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November 19, 2009


It does not seem like you took the time to read the website. It is an expose on how a big firm treated its employees and clients. do you think that Partners should be free to mock clients without being exposed? It also doesn't seem like you understand the Lanham Act. Nothing in the website is commercial in nature. It is not designed to solicit business. I have a business site designed for this. I think your comments are short sighted.

I read the website before my comment.

If you have complaints there are many ways to deal with those without doing so in such a way that when potential clients search for your former employer/competitor your website is returned as an organic result and you convert prospective clients. You are using the law firm's name to generate business, and whether it was intentionally designed to do so is not the point. It is doing so.

You aren't doing something new or novel. There are many examples online of attacks against competitors being used to generate business. Do you really think Sears could legally launch a "sucks" website against Walmart and optimize it so that it is at the top of results when someone searches for Walmart? It would be a customer acquisition tool and a method of diverting potential customers through the use of a competitor's trademark. Intent is not required, and most who understand Search Engine Optimization and the business of the Internet know the commercial nature of your site.

Why do you think politicians run negative attack ads? For the good of humanity? To satiate the cravings of the public for entertainment? To "tell on" a bad person? To discourage a voter from casting a ballot? No, of course not. It is to encourage voters to vote for the candidate running the ads. So to argue that your site is non-commercial in nature is really farcical.

If you added a robots.txt file to the site (which is simple) then the search engines would not index it as a search result for your cross town competitor. But you didn't do that.

You may want to look at the Google Adwords cases that are "initial interest" trademark cases. And the many other trademark infringement cases in which competitor trademarks were used in relation to a website to achieve high rankings when searches were performed for competitors. In my opinion, what you are running with your sucks site is a form of a "landing page" or "doorway page". It is a page that is designed to capture the attention of an audience and then, either directly or through "osmosis", move the visitor to a blatantly commercial site.

Maybe the Judge won't understand all of this and you will win. You have done a very good job of making your site look like it is an exercise of free speech. And by so doing acquired a coveted search result that could only be achieved through the Google advertising process (AdWords) by initial interest confusion trademark infringement.

I've written about this business tactic in the "Google Bomb" book. Your "attack" or "sucks" site is adequately commercial in nature to constitute a trademark infringement. And it just seems that since you portray yourself as a family guy and are all about doing the right thing, you would have enough sense not to expose yourself, your family, your livelihood, and the future of each, to a potentially unlimited financial disaster. Maybe you will win the lawsuit. Maybe you will lose. My bet, though, is that if you lose then the amount of the judgment could be life altering. Being the gambler that you so obviously are, you should find a good Internet trademark lawyer so he can ask you the question than leaps to the forefront of the minds of many:

Do you feel lucky?

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