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Friday, August 9, 2013

Appeals Court Whacks 1800CONTACTS' Attempt to Hijack the Internet

On December 30, 2010, I reported that Federal Court Judge Clark Waddoups "got it right" when he ruled against 1800CONTACTS' attempt to hijack the Internet (see my story here). Would you believe 1800CONTACTS appealed the ruling? Only in Utah, where church and business are so incestuously linked that the if-I-think-it-then-it-must-be-the-will-of-God-and-I-will-fight-to-the-death-as-a-matter-of-principle attitude prevails in our theatre of absurdity. Well, the Tenth Circuit of the United State Court of Appeals has ruled on the case (see the full ruling here). Net net, they told 1800CONTACTS to get an eye exam and possibly a new legal team.

1800CONTACTS has spent HUNDREDS OF THOUSANDS OF DOLLARS suing Lens.com for having the audacity to buy Google AdWords to poach leads from 1800CONTACTS. Imagine the gaul! Competing for business on the Internet. How dare they!

If you don't have time to dissect the ruling, here are a few knee-slappingly funny points:

  1. The total business generated by a Lens.com affiliate who did indeed use the 1800CONTACTS name in their ad copy was less the the price of a used Yugo!
  2. The appeals court ever-so-diplomatically suggested that 1800CONTACTS' law firm blew it when, on page 17 of the ruling, they write:  "…1-800's only clearly expressed theory of infringement was initial-interest confusion. Although it asserts on appeal that Lens.com's acts of direct infringement included purchasing merely generic keywords and then failing to designate the 1800CONTACTS mark as a negative keyword, that theory was not raised in district court."Translated: "Too bad your legal geniuses missed a more cogent argument."
  3. The appeals court again slaps 1800CONTACTS' brilliant legal team on page 29 when they write: "But this argument misreads the district court's order." Translated: "Learn to read, morons!"
  4. Finally, the appeals court is downright effusive in their praise of Judge Waddoups original ruling: "We affirm for substantially the reasons set forth in the district court's thorough and cogent order" [I added the emphasis in the last four words of that sentence].
What's next? Only in Utah my friends, only in Utah does the I-will-fight-to-the-death-because-it's-right mentality rear it's inbred head. Somewhere, I can hear a lot of pounding on the conference room table as 1800CONTACTS lectures the legal lackies for which they are paying an aggregate $2,000 an hour: "I don't care if it costs us another million dollars and we take this to the United States Supreme Court, Baby Jesus came to me last night and said this is the right thing to do." Okay, I couldn't resist poaching a phrase from Will Farrell's Ricky Bobby role in the movie Talladega Nights. But you get the idea.

Throwing 1800CONTACTS a bone, the appeals court ruled that Lens.com was guilty of contributory negligence because they took too long to figure out the who and where of the actual affiliate infringement, and did not do a simple blast email to all their affiliates telling them to never EVER use 1800CONTACTS in their advertising. So this will go back to the Federal Court for another run with the bulls. But again, the actual bull-goring of 1800CONTACTS from this contributory negligence was less than the price of a used Yugo. 

Hey, it's the principle that matters! And, of course, the attorneys being able to afford country club memberships for their trophy wives and far-away private schools for the kids to keep them from ogling their stepmother's latest cosmetic surgery. How about we at least castrate the attorneys so their rancid genes can't produce more blights on humanity?  

I now return from this comic opera to again focus on the critical cyber security issues facing this fragile world. 

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Implementation suggestions for THE MORGAN DOCTRINE are most welcome. What are the "Got'chas!"? What questions would some future Cyber Privateering Czar have to answer about this in a Senate confirmation hearing?