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Nissan vs. Nissan

Nissan Motor Sued Nissan Computer For Trademark Infringement,
Trademark Dilution And Cyber-Squatting

Seeking 10 Million Dollars In Damages


By Uzi Nissan
-
founder and president, Nissan Computer Corp.

BACKGROUND
My name is Uzi Nissan.  I was born in Jerusalem - Israel.  My father's last name was Nissan, his father's last name was Nissan, and so on.  Nissan is a biblical term identifying the seventh month in the Hebrew calendar. The term Nissan also is Arabic for the month of April.
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I came to the US in 1976, and have used my surname for years to identify a number of business enterprises.  The first was "Nissan Foreign Car" in 1980.  When I operated this business, I serviced different makes and models of foreign cars, including cars manufactured by Nissan Motor, back then known as "DATSUN".  Contrary to the allegations by Nissan Motor, I did not choose to use my last name "Nissan" for my business in 1980 because of their name.   At that time, they and their automobiles were known as "DATSUN" and were not known as "Nissan".
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In December 1987, I started an import/export business known as "Nissan International" At that time, Nissan Motor was not well known as Nissan, but primarily as "DATSUN".  As with the earlier business, I chose to use Nissan in my business name because it was my last name.
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On May 14, 1991, "Nissan Computer Corp" was incorporated in the state of North Carolina. I was then, and still am, the company President.  I have used Nissan as part of my trade name in connection with the sale of computer hardware, computer maintenance, networking, computer training and other consulting services related to computers.  On June 4, 1994, I registered the domain name "nissan.com" and created a web site to promote computer related products and services on the Internet.

In July of 1995, I obtained a service mark registration for Nissan and my logo from the State of North Carolina.
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On March 17, 1996, I registered the domain name "nissan.net" , and began offering Internet services, including dial-up connections and direct data connections to business.

In another example of Nissan Motor's flexing its corporate might, age old eminent domain laws have been rewritten in Mississippi allowing the State to take land and homes from local landowners for the sole private benefit of Nissan Motor.  How the State of Mississippi was "convinced" to change these laws is unclear, but it is clear
that local individuals are being deprived of their property rights so Nissan Motor can build its own plant.

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UPDATES

DECEMBER - 1999,  Initial Filing.
More then five years after I registered nissan.com, legal action was instituted by Nissan Motor seeking $10,000,000 in damages, and to restrain me from the use of MY family name for business purposes on the Internet.

APRIL - 2002,  First Round of Summary Judgments.
The court ruled on a summary judgment motions as follows:
1. "Cyber-Squatting" claim, in Nissan Computer's favor.
2. "Infringement on non-auto-related" claim, in Nissan Computer's favor.
3. "Infringement on auto-related" claim, in Nissan Motor's favor.
4. "Dilution" claim was sent to trial.
Nissan Motor's intention to make this case as expensive as possible for me was evident from the beginning.  Undoubtedly, the notion that my company and me might be forced into bankruptcy rather than fight for my name, given the great expense, must have been a consideration.  As if the financial burden incurred by me and Nissan Computers was not enough, Nissan Motor filed a lawsuit against the Internet Center, Inc., a corporation with three shareholders, in which I am the majority shareholder.  The Internet Center, Inc. did not and does not utilize the word "NISSAN" in any way.

SEPTEMBER - 2002,  Second Round of Summary Judgment.
The previous court rulings did not end this case.  Nissan Motor filed a second round of Summary Judgment Motions, trying (and has been successful) to get the Court to deprive me of the right to a jury trial.
The Court, surprisingly, changed its attitude on this issue and:
1. Changed the relevant date for "fame" from 1991 to 1994.
2. Found that no reasonable jury could find that Nissan was not famous by 1994.
3. Found that Nissan Computer diluted Nissan Motor's trademark.
4. Found that the publication of information about this lawsuit, the comments
    made by many people on this site and my efforts to bring this issue to
    the public, actually tarnished Nissan Motor's trademark.
Many legal experts view this case, not as a "law-breaking" case, but as a "law-making" case.  The Court indicated that certain aspects of this case may be creating new law as well.
Nissan Motor is now asking the Court to transfer nissan.com to them entirely.  The potential loss of a domain name in this fashion may set the wrong precedent for future cases and will open the door for any deep-pocket corporation to do the same.  This may become "the law of the land" by being solely based on "the law of the jungle", and could affect you or someone you know.


DECEMBER - 2002,  Final Injunction.
The district court issued a final Judgment (PDF) allowing Nissan Computer to keep its nissan.com and nissan.net domain names, but restricted our rights to do the following:
1. Posting Commercial content at nissan.com and nissan.net;
2. Posting advertising or permitting advertising to be posted by third parties at
    nissan.com and nissan.net;
3. Posting disparaging remarks or negative commentary regarding Nissan Motor
    Co., Ltd. or Nissan North America, Inc. at nissan.com and nissan.net;
4. Placing, on nissan.com or nissan.net, links to other websites containing
    commercial content, including advertising; and
5. Placing, on nissan.com or nissan.net, links to other websites containing
    disparaging remarks or negative commentary regarding Nissan Motor Co., Ltd.
    or Nissan North America.
After reviewing this and other rulings of the district court, we believed that the only practical option was to appeal.  One of the reasons for the appeal is that we and other experts considered the injunction and parts of other rulings to be a clear violation of our "First Amendment Rights" as it is to every American citizen's constitutional rights.

OCTOBER - 2003,  Appeal Initial Motion.
Nissan Computer filed its Opening Brief (PDF) to the 9th circuit court of appeals, addressing the district court's rulings on:
A.  Trademark Dilution
B.  Trademark Infringement
C.  Final Injunction
NOTE: It's a long brief, but will allow you to better understand the merits of this case.


JANUARY - 2004,  Appeal Reply Motion.
Nissan Motor filed a consolidated brief opposing Nissan Computer's opening brief and a cross appeal on:
A.  Trademark Infringement.
B.  Final Injunction.
C.  Requesting the court to force transfer Nissan.com to them.
Nissan Computer filed a
Consolidated Brief (PDF) opposing NMC's cross appeal and replying to their opposition.

AUGUST - 2004,  Appeal Ruling.
The 9th Circuit Court of Appeals has issued a ruling reversing the case and remanding it back to the District Court.  In a Published Opinion (PDF) the Appellant Court rejected Nissan Motor's cross appeal and reversed the District Court's ruling against Nissan Computer on Dilution and the broad scope of the Final Injunction.
Not to our surprise, Nissan Motor filed a motion for rehearing by the 9th Circuit's panel and a rehearing en banc (a rehearing by all of the Court of Appeals Judges).  On September 2004, the 9th Circuit issued a Ruling (PDF) denying Nissan Motor's motion for rehearing and rehearing en banc.

DECEMBER - 2004,  Petition to the U.S. Supreme Court.
Nissan Motor filed a Petition for a "Writ of Certiorari" to the U.S. Supreme Court, seeking review of the Appellant Court ruling on the Infringement and First Amendment issues.

APRIL - 2005,  U.S. Supreme Court Order.
The U.S. Supreme Court has issued an Order, (PDF) Denying Nissan Motor's Petition for a "Writ of Certiorari", thus the dilution claim, which is the only remaining issue was sent back to the district court.

JANUARY - 2007,  Motion to strike Jury Demand.
Nissan Motor's intentions to deprive us of a jury trial was evident from the beginning, they always felt that they have a better chance of prevailing in front of the judge rather than the jury. In the 11th hour, after all their efforts to do so was unsuccessful, they pulled their last ace and dropped their $10,000,000 damage claim in exchange for a "bench trial" rather then a "jury Trial".

MARCH - 2007,  Trial.
The four-day bench trial occurred between March 27 and March 30 to determine NMC's claims on:
1. Dilution
2. Permanent Injunction re: Dilution.
3. Permanent Injunction re: Infringement.
We are now waiting for the court's ruling on these matters.

SEPTEMBER - 2007,  Ruling.
The court has issued a Ruling (PDF) addressing NMC's alleged claims in our favor:
1. Found that Nissan Computer did not Dilute NMC's mark.
2. Denied NMC's requests for Permanent Injunctions.
We are still waiting for the court to issue a final judgment.

JANUARY - 2008,  Motion For Attorneys' Fees.
Nissan Motor has been unrelenting in its lawsuit against us and despite that they lost; they subsequently filed a motion asking the court to award them millions of dollars in attorneys' fees.

FEBRUARY - 2008,  Ruling on Attorneys' Fees and Final Judgment.
The court has issued a
Ruling (PDF) addressing these remaining issues:
1. Nissan Motor is NOT entitled to attorneys' fees.
2. Nissan Computer is
entitled to cost under rule 68.
The court ordered NMC to pay $58,000 as cost under rule 68, this is less than 2% of what the cost was to defend this case.

You would think this case is over..... but it really isn't.

Nissan Motor's trademark registration.
Nissan Motor is attempting to obtain a
Federal Trademark Registration for computers and computer peripherals among other classes of goods and services. We feel that Nissan Motor, in this action, is staging a future case against us in the computer and peripherals market.
We are left with no other course of action but to oppose this registration. 



Public awareness of this unacceptable corporate behavior is crucial to eradicating it and we are asking you to take a stand and make a difference on this issue.  Your collective voice is more compelling than the lobbying power of corporate giants and it is a voice that cannot be ignored.
Together we can make a difference and help keep our freedom intact, for us, for our children, and for our grandchildren.

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