We previously wrote about the decision of the Sixth Circuit in the case of Taubman Company v Webfeats. The opinion by Judge Suhrheinrich included the following perceptive language regarding the registration and use of the domain name "taubmansucks.com":
The rooftops of our past have evolved into the internet domain names of our present. We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it.
Hank Mishkoff, the defendant in the case, has posted the entire chronology of the events in this case at TaubmanSucks.com. The case has recently enjoyed some new notoriety.
Seth Godin has made some points about the case and Mishkoff's chronology which implicitly raise some questions. We are here to inform, and of course to comment.
Hank responded by defending himself and taking it to court. In the end, he won. It cost Taubman tens or hundreds of thousands of dollars.
This entire debacle no doubt cost Taubman at least half a million dollars, and perhaps as much as a million.
Yet, it's clear to me by watching the correspondence, if the very first interaction had been civil or even pleasant, Jill Greenberg could have ended with a win for 1% of what the loss cost her (actually, it didn't cost her anything. She made a profit on it! It cost her client a boatload of money, though).
It's even worse than he thinks. Despite the nasty tone that Greenberg took from the outset, the correspondence at the site demonstrates that Mishkoff was willing to accept her early offer of $1,000 to take over the domain name in question, as well as the several "sucks" domains he had subsequently registered. The agreement fell apart when she insisted on new provisions, including confidentiality, that had not been agreed upon from the outset.
The irony of this case is that Mishkoff had registered the original domain name, ShopsAtWillowBend.com, and had posted its pages as more or less an unofficial fan site for a shopping mall being built in his home town. Mishkoff's intent was to post information about the new mall, an activity which would probably have provided a net benefit to Taubman, assuming that he did not intersperse it with porn ads or the like.
One implicit question I cannot answer, but I would be willing to hazard a guess. Are the law firm of Gifford, Krass, Groh, Sprinkle, Anderson & Citkowski and the hapless Julie Greenberg still representing Taubman? I would bet that they are. This sequence of events has probably been low on the corporate radar screen. Alfred Taubman has had some other problems in the interim.
This entire episode points up a reality about law firms and their response when clients bring them trademark-related problems involving internet sites. The trained reaction of trademark lawyers has been to thunder and threaten, just as Ms. Greenberg did here. The intent is to intimidate the opposition. The thunder usually provokes the intended response: the putative defendant backs down and removes whatever has incurred the wrath of the trademark holder, because he quickly concludes that the holder has and is willing to spend untold hundreds of thousands of dollars to pursue litigation against him. By contrast, the alleged infringer may be about ten dollars away from being overdrawn on his checking account, a situation which does not lend itself to trying to overpower the Goliath bearing down on him.
