[Page author's note- To see the
letter this was in response to, please
click here ]
[Page author's note- To see the
addenudum which addresses the notion of "trademark dilution", please
click here ]
----- Original Message -----
From: drjohnbaker
To: [email protected]
Cc: [email protected] ; [email protected]
Sent: Friday, December 03, 1999 3:30 PM
Subject: corrections made to earlier transmission, including screenshots referenced
----- Original Message -----
From: drjohnbaker
To: [email protected]
Cc: [email protected] ; [email protected]
Sent: Friday, December 03, 1999 3:08 PM
Subject: your letter
Dear Mr. Ronald D. Coleman:
I believe you must be a junior associate of the firm Pitney,Hardin,Kipp & Szuch, since
your name does not appear with theirs in the letterhead , and from the formulation of your
letter, it is certainly evident that there is little seasoning in your legal skills. Also,
sir, you did not even sign the copy you sent me via "snail mail". Also sir,
since you made the notation that you carbon copied this letter to
"Homepage.com", the allegation that you made in your letter that I had published
"false,misleading, and defamatory statements about Selective Insurance" (and
here I must assume you are referring to Selective Insurance Company of America, located in
Branchville NJ, your poor attempts at being specific further pointing to your lack of good
legal letter formulation), I am considering that you have published libelous statements
about me to a third party (i.e. Homepage.com) basically saying I lied. This would be
defamatory and libelous since I allege all materials and statements on my page which
resided at http://selectiveinsurance.homepage.com were true ,contrary to your
allegation. Also, since your comments were ostensibly executed at the behest and employ of
Selective Insurance Company of Branchville New Jersey, any such libelous conduct on your
behalf, via the theory of "respondeat superior" would attach to them as well,
since you executed this communication in the scope and practice of your professional work
for the aforementioned company,i.e. Selective Insurance Company of America.
On December 3, 1999, before 1100 hours CST, I received your bullying letter
regarding the site,
http://selectiveinsurance.homepage.com. Please be advised that I have not had access ,nor
control of that site for some days to modify the site. Furthermore, on my page, I
made it clear that Homepage.com was not responsible for content on the page and was not in
control of what might appear on the page. If you have a "true and correct,
unaltered" printout or saved copy of the page, this would be very clear to the
"reasonable man".
I do have questions. According to the U.S. Patent and Trademark Office,
United States Patent and Trademark Office
Crystal Park 3, Suite 461
Washington, DC 20231
a "trademark" is defined as :"
" A trademark includes any word, name, symbol, or device, or any combination, used,
or intended to be used, in commerce to identify and distinguish the goods of one
manufacturer or seller from goods manufactured or sold by others, and to indicate the
source of the goods. In short, a trademark is a brand name. "
Also, for your instruction, in the definition of "trademark" in Black's Legal
Dictionary : page 1038 (sixth edition) :
"...It may consist in any symbol or in any form of words, but as its office
is to point out distinctively the origin or ownership of the articles to which it is
affixed, it follows that no sign or form of words can be appropriated as a valid trademark
which, from the nature of the fact conveyed by its primary meaning, others may employ with
equal truth and with equal right for the same purpose".
Am I understanding that you are alleging that Selective Insurance of Branchville New
Jersey has an exclusive trademark on use of the words "SELECTIVE" and
"INSURANCE" such that no one can refer to SELECTIVE INSURANCE or use those words
in such a manner that the word SELECTIVE precedes INSURANCE without the permission of
Selective Insurance?
Are you further asserting that any URL which would incorporate the words
"selective" followed by "insurance" would be a violation of any and
all rights provided to Selective Insurance Company of Branchville New Jersey, under the
laws of trademark and copyright in the United States? Also, since you typed the words
SELECTIVE INSURANCE in capitals, are you saying that use of lower case is not covered by
your contention of control of these words. Also, other languages, are you claiming control
of the words "selective" and "insurance" in French, German, Chinese,
etc. Are you claiming control of the words translated in other languages? If this is
your contention, I would like to be clear on that interpretation of trademark law. For an
attorney, your text was somewhat ambiguous and non-specific. If you have a different
understanding of trademark law than the Office of Trademarks, then I would be happy to
pass along your insights to that agency.
By the way Mr. Coleman, do you purport to be a "Patent Attorney" or have
specialized knowledge or training in the field of specialization commonly referred to as
"trademark and/or patent law" ?
I HAVE THE ACTUAL INFORMATION ON SELECTIVE INSURANCE OF NEW JERSEY'S TRADEMARK SIR!
HERE IS THAT INFORMATION AS LISTED WITH THE OFFICE OF PATENT AND TRADEMARK:
Unless I read wrongly sir, the actual "Word Mark" is "INSURANCE
SELECTIVE" and "word mark" is referring to the stylized combinations of the
words "Insurance" and "Selective" with the lower case "l" in
the word Selective jutting up into the word "insurance". That is why the
"word mark" is identified as "Insurance Selective" since the word
Insurance appears in a superior and initial position relative to the word
"Selective" Any logos which appeared on my now defunct page were created de novo
by me, and any similarity to the logo in the screen capture above, were completely
coincidental and have been deleted such that it is a moot point. You will note also that
the ONLY trademark which Selective Insurance Company of America has on this, in the
description of the Word Mark Drawing, specifies that it is in "stylized form"
(see below). Further, the disclaimer says:
"NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "INSURANCE" APART FROM THE
MARK AS SHOWN ".
Word Mark INSURANCE SELECTIVE
Owner Name (REGISTRANT) Selective Insurance Company of America
Owner Address 40 Wantage Avenue Branchville NEW JERSEY 07890 CORPORATION NEW JERSEY
Attorney of Record James F. Bromley
Serial Number 74-398699
Registration Number 1824614
Filing Date 06/07/1993
Registration Date 03/01/1994
Mark Drawing Code (5) WORDS, LETTERS AND/OR NUMBERS IN STYLIZED FORM
Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "INSURANCE" APART FROM
THE MARK AS SHOWN
Register PRINCIPAL
Published for Opposition 12/07/1993
Affidavits SECT 15.; SECT 8 (6-YR)
Type of Mark SERVICE MARK
--------------------------------------------------------------------------------
International Class 036
Goods and Services underwriting of property and casualty insurance and insurance services
related thereto; namely, risk management, claim and loss processing services, premium
auditing and reporting services, and financing of loans for payment of premiums in the
foregoing fields of insurance; DATE OF FIRST USE: 1985.12.16; DATE OF FIRST USE IN
COMMERCE: 1985.12.16
______________________________________________________________________________________________________________________
You will also note that there are many companies who use and have trademarks using the
words "insurance" and/or "Selective"
such as the following:
Word Mark THE SELECTIVE GROUP
Owner Name (REGISTRANT) SELECTIVE GROUP, INC., THE
Owner Address 27655 Middlebelt Rd., Ste. 130 Farmington Hills MICHIGAN 48334 CORPORATION
MICHIGAN
Attorney of Record CAROL RUTH SHEPHERD
Serial Number 75-139511
Registration Number 2131912
Filing Date 07/22/1996
Registration Date 01/27/1998
Mark Drawing Code (1) TYPED DRAWING
Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "GROUP" APART FROM THE
MARK AS SHOWN
Register PRINCIPAL
Published for Opposition 11/04/1997
Type of Mark SERVICE MARK
_______________________
Since the Selective Insurance Group, Inc.
40 Wantage Avenue
Branchville, NJ 07890-0000
973-948-3000 is using a modification of the Trademark licensed above, is it possible
(using your line of reasoning), that they are in some fashion violating the trademark
license of "The SELECTIVE GROUP,INC." ? These names do sound similar don't they?
To prove my point, I went to http://www.excite.com and typed in:
"the selective group inc." and look what was pulled up (see screen shot below)
Now, when you talk about misleading and trademark infringement, perhaps "The
Selective Insurance Group, Inc." doesn't have "clean hands" either sir, and
perhaps some confusion could exist given the above real world example. Perhaps the
attorney of record for The Selective Group,Inc., Ms. Carol Ruth Shepherd, in the same
spirit of your letter to me, needs to send off a missive
to "The Selective Insurance Group,Inc." because, certainly, room for confusion
about the companies may exist.
Number two, you make the ALLEGATION that there are "false,misleading, and defamatory
statements about Selective Insurance".
Please detail what statements you are alleging to fall in that category, because, by
publishing this allegation to Homepage.com, you may be making an allegation to
Homepage.com that is untrue. IF you are publishing this allegation to Homepage.com that in
effect, I am a liar (one who tells an untruth, promoting it as a factual statement) you
sir, and your firm may indeed be the one who is guilty of libelous behavior. Either my
statements were untrue or not. Please identify which statements you are claiming to be
untrue. Let's examine who is being truthful at this point, Mr. Coleman.
To be libelous or defamatory, you must prove that a statement is untrue. My mother was
contacted by an agent of Selective Insurance and that person did act in the manner which I
described. I did in fact file complaints with the Department of Insurance in New Jersey
and in Ohio.
I also have been VERY clear in a statement on all pages associated with Selective
Insurance (hoping you are not thinking I am breaking any trademark and /or copyright
statutes by referring to the company using those words) that my page was NOT associated
with Selective Insurance. If you had seen the page, you would be cognizant that this
disclaimer was placed in such a manner that no one entering the site would be misled nor
think that it was associated in any fashion with Selective Insurance.
Since you demanded that I remove what you termed as being "false,
misleading, and defamatory statements about Selective Insurance" , I respectfully
request you to provide me with a list of the alleged "false, misleading, and
defamatory statements about Selective Insurance" which appeared on the page and,
SINCE TRUTH IS AN ABSOLUTE AFFIRMATIVE DEFENSE TO ANY CHARGE OF LIBEL (or defamation),
please enlighten me about why the statements you may provide are false.
libel per se
n. broadcast or written publication of a false statement about another which accuses
him/her of a crime, immoral acts, inability to perform his/her profession, having a
loathsome disease (like syphilis) or dishonesty in business. Such claims are considered so
obviously harmful that malice need not be proved to obtain a judgment for "general
damages," and not just specific losses.
libel
n. to publish in print (including pictures), writing or broadcast through radio,
television or film, an untruth about another which will do harm to that person or his/her
reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of
others. Libel is the written or broadcast form of defamation, distinguished from slander,
which is oral defamation. It is a tort (civil wrong) making the person or entity (like a
newspaper, magazine or political organization) open to a lawsuit for damages by the person
who can prove the statement about him/her was a lie. Publication need only be to one
person, but it must be a statement which claims to be fact and is not clearly identified
as an opinion. While it is sometimes said that the person making the libelous statement
must have been intentional and malicious, actually it need only be obvious that the
statement would do harm and is untrue. Proof of malice, however, does allow a party
defamed to sue for general damages for damage to reputation, while an inadvertent libel
limits the damages to actual harm (such as loss of business) called special damages. Libel
per se involves statements so vicious that malice is assumed and does not require a proof
of intent to get an award of general damages. Libel against the reputation of a person who
has died will allow surviving members of the family to bring an action for damages. Most
states provide for a party defamed by a periodical to demand a published retraction. If
the correction is made, then there is no right to file a lawsuit. Governmental bodies are
supposedly immune to actions for libel on the basis that there could be no intent by a
non-personal entity, and further, public records are exempt from claims of libel. However,
there is at least one known case in which there was a financial settlement as well as a
published correction when a state government newsletter incorrectly stated that a dentist
had been disciplined for illegal conduct. The rules covering libel against a "public
figure" (particularly a political or governmental person) are special, based on U.S.
Supreme Court decisions. The key is that to uphold the right to express opinions or fair
comment on public figures, the libel must be malicious to constitute grounds for a lawsuit
for damages. Minor errors in reporting are not libel, such as saying Mrs. Jones was 55
when she was only 48, or getting an address or title incorrect. 2) v. to broadcast or
publish a written defamatory statement.
defamation
n. the act of making untrue statements about another which damages his/her reputation. If
the defamatory statement is printed or broadcast over the media it is libel and, if only
oral, it is slander. Public figures, including officeholders and candidates, have to show
that the defamation was made with malicious intent and was not just fair comment. Damages
for slander may be limited to actual (special) damages unless there is malice. Some
statements such as an accusation of having committed a crime, having a feared disease or
being unable to perform one's occupation are called libel per se or slander per se and can
more easily lead to large money awards in court and even punitive damage recovery by the
person harmed. Most states provide for a demand for a printed retraction of defamation and
only allow a lawsuit if there is no such admission of error.
I have always been ready to remove any untrue statements from any page I maintain. My
sites strive for truth and accuracy.
Please be advised of the following: In compliance with your requests, I have deleted
the pages at Homepage.com which have the words "Selective" and /or
"Insurance" in them.
But, since you chose to write me this bullying letter and chose to publish to
Homepage.com the allegation that I lied in essence (since you allege I made
"false,misleading, and defamatory statements", I now ask you sir, to provide
proof that I made statements which were not true, and I strongly advise that you have such
substantiation available. On the page, I relayed an incident which happened to my mother,
and this is certainly true as to her experience. I also relayed that I had complained to
the Board of Insurance in New Jersey and Ohio. If you believe this to be false, please
contact them. I also was promised by Selective Insurance Company that I would be provided
with a transcript (at no charge to me) of my mother's recorded statement and that my
mother, Mrs. Laverty, would also be provided with a no cost, true and correct
transcription. This has not been done and if you are a legal representative of the company
as you claim, I would advise you that you instruct your client that they should provide me
with the transcript (and my mother with a copy) within 10 business days. If not, further
complaints will be filed with the various agencies which oversee insurance companies .
Also, please be advised that when I receive communications of any kind; print,voice, or
electronic from an adverse party as yourself, or of what I feel are of a harassing nature
(which I feel your letter was), especially when they are published to a third party (which
yours was), I feel this communication is available for publication in the public domain.
Any communication from you, your firm, client,etc., may be published, without
modification, for general viewing, and may be forwarded to the appropriate agencies,
including but not limited to, Departments of Insurance, and the State Bar of New Jersey.
Thus, I have graciously complied with your request Mr. Coleman, and now, in a spirit of
common courtesy, I should hope you will comply with mine, with the highest priority being
that you provide proof that any statements contained on the now defunct
"selectiveinsurance.homepage.com" page, were false . As I have said, I do strive
for truthfulness. And as far as Selective Insurance not being limited in pursuing a
redress on this issue, given the representations made to the Board of Insurance of Ohio by
a representative of Selective Insurance (who was not a direct fact witness to the events
in question), which are in direct contrast with the statements of two direct fact
witnesses, I would suggest that perhaps they would certainly want to consider the
ramifications of calling anyone else's veracity into question.
In closing, please provide to me , and to Homepage.com your PROOF of my making untrue
statements on the page which was identified under the URL
http://selectiveinsurance.homepage.com . I certainly hope you can absolutely prove these
statements are completely false and that I did not have good reason to believe they were
true.
Furthermore sir, any further communication from you, your office, or your client (who
is already referenced) MUST be done in e-mail. I consider any further contact through
regular mail through the United States Postal Service as harassment, and any further
contact using that medium will result in a complaint to the Postmaster General of the
United States . I will also be able to forward that agency a copy of this e-mail to you
showing that you have been warned that your communications through any mail delivered or
carried by and through the United States Post Office, will be henceforth considered as
harassment across the state boundaries (i.e. interstate) and thus subject to the laws
governing that abuse.
Sincerely,
Dr. John Raymond Baker,D.C.
ADDENDUM: I noted that you did not include a State Bar (of New Jersey) license number
in your closing. I further noted that you are not listed as a partner ,nor
"of counsel" with "PHKS". If you are an attorney associated with the
law firm on whose letterhead you wrote me your little letter, perhaps there is a reason
they did
not include your name in the roster. If you are not an attorney, but are writing letters
as if you are one (which I think most "reasonable persons" would have believed
by your statements about trademarks, etc.), then perhaps you should refrain from writing
letters that may be construed as "practice of law without a license". I
believe that New Jersey frowns on such behavior.
At any rate, my comments in my earlier letters still apply, in that allegations against me
of making false statements, which were published to a third party, namely
person or persons at Homepage.com, hopefully are backed up by proof that I knowingly made
false statements or had reason to believe what I was stating was
false , else, what you published by carbon copying Homepage.com may INDEED be libelous and
defamatory.
Sincerely submitted for your consideration,
John Raymond Baker
[Page author's note- To see the letter this
was in response to, please
click here ]