|
On August 23, 2001, a week after we came to an agreement (or so I
thought), I received the following letter from Ms. Greenberg.
|
Dear Hank:
In furtherance of the settlement agreed to between the parties, please review and sign the
enclosed Settlement Agreement and Release, and fax a copy of the signed agreement back to me.
Please mail the original to me for signature by my client.
We will immediately take care of the paperwork for the transfers.
Very truly yours,
Julie A. Greenberg
|
View the Original Letter (in a
separate window)
Seems pretty straightforward, don't you think? And look at the
salutation: Suddenly, we're on a first-name basis! That clinches it, everything must be OK!
Or, at least, that's what I thought until I actually read the "enclosed
Settlement Agreement and Release."
|
Settlement Agreement and Release
This Settlement Agreement and Release is entered into as of this ____ day of
August, 2001, by and between The Taubman Company, Limited Partnership of 200 East
Long Lake Road, Suite 300, Bloomfield Hills, Michigan 48303 ("TCI") and Henry
Mishkoff and WebFeats, of 2661 Midway Road # 224-225, Carrollton, Texas 75006
("Mishkoff") on behalf of themselves, their agents, heirs, executors, administrators,
successors and assigns, and all parties in privity with them.
WHEREAS, Mishkoff has registered certain domain names which incorporate
trademarks belonging to TCI, or otherwise make reference to TCI or its agents, principals
or property.
WHEREAS, an action has been filed in the U.S. District Court for the Eastern
District of Michigan, Civil Action No. 01-72987 (the "Action").
WHEREAS, the parties desire to enter into an agreement to resolve matters
relating to the Action, and accordingly avoid the expense, delay and uncertainty of
proceeding with litigation.
RESOLVED, that the parties, in consideration of the following obligations, agree
to the following.
Mishkoff agrees as follows:
Mishkoff shall immediately shut down all web sites under his
or WebFeats' control which promote, make reference to, or
incorporate any trademark or name of TCI's, or its agents,
principals or property, including, but not limited to the
following web sites:
- shopsatwillowbend.com
- willowbendsucks.com
- willowbendmallsucks.com
- theshopsatwillowbendsucks.com
- taubmansucks.com
Mishkoff shall cooperate with TCI in effecting a transfer of the
above domain names to TCI;
Mishkoff warrants and represents that he has disclosed all
domain names owned or under his control which promote,
make reference to, or incorporate any trademark or name of
TCI's or its principals, agents, or property, and that he will not
register any such domain names in the future;
Mishkoff shall refrain from making any public comments, on
the internet or otherwise, about TCI or its principals, agents, or
property.
Mishkoff shall keep the terms hereof confidential, and shall
refrain from disclosing the terms hereof to third parties.
Mishkoff shall stipulate to an order of dismissal as set forth in
Paragraph 2(c) hereof.
TCI agrees as follows:
TCI shall pay Mishkoff $1000.00 in exchange for compliance
with the above terms, which shall be paid after all domain
name registrations are transferred to TCI;
TCI shall cause to be prepared all necessary documentation for
the transfer of the domain names from Mishkoff; and
TCI shall take all steps necessary to obtain a stipulated order of
dismissal of the Action, which shall indicate that the Court
maintains limited jurisdiction over matters involving disputes
relation to this Settlement Agreement.
In consideration of the foregoing obligations, and for other good and
valuable consideration, receipt of which is hereby acknowledged, the parties do
hereby fully and forever release and discharge the other together with their agents,
successors and assigns, and from any and all claims make or relating to claims
made in the Action.
This Settlement Agreement and Release may be executed in any number
of counterparts, each of which, when so executed and delivered, shall be deemed
an original. All such counterparts taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereby have duly executed this Agreement
as of the date and year indicated above.
WEBFEATS
By:_____________________
Name:
Title:
By:_____________________
Henry Mishkoff
THE TAUBMAN COMPANY LIMITED PARTNERSHIP
By:_____________________
Name:
Title:
GIFFORD, KRASS, GROH, SPRINKLE,
ANDERSON & CITKOWSKI, P.C.
By:_____________________
Julie A. Greenberg
Attorneys for Plaintiff
The Taubman Company Limited Partnership
|
View the Original "Agreement"
(in a separate window)
I was surprised to notice that the "agreement" explicitly states
that my domain names incorporate Taubman's trademarks, which sounds an awful lot to me like an
admission of guilt on my part, which certainly wasn't part of our understanding.
I was also startled to see that the "agreement" said that I would make
no public comments about Taubman, which was also not part of our understanding.
But what really upset me was the new clause that said that I
couldn't tell anyone about the terms of our agreement! I had already told the story to many of my
friends – it's a good story, and I couldn't see any reason why I would agree to stop telling it
to anyone who might want to listen.
But more to the point: As far as I'm concerned, Taubman and I had a
contract. I had received a detailed, unambiguous, written offer from their legal representative. I had
sent an unambiguous written acceptance in reply to their offer. There was consideration on both sides.
I'm not a lawyer, but I have to tell you that it sure sounds like a contract to me.
Which is why I was surprised and upset to find that the paperwork
– the purpose of which was, to my way of thinking, to formalize the informal contract into which
we had already entered – contained entirely new conditions that not only were beyond the scope
of our agreement, but which we had never even discussed!
I've always thought that one of the basic principles of business law
is that we're all supposed to honor our contacts. Doesn't that apply to lawyers?
|
