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Defendants Respond to Dell's Anti-Tasting Suit

John Levine

The defendants in Dell's domain tasting suit responded last Friday. It looks like a pretty feeble response to me.

Their main argument is that they're just the registrar, and deny Dell's claim that the registrants are fakes made up by the registrar. They also argue that they're not infringing, they didn't use the names in question in commerce, they were just acting as helpful search engines, you know, like Google or Yahoo. (The comparison to Google and Yahoo is theirs.)

They cite some cases to support the argument that registration per se without using the domain doesn't infringe, which is correct, although it appears that all of the domains were pointed at web sites full of ads. They also argue that the domains weren't identical to Dell's marks, hence they weren't counterfeiting the trademarks.

Finally, defendant Netrian Ventures claims that it does no business in the US, and the main defendant's wife, who received the summons, doesn't work for them, hence they weren't served.

The thrust of all of these arguments isn't to deny that the defendants committed the actions they're accused of, but rather to argue that what they did doesn't precisely match what the law forbids. I see that one of their attorneys is Derek Newman of Newman Dichter in Seattle who has successfully used similar defense arguments in Gordon vs. Virtumundo and other cases.

Ongoing discovery in this case will be very interesting. It may well turn out to be true that the registrar defendants are fronting for someone else, since as I noted in my previous posting, they seem rather small for the scale of the activity, and in particular for the size of the registry deposit you'd need to kite that many domains.

By John Levine, Author, Consultant & Speaker
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Re: Defendants Respond to Dell's Anti-Tasting Suit Venkat Balasubramani  –  Dec 14, 2007 1:52 PM PST

It’s sort of odd to see their arguments characterized as "feeble" if this turns out to be true:

The thrust of all of these arguments isn’t to deny that the defendants committed the actions they’re accused of, but rather to argue that what they did doesn’t precisely match what the law forbids. I see that one of their attorneys is Derek Newman of Newman Dichter in Seattle who has successfully used similar defense arguments in Gordon vs. Virtumundo and other cases.

Particularly in a federal case, if the defendant is not doing something actually covered by the statute then there’s no liability.  Federal courts are much stricter than state courts in enforcing this requirement.  (Among other reasons since some judges view Congressional power as limited.) The spam cases are an excellent illustration of this.  For some reason, people who are pushing for enforcement of rules online (e.g., Gordon) often forget this.

Re: Defendants Respond to Dell's Anti-Tasting Suit John Berryhill  –  Jan 03, 2008 10:32 AM PST

What?  No satellite picture of Derek Newman's house?

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