Nissan: We Are Bullies?
Cyber-squatters are despicable, but this guy, the defendant in Nissan v. Nissan, doesn't seem to be one of them. He writes:
My name is Uzi Nissan. I was born in Jerusalem - Israel. My father's last name was Nissan, his father's last name was Nissan, and so on. Nissan is a biblical term identifying the seventh month in the Hebrew calendar. The term Nissan also is Arabic for the month of April.I came to the US in 1976, and have used my surname for years to identify a number of business enterprises. The first was "Nissan Foreign Car" in 1980. When I operated this business, I serviced different makes and models of foreign cars, including cars manufactured by Nissan Motor, back then known as "DATSUN". Contrary to the allegations by Nissan Motor, I did not choose to use my last name "Nissan" for my business in 1980 because of their name. At that time, they and their automobiles were known as "DATSUN" and were not known as "Nissan".
On May 14, 1991, "Nissan Computer Corp" was incorporated in the state of North Carolina. I was then, and still am, the company President. I have used Nissan as part of my trade name in connection with the sale of computer hardware, computer maintenance, networking, computer training and other consulting services related to computers. On June 4, 1994, I registered the domain name "nissan.com" and created a web site to promote computer related products and services on the Internet.
In July of 1995, I obtained a service mark registration for Nissan and my logo from the State of North Carolina.
On March 17, 1996, I registered the domain name "nissan.net" , and began offering Internet services, including dial-up connections and direct data connections to business.
DECEMBER - 1999, Initial Filing.
More then five years after I registered nissan.com, legal action was instituted by Nissan Motor seeking $10,000,000 in damages, and to restrain me from the use of MY family name for business purposes on the Internet.
The court cases and the appeals go on and on. But, why? Did Nissan, the big car company, ever just try to buy nissan.com and nissan.net from the guy? And if not, why not?
To give all a fair hearing on this issue, I e-mailed a corporate communications guy at Nissan, Fred Standish, and gave him the URL of this entry:
Dear Fred, Regarding the court case from Uzi Nissan, I'm just wondering, did your company ever just try to buy the sites (nissan.com and nissan.net) from him? I blogged about his case, and I want to give you a chance to present your side. Best,-Amy Alkon
Awaiting word or comment.
via metafilter
There might be precedent for him to prevail. Madonna won the right as an individual to not be represented on-line by a company appropriating her name. It's sad that he has to do anything, though. The court should dismiss this without action on his part.
I hope for his sake that the Uzi people aren't so short-sighted. That could be loud. (g)
Radwaste at May 12, 2008 2:11 AM
It's a tricky area but I'd say that for a multinational company to start proceedings seeking ten million dollars damages from an individual could reasonably be seen as demanding with menaces. (Possibly you don't have that term in the US. It's what muggers do when they demand your wallet and threaten you with violence if you don't comply.) It certainly makes the Nissan car company look like a dull-witted bully.
From other similar cases I would not bet on Mr Nissan coming out of this well. And I don't think that's right.
Norman at May 12, 2008 3:07 AM
Well, frankly he'll probably win. There was a case not to long ago in which a teenager named Michael Crowe had a domain named Mikecrowesoft.com or something to that effect, and of course, Microsoft filed suit, and before long, they dropped the case from their end, with an apology, and if memory serves, legal fees covered.
This Nissan fellow has a damn good case, while the corporation has none to speak of. They'll be lucky if they don't take a PR bath on this one if it gets out of hand.
Robert at May 12, 2008 3:15 AM
PS Uzi Nissan's claims match the whois database. Here's an excerpt:
Norman at May 12, 2008 3:15 AM
Well, I hope he wins. It's not like Nissan (the car company) needs the money! Or the bad PR this could generate. Big bully doo doo heads. o_O
Flynne at May 12, 2008 6:00 AM
Great point, Norman, with looking up the whois.
Amy Alkon at May 12, 2008 6:54 AM
Be careful with the cybersquatting thing. Squatting is when you take unused property, not getting to the property first. Cybersquatting laws always seem to benefit the big companies, and the arbiter is actually a UN flunky. The first cybersquatting case was the World Wildlife Fund (nice liberal group) and World Wrestling Federation (owned by socialist UN lover Ted Turner) over the use of WWF.com. It was used as a test case (with willful participation on all sides) to have the UN rule directly on the rights of US citizens, with no review by US courts.
Cybersquatting laws are a UN trojan horse, combined with big money graft.
Smarty at May 12, 2008 7:41 AM
Datsun switched to Nissan circa '85, right? They got there first. I think that's the rule. Honestly, I'm on the side of the car maker. They've invested gazillions in their brand awareness, and this guy should have been bright enough to stay out of their way, even if it's his real name.
And that can be done. Consider our host, who calls herself Alkon. As anyone who's ever tried to find the link on a borrowed computer knows, there's an Alkon Corporation out there somewhere that makes thermostats or vivisection equipment or volatile chemicals or something. They don't sue, presumably because a redhead Paris-obsessive doesn't dilute their brand.
Crid at May 12, 2008 11:29 AM
Crid, Uzi Nissan got there around 1950. Nissan Cars had, by your dates, about 9 years after their name change before Mr Nissan registered his business. Back then we didn't know how big the web would get, and Nissan Cars blew it.
The rule is whoever registers the domain name first gets it. Same as company names, patents, etc. I don't see how the rules favour Nissan Cars.
If Nissan Cars offered Uzi Nissan enough cash, he'd sell. They choose instead to spend that cash on lawyers to scare Uzi Nissan into giving up. That's bad PR. "Uzi Nissan" does not show up in Google News yet - how long do you think it will take?
Norman at May 12, 2008 12:40 PM
OK, I didn't read the whole thang.... But "identify a business by a name" isn't the same as trademarking, right? He didn't say he'd "registered his business."
People take too much glee in imagining squeezing imaginary sums of money from The Man on the basis of "why not"? Companies have the right to pursue this however they see fit. Hundreds of thousands if not millions of households are sustained by the goodwill of the Nissan auto brand, and their interests shouldn't be ignored by people who have daydreams of striking it rich quickly.
(Besides, did you notice how the narrative jumps, between the 2nd and 3rd quoted paragraphs, across the ten years in which the automaker made the switch? Why is that?)
I'm still with the Japanese on this.
Crid at May 12, 2008 12:55 PM
Smarty, your facts are not correct. Ted Turner never owned the WWF, which has always been owned by the McMahon family until its recent public offering. And its conflict with the World Wildlife Fund involves years of copyright litigation, settlement agreements, and breach of contract claims. Also, I'm pretty sure Julia Roberts was the first well-known brand name to successfully kick a cybersquatter off her domain name through a private ICANN arbitrator, of which there are many, not a single "UN flunky," as you describe it. Because US Courts have jurisdiction over the Nissan parties, I can assure you that the One World Conspiracy will not decide the outcome of this intellectual property dispute.
Without knowing more about the case, the crux will likely be whether Mr Nissan can show a legitimate use of his initial registration. Typically the cybersquatter does nothing with the registered site except extort the party seeking to add ".com" to the end of their name. According to Mr. Nissan, he has legitimately used his own name to publicize his business. Of course, the case will likely generate significantly more nuance than can be accurately capsulized in one of Amy's dialogue boxes.
Which is why Nissan (the Company) is highly unlikely to respond to Amy's request for comment. Still, the MikeRoweSoft case was eventually settled amicably in large part due to the publicity it generated. Hopefully, Mr. Nissan's case will follow suit and they'll pay him a reasonable fee (and probably the costs associated with creating a new domain for Nissancomputers.com) to end this.
snakeman99 at May 12, 2008 3:15 PM
Snake, you a lawyer?
Why do they owe him anything at all if they established the brand name first? Why are you hopeful for a payout?
Crid at May 12, 2008 5:03 PM
Snake, you a lawyer?
*I am
Why do they owe him anything at all if they established the brand name first?
*In the shortest hand possible - because an established automotive brand name doesn't necessarily produce an exclusive right to that name in all other business lines. Nissan Motors' argument is what I think you are implying - that their name is so famous that any use by another party in any line of business necessarily dilutes their trademark. This is the factual issue that has been remanded for trial. See here for the ruling itself - www.nissan.com/lawsuit/images/appealruling.pdf.
*Why are you hopeful for a payout?
I'm editorializing. If you strip all the legal esoterica out of the case, it looks to me like Mr. Nissan made a savvy, but honest, purchase in 1994. If Nissan motors wants it, they should have to pay for it. If the two of them can't come to terms - so be it.
That said, Mr. Nissan's post-dispute activities don't exactly suggest pristine hands. For one, his Nissan lawsuit website is very harsh and provocative. He's well within his First Amendment rights, but that kind of open hostility does not go over well in court or with opposing counsel. Also, he's crying poor, but there is no way this litigation could have lasted the years that it has without somebody paying for it. Mr. Nissan was apparently also enjoined from using the domain to market any automotive services, suggesting that he had done so or at least threatened to do so. Given his background in computers, I can't imagine that maneuver was made in good faith. Finally, the ruling indicates that before going to court, Mr. Nissan and Nissan Motors attempted to reach an agreement for Nissan Motors to purchase the domain name, but could not agree on terms. Maybe Mr. Nissan held out, thinking he had just won the litigation lottery? I have no idea. At any rate, even if Mr. Nissan is a scumbag, he seems to have a legitimate claim to the property.
At the end of the day, there is some value between $1 and $1 billion that represents what the domain is worth to the parties involved. Right now, only the lawyers are winning.
snakeman99 at May 12, 2008 6:27 PM
Goddamit, I have *got* to learn to read these blog items before commenting on them.
Still, a million dollars is a lot of money, when domain name registration costs 60 clams a year. Get that skiff out of the way, I'm trying to run a cruise line here.
> doesn't necessarily produce an
> exclusive right to that name in
> all other business lines.
About twenty years ago when the best computer company in Cupertino announced a new PC audio circuit and was challenged by the surviving Beatles, an attorney asked a judge: "Does Apple Records even do anything nowadays but sue people?"
> or with opposing counsel...
Love you to death, Snakester, but we can't live our lives and spend our wits on the comfort and fulfillment of opposing counsel.
Crid at May 13, 2008 12:33 AM
Mr. Nissan should win this case, which has indeed been dragging on for years. Whether he registered the domain name hoping Nissan cars would buy it from him or not is irrelevant. It IS his name, and he DOES use it for business, and he has been using that site for years. The cybersquatting laws were enacted because when business on the web started to explode, tons of people registered very valuable domain names knowing they could extort money from companies that were desperate to cash in on their trade name on the web, but just weren't fast enough. Mr. Nissan used it for five years before Nissan even tumbled to it. He's way ahead of the curve. He owns it, and just because Nissan cars is bigger and more powerful doesn't mean they have the right to take it from him. Whether he's a jerk or not is irrelevant.
Jennifer at May 13, 2008 7:56 AM
> Whether he registered the
> domain name hoping Nissan
> cars would buy it from him
> or not is irrelevant
I don't see why. There's some principle in torts that says you're expected to do what you can do to limit the impact of others' misconduct. If your neighbor at the ranch opens the gate to your pasture and --three days later-- all your cattle run away, you might still be able to sue for some damages. But not for the whole herd. The judge is gonna wanna know why you didn't close the fucking gate.
I hope that Snake is right on this point: Being "ahead of the curve" could work against the guy in this case. The specialized insight he had as a computer geek about what was going to happen with the internet didn't create any value for anyone. It was just secret knowledge about an essentially public resource. So there's no reason to be precious about rewarding him for it.
Also, while I don't think be a jerk to attorneys should ever change someone's legal outcomes that much, judges are out there to make sure we're not hurtful jerks to each other.
Crid at May 13, 2008 11:30 AM
Jennifer - the thing is that this is not really a cyber-squatting issue. If it were, the matter would have been decided by one of the ICANN-approved private arbiters in a significantly cheaper action. The fact that Nissan Motors' claims are entirely grounded in trademark law tells me that they realize Mr. Nissan' use was legitimate enough to survive that kind of challenge. Believe me, Nissan Motors would have loved to handle this as a simple cyber-squat: much quicker and cheaper (even though they wouldn't have been able to receive monetary damages).
snakeman99 at May 13, 2008 2:16 PM
Sounds like a case of Reverse Domain Hijacking to me, take a look at
http://en.wikipedia.org/wiki/Reverse_domain_hijacking
If you do some searches through WIPO it's not hard to find cases where a trademark owner was denied a claim because it was clear they were engaging in reverse domain hijacking.
Don at May 15, 2008 12:29 AM
I tend to focus largely on the Mens and Fathers Rights blogs... but I have to ask here:
Does anybody else remember the Nissan Land Patrol 4x4 (very similar to the IHC Scouts, Ford Broncos, Jeep CJs and Toyta LJs) from the mid 60s?
Gunner Retired
Gunner RFetired at May 18, 2008 9:15 PM
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