If you are a lawyer, or reasonable facsimile thereof, and wish to offer advice – please contact me.
If you are a person who is currently undergoing similarly spurious prosecution by a maliciously litigious company such as Zango (180technologies, LLC, also known as 180solutions, INC) please contact me if you can offer any advice or assistance.
Zango (also known as 180technologies, LLC and 180solutions, INC) are trying to silence free speech despite guarantees afforded by the Canadian Bill of Rights (1960). Today, I received a threat letter from adware (formerly spyware) purveyor Zango's "Trademark Compliance Team" which alleged, among other things, that this website:
"provides a variety of links to goods and services, including software which removes software produced by Zango Technologies, LLC ("Zango")."
The Zango Trademark Compliance Team can kiss my ass.
The only thing which existed on this website, from its registration in 2006 until 10:00am August 8th, 2007, was a default installation of PHProxy. Two PHP files and a CSS file, with zero hyperlinks anywhere. One would not be unreasonable in expecting the "lawyer" who allegedly screened my PHProxy site to be capable of deducing this and acting accordingly.
That doesn't really matter anyway. Apparently the meat of this issue is the "infringement" of Zango's name and trademarks which, according to Zango, are:
"widely known among the consuming public worldwide, and the name and trademarks embody substantial and valuable goodwill."
I'd conservatively call that last assertion utter poppycock. See the main menu links for more dissenting opinions regarding the "substantial and valuable goodwill" engendered by the business practices of the Zango company.
Further to the above, Zango claims that my PHProxy installation is:
"a product which – among other features – deletes ZANGO software, at a domain name that is confusingly similar to the ZANGO mark" and is "likely to cause consumer confusion."
This, my friends, is interesting news. I am not aware that PHProxy can do any of this. I flatly disbelieve that PHProxy, which is a simple open-source PHP proxy, can potentially be confused with Zango's adware offerings. It certainly does not install itself without consent, as Zango adware has been known to do. It doesn't pay companies which serve child porn advertisements to unsuspecting users, as Zango has done. Consumer confusion is not an issue here – I would never redirect visitors to child porn websites, nor make available software to do so.
The visual evidence is also clear: if Zango is truly "widely known among the consuming public worldwide" as claimed, then surely any consumer, no matter how daft, would not mistake this clean, non-commercial and totally link-free proxy (screenshot of zingozango.com, as from inception to several hours ago) for this abomination (screenshot of zango.com, as of 2007-08-08 at 1421h).
Threats from Zango won't hush the truth
"Your use of the ZANGO trademark constitutes willful infringement, and subjects you to serious consequences, including up to three times your profits and our damages, in addition to other civil and criminal liability. Your use of the ZANGO trademark in the Domain Name subjects you to additional serious penalties of up to $100,000 per domain name for using, selling or offering to sell a domain name that infringes our trademark rights, under the Anti-cybersquatting Consumer Protection Act."
Here's an interesting case courtesy of the WIPO people. For the record, this is a non-commercial website run by a single person and protected by the doctrine of freedom of expression in a free country. This situation is not analogous to that described in the WIPO link because the salient details differ substantially, as I shall endeavor to describe; nevertheless, the essential matters upon which an infringement case is decided are made clear.
Needless to say, I am not about to kowtow to these devious, dishonest adware vendors. It is in the public interest that this site, and this information, are protected from threats such as Zango and 180technologies, LLC.
Scans of the actual documents are coming as soon as I acquire or borrow a working scanner.
Here are the facts:
According to the WIPO arbitration panel,
In order for Complainant to prevail and have the disputed domain names transferred to itself, the Complainant must prove the following (the Policy, para 4(a)(i-iii):
- the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the domain name; and
- the domain name was registered and is being used in bad faith.
(i) Luckily Zango and 180technologies, LLC can prove no such thing. The first point depends on the panel's interpretation of something similar to the du Pont factors, and I am willing to leave that open to debate. I believe that I can convincingly argue that the likelihood of confusion is extremely slight, and, after visiting the websites in question, all confusion must be dispelled. There is no consumer confusion as to source or sponsorship here.
(ii) I do have a right and legitimate interest in respect of this domain name, which is my pedestal and podium with which to exercise my right of free speech. It takes no great imagination to see the reasons why: I believe that the public should be informed and aware of the facts, and I have a right, as a citizen of Canada, to express my views in regard of same. In essence, this is legitimate noncommercial fair dealing in respect of the domain name, without intent for commercial gain or to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The only people attempting to tarnish the trademark, as far as I can tell, are the owners themselves. This opinion is based upon the public record and publicly available history of Zango and 180solutions.
(iii) In respect of the last point it is evident that I have not registered nor used the zingozango.com domain in bad faith. I registered long before becoming aware of the word "zango" in conjunction with a trademark as registered by 180technologies. The stealthy registration of "zango" was apparently by design, as the people behind the ncase spyware were seeking to hide behind a brand new corporate identity. Their tricky malware installations nevertheless netted the "new" Zango a US$3 million fine from the FTC less than a year ago. Obviously, I would not voluntarily and knowingly register anything resemblant of such a tainted trademark.
Now that I have registered this domain, it is my duty as a good citizen of Canada to use it in the public interest. Indeed, I believe this website "is justified by the dangers for good government of allowing its suppression." (shamelessly quoting Justice McLachlin)
Defining Fair Dealing
Fair dealing, in Canadian parlance, is the provision in trademark law which expressly allows acceptable uses to be made of a proprietary trademark for purposes of criticism and review (among other uses).
Fair Dealing is distinct from the American doctrine of Fair Use.
"Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. It is based on free speech rights provided by the First Amendment to the United States Constitution. The term "fair use" is unique to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.
(quoted from wikipedia)
United States trademark law also incorporates a "fair use" defense. While the names are the same, the doctrines are quite different."
Fair use, in the trademark sense, also appears to be protected by free speech provisions.
Consistent with the limited nature of trademark protection and the free speech guarantees of the First Amendment, U.S. law provides for a fair use defense to trademark infringement comparable to that under copyright law. The two main categories of protected usage are nominative—using the trademark to actually refer to the trademarked product or trademark owner; and usage of the mark in its common sense, such as a descriptive word or common and unoriginal symbol. For example, Pepsi advertisements may use Coca Cola's trademark when making comparisons to Pepsi products. These uses are still subject to the requirement that there be no consumer confusion as to source or sponsorship. Trademarks may also be lawfully used in parodies, since in that case there is usually no likelihood of confusion.
(quoted from wikipedia)