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Well, it's not officially over yet – but for all practical
purposes, it's over.
On February 9, 2003, just two days after our victory in the Court of
Appeals, Taubman attorney Doug Sprinkle was quoted in an article in the
Detroit News
as saying that he didn't know whether his client would appeal the decision to the United States
Supreme Court. A couple of days later, however, the Taubman Company had made up its mind, and Mr.
Sprinkle's associate Julie Greenberg sent this note to my attorney.
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Dear Mr. Levy:
Please accept my congratulations on your successful outcome in the appeal before the Sixth
Circuit.
In view of the current state of the website, including the incorporation of the disclaimer as
written, the removal of all advertising and promotions, including for Webfeats, and with all
unauthorized copies of proprietary material having been removed, the Taubman Company is satisfied
that it need not pursue its remaining claims in this case.
Accordingly, I have prepared a stipulated order for dismissal for your review, and, if
appropriate, concurrence.
Please advise if I may have your concurrence, or if I should seek the relief directly from the
Court.
Very truly yours,
Julie A. Greenberg
cc: The Taubman Company Limited Partnership
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View the Original Letter (in a
separate window)
Although the congratulatory tone of the first paragraph was
certainly gracious, I was puzzled by the second paragraph, as Ms. Greenberg's explanation of why her
client is dropping the case makes no sense at all (as I'll discuss below). But when I noticed that a
copy of the letter was being directed to Ms. Greenberg's client, it all made sense: the letter is a
heavy-handed attempt by Ms. Greenberg to convince her client that the hundreds of thousands of dollars
in legal fees that they devoted to this case were well spent. (By the way, the fee estimate is not
mine, it's from Martin Schwimmer, who "represents owners of some of the most famous trademarks in the
world," and who writes about trademark cases in
The Trademark Blog.)
Let's take a look at why Ms. Greenberg says that her client is
dropping the case:
Disclaimer: The site has always featured a prominent disclaimer. Originally, the
disclaimer read, "This is an unofficial site. The official site is located at
www.TheShopsAtWillowBend.com." On July 17, 2001, nearly 19 months ago, I expanded the disclaimer
so that it read, "This is an unofficial site. It is not sponsored by, affiliated with, or related to
The Shops at Willow Bend in any way. The official site is located at www.TheShopsAtWillowBend.com."
(This is precisely what the disclaimer says today.) If Ms. Greenberg is now satisfied with the
disclaimer, she should have been just as satisfied with the exact same disclaimer when she filed the
lawsuit.
Advertising: Ms. Greenberg is referring to a graphical link to the website of my
girlfriend's custom-shirt business; the link appeared on my site for a few months in early 2001. In
the letters that we exchanged prior to the lawsuit, Ms. Greenberg never mentioned that she had a problem
with this particular link. My first indication that the link was problematic came when Ms. Greenberg
mentioned it in the complaint that initiated the lawsuit – and in response to that document, I
removed the link on August 7, 2001, and notified Ms. Greenberg that I had done so. In other words, if
Ms. Greenberg is now satisfied by the removal of the link, she should have been just as satisfied
when I removed the link more than 18 months ago, just a few days after her client sued me.
Promotion: Ms. Greenberg can only be talking about the link to WebFeats that appeared at
the bottom of the site's home page. WebFeats is the name of my web business; over the years, WebFeats
has also evolved into my "web persona," the name I use for many of my web-related activities, whether
or not they have anything to do with business. Ms. Greenberg began to complain about the WebFeats link
relatively late in the process – in fact, the site was already offline (due to the injunction) by
the time she first mentioned it.
Proprietary Material: This is obviously a reference to the graphics that I downloaded
from the Taubman site and which appeared on my site. As with the link to WebFeats, Ms. Greenberg
did not complain about the graphics until we were well into the lawsuit. In fact, I first learned of
her objection when she amended her complaint to include a copyright charge – and in response, I
notified her (in late February or early March of 2002) that I would remove the graphics if I were
allowed to restore the site to the Web (which, incidentally, is exactly what I've done). In other
words, she's known of my agreement to remove the graphics in question for nearly a year.
I don't want to sound like I'm not happy that Taubman has finally
decided to drop the case – the lawsuit has been something of an ordeal for me, and I'm thrilled
that it's finally over. But if Taubman really dropped their lawsuit for the reasons that Ms. Greenberg
provides, they could have achieved the same results (and saved themselves a bunch of legal fees) by
dropping the suit a year ago.
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