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Public Citizen letter to EBG 2-19-01
(wbai.net legal counsel)

BY TELECOPIER: 202-296-2882
February 16, 2001

Tanya Vanderbilt, Esquire
Epstein, Becker & Green
Suite 700
1227 25th Street, NW
Washington, D.C. 20037-1175

Re: Pacifica Foundations Threatened
Trademark Litigation

Dear Ms. Vanderbilt:

Thank you for taking my call yesterday. As I told you, we will represent Patty Heffley and Robbie Osman in the trademark suits that you have threatened against them because of the web sites that have been posted for the past few years at wbai.net and savepacifica.net, respectively. I had called you to find out where you were planning to file your respective suits against them, so that we could find local counsel. As Im sure you could tell, I was surprised when you said that you were planning to file in Virginia, because the defendants are in New York and California, and the plaintiff is a California corporation whose principal office is in Los Angeles County, although it also has an office here in Washington at the WPFW studio.

When I asked you whether you were planning to file an in rem action, you did not answer, but just said that you believed you could get jurisdiction there. Of course, the new cybersquatting provisions in the Lanham Act allow the filing of an in rem action against a domain name only if the domain name registrants cannot be found to be sued in personam. 15 U.S.C. 1125(d)(2)(A)(ii). This principle has been repeatedly confirmed by the courts in the Eastern District of Virginia. Lucent Technologies v. Lucentsucks.com, 95 F. Supp. 2d 528 (E.D.Va. 2000); Porsche Cars North America v. Porsche.Com, Civ.A. 99-0006-A (E.D. Va. June 8, 1999). Because you successfully sent them demand letters, you cannot contend that you cannot serve them with process. You also did not answer when I asked whether your strategy was going to be to sue Network Solutions, but again the law is that the company that registers a domain name does not engage in "use" under the trademark laws. Lockheed Martin Corp. v. Network Solutions, 194 F.3d 980 (9th Cir. 1999); Bird v. Parsons, No. C-3-00-266 (SD Ohio 11/25/00), at page 6. As my clients have pointed out in their letters to you, your threatened litigation is frivolous on the merits; I trust that you will not compound the problem by an assertion of jurisdiction that cannot be sustained.

I did appreciate your acknowledgment that, contrary to the statement in your demand letters that Pacifica had only recently learned of the registration of my clients domain names, Pacifica has been aware of the sites for some time. Indeed, the sites have been mentioned on the air on your clients radio stations, and in various leaflets and signs at rallies held by supporters of the dissenters in the Pacifica family. In an effort to save your claim and your threatened motions for a preliminary injunction from a laches defense, you asserted that it was only recently that these sites had contained solicitations of funds for the struggles to prevent your clients management from frustrating the free speech rights of its staff and members. Given the fact that your allegation is that the registration and use of the domain name violated your clients trademark rights, it is not clear to me why you believe this distinction matters. In any event, I am advised that such fundraising solicitations are not new, and given your clients general awareness of the sites themselves, your client must also have noticed the fundraising.

Thus, in addition to the various reasons given by my clients why your claims are frivolous on the merits, laches poses a formidable obstacle to your obtaining a preliminary injunction. Consequently, if you do move for a preliminary injunction in a forum that is deliberately inconvenient to the respective defendants, we will have to conclude that you are deliberately abusing the courts processes to maximize the disadvantage to the people whose speech your client is trying to suppress.

On the other hand, in the event that you decide to bring your suit in some other forum, I should appreciate your letting me know immediately so that I can begin looking for local counsel in that area.

Sincerely yours,

Paul Alan Levy

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