A Bit on the Evidence Crystal Cox has that CLEARLY Proves that Randazza has NO Case Against Her or Eliot Bernstein, whatsoever. And that Randazza NEVER did have a viable claim in ANY way.

In November 2012, the Randazzas sued Defendant Crystal Cox and Defendant Eliot Bernstein alleging violations of individual cyberpiracy protections for various registered websites under 15 U.S.C. § 8131, cybersquatting for various registered websites under 15 U.S.C. § 1125(d), their right of publicity under NRS 597.810, their common law right of publicity, intrusion upon seclusion, and civil conspiracy.

The claims were based on allegations that Cox and Bernstein registered several domain names containing Plaintiffs’ names, that Cox’s blog posts contained objectionable characterizations of the Plaintiffs, and that these acts were designed to extort and harass the Randazzas and capitalize on and damage the goodwill Marc Randazza claims he built up in his own name as a prominent First Amendment attorney.

Cox claims that she registered the domain names to control public relations information when she thought Marc Randazza would represent her in another lawsuit.

Cox claims that her actions were in no way “extortion”.

Cox claims that she has never been under investigation for extortion, never sued for extortion befor this lawsuit filed against her by her former attorney, and that she has never been convicted of the crime of extortion or ever engaged in acts of extortion in any way.

Cox claims that Randazza has no material, factual evidence that Cox’s action were extortion or had any intention of being extortion in any way.

Authentication of Evidence

Cox Claims that Plaintiff Randazza has no authenticated evidence against her to support their claims, as is clearly point out per Line 12 on page 3 of 20, through line 7, page 8 of 20

Court Order Docket Entry 200.

Genuine issues of material fact preclude Plaintiffs’ claims 1-3 relating to violations of individual cyberpiracy protections under 15 U.S.C. § 8131.

The Randazzas’ first, second, and third claims arising under 15 U.S.C. § 8131 allege that Defendants’ registration of the multiple domain names violates the provision that provides cyberpiracy protection for individuals.

In pertinent part, section 8131 provides that: [a]ny person who registers a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person’s consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party, shall be liable in a civil action by such person.

To prevail at trial under this theory, a plaintiff must show that the specific intent to profit existed at the time of the registration. Randazza cannot prove that Cox had a specific intent to profit at the time of registration.

The statute further provides a very limited exception for good-faith registrants: A person who in good faith registers a domain name consisting of the name of another living person, or a name substantially and confusingly similar thereto, shall not be liable under this paragraph if such name is used in, affiliated with, or related to a work of authorship protected under Title 17, including a work made for hire as defined in section 101 of Title 17, and if the person registering the domain name is the copyright owner or licensee of the work, the person intends to sell the domain name in conjunction with the lawful exploitation of the work, and such registration is not prohibited by a contract between the registrant and the named person.

The exception under this subparagraph shall apply only to a civil action brought under paragraph (1) and shall in no manner limit the protections afforded under the Trademark Act of 1946 (15 U.S.C. 1051 et seq.) or other provision of Federal or State law.

Genuine issues of material fact preclude entry of judgment in the Randazzas’ favor on these first three cyberpiracy claims. They have failed to show by admissible evidence that at the time the Defendants registered domain names there was a specific intent to profit by selling the domains to Plaintiffs or a third party.

At best, they have demonstrated only that Defendant Cox offered to sell Mr. Randazza a few of the domain names at some point after the domain names were registered. This ex post action does not prove the specific intent to profit at the time the domains were purchased. Even if the Court were to consider post-registration conduct, it still cannot infer intent at the time of registration because the evidence undermines that conclusion.

The Randazzas’ own evidence suggests that Cox “bought [one domain name] - to control the search, and pr on [her] case, if [Mr. Randazza] represented [her].” This tends to show that Cox did not have a specific intent to profit at the time of the registration, creating a genuine dispute and precluding the Randazza’s from prevailing at trial on these claims.

I, Defendant Crystal Cox have not “victimized” anyone in any bizarre pattern. I am Media, I

have reported on hundreds of people, corporations, companies, attorneys, cases, judges,

cops, victims, and businesses over 7 years in my online media, my alternative news.

Genuine issues of material fact preclude the Randazza’s from prevailing at trial on claims 4-5 for Cybersquatting under 15 U.S.C. § 1125(d).

The Randazzas’ fourth and fifth claims allege that Defendants’ registration of the domain names violates the provision that prohibits cybersquatting.

To prevail on a cybersquatting claim, a plaintiff must show that: “(1) the defendant registered, trafficked in, or used a domain name; (2) the domain name is identical or confusingly similar to a protected mark owned by the plaintiff; and (3) the defendant acted with bad faith intent to profit from that mark.” Plaintiffs have failed to show and cannot show by admissible evidence essential elements of these cybersquatting claims, therefore Plaintiff will not prevail on these claims at trial.

Jennifer and Natalia Randazza’s claims fail as a matter of law because they have not alleged or shown any facts to support common-law trademarks in their personal names. Thus, Jennifer and Natalia are not entitled, as a matter of law, to a ruling in their favor on these claims.

Assuming Marc Randazza could show a common law trademark in his name, he has not demonstrated Defendants acted with bad-faith intent to profit from that mark.

To determine whether Defendants acted in bad faith, the Court considers the nine nonexclusive factors outlined in § 1125(d)(1)(b): (1) the trademark or intellectual property rights of the defendants in the domain name; (2) the extent to which the domain name is the legal name of a person, (3) defendant’s prior use of the domain name in connection with a bona fide offering of goods and services, (4) whether the defendant made a bona fide noncommercial fair use of the domain name,

(5) defendant’s intent to divert consumers from the mark owner’s online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site,

(6) whether the defendant offered to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name, (7) whether the defendant provided false contact information when registering the domain name, (8) whether the defendant registered multiple domain names which defendant knew were identical to or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, and (9) the extent to which the trademark incorporated into the domain name is distinctive.

Marc Randazza has not shown, by admissible evidence, that the non-exhaustive factors balance in his favor. Although some factors may balance in his favor, such as factors 1-3, others arguably do not, such as 4-7. As Plaintiffs have failed to prove an essential element of these claims, and cannot prove these essential elements at trial, Plaintiff’s cannot prevail on these cause of actions at trial.

Genuine issues of material fact preclude the Randazza’s from prevailing at trial on Claim 6 for Right of Publicity under NRS § 597.810.

Plaintiffs’ sixth claim alleges that Defendants’ registration of the domain names containing the entirety or part of the Randazzas’ personal names violated their rights of publicity under Nevada law. NRS § 597.810 prohibits “[a]ny commercial use of the name, voice, signature, photograph or likeness of another by a person, firm or corporation without first having obtained written consent for the use. . . .” The statute defines “commercial use” as “the use of the name, voice, signature, photograph or likeness of a person on or in any product, merchandise or goods or for the purposes of advertising, selling or soliciting the purchase of any product, merchandise, goods or service.”

Genuine issues of material fact also precludes Plaintiffs from prevailing at trial on this privacy claim. As the Randazza's have failed to show, by admissible evidence, that Defendants intended to advertise, sell, or solicit the purchase of any product, merchandise, goods, or service. Indeed, Plaintiffs have offered and can offer no admissible evidence that tends to show any commercial use of the their names. Thus, Plaintiff CANNOT prevail on this claim.

Claim 7 for Common Law Right of Publicity is legally untenable.

Plaintiffs’ seventh claim alleges that Defendants’ registration of the domain names containing the entirety or part of the Randazzas’ personal names violated their common law rights of publicity. “Nevada has codified the right of publicity tort.” Because “[t]he statute provides a 40 complete and exclusive remedy for right of publicity torts,”

Nevada law does not recognize a common law right of publicity. As Nevada law does not recognize this cause of action, Plaintiffs have failed to state a viable claim under this legal theory, and this claim has already been dismissed with prejudice, as seen in docket entry 200.

Genuine issues of material fact precludes Plaintiff to prevail on Claim 8

for common law intrusion upon seclusion.

The Randazzas’ eighth claim alleges that Defendants’ registration of five of the domain names containing the entirety or part of their names amounted to a common law intrusion upon seclusion.

To recover for the tort of intrusion, a plaintiff must prove that there was an intentional intrusion (physical or otherwise) on his seclusion that would be highly offensive to a reasonable person.

“To have an interest in seclusion or solitude which the law will protect, a plaintiff must show that he or she had an actual expectation of seclusion or solitude and that that expectation was objectively reasonable.”

Generally, there is a decreased expectation of privacy in the workplace and for individuals who have interjected themselves into the public sphere.

Genuine issues of material fact preclude Plaintiffs’ to prevail at trial on this intrusion claim.

Plaintiffs Jennifer and Natalia have failed to show, by admissible evidence, that the mere registration of a domain name would be highly offensive to a reasonable person.

And Marc Randazza has failed to show that registering the domain names, coupled with the comments contained in the two admissible blog posts, would be highly offensive to the reasonable person, as a matter of law.

Marc Randazza has a decreased expectation of privacy in his workplace. By his own characterization, he is an attorney “renowned through the United States and the world for expertise in First Amendment, intellectual property, and Internet law.” He authors “a blog about various legal issues,” and the blog is an ABA-recognized top blog website.

On his blog, he goes to great lengths to explain “why [he has] the audacity to believe that [he is] qualified to teach [others] a thing or two.” He touts himself as having “experience and expertise in all areas of First Amendment and 48 entertainment law matters.” He boasts about “get[ting] to fight ‘the good fight’ – protecting all of our First Amendment freedoms,” and openly proclaims that he has “represented adult entertainment establishments against socially conservative communities.”

By talking about his experience and the clients he represents, Mr. Randazza invites commentary on his work as an attorney and criticism from those who oppose the positions of his clients.

Marc Randazza may be perceived to have interjected himself into the public sphere by making television and radio guest appearances, giving quotes and interviews in newspapers, magazines, and other publications, appearing at speaking engagements, and having an ABA-recognized Top blog website, all as reflected on his résumé.

Considering his intentional and deliberate professional exposure and interjection into the public sphere and the accompanying decrease in his privacy interests, he has not demonstrated, as a matter of law, that he had an actual or reasonable expectation that he would not be criticized based on his work as an attorney or that he would not be thought about unfavorably by people in opposition to his work.

The Randazzas have failed to establish essential elements of claim 8 and cannot establish these elements, therefore they cannot prevail on claim 8.

Genuine issues of material fact preclude Plaintiff to prevail

on claim 9 for Civil Conspiracy.

Plaintiffs’ ninth claim alleges that Bernstein and Cox colluded to register the domain names containing the entirety or part of the Randazzas’ names to violate their rights.

To state a valid claim for civil conspiracy, a plaintiff must show: (1) defendants, by acting in concert, intended to accomplish an unlawful objective for the purpose of harming the plaintiff; and (2) the plaintiff sustained damages as a result.

“A civil conspiracy claim operates to extend, beyond the active wrongdoer, liability in tort to actors who have merely assisted, encouraged or planned the wrongdoer’s acts.” Genuine issues of material fact also preclude the Randazzas’ from prevailing on this claim.

They have not demonstrated, by admissible evidence, that Cox and Bernstein acted in concert. The only admissible evidence on this point is a blog post purportedly written by Cox. Plaintiffs claim that Cox “states that Bernstein is her business partner.”

However, the proffered evidence does not compel that conclusion. The blog post refers in different places to the website MarcRandazza.me, that Bernstein is a co-defendant in this case, and that Cox and her business partner have been customers of Godaddy Inc. for several years.

The blog does not, as Plaintiffs suggest, identify or definitely reflect that Eliot Bernstein is the business partner Cox is referring to in the post. And, even if Bernstein were the partner Cox mentions, the post does not prove that Bernstein and Cox colluded to violate Plaintiffs’ rights. For that reason, Plaintiff Randazza cannot prevail at trial on this claim.

(See Line 4-28 on page 9, and page 10 through 14 of Court Order Docket Entry 200)

Randazza was Cox’s Attorney; Cox claims that as her former attorney he cannot sue her on these claims. Cox claims that Randazza Legal Group could not represent Marc Randazza in sue a former client, as a matter of law and attorney ethics.

The Randazzas claim that Cox was guilty of witness tampering, though the Randazzas were not witnesses in any of her cases and Marc Randazza is precluded by attorney ethics and law as to his limitations in testifying against a former client, especially in the very case he represented her in.

Lanham Act

Randazza Cannot, as a matter of law, use the Lanham Act to Shut down Blogs that Speak Critical of Him and his Law Firm, and his wife. It is unlawful, unconstitutional and unethical.

Defendant Crystal Cox claims to have a legal right to own a Domain Name and a blog with the

name of anyone in the title, as noted clearly in, case regarding the domain name

GlenBeckRapedAndMurderedAYoungGirl.com, in which Plaintiff Marc J. Randazza

represented the Domain Name owner and won the right for that person to continue owning

and using that Domain Name.

It is Clear, Obvious and Blatant that Defendant Crystal Cox’s blogs are critical of Marc

Randazza, she is very vocal about her feelings and experience regarding Plaintiff Marc Randazza and her personal experience with Randazza. There is no confusing similarities, there is a

distinct difference between the blogs and domain names used for these blogs then a SERVICE

connected to Randazza Legal Group.

Defendant Crystal Cox also posts tips she gets from Industry Insiders, Sources, Whistle

Blowers as she is MEDIA. There is no Trademark or “Mark” Violation and NO Reader would

assume that I am trying to lure them in to sell a similar, commercial product or service. It is

Obvious, Blatant and not Confusingly Similar in ANY way

Regarding this same issue of a personal name in a Domain Name, Plaintiff Marc

Randazza wrote the following quote which is a letter from Attorney Marc J. Randazza,

Plaintiff in this case, to Matthew A. Kaplan Opposing Counsel, and is personally signed

by Plaintiff Marc John Randazza.

Click Here to Read Letter (Exhibit 30)

" View 1 states: “The right to criticize does not extend to registering a domain name that is

identical or confusingly similar to the owner’s registered trademark or conveys an association

with the mark.”

View 2 states: “Irrespective of whether the domain name as such connotes criticism, the

respondent has a legitimate interest in using the trademark as part of the domain name of a

criticism site if the use is fair and non­commercial.”

Naturally, View 2 is the prevailing view of American panelists and panels that apply American law

to UDRP proceedings. View 1 seems to be more popular with international panelists and panels

that apply European law."

Unfortunately, given that UDRP decisions regularly incorporate international legal principles, this

case could be assigned to a foreign panelist or to an American panelist who applies

transnational principles. I personally would find it distressing if the panel were to make a decision

that completely disregards the U.S. Constitution in favor of a foreign perspective that adopts

View 1."

"To be candid, we found the fact that Mr. Beck filed this action at all to be most

puzzling. Although, it was obvious why he did not file in a U.S. court given the law

surrounding nominative fair use of trademarks as fully explained in our Brief.

Naturally, a defamation claim as alluded to in Mr. Beck’s complaint would be

humiliatingly doomed as well in a U.S. court. "

The Document Goes on to Say:

"Accordingly, we found it to be most ironic that Mr. Beck, facing the fact that the

U.S. Constitution would stand in his way in a U.S. court, sought to bring this action

before an international domain name arbitration panel.

On March 20, 2009, he said on his show:

Let me tell you something. When you can't win with the people, you

bump it up to the courts. When you can't win with the courts, you

bump it up to the international level.

Of course, we levy no critique at Mr. Beck for seeking to vindicate his perceived

rights in this forum. We do not share his opinion as articulated on March 30, and we

respect his creativity in seeking an alternate avenue where his claims might have a

chance of success. Unfortunately, despite the general wisdom among UDRP

panelists, we find that occasionally they render decisions that make First

Amendment champions cringe."

"We are certain that despite our disagreement with Mr. Beck’s legal position, that all

parties involved hold equal reverence for the First Amendment.

Therefore, I have prepared a proposed stipulation that will ensure that no matter which panelist is

assigned to this case, the First Amendment will illuminate these proceedings like

rays of light from the Torch of Liberty."

The Document (Exhibit 30) Goes on to Say:

"I am certain that neither party wishes to see First Amendment rights subordinated

to international trademark principles, thus unwittingly proving Mr. Beck’s point. Lest

this case become an example of international law causing damage to the

constitutional rights that both of our clients hold dear, I respectfully request that

your client agree to stipulate to the application of American constitutional law to

this case. "

Yet, this court continues to favor this SAME attorney as a Plaintiff arguing

the Opposite Defense to his own favor, in Randazza V. Cox.

The Document Goes on to Say:

“Irrespective of whether the domain name as such connotes criticism, the

respondent has a legitimate interest in using the trademark as part of the domain

name of a criticism site if the use is fair and non-commercial.”

Eliot Bernstein nor Crystal L. Cox had commercial sites, nor were they in a

competing business. Eliot Bernstein got domain names in receivership of a debt

Crystal Cox owed him. Crystal Cox used the domain names to seriously criticize

Plaintiff / Counter Defendant Marc J. Randazza who she had personal experience of,

knowledge of, and who is a Public Figure.

This Hypocrisy of Plaintiff / Counter Defendant Marc J. Randazza, proves yet again

that he knew this lawsuit was a frivolous waste of the courts time and the

Taxpayers money, yet he sued anyway, in order to retaliate against a woman who

he had once represented and who he did not like or approve her on "online

speech", regarding her experience with him.

"THE LANHAM ACT AS IT APPLIES TO DOMAIN NAME DISPUTES

The Lanham Act was originally enacted as the Trademark Act of 1946. It has been amended several times. It is codified at 15 U.S.C. §§ 1051-1127.1

The Lanham Act provides remedies for both trademark infringement and trademark dilution. There is now, in addition, the Anticybersquatting Consumer Protection Act of 1999.2 These are all discussed below.

A. INFRINGEMENT

Trademark infringement occurs when a non-owner uses another’s trademark in a way that causes actual confusion or a likelihood of confusion between the marks. Specifically, the Act prohibits the use of marks that are "likely to cause confusion, or to cause a mistake, or to deceive."

In order to establish infringement, a plaintiff must first show its own actual trademark use. That is, it cannot simply register and then warehouse a trademark in hopes of someday bringing an infringement suit. The plaintiff must also show that the trademark is distinctive. Finally, it must show that the defendant’s use of a mark is non-functional. A mark is non-functional when it is not inherent to the purpose or description of what it is representing. (For example, "bandage" is functional; "Band-Aid" is non-functional.)

B. DILUTION

Trademark dilution is less concrete than infringement. In order to understand it, one must be familiar with a number of terms of art. In a dilution case, there is a "senior user" and a "junior user." The senior user is the entity that used the mark first, and is almost always the plaintiff in a dilution case. The junior user is the entity that subsequently uses the mark. The junior user is usually the defendant in a dilution case.

A dilution case involves use of a mark in a "commercial context." This means that the use in question must actually be in the stream of commerce and could therefore make a profit for the user.

Dilution deals with marks as a "source indicators." This term refers to the ability of a mark to identify a user and/or its products and services. One of the most important aspects of using marks as source indicators is the reputation of a user and how that affects the public’s perception of the mark.

Dilution occurs when a junior user uses a senior trademark user’s mark in a commercial context in a way that lessens the power of the senior user’s mark as a source indicator.4

There are two forms of dilution.

The first is dilution by tarnishment, which is the diminishing of the power of the senior user’s mark because of its association with the negative aspects or connotations of the junior user’s use of the mark.

The second is dilution by blurring, which is when the power of the senior user’s mark is decreased because of the blurring of the mark’s distinctive quality caused by the existence of the junior user’s mark.

In a dilution cause of action, the plaintiff must show that its mark is famous and that the junior user is using its mark in a commercial context. In order to determine whether a mark is famous, Congress set out eight nonexclusive factors that a court may consider.

There are three uses that Congress made non-actionable under the dilution section of the Lanham Act. They are, briefly, fair use of a famous mark for comparative advertising or promotion, noncommercial use, and all forms of news reporting and commentary.6

C. CYBERPIRACY PREVENTION

The ACPA provides a cause of action similar to a dilution claim, but one with its own unique elements.

The first difference is that the plaintiff’s mark need not be famous. It need only be protected.

A plaintiff can establish liability by showing the following. The plaintiff must show that the defendant has a bad faith intent to profit from the mark. The plaintiff must also show that the defendant has registered, trafficked in, or uses a domain name that is identical to, confusingly similar to, or in the case of a famous mark, is dilutive of the plaintiff’s mark.

Congress provided nine non-exclusive factors for a court to consider in order to determine bad faith under this section.9

The ACPA applies not only to protected marks, but also to protected personal names.10 The Cyberpiracy Protection for Individuals Act,which applies specifically to "any person who registers a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person’s consent, with the specific intent to profit from such name by selling the domain name. . ."

Generally, the remedy for a trademark violation is injunctive. In the case of the ACPA, Congress allowed courts to order the cancellation or forfeiture of domain names that violate the trademark owner’s rights.

III. "SUCKS.COM" CASES UNDER THE LANHAM ACT

There have been two "sucks.com" cases decided under the Lanham Act. It is very unlikely that there will be any more.

In Bally Total Fitness Holding Corp. v. Faber,14 Bally brought a trademark infringement and dilution suit against Faber after Faber created and registered a website called www.compupix.com/ballysucks. This site, which no longer exists, was dedicated to complaints about Bally. The case was resolved before the ACPA was enacted.

The court immediately concluded that there was no likelihood of confusion between Bally and Ballysucks.com because they are not "related goods" and dismissed the infringement claim.

Although the court dismissed the infringement claim, it still discussed how the case would come out under the most common likelihood of confusion test, found in AMF Inc. v. Sleekcraft Boats.

The court most likely did this because this was the first case of its kind and the court wanted to establish some official position on the matter.

The Sleekcraft test uses eight factors to determine whether a defendant’s use of a plaintiff’s trademark creates a likelihood of confusion. The factors are:

Strength of the mark

Proximity of the goods

Similarity of the marks

Evidence of confusion

Marketing channels used

Type of goods and the degree of care likely to be exercised by the purchaser

Defendant’s intent in selecting the mark

Likelihood of expansion of the product lines16

The court found that Bally has strong marks, as evidenced by the amount of money spent on advertising and the fact that no other health club company uses the Bally mark. This factor came out in favor of Bally.

The court found that the similarity of marks factor leaned in favor of Faber. Bally argued that the marks are identical or that adding "sucks" on the end of "Bally" is a minor change. The court found that "sucks" is such a loaded and negative word that the attachment of it to another word cannot be considered a minor change.

Bally asserted that the goods were in close proximity because both used the Internet and because it had a complaint section on its own website. The court found, however, that the sites did not compete, even though they were both on the Internet. This is because Bally’s is a commercial site while Faber’s site is for the purpose of consumer commentary. The factor leaned in favor of Faber.

Bally presented no evidence of actual confusion. Bally argued that the confusion would be patently obvious due to the similarity of the marks. The court, however, found that a reasonably prudent user would not mistake Faber’s site and the official Bally’s site. This factor leaned in favor of Faber.

Bally argued that the marketing channels used, namely the Internet, were identical. The court found that the overlap of marketing channels was irrelevant because Faber’s site was not a commercial use of the mark. This factor was neutral or slightly in favor of Faber.

Bally argues that an Internet user may accidentally access Faber’s site when searching for Bally’s site on the web. The court dismissed this because Faber does not actually use Bally’s trademark. It further points out that an Internet user searching with a search engine may want all the information available on Bally’s and is entitled to more than Bally’s own site. This factor leaned in favor of Faber.

The court found, and Bally agreed to some extent, that in the context of consumer commentary, Faber was entitled to use Bally’s mark. In fact, he had to use Bally’s mark in some way to identify what he was criticizing. This factor was neutral.

Bally conceded that there was no likelihood of the two parties expanding into each other’s lines of business. For this reason, the last factor leaned in favor of Faber.17

In concluding its discussion of likelihood of confusion, the court stated that "applying Bally’s argument would extend trademark protection to eclipse First Amendment rights. The courts, however, have rejected this approach by holding that trademark rights may be limited by First Amendment concerns."

Under the dilution claim, Bally argued that there was dilution by tarnishment because Faber also had pornographic websites linked from the compupix.com site.

The court found that Faber had engaged in no commercial use of the Bally name due to the nature of the website. The court also concluded that there was no tarnishment. In so deciding, the court said that if tarnishment existed in this case, "it would be an impossible task to determine dilution on the Internet."19 The court went on to point out that to include "linked sites as grounds for finding commercial use or dilution would extend the statute far beyond its intended purpose of protecting trademark owners from use that have the effect of ‘lessening. . . the capacity of a famous mark to identify and distinguish goods or services.’"20

For these reasons, the court ruled in favor of Faber.

In the other "sucks.com" Lanham Act, Lucent Technologies, Inc. v. Lucentsucks.com,21 the court did not get beyond the jurisdictional issues to reach the merits. However, the court acknowledged in dicta that had the case reached the merits, the court probably would have reached a decision similar the one reached in Bally.22

The remaining "sucks.com" cases have been decided under the UDRP.

RANDAZZA has fought and won many cases on behalf of those who own sucks sites, yet had this court give him MarcRandazzaSucks and RandazzaLegalGroupSucks.

IV. THE UNIFORM DOMAIN NAME DISPUTE RESOLUTION POLICY

On October 24, 1999, ICANN adopted its Uniform Domain Name Dispute Resolution Policy.23 Since then, the UDRP has been used by domain name dispute resolution panels, most notably those associated with WIPO, to rule on domain name disputes. A number of these disputes have involved "sucks.com" websites.

Part of the registration process for a getting a domain name includes acceptance of the UDRP. A domain name owner can lose its rights to the domain name if it violates the UDRP.24

Section 4 of the UDRP explains the mandatory administrative proceeding that any domain name owner could be subject to. This proceeding occurs when a third party complainant asserts that the domain name owner has used a domain name that is identical or confusingly similar to the complainant’s mark, that the domain name owner does not have rights or legitimate interests in the name, and that the domain name has been registered and used in bad faith.25

The UDRP lists four non-exclusive factors to be considered in determining bad faith.26

The remedies sought in a UDRP proceedings are the cancellation of the domain name or the transfer of the domain name to the complainant owner of the mark.27

The UDRP proceeding does not prevent its loser from taking the case to court following the conclusion of the proceeding.28

V. "SUCKS.COM" CASES UNDER THE UDRP

A number of "sucks.com" cases have been heard by panels using the UDRP’s mandatory administrative procedure. These hearings have come out strongly in the opposite direction from the court cases under the Lanham Act.

At one point, in fact, nine of the eleven "sucks.com" cases heard under the UDRP, had been decided in favor of the original mark owner, with the other two hearings awaiting decisions.29

A notable recent example of a UDRP hearing is Diageo plc v. John Zuccarini, Individually and t/a Cupcake Patrol.30 Diageo, formerly known as Guinness plc, the owner of the company and brewery that produces Guinness beer, brought this proceeding against Zuccarini after Zuccarini registered eleven domain names, all variations on the theme of "Guinness beer sucks."31

Previously, Diageo had brought a hearing against Zuccarini for his registration of guinnes.com. It claimed that Zuccarini’s registration of the eleven Guinness _____sucks.com sites were in direct retaliation for its having done this.32

In deciding on Zuccarini’s liability, the panel33 first looked at the question of whether the domain names were identical or confusingly similar to Diageo’s mark. Because the marks were not identical, the panel looked to whether they were confusingly similar. The panel decided that the domain names were confusingly similar.

In doing so, it relied on precedent from a previous hearing in which a panel held that "the confusingly similar test may be held to a different standard when used with Internet search engines."34

The panel also used the same Sleekcraft test for likelihood of confusion that the court used in Bally.35 However, the panel acknowledged that there were some difficulties in applying the test to a domain name dispute. Nevertheless, because neither party objected, the test was used.36

The panel found that Diageo had a very strong mark.

The panel found that although the parties were in different line of trade, the fact that there were beer references in a number of Zuccarini’s domain names was enough to establish some kind of proximity.

The panel found that because the word "guinness" appeared at the beginning of each of the domain names, there was at least some similarity between the marks.

There was no evidence of actual confusion. However, the panel found that it was unrealistic to require such evidence, especially because Zuccarini’s domain names had not actually been used for active websites.

When considering the marketing channels, the panel again pointed out the distinction between trademarks and domain names. It did accept, however, the assertion that a search using a search engine would likely point out the domain names in dispute.

The panel was unsure of how to interpret the question of the degree care exercised by the purchaser. Of particular concern was the fact that "sucks" is an American slang word and may not be familiar to all English speakers, let alone all Internet users. Because of this, the panel envisioned "circumstances where Internet users are not aware of the abusive connotations of the word and consequently associate the domain name with the owner of the trademark."37

The panel found that Zuccarini had no legitimate reason to select the marks to use for the domain name and that there was no evidence of any likelihood that either party would expand its product lines.

Based on its consideration of the UDRP standards and the Sleekcraft factors, the panel decided that Zuccarini had no legitimate interest in the Guinness name, and that his registering the "sucks.com" websites was primarily to disrupt Diageo’s business and was therefore done in bad faith.

Based on its findings, the panel ordered that all eleven domain names be transferred to Diageo.

While the panel did decide in favor of the Diageo, it did so at least in part because Zuccarini made no response to Diageo’s allegations, which the panel felt established prima facie cases for the elements needed under the UDRP.

The Bally court focused in the end on the fact that First Amendment rights trump Trademark law. The panel in this case was more concerned by the fact that a test designed for trademark law was used in a decision also involving domain names, stating that "it is obvious that there remains many areas of doubt as to how the various elements of the test can be transposed in its application to disputes involving a comparison of domain names and trademarks

The First AMENDMENT Trumps Trademark LAW

Crystal Cox claims that the First Amendment Trumps Trademark Law and that Randazza had no right to sue her, and did so only to harass her and retaliate against her.

Cox claims the First AMendment as her defense and claims that Randazza cannot prevail in a trial regarding his claims. Cox also claims that, as a First Amendment expert , Randazza knew this and still shut down her blogs, sued her maliciously in a frivolous, costly SLAPP lawsuit and abused the power of the courts to harass an ex- client who was speaking critical of him online. And that Randazza spread malicious lies about Crystal Cox to other attorneys, sworn documents in court, WIPO, Forbes, NPR, the New York Times, legal bloggers, newspapers and online media.

Defendant Crystal Cox claims that a Trademark, should not be used as a Censorship Tool.

Second Circuit Finds that First Amendment Trumps Trademark

In 1989, the Second Circuit adopted a balancing test to weigh the value of an artist’s First Amendment rights against the value of trademarks depicted in the artist’s work. Rogers v. Grimaldi, 875 F.2d 994 (9th Cir. 1989). In June of 2012, the 11th Circuit adopted essentially the same test in University of Alabama Board of Trustees v. New Life Art, Inc., 683 F.3d 1266 (11th Cir. June 11, 2012).

Fourth Circuit Finds that First Amendment Trumps Trademarks

The First Amendment Trumps Trademark Rights in Radiance Found, Inc. v. NAACP. The Fourth Circuit Court of Appeals ruled in favor of the columnist, issuing a strongly-worded opinion that criticized the NAACP’s attempt to silence free speech. The decision can be found at Radiance Found., Inc. v. NAACP, No. 141568, — F.3d — (4th Cir. May 19, 2015)

In The Radiance Foundation, Inc. v. NAACP, the Fourth Circuit held that the NAACP did not have viable trademark infringement claims because the Defendant did not use the NAACP’s marks “in connection with the sale, offering for sale, distribution, or advertising of any goods or services.” 15 U.S.C. § 1114(1)(a). The court declined the NAACP’s request that it broadly construe the Lanham Act to expose trademark liability to a wide array of noncommercial expressive and charitable activities, like the Defendant’s solicitation of donations on its websites where the article was posted. “Such an interpretation would push the Lanham Act close against a First Amendment wall, which is incompatible with the statute’s purpose and stretches the text beyond its breaking point.”

The Fourth Circuit also found that the Defendant’s use of the NAACP’s marks did not create the likelihood of confusion required for trademark infringement, despite the fact that some consumers may be confused about the NAACP’s true name and political positions. The court explained that “[t]rademark infringement provisions do not protect against confusion about the marks themselves because marks are not goods or services but instruments to identify goods and services…. Likewise, trademark infringement is not designed to protect mark holders from consumer confusion about their positions on political or social issues.”

In addition, the Fourth Circuit held that the Defendant’s use of the NAACP’s marks fell squarely within the exceptions to trademark dilution included in the Lanham Act to avoid encroaching on free speech rights. Specifically, the article fell within the “fair use” exclusion that permits, among other things, use of a mark in connection with “identifying, parodying, criticizing, or commenting upon” the mark owner. 15 U.S.C. § 1125(c)(3)(A)(ii). The court also applied the “noncommercial use” exclusion because the article was not an advertisement. Id. at § 1125(c)(3)(C).

The Fourth Circuit decision is important for serving as a reminder that trademark law is “not [a] proper vehicle[] for combatting speech with which one does not agree.” As the Second Circuit observed nearly three decades ago, in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), courts “must construe the [Lanham] Act narrowly to avoid . . . a conflict” with “First Amendment values.”

First Amendment Trumps Trademark in Call of Duty Case

Novalogic, Inc. and Activision Blizzard – a California federal court held that Novalogic’s attempt to enjoin Activision from using the phrase “Delta Force” and a Delta Force logo in “Call of Duty: Modern Warfare 3” is barred by the First Amendment. Novalogic v. Activision Blizzard et al. [No. 12-4011].

Protectmarriage.com-Yes on 8, a Project of California Renewal v. Courage Campaign Case

The Eastern District of California demonstrates that the First Amendment may trump a trademark owner's objections to use of a similar mark by a political opponent. In the case of Protectmarriage.com-Yes on 8, a Project of California Renewal v. Courage Campaign, 93 U.S.P.Q.2d 1477 (E.D. Cal. 2010), the plaintiff, ProtectMarriage.com, is a nonprofit organization opposed to same-sex marriage in California. The plaintiff's logo consisted of the phrase "Yes on 8 Protect Marriage" and four stylized human figures: two adults and two children. Click here to view the logo.

The defendant, Courage Campaign Institute, is a nonprofit supporter of same-sex marriage and self-proclaimed frequent adversary of ProtectMarriage.com. The defendant created a logo-admittedly derived from the ProtectMarriage.com logo-depicting the silhouette of two women with two children, and used it for a website that provided news coverage of a lawsuit challenging the challenging an amendment to the California State Constitution that outlaws same-sex marriages. Click here to view the logo.

The plaintiff sought a temporary restraining order against the defendants' use of the modified logo. The defendant claimed that the use was protected on grounds of parody under the protections of the First Amendment.

The district court agreed with the defendant and held that First Amendment considerations outweighed the plaintiff's trademark rights. The court held first that, under Ninth Circuit law, contested marks used in connection with artistic works are not actionable under the Lanham Act, 15 U.S.C. § 1114 et seq., unless they have no artistic relevance to the underlying artistic works whatsoever or, if relevant, they are explicitly misleading as to the source or the content of the work. Protectmarriage.com, 93 U.S.P.Q.2d at 1479 (citing to Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989)).

E.S.S. Entm’t 2000 v. Rock Star Videos: First Amendment Trumps Trademark Rights

In E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095 (9th Cir. 2008), the 9th Circuit U.S. Court of Appeals confirmed that when trademark rights clash with the First Amendment, the First Amendment usually wins – at least in cases involving artistic or creative endeavors. The court affirmed the grant of summary judgment in favor of the creators and publishers of the Grand Theft Auto series of video games against the owner of a Los Angeles strip club who claimed that the game infringed on the club’s trademark and trade dress. Specifically, the court applied the Rogers v. Grimaldi two-prong analysis to find that the First Amendment protects the game’s use of the club’s mark in the face of a Lanham Act challenge.

Rock Star asserted that its use of The Play Pen’s mark was protected by the First Amendment. Both the District and Circuit courts agreed, citing Rogers v. Grimaldi, 875 F.2d 994, 999 (2nd Cir. 1989) for the proposition that the Lanham Act infringement laws apply “to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression.”

The court cited the two-prong analysis set forth in Rogers: “An artistic work’s use of a trademark that otherwise would violate the Lanham Act is not actionable ‘’unless the [use of the mark] has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless [it] explicitly misleads as to the source of the content of the work.’’” E.S.S. Entertainment, 547 F.3d at 1099 (citing Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 902 (9th Cir. 2002) (citing Rogers, 875 F.2d at 999)).

As to the first prong, E.S.S. claimed that Rock Star’s use of the mark had no artistic relevance to the game, in that The Play Pen is not a primary focus of the game. But the Circuit Court stated that E.S.S. missed the point because the amount of artistic relevance the use of the mark has to the overall product is irrelevant. “[O]nly the use of a trademark with ‘no artistic relevance to the underlying work whatsoever’ does not merit First Amendment protection… In other words, the level of relevance merely must be above zero.” E.S.S. Entertainment, 547 F.3d at 1100 (citing Mattel v. MCA Records, 296 F.2d at 902).

The court found that the game’s inclusion of a strip club that may be similar in look and feel to The Play Pen does have artistic relevance to the game’s goal of creating a fictional version of a particular urban area. Id.

As to the second prong, R.S.S. argued that even if there were artistic relevance, Rock Star’s use explicitly misleads users regarding the source or content of the work, in violation of the very purpose of trademark law to avoid consumer confusion. The court explained the issue as determining “whether the Game would confuse its players into thinking that the Play Pen is somehow behind the Pig Pen or that it sponsors Rockstar’s product.” Id.

The court found no such confusion, largely because the Pig Pen was very generic, and its existence is purely incidental to the story of the game. The court wrote: “Nothing indicates that the buying public would reasonably have believed that ESS produced the video game or, for that matter, that Rockstar operated a strip club.” Id.

Brown v. Electronic Arts, Inc.

Brown v. Electronic Arts, Inc., involves James “Jim” Brown (“Brown”), the famous football player, who sued Electronic Arts (“EA”), the manufacturer distributor and seller of the Madden NFL series of football video games.

The video games allow users to control avatars representing professional players, and to participate in simulated games. Some versions of the games included likenesses of Brown.

Brown’s claims under the Lanham Act, the main federal trademark law, are of particular interest here. Generally with trademarks, the basic test a mark’s owner is asked to show is whether use of the competing mark is likely to cause confusion in the public’s mind, and Brown’s basic argument was that EA’s use of his likeness without his permission was likely to cause confusion in the mind of the public as to whether he endorsed the video games.

However, there is always the understanding that granting exclusive use of marks limits constitutionally protected free speech. In evaluating the competing interests of protecting the public from deception and protecting freedom of expression, when the identifying material in question appears in an expressive work, Courts tend to shift the balance toward First Amendment considerations.

Because EA’s videos are considered expressive works, the Court considered whether EA’s use of Brown’s likeness in the videos was relevant. Given EA’s professed interest in creating a high level of realism for the various football teams portrayed, inclusion of Brown’s likeness in the recreation of the ’65 Cleveland Browns team was relevant.

Cox claims that it is and was clear that her sites were review sites, gripe sites, and parody sites. Randazza himself defends such sites on a regular basis yet he shut down Cox’s sites.

A Bit on Parody

Certain parodies of trademarks may be permissible if they are not too directly tied to commercial use. The basic idea here is that artistic and editorial parodies of trademarks serve a valuable critical function, and that this critical function is entitled to some degree of First Amendment protection.

The courts have adopted different ways of incorporating such First Amendment interests into the analysis. For example, some courts have applied the general "likelihood of confusion" analysis, using the First Amendment as a factor in the analysis. Other courts have expressly balanced First Amendment considerations against the degree of likely confusion.

Still other courts have held that the First Amendment effectively trumps trademark law, under certain circumstances. In general, however, the courts appear to be more sympathetic to the extent that parodies are less commercial, and less sympathetic to the extent that parodies involve commercial use of the mark.

So, for example, a risque parody of an L.L. Bean magazine advertisement was found not to constitute infringement. L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 28 (1st Cir. 1987). Similarly, the use of a pig-like character named "Spa'am" in a Muppet movie was found not to violate Hormel's rights in the trademark "Spam." Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d 497 (2d Cir. 1996). On the other hand, "Gucchie Goo" diaper bags were found not to be protected under the parody defenseGucci Shops, Inc. v. R.H. Macy & Co., 446 F. Supp. 838 (S.D.N.Y. 1977). Similarly, posters bearing the logo "Enjoy Cocaine" were found to violate the rights of Coca-Cola in the slogan "Enjoy Coca-ColaCoca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972). Thus, although the courts recognize a parody defense, the precise contours of such a defense are difficult to outline with any precision.

Such uses, as Cox used, of trademarks also do not constitute trademark dilution. Title 15 U.S.C. § 1125(c)(3) expressly excludes “noncommercial use[s] of a mark” from the dilution cause of action; as Mattel noted, this exclusion protects all uses other than “commercial speech” (i.e., commercial advertising). Mattel, 296 F.3d at 905-06

Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), and Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002), make clear that such uses of trademarks in titles are not actionable even when some viewers are likely to be confused. In Rogers, a filmmaker was sued by Ginger Rogers for his use of the film title “Ginger and Fred.” The film was not about Rogers and her film partner, Fred Astaire, but about two other dancers who imitated the duo onstage. Id. at 996-97.

Even if Randazza were to somehow prevail in the District of Nevada, the Ninth Circuit will not let Randazza use Trademark Law to suppress speech and violate the First Amendment Rights of Cox and Bernstein.

MORE on The First Amendment Trumps Trademark Law

In this legal actions, it is important to take note that Marc Randazza, Crystal Cox’s former attorney filed a Trademark lawsuit in order to shut down online content in which spoke critical of him

Attorney Marc Randazza, plain and simple, used Trademark Law to remove blogs, to steal domain names, to chill speech, to stop the flow of information and to redirect intellectual property.

It is unlawful, unconstitutional and unethical to use Trademark Law to remove online sites that Plaintiff Marc Randazza does not like or approve of

Even if Plaintiff Could prove a Trademark, Defendants First Amendment Rights TRUMP

Trademark Rights in this case.

Regarding Plaintiff’s Discussion of the Lanham Act, Though it does not seem to be a

cause of action, Plaintiff lists Lanham in this complaint at various points.

The Supreme Court has recognized the threat to freedom of speech. In Cohen v. California,

403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971), it was decided that the right

to speak freely that is guaranteed by the First Amendment to the Constitution of the United

States includes the right to criticize others, voice highly controversial opinions, and

comment on public interest matters.

The First Amendment also protects free speech of extreme statements and intentional

exaggeration when it is clear the statements are insincere and done to frustrate the target,

and is not defamation but opinion, satire, or parody.

In Hustler Magazine v. Falwell; Parody is NOT Defamation. There are many other cases in

which discuss that Parody and Satire is not a Trademark or Defamation Issue. Plaintiff /

Counter Defendant Marc Randazza DEFENDS Satire and Parody Blogs, Sites, Domain

Names, Content, Radio, Television and More, Constantly,

The first step with free speech and the First Amendment and trademark law is whether the

speech in question is commercial or noncommercial. Commercial speech is bound by the

laws of the Lanham Act and is subject to less and sometimes no First Amendment

protection.

Noncommercial speech is not bound by the Lanham Act or trademark law, and is

guaranteed complete and full First Amendment protection. In fact, trademark law

specifically exempts noncommercial speech so that the law will not infringe on the First

Amendment. One case that supports this paragraph is Taubman Co. v. Webfeats, 319

F.3d 770, 774­75 (6th Cir. 2003). Another supporting precedent is Nissan Motor Co. v.

Nissan Computer Corp., 378 F.3d 1002, 1015­18 (9th Cir. 2004).

Pro Se Defendant Crystal L. Cox and Defendant Eliot Bernstein have made no money from

the Seized Domain names. Pro Se Defendant Crystal L. Cox, is an Investigative Blogger, a

Media Defendant and was giving Plaintiff Marc Randazza a bad review as she was a

former client of Plaintiff Marc Randazza.

Pro Se Defendant Crystal L. Cox was reporting on / blowing the whistle on / investigative

blogging on organized crime, porn industry hookers and human trafficking, video

technology infringement (iViewit), gang stalkings, threats of violence, intellectual property

theft, civil rights violations, civil and criminal conspiracy and more allegedly involving

Plaintiff Marc Randazza and his Clients.

There are many cases supporting that negative consumer commentary is core speech

protected by the First Amendment. Another case supporting this is, Bose Corp. v. Consumers

Union, 466 U.S. 485 (1984) Many other cases treat criticisms of a company, their business

practices, products and services, as speech protected by the First Amendment. Criticism would

be pointless if the person cannot name the company they are bashing by using its trademarks.

The Fourth Circuit explained that just because speech is critical of a corporation or company and

its business practices, it is not a sufficient reason to prevent or enjoin the speech.

If a trademark owner could “enjoin the use of his mark in a noncommercial context found to be negative or offensive, than a corporation could shield itself from criticism by forbidding the use of its name in commentaries critical of its conduct.” CPC Int’l., Inc. v. Skippy Inc., 214 F.3d 456, 462 (4th Cir. 2000) (quoting L.L. Bean v. Drake Publishers, 811 F.2d 26, 33 (1st Cir. 1987)).

Pro Se Defendant Crystal L. Cox has every lawful and constitutional right to criticize Plaintiff Marc

Randazza and his Law Firm Randazza Legal Group. Just because speech is critical of a

corporation or company and its business practices, it is not a sufficient reason to prevent or

enjoin the speech and wipe out massive blogs, links, domain names and content of Investigative

Blogger Pro Se Defendant Crystal L. Cox.

Congress has decided that the Lanham Act ONLY applies to commercial speech. Under

§ 43 (15 U.S.C. §1125) explicitly defines that noncommercial use is not actionable. “The

following shall not be actionable under this section: . . .

(B) Noncommercial use of the mark.”

Pro Se Defendant Crystal L. Cox and Defendant Eliot Bernstein, had not commercial motives or

"speech" soliciting money in regard to blogs, domains, online media, investigative news blogs in

which exposed, created parody and satire, criticized, reviewed, report on Plaintiff / Counter

Defendant Marc Randazza.

Plaintiff Marc Randazza have used the Lanham Act to Suppress Free Speech, Intimidate a

Reporter / Whistleblower, and to Steal Massive Content / Intellectual Property AND to Eliminate Search Engine Competition for FREE.

15 U.S.C. § 1125(a) (1). The Lanham Act defines “use in commerce” as meaning “bona fide use

of a mark in the ordinary course of trade,” such as using the mark in conjunction with services or

goods in commerce. 15 U.S.C. § 1127. Without “use in commerce” “in connection with goods

and services,” there is no trademark infringement. Int’l Bancorp, LLC v. Societe des Bains de

Mer et duInternational Bancorp, LLC, 329 F.3d 359, 363 (4th Cir. 2003); People for Ethical

Treatment of Animals (PETA) v. Doughney, 263 F.3d 359, 365 (4th Cir. 2001); see also S. Rep.

No. 100­515, at 44 (1988), reprinted in 1988 U.S.C.C.A.N. 5577, 5607 (“Amendment of the

definition of ‘use in commerce’ [in § 45 of the Lanham Act) is one of the most far­reaching

changes the legislation contains. . . .

The committee intends that the revised definition of ‘use in commerce’ be interpreted to mean

commercial use which is typical in a particular industry.”). Basically, the Lanham act excludes all

noncommercial speech. Nissan, 378 F.3d at 1016­17; see also TMI, Inc. v. Maxwell, 368 F.3d

433, 436­38 (5th Cir. 2004), and even excludes commercial speech that does not use marks “in

connection with goods or services.” PETA, 263 F.3d 359, 365 (4th Cir. 2001).

First Amendment Rights And Constitutional Law trump Trademark law.

The first step with free speech and the First Amendment and trademark law is whether the

speech in question is commercial or noncommercial. Commercial speech is bound by the laws

of the Lanham Act and is subject to less and sometimes no First Amendment protection.

Noncommercial speech is not bound by the Lanham Act or trademark law, and is guaranteed

complete and full First Amendment protection. In fact, trademark law specifically exempts

noncommercial speech so that the law will not infringe on the First Amendment. One case that

supports this paragraph is Taubman Co. v. Webfeats, 319 F.3d 770, 774­75 (6th Cir. 2003).

Another supporting precedent is Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002,

1015­18 (9th Cir. 2004).

Despite many corporations using intimidation to try to silence people from speaking their minds

and using lawsuits, and threats of lawsuits, the Constitution continuously protects free speech.

It excludes commercial speech precisely for the purpose of avoiding infringement of First

Amendment rights.

Taubman, 319 F.3d at 774­75 (6th Cir. 2003); Nissan, 378 F.3d at 1016­17.

Thus, when an action is brought against a noncommercial use of a trademark for either political

or consumer commentary, such as the SLAPP cases with Walmart, Starbucks, and others, the

courts do not usually hesitate to grant the defendant full First Amendment protection by holding

that trademark law does not apply and that First Amendment protects such speech. See CPC

Int’l, 214 F.3d at 461­64 (4th Cir. 2000); Nissan, 378 F.3d at 1017­18 (9th Cir. 2004); L.L. Bean,

811 F.2d at 33.

Noncommercial Speech Is NOT Subject to Trademark Law AND Is Fully Protected by the First

Amendment. Trademark law explicitly exempts noncommercial speech such as the alleged

emails and website(s) precisely so that the law will not run afoul of the First Amendment.

Taubman, 319 F.3d at 774 (6th Cir. 2003); Nissan, 378 F.3d at 1016­17 (9th Cir. 2004).

Numerous cases show that consumer commentary is core speech protected by the First

Amendment. See, e.g., Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) (New York Times

standard applied in libel action brought by a manufacturer claiming that consumer group had

maligned its product). Many other cases similarly treat criticisms of a company’s products or

business practices as speech protected by the First Amendment.

The criticisms would be pointless if they did not identify the company they were criticizing and by using its trademarks.

The Fourth Circuit explained: This is an admittedly partisan account and one that vexes [the

plaintiff]. Yet just because speech is critical of a corporation and its business practices is not a

sufficient reason to enjoin the speech. As the First Circuit stated, if a trademark owner could

“enjoin the use of his mark in a noncommercial context found to be negative or offensive, then a

corporation could shield itself from criticism by forbidding the use of its name in commentaries

critical of its conduct.” CPC Int’l., Inc. v. Skippy Inc., 214 F.3d 456, 462 (4th Cir. 2000) (quoting

L.L. Bean v. Drake Publishers, 811 F.2d 26, 33 (1st Cir. 1987)). Congress has therefore limited

the application of the Lanham Act to commercial speech. First, § 43(c) expressly excludes non

commercial use of marks from the entire section’s reach: “The following shall not be actionable

under this section: . . . (B) Noncommercial use of the mark.” 15 U.S.C. § 1125(c) (4) (emphasis

added). Section (c) (4) was added to the Act when it was amended in 1989. The House Judiciary

Committee made explicit that the purpose was to avoid any impact on noncommercial speech:

The proposed change in Section 43(a) should not be read in any way to limit political speech,

consumer or editorial comment, parodies, satires, or other constitutionally protected material.

Noncommercial Speech Is NOT Subject to Trademark Law. Ads placed on Domain Names and

Blog in this case, as Plaintiff Marc Randazza knows full well, being an Expert in the Industry, are

placed by Google and by GoDaddy and that Pro Se Defendant Crystal L. Cox and Defendant

Eliot Bernstein have no control over such ads, and are not involved in a commercial endeavor in

REPORTING on Plaintiff Marc Randazza and his Clients, and in reporting on the biggest

Technology Theft in the WORLD, iViewit Technology, and it’s Founder, Inventor Eliot Bernstein.

Plaintiff Marc Randazza has no Trademark on the name Marc Randazza, yet this court

simply favored Plaintiff Marc Randazza and gave him what he wanted, and has thereby

PERMANENTLY altered the search engines, removed content on massive blogs, changed

thousands of links, and deleted blog / intellectual property of Pro Se Defendant Crystal L.

Cox and Defendant Eliot Bernstein.

Other Weakness in Randazza’s Claims against Cox

Crystal Cox’s, affirmative defenses create weakness in Randazza’s claims against her. As Cox and Bernstein had and have a First Amendment right to have blogs, websites and domain names in which speak critical of, parody, make fun of, review and report on Marc Randazza and his law Firm Randazza Legal Group.

Randazza filed this frivolous legal action to stop the flow of information, to chill speech and to remove online content in which spoke critical of him and his law firm.

Randazza did not ask for a retraction before entering into this, nearly 3 year costly litigation. Cox also intends to use retraction laws as an affirmative defense as it would have been at the very least prudent to ask for a retraction of information he found offensive before launching into a costly 3 years litigation.

Cox intends to use Trademark laws as an affirmative defense as it has been proven in court over and over that parody blogs, review sites, gripe sites, sucks sites and online speech that speaks critical of a company or individual is protected Free Speech and is the First Amendment right of the online speaker as a matter of law. And that it is not lawful or ethical to use Trademark law to chill speech, such as this 3 year litigation has done and intends to do.

Cox claims that Randazza has no Claim that will prevail in a court of law.