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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN
DIVISION
| THE TAUBMAN COMPANY LIMITED |
| PARTNERSHIP, |
| |
| Plaintiff, | |
| |
| | Civil Action No. 01-72987 |
| v. |
| | Honorable Lawrence P. Zatkoff |
| WEBFEATS and HENRY MISHKOFF, |
 |
Magistrate Judge Komives |
| |
| Defendants. | |
DEFENDANT'S MEMORANDUM IN OPPOSITION TO
PLAINTIFF'S MOTION FOR PRELIMINARY
INJUNCTION
The trademark and cybersquatting claims asserted by Plaintiff are transparent cover for the fact
that Plaintiff wants to possess an Internet domain name currently controlled by Defendant. Plaintiff
hopes that, given Defendant's limited resources ("WebFeats" is simply a DBA used by Defendant
Mishkoff, an individual), Defendant will relinquish the domain name rather than enter into a
protracted and expensive legal battle with a prominent (and well-paid) law firm. Accordingly,
Plaintiff has elected to drag Defendant into this Court, rather than to follow the well-known official
procedures that have been specifically designed to settle this type of dispute without the necessity
of incurring large legal fees and without wasting the time of this Court with frivolous matters.
Two years ago, the Internet Corporation for Assigned Names and Numbers (ICANN), the body
responsible for coordinating the assignment of Internet domain names, promulgated the Uniform Domain
Name Dispute Resolution Policy (UDRP), a straightforward procedure for resolving precisely the kind of
issue that exists between Plaintiff and Defendant. The UDRP typically results in a resolution in about
six weeks, and involves minimal expense by either party. If Plaintiff honestly believed that this
action would succeed on its merits, Plaintiff could easily have used the UDRP. If Plaintiff had
prevailed, they would already have been awarded ownership of the domain name in question. Plaintiff
has chosen to ignore this procedure precisely because they know that they would not prevail. Plaintiff
has simply decided to harass Defendant and try to outlast him, rather than to prove him wrong.
Plaintiff claims that Defendant is engaged in actions "which, if not enjoined by this Court, will
continue to cause irreparable injury, loss, and/or damage to Plaintiff." However, Plaintiff does not
even demonstrate that Defendant's actions have caused Plaintiff any injury (irreparable or otherwise),
loss, and/or damage whatsoever, much less that Defendant's actions will "continue" to do so. Plaintiff
has not been able to make this demonstration because, in fact, Defendant's actions, far from being
injurious to Plaintiff in any way, have actually been (and continue to be) of benefit to
Plaintiff.
Moreover, Plaintiff is attempting to confuse the issue before this Court by frequent references to
"complaint" website domain names controlled by Defendant. Not only are these domain names irrelevant
to the issue at hand, they actually bolster Defendant's position, in that the right of individuals to
use "complaint" website domain names (which often incorporate the names and/or the exact trademarks of
the companies being complained about) has specifically and emphatically been upheld in court.
Finally, Plaintiff has the temerity to accuse Defendant of "bad faith." The fact is that Plaintiff
and Defendant have already reached an agreement, in writing, to settle this issue - however, Plaintiff
refuses to honor the agreement (which Plaintiff suggested in the first place). That Plaintiff's
attorney (acting as an officer of the court) can suggest an agreement, receive an acceptance from
Defendant, refuse to honor that agreement, and then accuse Defendant of "bad faith" is a sequence of
events that leaves Defendant scratching his head in puzzlement.
In summary, Plaintiff has demonstrated neither that there is any likelihood that they would succeed
on the merits of their action, nor have they demonstrated that they would suffer irreparable harm (or
any harm at all, for that matter) if the Court does not issue the injunction they seek. Additionally,
Plaintiff's brief is riddled with factual errors, glaring omissions, and unsupportable allegations,
all of which will be addressed in Defendant's brief, which follows. There is simply no basis for
Plaintiff's claims, and there is no reason to grant Plaintiff's motion for preliminary injunction.
Respectfully submitted,
Henry Mishkoff
WebFeats
2661 Midway Road, #224-225
Carrollton, TX 75006
972.931.5421
Defendant
Dated: October 4, 2001
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