Tabberone is pronounced tab ber won
The Law Offices of George Rikos |
12526 High Bluff Drive, Suite 300
San Diego, CA 92130
March 31, 2008
Re: De Novo Legal, LLP and Pollie Gautsch
We are in receipt of your Cease & desist letter dated March 28, 2008, concerning your client's entry in the Tabberone Trademark & Copyright Abuser's Hall Of Shame.
We shall address your complaints as we see them.
“unauthorized use of the denovollp.com website images”
The wording “unauthorized” comes from the Lanham Act which specifically refers to the unauthorized use of trademarks “in commerce”. Our use of the name and images is not commercial and is very obviously used in an editorial commentary manner which makes the use “fair use” under trademark law and the First Amendment.
“libelous and malicious statements directed to Pollie Gautsch”
Could you please specify exactly what statements you are categorizing as “libelous and malicious”? To our knowledge, all of our comments are either fact or opinion, neither of which is actionable. So, please, enlighten us as to the error of our ways.
Regarding the “the defamatory statements and requests they immediately be removed”, again, we need to know what statements fall into this category.
Your demand that we “remove any mention of De Novo Legal, LLP and Pollie Gautsch from your website, links and metatags” simply isn't workable. As we are sure you and your client are fully aware, the pages to which you refer are considered “protected speech” by the courts and therefore afforded the full protection of the First Amendment, which, the last time we looked, was still in effect in California.
Your other demand that we “refrain from any additional defamation of De Novo Legal, LLP or Pollie Gautsch” doesn't work either as we don't see anything on those pages that isn't fact or our very plainly stated opinion.
As we're sure you are also aware, a website of this nature must be taken in its entirety. One web page cannot be taken out of context. Tabberone's Trademark & Copyright Abuser's Hall Of Shame is a portion of a larger Trademark and Copyright informational website and gripe site that numbers in the 1000's of pages. In order for your client to prevail, your client will have to establish that we were lying, that we knew we were lying, and we did so with a reckless disregard for the truth. This is not a burden your client can meet.
Statements of opinion concerning a company or individual unless obscene or outrageous are not actionable. We have a right to criticize the business activities of a company and its primaries. The criticism does not have to be nice, and it isn't, but then, neither are the activities of your client in our obviously stated opinions.
Damages are based upon proof of actual harm if the statements are judged to be defamatory, which we contend they are not.
Please note for future reference that the web site is owned and operated by both of us and should your client feel the uncontrollable urge to file a frivolous lawsuit concerning this web site, we are both to be named as defendants.
P.S. You might want to re-think the subject line in your emails. Our spam filter labeled your email as junk based upon the subject line which was a lot like “phishing” emails that flood the internet.
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