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The Appeals Hearing:
Paul Levy's Rebuttal

[Paul Levy] I've got four brief points in which I want to give different answers to some of the questions that were asked.

Judge Clay, you asked whether there was any indication in the papers below whether they were interested in confusion on the part of investors or consumers. I would cite you to page 24 of the Joint Appendix, which makes it quite clear that the only confusion that they claim to be concerned about is confusion on the part of consumers, quote-unquote, or mall shoppers, quote-unquote. That obviously goes to the question of personal jurisdiction.

They had a website, just not at this domain. They asked for an injunction against the website and they got the injunction against the website. We've cited many places in their papers below, there are many places in their appellate briefs where they say the judge properly enjoined the websites, not just the domain names.

The disclaimer only on the home page: Well, the home page is where you get when you type in www.ShopsAtWillowBend.com. Now, if Mr. Mishkoff has to put disclaimers on more pages, he's perfectly prepared to do so. In fact, one thing that often happens in these cases is that the judge orders a further disclaimer. In the Nissan case, for example, the judge said, "Take certain links off your page." That's a narrow injunction which protects the First Amendment rights at stake, while also protecting the rights of the plaintiff.

Finally: "The case is about a thousand dollars." The Shirtbiz notice. None of that appeared either in the motion for a preliminary injunction or in the motion for the injunction against the sucks site. In fact, if you look in the Joint Appendix on page - I believe it's 122, you will see that in the proposed order for the second one, for the amended injunction, they incorporated Judge Zatkoff's finding that the websites were being operated not to make a profit. The only time people started trying to dredge up claims that there was commerciality here was when we came in as Amicus and pointed out that without commerciality, you had no trademark violation. Finally -

[Judge Clay] Let me ask you a question here. You're - a person going to your client's website can use that to click onto the official website.

[Paul Levy] Correct.

[Judge Clay] Would your client be willing to agree to an arrangement whereby the customers or the public could go to the official website first and click to your client's website from the official website instead of the way it is now?

[Paul Levy] We think my client is entitled to have the domain name. There have been ruminations in some of the cases about page-splitting. Wouldn't it be easier if you just had a page split between two people who claim the right to the same domain name? It's not the way the system has worked. It's an interesting thought. It's something that's worth discussion between the parties. But I do want to -

[Judge Clay] I'm just asking, though, and I guess whether your client would agree to something like that, not, you know, what the law should be or whatever. If the answer is no, your client wouldn't, then that's the answer.

[Paul Levy] The issue has never come up with my client. I'll certainly ask him. What I do want -

[Judge Boggs] But this is different than page splitting where they both claim the right to the same name.

[Paul Levy] Right. That's right.

[Judge Boggs] I mean, I'm just guessing. I'm guessing that you would love it and your adversary would hate it if there was only one domain name and the very first thing you got was, you know, Mr. Taubman, Mr. Mishkoff.

[Paul Levy] I would be shocked if this was something that Taubman wanted to do, but I suppose you can ask - well, it's too late to ask him.

[Judge Boggs] Yeah.

[Paul Levy] But I do want to say about the notion of the telephone conversations, this is a law firm that is going to try this case, and they're claiming that the evidence that they're going to have to rely on to show that my client is demanding money is a conversation with them. I want to know how they're going to try this case. They haven't made that in the appellate record.

[Judge Boggs] [Inaudible]

[Paul Levy] It's not in the record.

[Judge Boggs] Okay. I asked what was essentially an off-the-record factual question, he gave me an off-the-record answer, which I will treat as off-the-record, alright? Or at least not in the record that we have to decide on.

Any other questions? Kelly? Thank you, then. The case will be submitted.

Next: Taubman's Expert Witness

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