Author Topic: My attorney's response to the cease-and-desist letter  (Read 52551 times)

Offline Jake Freivald

  • Administrator
  • *****
  • Posts: 302
My attorney's response to the cease-and-desist letter
« on: June 17, 2013, 10:26:23 AM »
My attorney sent this to Mr. Trenk today. It's a little late, but I think it was worth waiting for. If you'd like the plain text, it's below the images.

The original letter is here, and my discussion of it with the town council is available in text and video.






Stephen B. Kaplitt
Member of the Bar in New York * New Jersey * Maryland * District of Columbia (inactive)
1271 Avenue of the Americas
Suite 4300
New York, NY 10020
www.KaplittLegal.com

June 17, 2013

VIA EMAIL ONLY

Richard D. Trenk, Esq.
Township Attorney for the Township of West Orange
Trenk DiPasquale
347 Mount Pleasant Avenue
Suite 300 West Orange, New Jersey 07052

Dear Mr. Trenk:

I am pro bono counsel to Jake Freivald and write in response to your “cease and desist letter,” dated May 13, 2013, regarding his domain westorange.info. Obviously it was sent in jest, and the world can certainly use more legal satire. Bravo, Mr. Trenk !

Not that we didn’t get the joke … but since Mr. Freivald had not previously encountered a humorous lawyer, he actually thought your letter may have been a serious effort by the Township to protect its legitimate interests. Rest assured, I’ve at least convinced him that it was certainly not some impulsive, ham-fisted attempt to bully a local resident solely because of his well-known political views. After all, as lawyers you and I both know that would be flagrantly unconstitutional and would also, in the words of my 4-year old, make you a big meanie.

Nonetheless, to further allay my client’s concerns, will you kindly forward to me copies of the prank cease and desist letters you have no doubt also sent to the owners of the following domains:

  • westorangeinfo.com (don’t tell me you overlooked this one … ?)
  • westorange.patch.com
  • westorangenj.net (now that sounds like a Township website !)
  • westorangehistory.com
  • westorangetax.com
  • westorangnurseries.com
  • westorangeins.com
  • westorangebassanglers.com (my personal favorite)
  • westorangephoto.com
  • westorangeparade.com
  • westorangenephrology.com
  • westorangeplumber.com
  • westorangerotary.org
  • westorangemassagetherapy.com (hopefully not a euphemism, suggest you investigate)

Oh, and just to play along, had you intended for your letter to be taken seriously, even in some small measure, we would have sent in response something along the following lines:

* * *

Dear Mr. Trenk:

1) The suggestion that Mr. Freivald’s website is “likely to cause confusion” or “falsely create the impression” of association with the Township is farcical. As is evident from the attached home page snapshots, the Township’s website is a “virtual” masterpiece developed by Icon Enterprises, Inc., d/b/a CivicPlus, at a cost to West Orange taxpayers of $35,000 (plus $5,000 per annum for hosting and maintenance). By contrast, my client’s rudimentary website (cost: $3.17,1 free hosting) is so minimalist that it arguably qualifies as modern art.

2) To date, all ICANN rulings in this area have held that geographic domain names, by themselves, are not protected marks – especially when claimed by government or municipal authorities.2

3) I can’t believe I really have to explain this, but here goes … after nearly a century of First Amendment jurisprudence, it is well-settled that content-based restrictions on free speech by the government3 are subject to “strict scrutiny”, and will only be upheld upon a showing that such restrictions “promote a compelling [governmental] interest” and are the “least restrictive means to further the articulated interest”. See, e.g., Sable Communications of California, Inc. v. Fed. Comm. Commission, 492 U.S. 115, 126 (1989), and about a kajillion other U.S. Supreme Court free speech cases.

4) Will you kindly explain exactly which of its “federally protected rights” the Township believes my client “may” have violated.

5) So that I may properly counsel my client, please also explain what in Sam Hill’s name you meant by “anything else confusingly similar thereto.”

6) Last but not least, will you kindly provide to me the specific legal basis or bases for the Township’s demand that my client cease and desist from “use, ownership and maintenance” of his domain. To paraphrase the bar exam instructions, feel free to cite any authority you consider relevant, including Federal, state or local laws, rules, regulations, ordinances, etc. (even those voluminous Township playground rules no one pays attention to). Since New Jersey Rule of Professional Conduct 4.1(a)(1) prohibits a lawyer from making a “false statement of material fact or law to a third person”, surely you must have persuasive authority for the Township’s extraordinary demand that my client relinquish private property lawfully purchased and owned by him.

If you manage to produce supporting authority that even remotely passes the laugh test, I will donate $100 in your honor to the American Civil Liberties Union – NJ Chapter. I plan to make the donation online, assuming the State of New Jersey has not shut down aclu-nj.org.

* * *

But of course, only a humorless suit would have sent such a response to your literary gag gift.

Sincerely yours,
Stephen B. Kaplitt

P.S. Off topic, but as long as we’re chatting, I hereby demand from the Township a refund in the amount of $28,763.22 for excess property taxes levied on 74 Terrace Avenue since my acquisition of ownership on August 9, 2010. Detailed calculations and legal authority available on request.

P.P.S. Wait, I have a better idea. I just learned that westorange.gov is still available and any state or local agency can license it from the U.S. General Services Administration for only $125 per year. Since the whole refund thing might trigger a stampede if word got around, instead how about if I form a limited liability company to conceal my identity, and then use it to license westorange.gov from the GSA – I’ll just need a letter from Mayor Parisi designating my LLC as an authorized Township agent – and then my LLC will sublicense it to the Township for a paid-up royalty of $28,763.22 ! Pretty clever, huh ? Krakoviak will be a hard sell, but Sayers should like it. Just something to consider …

-----

[1] Jake swears that was his actual cost. Looking at his website, I believe him.

[2] See, e.g., City of Dearborn v. Dan Mekled d/b/a ID Solutions, FA 99602 (Nat. Arb. Forum Nov. 12, 2001)(insufficient evidence that “City of Dearborn” is a protected common law mark); City of Myrtle Beach v. Information Centers, Inc. FA 0112000103367(Nat. Arb. Forum March 8, 2002)(“The City of Myrtle Beach is a geographical place. There is insufficient evidence that the name has acquired any secondary meaning [to create a protected trademark interest]”); and City of Salinas v. Brian Baughn, FA 97076 (Nat. Arb. Forum June 4, 2001)(insufficient evidence that “City of Salinas” mark acquired secondary meaning such that the City of Salinas may claim the exclusive right to use as a trademark).

[3] Yes, that includes the Township of West Orange. See Herbert v. Lando, 441 U.S. 153, 168 n. 16 (1979).
« Last Edit: June 17, 2013, 10:32:49 AM by Jake Freivald »
Twitter: jdfreivald or westorangenj
AIM: jdfreivald
YM: jdfreivald

Offline DavidKman

  • *
  • Posts: 4
Re: My attorney's response to the cease-and-desist letter
« Reply #1 on: June 17, 2013, 12:04:33 PM »
This is super.

Offline KG

  • **
  • Posts: 49
Re: My attorney's response to the cease-and-desist letter
« Reply #2 on: June 17, 2013, 12:40:30 PM »
Hilarious (and well worth the wait).  Can hardly wait to see what happens next. :)

Offline NJPatriot

  • **
  • Posts: 21
Re: My attorney's response to the cease-and-desist letter
« Reply #3 on: June 17, 2013, 01:02:10 PM »
A fantastic response! I love it. Laughed pretty hard. And as much as I do love it, I am a little worried the humor aspect will not sit well with Mr. Trenk. This is great, but I hope it does not come across as unprofessional.

Offline Bert Peronilla

  • **
  • Posts: 72
Re: My attorney's response to the cease-and-desist letter
« Reply #4 on: June 17, 2013, 01:44:29 PM »
Mayor Parisi stated that the Administration authorized the release of Mr. Trent's letter at the request of some members of the Public Relations Commission.   The question that begs to be asked is:   Who among the following made the request to Mr. Trent?

Members of the Public Relations Commission:

Prakash Khaitan, Chair
Michelle Cadeau
Cynthia Cumming
Jake Freivald - NOT HIM
MaryEllen Morrow
Jonathon Ridley
Josefina Velez, Vice Chair
Patrecia West

Liaison
Jessica Glicker- Township PIO. Public Relations Director

Offline Jake Freivald

  • Administrator
  • *****
  • Posts: 302
Re: My attorney's response to the cease-and-desist letter
« Reply #5 on: June 17, 2013, 02:15:56 PM »
This is great, but I hope it does not come across as unprofessional.

I'm not worried about it. What was unprofessional was the letter they sent to me. I've had a number of lawyers telling me behind the scenes that this was precisely the response that the original letter deserved (if it were to get any response at all).
Twitter: jdfreivald or westorangenj
AIM: jdfreivald
YM: jdfreivald

Offline Jake Freivald

  • Administrator
  • *****
  • Posts: 302
Re: My attorney's response to the cease-and-desist letter
« Reply #6 on: June 17, 2013, 02:20:07 PM »
Who among the following made the request to Mr. Trent?
I asked two questions of each person at Thursday's PRC meeting:

1. Did you take concerns about westorange.info to the mayor?

2. Did you know about the letter before the mayor sent it?

Those in attendance all said "no" to both questions: Prakash Khaitan, Cynthia Cumming, and Patrecia West.

I emailed the others requesting a response, but haven't received responses yet. Note that Michelle has resigned from the PRC. (I still asked her, though.)

Quote
Liaison
Jessica Glicker- Township PIO. Public Relations Director

To clarify, the membership of the PRC is established by ordinance, and Jessica is not a member of the PRC.
Twitter: jdfreivald or westorangenj
AIM: jdfreivald
YM: jdfreivald

Offline Bert Peronilla

  • **
  • Posts: 72
Re: My attorney's response to the cease-and-desist letter
« Reply #7 on: June 17, 2013, 03:24:58 PM »
Jake, based on your feedback, here is what is known so far as to who requested Mr. Trent to send you his letter:

Members of the Public Relations Commission:

Prakash Khaitan, Chair - HE SAID NO
Michelle Cadeau ?????
Cynthia Cumming - SHE SAID NO
Jake Freivald - NOT HIM
MaryEllen Morrow ?????
Jonathon Ridley ?????
Josefina Velez, Vice Chair ?????
Patrecia West - SHE SAID NO

Re: My attorney's response to the cease-and-desist letter
« Reply #8 on: June 17, 2013, 07:46:01 PM »
Your attorney's letter is like a bowl of cold, mint chocolate chip ice cream on a humid summer day. Just plain awesome. Thanks for sharing!

Offline ClareSK

  • *
  • Posts: 7
Re: My attorney's response to the cease-and-desist letter
« Reply #9 on: June 18, 2013, 04:38:11 PM »

To clarify, the membership of the PRC is established by ordinance, and Jessica is not a member of the PRC.

To further clarify, the ordinance establishes eight commissioners appointed by the mayor and members of the town council. However, for many years the eight-member board has been supplemented by a number of volunteers. Among the five current volunteer members are BOE Member Sandra Mordecai and myself. We attend the monthly meetings and share our knowledge and expertise in discussions, are included in the commission e-mail distribution list, actively participate in the planning and execution of commission efforts, and even have PRC business cards issued by the township -- but we cannot vote.

Quote
I asked two questions of each person at Thursday's PRC meeting:

1. Did you take concerns about westorange.info to the mayor?

2. Did you know about the letter before the mayor sent it?

Those in attendance all said "no" to both questions: Prakash Khaitan, Cynthia Cumming, and Patrecia West.

At the meeting last week, Jake asked everyone in attendance about the letter, including the two volunteer members. We, too, answered no to both his questions.

Offline Jake Freivald

  • Administrator
  • *****
  • Posts: 302
Re: My attorney's response to the cease-and-desist letter
« Reply #10 on: June 18, 2013, 05:02:54 PM »
Clare is correct, of course. I focused on the official commissioners because the mayor can't claim that he sent the letter on behalf of the PRC if he was speaking on behalf of non-commissioner volunteers.

I have spoken with most of the other commissioners.

Prakash Khaitan, Chair - No.
Dr. Josie Velez, Vice Chair - No.
Cynthia Cumming - No.
Jonathon Ridley - No.
Patrecia West - No.
Jake Freivald - No.

That leaves MaryEllen Morrow. I will publicly eat my hat if MaryEllen says anything other than "no".

Michelle Cadeau resigned from the PRC.

This does not make the mayor look good.
Twitter: jdfreivald or westorangenj
AIM: jdfreivald
YM: jdfreivald

Offline westorangevoice

  • ****
  • Posts: 264
Re: My attorney's response to the cease-and-desist letter
« Reply #11 on: June 18, 2013, 07:19:38 PM »
This would not be the first time Parisi has tried to deceive the public.  We all know who requested the letter and Parisi used the PRC as the fall guy.

Offline Raymond Helfrich

  • ***
  • Posts: 151
  • "Mr. Hospitality"
    • The West Orange Watercooler (WOW!)
Re: PRC
« Reply #12 on: June 18, 2013, 08:03:33 PM »
Quote from: Jake Freivald
Michelle Cadeau resigned from the PRC.

(As usual) I (really don't want opinions or hearsay or speculation or gossip, but) wonder if there was any official statement (reason) issued, or any real (objective) news reporting about this.
Share more information (and fewer opinions, ideally) (about the town) (and vicinity) on the West Orange Watercooler (WOW!)!
http://groups.yahoo.com/group/WestOrangeWatercooler/

Offline Hop P

  • *
  • Posts: 1
Re:My attorney's response to the cease-and-desist letter
« Reply #13 on: June 18, 2013, 11:19:30 PM »
Someone has posted page 1 of "My attorney's response to the cease-and-desist letter" on LOLSnaps.  Your audience is expanding exponentially as evidenced by the fact I am writing this from the Left Coast.
I have no available law books but I know how to use Wikipedia:
" info is an unrestricted domain, meaning that anyone can obtain a second-level domain under info for any purpose, similar to the com, net or org domains. This is in contrast to TLDs such as edu or coop. Info is the only top-level domain that was explicitly created and chartered for unrestricted use, though various other TLDs became that way as a de facto situation. Info stands for information in about 37 languages, and is a neutral name."

The heavy hand of government is something which every generation MUST resist ...

Offline Jake Freivald

  • Administrator
  • *****
  • Posts: 302
Re: My attorney's response to the cease-and-desist letter
« Reply #14 on: June 19, 2013, 12:22:18 AM »
Just based on the stats from three sites, I can comfortably say that well over a third of a million people saw this letter today.

Scribd shows 57K direct reads + 181K embedded reads (at places like Above The Law): 238,000 people.
http://www.scribd.com/doc/148538709/Stephen-Kaplitt-Cease-and-Desist-Response-Letter

Buzzfeed shows almost 100,000.
http://www.buzzfeed.com/samir/is-this-the-best-response-to-a-cease-and-desist-letter-ever

Gawker shows about 40,000.
http://gawker.com/this-is-how-you-respond-to-an-unjust-cease-and-desist-l-514155395

So there's 238K + 100K + 40K: 378K. That doesn't count the kajillion other possible sites (LOLSnaps? hadn't heard of it), email, IM, and other ways in which the letter could have spread.
Twitter: jdfreivald or westorangenj
AIM: jdfreivald
YM: jdfreivald