JeffB apparently doesn't like me having KINGSNAKES.COM...

[Roger Jolly]

While it is unbiased it is inaccurate (or at least not accurate enough for a legal finding). Too many inconsistencies with the demographics that would know about and utilize this toolbar versus a cross section of internet users. A real world example is my own site. It shows a loss of 30% in traffic when in reality there has been a gain of 12.5%.

Again I disagree. Since the users of the toolbar would be considered as an unbiased audience and a crosssection of the internet population at large, then it would present an unbiased view of the traffic patterns of that subset of people visiting the sites in question. The only way it could be considered as tainted evidence would be if the website participants themselves were influencing the statistics shown on the graphs. Which considering what is being shown, this seems to be highly unlikely. Why would Jeffie fudge his stats to show a huge increase in traffic during the exact time period where his lawsuit is claiming damages??? Or is it feasible that Rich would have burned up the net by visiting Jeffies site so much during that time period that it overinflated the statistics for that time period???

To show loss of traffic (which would be the only way Jeffie could prove damages based on the existence of kingsnakes.com) the statistics would have to show a drop in traffic to kingsnake.com and a corresponding increase in traffic in either faunaclassifieds.com or kingsnakes.com. As is plainly shown by the graphs, this is clearly not the case. Actually, the reverse appears to plainly be shown there.

How else can any damages at all be proven??? Why that's easy to answer... They can't!!! By any yardstick anyone would care to use, this lawsuit will be pretty darn obvious to any judge and jury that it is frivolous and malicious (in my opinion).

My opinion (not legal just an opinion) is that it would be near impossible to show loss of traffic due to ownership of a misspelled domain especially since the domain was not owned by that person (so they wouldn't have a track record of the expected traffic via that misspelling).

Sorry Dan, but this is not the case here at all. The plural form of a domain name is not a misspelling at all. It is a perfectly legitimate domain name based on the plural usage of a commonly used generic and descriptive name of a popular species of snakes within the herp trade. It is fair game for anyone other than Jeffie to have ownership of this domain name, and use it in any manner consistent with the application of directing traffic from people seeking out information about those types of animals to their own website. Especially if the websites in question that the traffic being directed to specifically has information about the above mentioned species.

Jeffie has no case, which I am certain he knows as well as nearly everyone else who has taken the time to look into this. He does not have, nor will he get, a trademark on kingsnake.

So with this all in mind, I will ask you all again. How many of you still insist that you need Jeffie for your own business and are aiding and abetting his actions by sending him the money he needs to continue his attacks on Rich??? All lame excuses aside, people, that is exactly what you are doing. The only way Jeffie is going to sit up and take notice is when YOU all make a point to slap him alongside the head financially. Until then, he is going to firmly believe he has your support to do as he pleases, when he pleases, to who ever he pleases. Which is firmly my opinion, and one which I firmly believe that a large number of people who frequent this site are firmly ignoring. So the next time you renew your account with kingsnake.com, make sure you note on your receipt that it is for 'the continuance of the legal battle against Rich Z/kingsnakes.com/faunaclassifieds.com'. Because that is (in my opinion) exactly what you are doing.

 

[dwedeking]

I agree there is no case in my opinion (not a legal opinion).

The point I was making was that Alexa is not a very accurate traffic analysis tool. It takes too small of a snapshot of the overall traffic patterns and is inaccurate. It's not about bias, it's about accuracy. Therefore it couldn't be used in a court of law, and shouldn't be used in the court of public opinion.

Sorry Dan, but this is not the case here at all. The plural form of a domain name is not a misspelling at all.

Again, the point is that without a previous log of traffic for the domain to show a loss it would not be possible to show any effect ownership would have on traffic. Log files also record where traffic was originates for a site (called referrers). So if you go to Yahoo.com and type in "bearded dragons for sale" and click on that link to get to my site, I can see this in my log files. So log files would show how much traffic is generated by typing in a name (or a variation if you own that variation domain and have access to the log files).

So I agree with the overall point of your post. It is your understanding of Alexa's traffic monitoring mechanism that is in error.

 

[Vince]

i think there is a case , seeing that kingsnake claims they used the same font in the add. its like walking under golden arches into smackdonalds and that entrance sends your right to burger king.

 

[kenfosterpb]

Kingsnake.com

You would have to admit that the only reason you have it is to mess with Kingsnake.com. Give it a break. Who owns FaunaClassified.net, or FaunaClassified.CC, etc. Think how Pepsi would feel if I owned Pepsi.net?

 

[kenfosterpb]

FaunaClassifieds.net

To show you how silly it is to mess with kingsnake.com, I just purchased FaunaClassieds.net for only $8.95. Of course I have no intent to use it, as a matter of fact, I like your site better than kingsnake.com, however this continued silly game is below all of us in this industry...yes even us hobbyist.

 

[Vince]

lol so what are you going to do with your new domain name?

 

[kenfosterpb]

Nothing. Just making a point at how easy it is to mess with anyone's business. I have owned Cessna, Texaco, Delta Airlines, Bill Gates, Florida State University and the Palm Beach Post. I never did anything with them and let most of them expire after a couple of years. There was a time when they were a valuable asset. Today it really means nothing to own another's name... unless you try to use it.

 

[dwedeking]

Think how Pepsi would feel if I owned Pepsi.net

The difference is night and day. Pepsi is a unique term. Added to this, their logo is unique (The 3 colored circle with swirl). I believe the font used for KS is a pretty generic sans-serif font.

For example I couldn't trademark the word "Scales". But I am working on trademarking "Scales - Premium Exotic Reptiles", along with our logo (Extended S for scales). I believe these two items (logo and extended name) make a unique trademarkable name.

 

[WebSlave]

You would have to admit that the only reason you have it is to mess with Kingsnake.com. Give it a break.

I assume you have read this entire thread and perhaps even been here long enough to know the history of how I came about getting the name "kingsnakes.com". If not, well, the information is all here on this site for you to read about. I see no reason to repeat myself.

As for having a reason to have that domain name, having had kingsnakes and bred and sold them from around 1982 thru 1999, and certainly reserving the right to work with, and sell, this genera again at anytime in the future, plus having this website, which plainly caters to any of those people interested in buying and selling kingsnakes (among others), as well as relaying general information about them here, no, your claim of the only reason for my having "kingsnakes.com" is not consistent with reality. I have every reason to have that domain name that clearly and unambiguously refers to a common genera of North American colubrid snakes heavily traded in the herp pet trade as well as a large thriving group of enthusiasts that are very likely to key the term "kingsnakes.com" into their browser just to see where it leads them.

Certainly if you came onto the internet and had an interest in racing cars, wouldn't you key the following terms into your browser just to see what you got:

• http://www.racecar.com
• http://www.racecars.com

This is a logical manner in which people generally will attempt to find out information about any generic or generally accepted descriptive term that applies to something for which the person is seeking information about. THIS is why such generic and descriptive internet domain names are considered as valuable properties.

In this case, Jeff Barringer has applied for a trademark on the name "kingsnake.com" (just several days after my obtaining the domain name "kingsnakes.com", no less), and is claiming that he already holds that trademark. However, this excerpt from the UNITED STATES DEPARTMENT OF COMMERCE Patent and Trademark Office EXAMINATION GUIDE NO. 2-99 entitled "MARKS COMPOSED, IN WHOLE OR IN PART, OF DOMAIN NAMES", in part states:

A domain name is part of a Uniform Resource Locator (URL), which is the address of a site or document on the Internet. In general, a domain name is comprised of a second-level domain, a "dot," and a top-level domain (TLD). The wording to the left of the "dot" is the second-level domain, and the wording to the right of the "dot" is the TLD.

Example: If the domain name is "XYZ.COM," the term "XYZ" is a second-level domain and the term "COM" is a TLD.

-snip-

A mark composed of a domain name is registrable as a trademark or service mark only if it functions as a source identifier. The mark as depicted on the specimens must be presented in a manner that will be perceived by potential purchasers as indicating source and not as merely an informational indication of the domain name address used to access a web site. See In re Eilberg, 49 USPQ2d 1955 (TTAB 1998).

In Eilberg, the Trademark Trial and Appeal Board (Board) held that a term that only serves to identify the applicant’s domain name or the location on the Internet where the applicant’s web site appears, and does not separately identify applicant’s services, does not function as a service mark.

-snip-

The Board affirmed the examining attorney’s refusal of registration on the ground that the matter presented for registration did not function as a mark, stating that:

[T]he asserted mark, as displayed on applicant's letterhead, does not function as a service mark identifying and distinguishing applicant's legal services and, as presented, is not capable of doing so. As shown, the asserted mark identifies applicant's Internet domain name, by use of which one can access applicant's Web site. In other words, the asserted mark WWW.EILBERG.COM merely indicates the location on the Internet where applicant's Web site appears. It does not separately identify applicant's legal services as such. Cf. In re The Signal Companies, Inc., 228 USPQ 956 (TTAB 1986).

-snip-

The examining attorney must review the specimens in order to determine how the proposed mark is actually used. It is the perception of the ordinary customer that determines whether the asserted mark functions as a mark, not the applicant's intent, hope or expectation that it do so. See In re Standard Oil Co., 275 F.2d 945, 125 USPQ 227 (C.C.P.A. 1960).

If the proposed mark is used in a way that would be perceived as nothing more than an address at which the applicant can be contacted, registration must be refused. Examples of a domain name used only as an Internet address include a domain name used in close proximity to language referring to the domain name as an address, or a domain name displayed merely as part of the information on how to contact the applicant.

Example: The mark is WWW.XYZ.COM for on-line ordering services in the field of clothing. Specimens of use consisting of an advertisement that states "visit us on the web at www.xyz.com" do not show service mark use of the proposed mark.

Example: The mark is XYZ.COM for financial consulting services. Specimens of use consisting of a business card that refers to the service and lists a phone number, fax number, and the domain name sought to be registered do not show service mark use of
the proposed mark.

-snip-

Advertising one’s own products or services is not a service. See In re Reichhold Chemicals, Inc., 167 USPQ 376 (TTAB 1970); TMEP §1301.01(a)(ii). Therefore, businesses that create a web site for the sole purpose of advertising their own products or services cannot register a domain name used to identify that activity. In examination, the issue usually arises when the applicant describes the activity as a registrable service, e.g., "providing information about [a particular field]," but the specimens of use make it clear that the web site merely advertises the applicant’s own products or services. In this situation, the examining attorney must refuse registration because the mark is used to identify an activity that does not constitute a "service" within the meaning of the Trademark Act. Trademark Act §§1, 2, 3 and 45, 15 U.S.C. §§1051, 1052, 1053 and 1127.

-snip-

If a proposed mark is composed of a merely descriptive term(s) combined with a TLD, the examining attorney should refuse registration under Trademark Act §2(e)(1), 15 U.S.C. §1052(e)(1), on the ground that the mark is merely descriptive. This applies to trademarks, service marks, collective marks and certification marks.

Example: The mark is SOFT.COM for facial tissues. The examining attorney must refuse registration under §2(e)(1).

Example: The mark is NATIONAL BOOK OUTLET.COM for retail book store services. The examining attorney must refuse registration under §2(e)(1).

-snip-

If a mark is composed of a generic term(s) for applicant’s goods or services and a TLD, the examining attorney must refuse registration on the ground that the mark is generic and the TLD has no trademark significance. See TMEP §1209.01(b)(12) regarding marks comprised in part of "1-800" or other telephone numbers. Marks comprised of generic terms combined with TLDs are not eligible for registration on the Supplemental Register, or on the Principal Register under Trademark Act §2(f), 15 U.S.C. §1052(f). This applies to trademarks, service marks, collective marks and certification marks.

Example: TURKEY.COM for frozen turkeys is unregistrable on either the Principal or Supplemental Register.

Example: BANK.COM for banking services is unregistrable on either the Principal or Supplemental Register.

The entire document is available for your reading pleasure here:
Examination Guide No. 2-99

Recently, the National Arbitration Forum panel that Mr. Barringer instigated to resolve this issue, very emphatically agreed with my opinion, which I was confident would take place. And I am just as confident that this opinion will be emphatically confirmed in federal court as well.

Quote from the decision rendered by the National Arbitration Forum concerning the complaint filed by Mr. Jeff Barringer:

Complainant Lacks “Rights” in its Claimed Trademark

It is Complainant’s position that “kingsnake.com” has become distinctive and has acquired secondary meaning. In support of this position, Complainant contends, among other things, that there are many thousands of postings on various Internet sites wherein individuals have made reference to their use of the “kingsnake.com” site and this site was recognized for its services in “Yahoo Internet Life” which references the types of resources available to the public. Respondent contends that the words “king snake” are generic and not eligible for protection as a common law trademark.

Unregistered marks may be either generic or descriptive. A generic term is the name of a product, service or thing “itself—what [the thing] is, and as such . . . the very antithesis of a mark.” 2 J. Thomas McCarthy, TRADEMARKS AND UNFAIR COMPETITION § 12:1[1] (4th ed. 1997). Descriptive terms, unlike generic terms, can be subject to trademark protection provided they acquire secondary meaning. To establish rights in an unregistered descriptive mark, a complainant bears a substantial burden of proving distinctiveness and secondary meaning. Chromalloy Men’s Apparel Group v. Burch & Hatfield Formal Shops, D2000-1046 (WIPO Oct. 20, 2000).

It appears to the Panel that “king snake” is a term that describes a type of snake and is therefore generic if used by Complainant to describe his goods (i.e., snakes). Moreover, even assuming “king snake” was being used by Complainant as a weak descriptive mark, Complainant has not established a sufficiently clear secondary meaning to obtain common law trademark protection. Although Internet users may use Complainant’s website to access information about snakes and other reptiles, such use cannot create common law trademark rights where none by law can exist.

Because Complainant cannot establish that it has “rights” in a trademark or service mark, it is unnecessary to consider the remaining UDRP policy elements.

DECISION

Having failed to establish the necessary elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

[Brian Oakley]

Now THAT is called doing some research and knowing what you are talking about.

I wish no ill will to Jeff, but this, like I have stated before, has got to be one of the most rediculous things I have ever seen a human do.
He has no leg to stand on. I think it shows a not so good side of him, unfortunately, and I believe that this will harm him worse than Kingsnakes.com could have ever done even in his worst nightmares while lying in bed.

Like I have staed before, I enjoy Kingsnake.com and frequent it daily just like I do with this site and would hate to see it go, but I unfortunately think that Jeff will see a decline in hits to his site, registered acct. holders, and others due to this. I hope I am wrong, but just a feeling I have deep down inside.

Fauna is a site unique to others just like Kingsnake is in it's own right. This fued that Jeff has brought on has no merit and will create a black eye that will take a long time to heal.

Just my opinion.

 

[odatria]

So, in other words Vince...

TAKE A HIKE!

 

[John Albrecht]

...

Another funny thing is that if Jeff would have just been a little bit friendly and reasonable he could have probably acquired the domain name "kingsnakes.com" from Rich very easily and cheaply. (Feel free to respond only if it doesn't jeapordize your situation Rich).

But it looks like he has chosen to be nasty and will in all likelihood never own it and waste a lot of money in court trying.

Since it's been 20 days I wonder how things are going?

 

[Vince]

Does anyone know the legalitys in regards to the resale of the domain name with instant name recognition , and as they stated useing there same font? i know some are scared to disagree with the man he owns this site, a very great guy, altho i dont think he should be sued over this i do belive it wasnt a good idea to "throw rocks at the thrown" so to speak. and dont get angry at that ehter i think fauna is the better site, but kingsnake is much larger and well known.

 

[Sasheena]

Vince I'm getting a textbook published... just a little itty bitty one mind you... and I use the font Ariel. If someone made their logo out of ariel can they sue me? My book is a math book, so maybe only if they are math related too, huh? If the font kingsnake uses to make their logo is a typical and unaltered normal font that people use all the time in all walks of life, then such is life. AS far as I can tell it's a lovely Century Gothic font that comes standard with MS Word or Windows or something like that. No alterations aside from nice color and a shadow. Nothing truly special. If I was making a banner, I would use Century Gothic, or a similar font. Nothing special about the font. I'm hoping, once this whole brouhaha is completed that Rich will post the old banner ads up here, because I would really like to examine them to know if they really are as much of a spoof of ks.com as is made out in that piracy claim. But whatever the case.... the font isn't special, therefore the claim appears spurious.

 

[Roger Jolly]

Well something certainly happened, but what???


KINGSNAKES.com is gone.


So did Rich Z lose the lawsuit??? Everyone is sure tightlipped about this situation. I know most people seemed to prefer sticking their head into the sand about this, but you would think someone would need to come up for air now and then and have at least one curious brain cell in their head.

 

[Chris@TSE]

looks as if he still owns it to me.....

Registrant:
SerpenCo
P.O. Box 7547
Tallahassee, Florida 32314
United States

Registered through: GoDaddy.com
Domain Name: KINGSNAKES.COM
Created on: 01-Dec-98
Expires on: 30-Nov-05
Last Updated on: 22-Oct-04

Administrative Contact:
Zuchowski, Rich [email protected]

 

[Roger Jolly]

It appears to me then that either there was a court case and Rich Z lost or there was a settlement. Rich Z lost in either case and had to scuttle the website. I would have bet that Jeffie would have done his best to take the domain name away but maybe this was the best he could get. But I guess the results are the same as far as Rich Z is concerned.

So did this make things better or worse between Jeffie and Rich Z you think???

 

[John Albrecht]

It would seem to me that it would be in Rich's best interest to shut down that site and to not say anything about it. If you think about it, he never benefited in any way by having that site up. He only obtained it as a favor to help someone out and the site has caused him nothing but headaches since he put it up. We all got a few laughs out of it but overall with approximately 6000 baby snakes to take care of why would Rich want to be distracted and care to deal with the headache that the site caused?

To Jeff on the other hand that site was a big deal (imagined or real) and he seemed to be willing to go to ridiculous extremes to do something about it. He pursued the matter with the same zeal and childishness that he moderates his forums with.

If there was a settlement of some sort you can bet that part of the deal was to not talk about it. That would be face-saving for either party. If you look at who owns the site I think you can guess who won if there is such a thing as a winner in this. Of course, we have no idea how much either of them spent on legal assistance so there could have been considerable cost involved but we probably will never know that either.

 

[C. Reynolds]

Rich Posted on that site months ago that he would be closing it down. I guess he finally got around to it. He posted and said he recomended his other forums (here) since he would be taking down kingsnakes.com