleading, and defamatory statements". If you
are indeed an attorney licensed in New Jersey (since you used the term
"Esq." after your name in the addressing of the envelope), perhaps you
should leave the specialty of "cyberlaw" to persons who have mastered a
more complete understanding of the prevailing and current statutes.
Also, in closing, please consider this a second demand for
incontrovertible proof that I made statements on the webpage at
http://selectiveinsurance.homepage.com which I knew to be false , or
which were in fact false, or which I did not have good reason
to believe were in fact true.
Respectfully,
John Raymond Baker,D.C.