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By: Internet For The People Committee |
1:16 pm Sep 17, 2019 |
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Nissan
vs. Nissan
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Nissan
Motor Sued Nissan Computer For Trademark Infringement,
Trademark Dilution And Cyber-Squatting
Seeking
10 Million Dollars In Damages |
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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.
Click here for
supporting articles
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".
Click here for supporting articles
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.
Click here for supporting articles
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.
Click here for supporting articles
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.
Click
here for supporting articles
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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