The Battle For “SEO Trademark” Wages On
Just when you thought it was over: May 19 was the deadline for the man who would be SEO trademark holder to respond to notices of opposition to his trademark application (which were filed by SEOmoz, Arteworks, Beanstalk Search Engine Positioning, SEO.com, Jonathan Hochman, and Rhea Drysdale). Sarah Bird, Esq., of SEOmoz filed for default judgment in the case on Tuesday.
Ho ho! Gambert thinks he has them there (as was evidenced by a since-removed blog post on JasonGambert.com: entitled “Hardball Seomoz,” it was a picture of a pitcher and a baseball scoreboard showing Guests: 3, Strike: 2, Ball: 3. Sadly, you’ll just have to believe me here.).
In a 41-page filing, Gamber claims that SEOmoz’s opposition should be struck down because (among other reasons), they made a mistake and called him “James Gambert,” and SEOmoz is self-interested. Oh, and they’re a blog.
Setting aside SEOmoz’s self-interested blog (or my own post on the subject the following day), I’ll humor Gambert and take this first argument to task (as Sarah has done an excellent job of refuting several of his other arguments). Here’s what he says, listed as number 1 under “Applicants [sic] Highly Confidential Detailed Defense to Opposer’s General Allegations”:
Opposer [SEOmoz] goes on to describe “James Gambert” in reference to paragraph 1; spanning many classes, then describes the initial applications [sic] details. Opposer goes on to indicate Applicant’s [Gambert’s] first use is February 14th 2007. Please note application of Applicant explains dates of use “At least as early as February 14th 2007.” Please also note Opposer refers to Applicant as “James Gambert” and not “Jason Gambert.” Therefore Applicant motions Opposer’s claims to be barred by the doctrine of mistake and other applicable equitable principles.
Oooh, boy. The doctrine of mistake, eh? Well, there is, apparently, a legal doctrine of mistake . . . in contract law. And it doesn’t actually say that anyone who has ever made a mistake in a legal document should be automatically barred from making any argument whatsoever.
But, hey, if he wants it to mean that, I’ll even humor him that far. But, unfortunately, he’s made a couple mistakes himself. No one’s perfect, of course, but if making a mistake means that you can’t file a legal motion, well, pretty much the entire application should be thrown out. But to highlight only the most recent mistakes:
Missing the deadline is a big deal. Gambert says he prepared the filing on 19 May 2008. The obviously self-prepared filing (which, frankly, looks like a law dictionary vomited—believe me, Sarah, I watch a worrisome amount of Law & Order, and Gambert’s filings are NOT indicative the kind of legal thinking it produces!) was due on the 19th.
As it wasn’t received until the 27th, it’s too late to actually count as a response to the notice of opposition. The Trademark Office officially classifies this document as a “Paper received at TTAB” (Trademark Trial and Appeal Board). While they might be so kind (and well stocked with migraine medication) as to read it in its entirety, the court has no obligation to do so, nor to take any of his arguments under advisement.
Proofread everything. I’ll ignore the irksome spelling, punctuation and sundry grammar errors, fine. But if SEOmoz accidentally referring to him as James instead of Jason and using the only date that he had provided in his application should disqualify their notice, it would have been a good idea to be extra, extra careful in everything he wrote in the filing. Page eight of the PDF of his filing basically did it for me:
CERTIFICATE OF SERVICE
I herby [sic] certify that a true copy of the Confidential Motion to Strike for the Notice of Opposition91183449 was deposited as First class mail with the United States Postal Service on May 19th, 2007, to Counsel for Opposer at the following address: [Sarah Bird c/o SEOmoz]
Whoa. Whoa. Whoa. We have just come across something way more important than SEO here. Never mind the fact that Sarah has only worked at SEOmoz since November 2007—Gambert has the secret to time travel! How else could he have mailed a response to the NOO a year before SEOmoz actually filed it? (At the end, he repeats the above statement, only this time he only traveled back to November to send it to SEOmoz.)
By his definition of the doctrine of mistakes, I move that his “paper” to the TTAB be burned.
Know the law. The legal doctrines he refers to (and some, I’m convinced, which he creates out of whole cloth) don’t apply to these cases. And in fact, every Gambert filing which I’ve read or read about demonstrates a fundamental misunderstanding of trademark law and the law in general. Ignoratiam neminem excusat est. That’s a real legal doctrine; look it up.
Tell the truth. Ignoring, once again, Gambert’s apparent sock puppetry as well as Gambert’s harassment of one opposer’s clients, the fact of the matter is that he has filed the notice telling the government one thing and telling the SEO industry another. Attempting to defraud the trademark office is supposed to result in an automatic rejection of the application.
The best part of the filing may be the part where Gambert claims that because of the doctrine of unclean hands (thus alleging that SEOmoz has engaged in unethical and deceptive practices; which, BTW, must be proven to be accepted by the court), SEOmoz should be disqualified from filing opposition. But apparently it’s not unethical and deceptive to tell the government one thing and the industry another.
Further mistakes: he repeatedly instructs the trademark office to turn to Google to verify his claims (including, for some reason, an instruction to “Google ‘Internet’” to verify the reality of the Internet…), but refutes Sarah’s similar usage. He is apparently operating under the belief that Google.com having been registered Sept 15, 1997, Google is incapable of indexing any document created prior to that date. He also claims that if consumers are able to read a dictionary (yes, really), they won’t be confused by the SEO is a service/process debate (which he declares decided by Wikipedia).
Believe me, though, his arguments do get better. In entertainment value, anyway. My favorite is his claim that he received a spam email offering SEO services the day after the term was coined in 1997, thus showing his use of the mark in commerce.
Apparently, the other NOOs weren’t worth his time, but I for one and highly reassured that even if his “paper” is granted (and if it is, it’s because there wasn’t sufficient migraine/motion sickness medication available in the trademark office that day), there are good legal arguments against his application.