“The Business of Suing”

As more than a few people have pointed out, instead of suing me Taubman could have taken advantage of an arbitration procedure that not only is considerably less expensive (by several orders of magnitude) but that often favors plaintiffs in cases like these. (Of course, had they done so, not only might they have won the case, they might have deprived me of the opportunity to write a book about how much they suck.)

As evidence of the fact that Taubman should have arbitrated instead of suing me, consider the recent case of AirFranceSucks.com, in which an arbitration panel (in a split decision) awarded that domain name to Air France. Writing for the majority, a panelist said:

"The incorporation of a well known trade mark in its entirety as the first and dominant part of a domain name is confusingly similar to this trade mark regardless of whether the additional elements are pejorative as in this case."

In other words, if your domain name says, for example, "TaubmanSucks," people are likely to confuse your domain name with the Taubman trademark.

(No, I'm not making this up.)

So, with the courts tending to come down on the side of free speech but the arbitrators tending to favor the trademark holders, why did Taubman choose to take me to court? Did they have a quarter of a million dollars that was burning a hole in their pockets? Do they enjoy having their name dragged through the mud in protracted and very public (and, ultimately, unsuccessful) lawsuits?

To shed some light on this puzzle, I'll leave the final words to attorney Doug Sprinkle (representing Taubman) and Judge Danny Boggs, who engaged in this short but instructive exchange at the appeals hearing.

[Judge Boggs] Was there any effort by either party - I don't know whether - who can invoke it - to use the arbitration procedures of ICANN?

[Doug Sprinkle] There wasn't by us, I know that, Your Honor.

[Judge Boggs] Okay. Is there any reason that you didn't? Wouldn't that have gotten it resolved much more quickly?

[Doug Sprinkle] I didn't give it any thought, to be quite honest about it.

[Judge Boggs] I guess you're in the business of suing, not arbitrating.

Comments

[Steve Keely]

Good evening!

I buy the book!

Congradulations and thank you for your staying power.

Sincerely,

Steve Keely