(Back on the record at 12:44 p.m.)
Q So in terms of monitoring the traffic, you remember it steadily increased as the opening got nearer. That's what you said, right?
A That's the way I remember it, yes.
Q And do you remember anything else significant? Did it just continue to increase until it was shut down, or was there any difference in the pattern?
A I think I remember it falling off some after the opening. And after that, I really don't remember. How long after the opening was it shut down? It was on for some time after that, but I don't remember. Which may mean that it leveled off, but I'm just not certain.
Q Okay. Have you ever created any sites -- I'm going to refer to them as "sucks.com" for lack of a better way to describe them. But you've identified some, and we know there are some at issue in this case. Have you created any "sucks" sites of any kind of nature for any situation other than this lawsuit?
A I have created what you could call complaint sites that did not include the word, "sucks." I have never -- these were the first sites that I had ever created that actually included the word "sucks" in the domain name.
Q And what motivated you to create these with the word "sucks"?
A Well, because that's the way I felt about what you were doing.
Q When you say, "you," are you talking me, personally, or are you talking about -- who are you talking about when you say, "what you were doing"?
A I'm talking about you, personally, and your client.
Q Does WebFeats do anything to protect any trademarks of it's own?
A WebFeats has no registered trademark. I once contacted somebody who I felt was using a name that was very close to mine and competing with me directly in my market and asked him not to do that, and he changed his domain name.
Q You wrote him a letter? Did you call him? How did you get his attention?
A I believe all of -- most of our correspondence was via E-mail. I may have spoken with him. I don't recall.
Q Did he get a lawyer?
A No. Neither of us got lawyers.
Q But he changed his name?
A He changed his domain name.
Q Does he still use WebFeats in real life?
A He used Webdfeat, W-e-b-d-f-e-a-t. And he stopped using that name. I don't -- this was years ago. I don't know if he's still in business.
Q I did a search -- or I was just looking at other things called WebFeats. Are any of them -- besides the website that you and I have looked at, are any of these other WebFeats that appear to be web designers -- do you have any other sites that we haven't talked about?
A There are other companies known -- who call themselves WebFeats. I think there are three that I know of, and possibly more than that, spread out all around the United States. I've never had any contact with any of them.
Q Do you know if they have federal registrations?
A I have no idea.
Q Do they do what your WebFeats does as a business?
A As far as I know, they're web developers, as am
Q Have you ever been charged with trademark infringement of any nature for any use of any mark?
A No, I have not.
MR. LEVY: Well --
Q Besides this case.
A Good point. Other than this case, no, I have not.
Q Have you ever taken the opposite side and charged somebody else, besides the one Webdfeat -- and I don't know if you called it a charge of trademark infringement -- besides that situation, have you ever contacted somebody with the intention of informing them that you claim that they're infringing your trademark?
A I don't believe so. I feel pretty confident that I have not.
Q Have you ever consulted somebody who knows about trademarks and asked them, do you think this is infringing or taken any steps towards asserting any kind of claim along the lines of trademark infringement?
A I do not recall having done anything like that.
Q Okay. What about with respect to copyrights? Have you ever been charged with copyright infringement?
A No, I have not.
Q Have you ever taken any steps towards claiming somebody else is infringing your copyrights?
A No, I have not.
Q Do you consider your shops -- theshopsatwillowbendmall.com to be a site promoting the mall and attracting business to the mall?
A Could you rephrase -- could you repeat that question, please?
Q Do you consider it like an advertisement for the mall?
A Which site are we talking about?
Q Your website for the mall.
A My website?
Q Yeah, www.theshopsatwillowbend.com.
A You're confusing me because "The Shops" is your domain.
Q Right. "The Shops" is ours. I can never remember it. I didn't mean to confuse you. The one that you made.
Q I'm trying to get back to what you perceive as what the purpose of that site is or was.
Q How you think of that site. What was -- you said the word "publicize," I believe. I think you gave me the impression that in a positive way, you wanted to positively affect business to the mall. Were you trying to increase the mall's business?
A I was trying to help the mall. I don't -- promote and publicize? I don't know that I ever thought of it in terms of how many people, you know, I would lead to visit the mall. It was just something to be helpful. I don't know how much -- you know, I never thought in more specific terms.
Q I'm looking at your letter of August 10th, which is --
MS. GREENBERG: What did we mark it? Did we mark it?
MR. LEVY: Exhibit 3.
MS. GREENBERG: 3. I'm sorry. I didn't write it down.
Q And you say on the second page of that letter, the second-from-last paragraph, "I would much prefer to devote my creative energies to attracting business to the mall rather than to exposing it to public ridicule." I haven't asked the question yet. I'm just reading that. But I'm looking at the language about attracting business to the mall, and that seems like something that marketing does.
A Well, I think I was making a contrast between the site that existed at the time, my mall site, and the sites that I was telling you that I would set up if you took legal action against me, the "sucks" sites. And I was contrasting one activity with the other, and that I would rather, to paraphrase, devote my time to my first site, which was positive, rather than my second site, which was negative. Attracting business to the mall, I don't think I meant specifically performing a marketing function for you. I was just pointing out that first site did positive things for you, and the sites that I later sat up, the "sucks" sites would have done -- did negative things.
Q What if you were told point blank that the mall didn't feel that it was positive? What if you had empirical evidence to show that your site was not doing what you thought, it was not contributing in a positive way, would you have stopped, or would you stop now?
A I think that's too much speculation. I don't believe that such evidence exists. I don't believe that that's true. I think you're asking me to speculate on something that is simply not the case.
Q Well --
A If you have that evidence, I'd like to see it.
Q I'm just wondering how much -- well, I guess I'm wondering what you really meant by that in your letter because I saw it again in one of these other letters. Hold on a second. I think it's in Exhibit 2. "Hopefully, increase their business," in the third paragraph. You said, "I can only heighten awareness in your client's property and hopefully increase their business." It seems to me that you, in both letters, indicate that your plan was to increase their business.
A I don't think that I'd call it my plan. I assumed, and still assume, that publicizing positive information about a mall will increase the business of that mall. That wasn't -- I mean, that wasn't what I sat out to do. I wasn't doing marketing for the stores. But I was speculating, and what I believed and what I still believe, that that site could not possibly diminish the business coming to the mall, and was likely to increase it. I think that's -- an anticipated result rather than a plan.
Q Well, it says, "hopefully."
Q So it looks like not just that you were expecting it, but that you were wanting it to come out that way, that your hope was to increase their business.
A That -- I don't know if that's my specific hope. We're quibbling about words here, that we would all hope, that it is to be hoped. I mean, that's technically not a correct use of the word, "hope" anyway. But -- you know, if I had something like, it is to be hoped it would increase the business, then to me that's what I said. But we don't talk like that in English. We say, "hopefully."
Q Well, anyway, I guess I'm puzzled by the fact that if you were hoping to increase business, what was your anticipated outcome from the "sucks" site?
A To protest against the way I was being treated.
Q Was it just a protest, or was it to exercise influence on them?
A To get them to stop treating me that way. I guess that's an exercise of influence.
Q But were you complaining, or were you actually trying to influence --
A I was trying to influence their actions. I wanted them -- and still do -- want your clients to stop proceeding with legal actions against me.
Q Do you reap any personal gain from having this mall succeed?
A No, I do not. Well, my property value might be very indirectly related to it.
Q Okay. I'm going to take a two-minute break, five-minute break, and give me a chance -- and I'm going to make sure I'm done, and then I think I'm done.
(Off the record at 12:58 p.m.)