Lawsuit against FAIR

[aznative]

Well, it made the Deseret News, again. Click here.

[charity]

But the sad thing is that any dingaling can file a suit, and then it costs money to defend against it, even when the suit is entirely without merit. And since suits are filed on a contingency fee basis, the dingaling isn't usually out any money. And the greedy lawyer that sees dollar signs hits the jackpot often enough to keep himself in business.

What's the difference between a dead snake in the road and a dead contingency fee lawyer? The skid marks are for the snake.

[Confidential Informant]

Heh...that is why I said someone ought to check. Sounds like it really didn't go well for the defense.

Juliann,

You've got your sides mixed up. The rumor is that it didn't go very well for the plaintiffs (the Tanners) and the defendants, FAIR, Wyatt, et. al., were quite pleased with the hearing.

Here's what I can confirm.

1. FAIR's attorney, Dunn, was quite prepared and made some excellent points. Wyatt's attorney also did fairly well.

2. The Tanners' attorney rolled over and played dead. He conceded to the judge that any damages that might exist are "fairly small." He admitted that FAIR and Gordon's connection to the suit are "tenuous". He made the claim that the Tanners simply wanted the domain names but when it was pointed out that Wyatt placed the names in an escrow account and sent the Tanners instruction on how to claim them they refused to do so. In short, he conceded that FAIR and Gordon probably shouldn't be in the sut and he conceded that, even if the Tanners claims were valid, the damages they suffered were negligible.

3. Their attorney spent a good deal of his time (which was, to my understanding, very short) defending the Tanners against the Unclean Hands charges, which tells me that neither he nor the Tanners saw that one coming and are worried that the judge might just buy that argument.

4. Bad day for the Tanners.

C.I.

[KevinG]

Bad day for the Tanners.

C.I.

At least it might be a realistic preview of the judgement day.

[SiblingRevelry]

The case should be drop-kicked out of court, if only because the Tanners should have gone to another venue first.

What companies normally do is go to WIPO (World Intellectual Property Organization) and get a ruling from them that there has been cybersquatting. WIPO rulings are pretty authoritiative; usually the offending party's ISP refuses to host the site after a WIPO ruling, and eventually the loser gives up the domain name to the winner (usually, but not always, the big company). If that doesn't work, then a court case is usually called for.

None of this information is to endorse anything that the Tanners do; it's just to point out that usually companies/celebrities with domain squatting issues go to WIPO first. It does cost a few thousand dollars to file a case. Maybe the Tanners got a deal on their lawyer.

I see from the DN article that the Tanners' attorney is raising various trademark and copyright infringements. Unless they've filed for those trademarks and copyrights, they're going to be out in the cold.

SibRev

[Confidential Informant]

I see from the DN article that the Tanners' attorney is raising various trademark and copyright infringements. Unless they've filed for those trademarks and copyrights, they're going to be out in the cold.

The lawsuit is a trademark infringement suit. There is no copyright claim involved (except for the fact that the Tanners are still miffed about the copyright suit the Church filed agaist them a few years ago).

C.I.

[Connolly]

I read through both FAIRs and Wyatts motions for dismissal and found the arguments presented in favor of dismissal to be congent.

However, I have a question for the lawyers around here.

One of the motions for dismissal from both Fairs and Wyatt dealt with the contention that Utah is not the proper venue for the suit, that there is no juridictions because none of the activities alleged by the Tanners took place in Utah and the law protects defendents against a disadvantagous venue chosen by the plantiff.

The way I see it, if the judge finds that that motion has any merit then technically the judge cannot dismiss the suit on any of the other grounds, no matter how valid he may consider the other reasons for dismissal, because firstmost the court would not have jurisdiction by its own admission to rule on any other point. This would not necessarily bring an end to the legal fight because the Tannes could then re-file in Arizona.

Is that correct?

[Connolly]

The lawsuit is a trademark infringement suit. There is no copyright claim involved (except for the fact that the Tanners are still miffed about the copyright suit the Church filed agaist them a few years ago).

C.I.

Not only that, the trademark infringement argument is very tenuous.

A trademark cannot be infringed for critical use. Infringement is limited solely and exclusively to commercial use for gain by the infringer.

Since Wyatt

[Confidential Informant]

I read through both FAIRs and Wyatts motions for dismissal and found the arguments presented in favor of dismissal to be congent.

However, I have a question for the lawyers around here.

One of the motions for dismissal from both Fairs and Wyatt dealt with the contention that Utah is not the proper venue for the suit, that there is no juridictions because none of the activities alleged by the Tanners took place in Utah and the law protects defendents against a disadvantagous venue chosen by the plantiff.

The way I see it, if the judge finds that that motion has any merit then technically the judge cannot dismiss the suit on any of the other grounds, no matter how valid he may consider the other reasons for dismissal, because firstmost the court would not have jurisdiction by its own admission to rule on any other point. This would not necessarily bring an end to the legal fight because the Tannes could then re-file in Arizona.

Is that correct?

No. that's not quite correct.

The very first argument the judge should look at is the subject matter jurisdiction question. That basically asks, "does this court have jurisdicition over the subject of this case?"

Next, he should go to the Personal Jurisdiction question. That asks, "Even if I have jurisdiction over the subject matter, does this court have jurisdiction over the defendant."

Then to the Venue question. etc.

The Mootness question would be next and then the Unclean Hands question would likely be last.

C.I.

[SiblingRevelry]

Do the Tanners even have a trademark? These can be looked up but the TESS website is busy right now... US Patent and Trademark Office

If they don't have a registered trademark, then the case should be drop-kicked with prejudice.

SibRev

[Confidential Informant]

Do the Tanners even have a trademark? These can be looked up but the TESS website is busy right now... US Patent and Trademark Office

If they don't have a registered trademark, then the case should be drop-kicked with prejudice.

SibRev

Not true. There is somethikng called Common Law Trademarks. The Tanners referenced these in their complaint.

The only "registered" trademark they have is "Utah Lighthouse Ministries" and that was trademarked after Wyatt put up his sites and just a tad before they filed their suit.

C.I.

[TheRyeGuy]

Hi CI,

Word Mark BOOK OF MORMON

Goods and Services IC 009. US 021 023 026 036 038. G & S: pre-recorded audio and video cassette tapes and compact discs featuring religious content. FIRST USE: 19770000. FIRST USE IN COMMERCE: 19770000

IC 016. US 002 005 022 023 029 037 038 050. G & S: Printed matter; namely religious books, religious instructional pamphlets, and brochures; photographs, artist materials, instructional and teaching material, posters, engravings, prints of paintings, books. FIRST USE: 18300000. FIRST USE IN COMMERCE: 18300000

Here is the Trademark rights held by the church, I don't see anything thatthe Tanners have infrindged on, please give the legalize here, to me it deal only with printed and audio types of material

Thanks

Mark

John 1:12

Agreed.

I don't think there's been infringement...as can be seen by the other filings incorporating the words "Book of Mormon". Obviously those aren't infringements. Tanner's use of BOM, IMHO, was not an infringement.

That said, while I'm a lawyer, I don't specialize in trademark law.

Serial Number Reg. Number Word Mark Check Status Live/Dead

1 78536485 BOOK OF MORMON CHRISTIAN TARR LIVE

2 78412321 HOLD TO THE ROD BOOK OF MORMON EDITION DVD INTERACTIVE GAME FOR TV TARR DEAD

3 78300240 BOOK OF MORMON QUEST TARR DEAD

4 76405608 2883572 BOOK OF MORMON TARR LIVE

5 74414166 BOOK OF MORMON CHALLENGE TARR DEAD

[Confidential Informant]

I don't think there's been infringement...as can be seen by the other filings incorporating the words "Book of Mormon". Obviously those aren't infringements. Tanner's use of BOM, IMHO, was not an infringement.

Then do you also hold that Wyatt's use of the Tanners' marks was non-infringing?

C.I.

[Calm]

"Unclean Hands" review, please.

[USU78]

"Unclean Hands" review, please.

If I am angry because somebody puts up a website critical of me, and buys up all of the possible domain name configurations that anybody can think of, such that every time somebody googles my name, he is directed to the critical website,

then I should lay off doing the same to other people.

Sauce for the goose, lads and lassies: sauce for the gander.

[Calm]

Thank you.

[SiblingRevelry]

Not true. There is somethikng called Common Law Trademarks. The Tanners referenced these in their complaint.

The only "registered" trademark they have is "Utah Lighthouse Ministries" and that was trademarked after Wyatt put up his sites and just a tad before they filed their suit.

C.I.

I would tend to lean towards registering your mark with the USPTO rather than relying on a "common law" mark. It just seems to me like you're asking for trouble. This is what the Tanners did. I suspect their lawyer told them that having the trademark would make their case stronger.

I think the trademark assertion is fairly weak myself. If it were me (and if I had a few grand just lying around to spend on a case--NOT) I would have gone the WIPO route first. Most of the time, the big guys win (usually large corporations fighting domain squatters). Occasionally small guys win. I know the Church of Scientology tried to get scientologie.de through a WIPO case, but the holders of that site were able to show that "scientologie" and Scientology are not the same. There have been a few other cases along those lines. However, it's possible that the Tanners' attorney considered the WIPO route and decided not to go that way.

I do find it interesting that the Tanners decided to go to law rather than just taken it as an example of "persecution."

SibRev

[USU78]

And here's to you

Mrs. Ta-a-ner

[Confidential Informant]

Have you noticed that when this thread started there were people ready to stand up and defend the Tanners? Now, those defenders have melted away.

C.I.

[smac97]

Connolly,

> A trademark cannot be infringed for critical use. Infringement is limited solely and exclusively to commercial use for gain by the infringer.

==Yep. Allen's attorney covered that in some depth in his motion.

> Since Wyatt

[Connolly]

smac97,

I understand that and its pretty crappy reasoning IMO as well. If you go down that path then who is to stop someone from taking it to the next step. If you fall to the logic on the first step to the linked site, then the next step is no less logical, so you create a situaiton where commercial infringement could be argued if one links to a site that links to another site, that links to still another, that serves up a random pop up window, rendering the first site a commercial site. The entire argument is ludicrous.

I think it is far more likely that the Tanners just wanted to cause grief for their enemies. How very Christian of them. That opinion is bolstered by the fact that they still have not claimed the domain names, even though they have been offered. They don't actually care about the names so much as they care for hurting others.

[Dale]

It's also possible they had bad lawyers who told them they could win.

[Avatar4321]

It's also possible they had bad lawyers who told them they could win.

I agree. I never realized how bad some of the lawyers are out there till I started reading some of the briefs of my competitors or some of their papers.

Great people. They just are horrible at writing well or articulating their arguments. or even citing sources. One of the research papers included several paragraphs that were over two pages and had about very few citations to any sources.

Course my weakness comes in oral argumentation. i hate oral arguments.

[Nephi]

The tanners way of doing the same thing...

(link is to http://www.bookofmormon.com/)

[Dale]

But I am sure their are bad judges who might decide to side with a bad lawyers case. The UTLM folks have not lost yet & it may be quite awhile before this matter get's fully resolved.