1. Having actually participated in the litigation, I am familiar with not
only Mr. Curry's version (he was under oath when I heard his version - was
he when he spoke to you?), but the versions of every other player in that
drama. I'm not asking the list to believe MTV's story (that case is over) -
I'm telling you that the public record does not allow anyone to draw
definitive conclusions about what "really" happened.
2. As a practicing lawyer, I am aware that everybody has a version of an
event and that the "truth" can be something entirely different. See cf.
Rashomon. So maybe I am a little impatient with people who weren't there
who assert with certainty what happened. We don't know the whole story
behind pokey.org or veronica.org or mtv.com (but everyone has an opinion).
One of the reasons that Mueller's study is not worth the storage space it
takes up is that he presumed to categorize cases based on an incomplete
knowledge of the facts (and law) involved. I mean, how many final court
decisions did he use in his study (not that final court decisions give the
definitive facts but they do give the definitive law).
3. I didn't assert my own version of the truth, I criticized Mueller for
swallowing whole one side's version and asserting it as the truth.
4. Both you and Mueller consistently assert mere opinions as incontestable
legal conclusions based on insufficient facts and usually incorrect legal
analysis. See most recently Mueller's analysis of the claremontmckenna.com
matter.
5. I could have made my point in a nicer way, but the proposition that the
fact that a litigant tells the same story to three people (or one billion
people) is itself proof of veracity is, putting the best possible face on
it, naive. See Clinton, Bill.
6. What tactics do I use precisely? Tell me what you would do if you were
in my position. I look at your web site and I see three beginner's
mistakes on your on-line trademark form (one of which you removed after I
brought it up here on the list). Your basic "stance" is admirable - you
sensitized the list to the rights of the DN holder - you sensitized me to
the rights of the DN holder - but tell me a nice way of pointing out to the
list that much of what they think they know about some of these domain name
disputes is coming to them through second-hand analyses, and those analyses
are based on incomplete knowledge of the underlying facts and insufficient
familiarity with the underlying law.
If I have not made my position clear until now let me re-state it:
(1) Generalizations about the nature of "all" TM/DN disputes cannot be
accurately made;
(2) Every dispute has different facts;
(3) We should design the fairest tribunal possible - leaving civil
litgiation as the sole forum will disadvantage both the innocent DN owner
and the innocent TM owner and advantage only the avaricious (both TM and DN
owners).
