Visa vs. evisa.com In Vegas 184
wessman writes "In October 2002, Visa (the credit card company) convinced a Las Vegas federal court to prevent the small business JSL Corp. from using the term 'evisa' and the domain 'evisa.com' for its website offering travel, foreign language, and other multilingual applications and services. The court ruled that the website--run by Joe Orr from his apartment-- 'diluted' Visa's trademark, even though the site uses the word 'visa' in its ordinary dictionary definition, not in relation to credit card services. Now, the Electronic Frontier Foundation is helping JSL with an appeal. The EFF has a press release available."
Overzealous... (Score:3, Funny)
First post?
Re:Overzealous... (Score:3, Insightful)
Actually, it's more like eBay suing San Francisco. The term visa was here long before the corporation of the same name was.
Re:Overzealous... (Score:2)
Actually, it's more like eBay suing San Francisco.
Technically, I guess it wouldn't be San Francisco at all...it'd be more like Oakland.
You can't trademark dictionary words! (Score:4, Funny)
Re:You can't trademark dictionary words! (Score:1)
It has nothing to do with real windows! It's just a metaphor like Visa's.
Corporations trademark whatever please them, alas.
Re:You can't trademark dictionary words! (Score:2)
Power (Score:1, Redundant)
That's absurd. (Score:5, Insightful)
but that's rediculous. A VISA is a very, very common international term NOT related to credit cards.
If the site was about any kind of financial transaction providing, I'd say this was completely justified.....
Re:That's absurd. (Score:2)
Visa has no more right to the dictionary word 'visa' than Apple has on the fruit. Especially when the word is used in its -correct- context.
I'm trading in my Visa for MasterCard. How about you?
-- Azaroth
Re:That's absurd. (Score:2, Funny)
What? Why would you trade an endorsement that allows you to stay in a country for a credit card?
Re:That's absurd. (Score:4, Informative)
Visa and Mastercard are really two names for the same economic enterprise, i.e. a group of 6000 banks. Of these, the same 50 or so big banks own, govern and make all of the competitive decisions for the brands called Visa and Mastercard.
From PBS [pbs.org]
Visa and MasterCard are being sued by American Express and the DOJ for antitrust [americanexpress.com] and by a a group of retailers [lexisone.com] for antitrust related to debit cards.
Re:That's absurd. (Score:2, Funny)
Well (Score:3, Insightful)
Re:Well (Score:3, Insightful)
That's like saying Microsoft could sue 'ewindows.com', a site that sells windows, of the glass variety...
Re:Well (Score:2, Insightful)
Re:Well (Score:1)
Re:Well (Score:3, Informative)
Where does that leave us?
Ronny
Re:Well (Score:4, Interesting)
And you know, like most Americans, I pay for a good half the shit I buy by credit card -- more like 90% if you count using my debit card as well -- and both my credit and debit cards say "Visa" on them. And yet that is waaay down on the list of things I think of.
I I want to contact Visa over the net, I'll go to visa.com, not evisa.com or e-visa.com or whatever. You wouldn't go to eford.com to look at cars, would you?
Re:Well (Score:1)
Re:Well (Score:4, Informative)
Of course you can trademark dictionary words, or combinations of them.
Are you saying every company should make up some gibberish string of characters for every product or service they want to offer?
How would you like a alvnernmpal digelflorp?
A trademark only applies to the specific product or service, though. And it's only being violated if someone uses it for a similar product or service.
Trademarks are valuable not only to corporations, but to you. If you buy a Ford Explorer, you're getting a Ford Explorer. If I sold you a mo-ped and told you it was a Ford Explorer, I'd be guilty of fraud - because I misrepresented it as a trademarked good. If not for the trademark, I'd be innocent so long as there was a sticker on it saying 'Ford Explorer'.
In this case, if evisa offers credit, or some other financial services, they'd be fraudulently tricking people into thinking they're Visa.
But the name of the company doesnt matter. If you go to the website to apply for a credit card, you quickly realize that it's not the same company at all.
They aren't going to trick you into booking a vacation thinking that there's a gold card waiting in Tahiti for you.
Re:Well (Score:2)
I already have two! And I love them both! I bought them with my new e-Visa!!
Re:Well (Score:2)
Re:Well (Score:2)
As long as evisa isn't offering the kind of products Visa does, it can use the evisa trademark. Were evisa offering financial products of any sort, they'd have to give up the name: there is a significant likelyhood of consumer confusion between the names.
At least, that's how it sensibly works in Canada.
Re:Well (Score:2)
In essence, it could be just a marketing tool that comforts people into believing that the trip will be easier to obtain with the help of evisa, whether or not they issue travel visa.
But that's really beside the point. Copyrights apply to a single domain - it doesn't matter what word it is that you're copyrighting. All they have to prove is that evisa does not work in the same domain as Visa. This could be an issue because of the vast area of application by Visa, but I think it'll probably be an open and shut case because copyrights are usually restricted to not what the business does, but to some particular statement on the copyright, in this case, probably to all things credit card.
Re:copywhat? (Score:2)
Obviously I was referring to trademark in my post.
No case needed (Score:3, Insightful)
I can't believe they convinced a Las Vegas federal court that it was a legit case. It should have been laughed out by the judge in less than 10 minutes. There is no way this should have gotten this far.
Re:No case needed (Score:2)
I don't know much about Visa (I use American Express) but I do know that Amex are a massive travel agency [americanexpress.com] in addition to their charge card business, one of the largest in the world. Diners Club [dinersclub.com] are also heavily involved with the travel industry. It depends on what travel related services Visa provide their customers. If they (Visa) do, then they have a case that eVisa were infringing.
EFF is full of it here (Score:5, Interesting)
EFF should be spending its time on a more worthwhile lawsuit. They'll go down in flames on this one: Visa is dead right.
Re:EFF is full of it here (Score:1)
Swannie
Re:EFF is full of it here (Score:2)
Re:EFF is full of it here (Score:3, Informative)
See, THIS Is what SHOULD have been.. (Score:1)
Pretty cut and dried actually.
Re:See, THIS Is what SHOULD have been.. (Score:1)
No. (Score:3, Informative)
VISA has owned "evisa" in ic036 since august of that year. Why they didn't register evisa.com at the same time is beyond me, but in any event, they both have valid claims to the domain name, and JSL registered first.
Re: The AC is full of it here (Score:4, Informative)
They may have
On the E-Visa.com website, under Legal it lists their trademarks as:
The trademarks, logos, and service marks (collectively the "Trademarks") displayed on the Visa site are registered and unregistered Trademarks of Visa and others. VISA®, the Three Bands Design Mark®, CLASSIC®, the Comet Design Mark®, the Dove Design Mark®, ELECTRON®, ENTREE®, the Impulse Design Mark®, INTERLINK®, the Network Design Mark®, PLUS®, the PLUS Design Mark®, and It's Everywhere You Want To Be® are registered Trademarks of Visa in the United States and other countries
Re: The AC is full of it here (Score:5, Insightful)
Visa's application: August 19th, 1999
JSL's application: October 6th, 1999
JSL's First Use/in Commerce: December 27, 1997
This handily beats out Visa's information, which doesn't include these dates at all. IANAL, but as far as I know the date of established use trumps date of application.
In fact, it could even be argued that JSL Corporation (the defendant) could sue Visa for dilution of trademark.
-----------------
Re:Of *course* Visa owns the evisa trademark (Score:2)
Is it that simple in the US? In other countries, a trademark gains some protection by its use, even if it is not registered. If Visa didn't use the trademark back in 1999, it's not obvious who should own the trademark.
Re:Of *course* Visa owns the evisa trademark (Score:3, Insightful)
Re:it's not one or the other (Score:2)
different services isn's the issue, but trademark dillution is.
What if I were to start posting messages on slashdot under the name "HTS" which looks a lot like HT5, people might thinking that we're the same person, and start to really hate you for the things I said (for you).
I'm not defending this ridiculous claim by Visa, but this is the issue that's being debated here.
Trademarks only apply to specific trades (Score:4, Insightful)
Only in the credit card trade, I would imagine. Visa would have to either prove that their eVisa trademark is 'famous', or prove that evisa.com is in the credit card business to win this suit.
Re:EFF is full of it here (Score:4, Interesting)
evisa.com : Record created on 27-Aug-1997
e-visa.com: Created on Wed, Apr 22, 1998
evisa.com had been registered just under a year when VISA [visa.com] registered their domain for eVisa (as a product)
A quick search of the US PTO database reveals that VISA did not register their trademark for eVisa and e-Visa until "August 19, 1999".
Though interestingly a search of the wayback machine shows an incarnation of the evisa website [archive.org] from oct 12 1999 (after the eVisa trademark was filed) as a webdesign and e-commerce company, with later additional web directory content. The wayback machine does not have any Visa (as an entry stamp) information as of Sep 25 2001 (its last entry for evisa.com)
Re:EFF is full of it here (Score:2)
with the links etc....
There is no "evisa.com" trademark. (Score:2)
Obviously visa should get dibs on the "visa" trademark, but I had never heard of 'evisa' before. Had I seen the word out of context I would have associated it with neither banking or travel, but rather simply thought of it as one of those random company names (accenture, aquent, alcola)
Anyway, in an ideal world, JSL would have evisa.travel, and VISA could have evisa.bank.
To bad ICANN is run by monkies. Ah well.
EFF should not have taken the case (Score:5, Informative)
Also on page 10, "JSL stated on its Web site that it provides e-commerce, Web site development, and payment services, including online credit card processing. After Visa International filed this suit, JSL removed the reference to credit card processing".
On page 8, defendant says, "[f]or the right price, evisa.com might be available, but I'll have to check with a couple of people, one of whom is in Japan and one of whom is on vacation." He later admitted that this was a false statement because he did not have to check with anybody. He turned down an offer to sell the domain name for $50,000, instead demanding $250,000.
While I suspect the judge's ruling was based more on the fact that the defendant was a sleazy bastard rather than on the merits of the case, I don't think the EFF should have taken the case. My guess is, if the EFF helps him overturn the ruling, he will turn around and sell the site to Visa. He's just using the EFF to get free counsel for his profit venture.
Re:EFF should not have taken the case (Score:2)
Re:EFF should not have taken the case (Score:3, Informative)
JSL has registered a number of domains, all of which are under active development or will be. We have never sold a domain. The domain names above contain ENGLISH WORDS, NOT TRADEMARKS. Can you grasp this idea? Visa simply went and did a trademark search on every word in every domain JSL owns, and then feigned outrage, as if I chose those domains for their resale value. I mean, come on, look at picturebookmaker.com [picturebookmaker.com]. For that matter look at what used to be on evisa.com [3dtree.com]. Cybersquatters don't put up hundreds of pages of useful info - they just, well, squat.
But in any case, regardless of whether anyone wants to call me sleazy or not, the EFF is NOT INVOLVED in the cybersquatting complaint. JSL is on its own on the infringement and cybersquatting case (both of which are ridiculous, and we'll no doubt do fine w/o any help). The EFF is only trying to overturn this one ruling which could give VISA rights over the commercial use of domains and business names that contain the word v-i-s-a.
-Joe Orr
JSL
Proper ruling (Score:5, Funny)
They are diluting the normal outlets for visa applications and work permits.
This just in (Score:4, Funny)
Lawyers from both sides have slated a preliminary meeting and hope to settle outside of court.
Slashdot's head honcho, Rob "CmdrTaco" Malda, was unavailable for comments. Members of his site appear to be concerned about dealing with Visa's behemoth legal team, and plan on purchasing hot grit and goat insurance just to be safe.
Stay tuned as further details from this shocking case come to light.
please to mod down, thnx. (Score:2)
So if slashdot changed their name to "visa", then they would be in trouble. In the interim, they can talk about visa all they want.
Other option (Score:1, Funny)
Re:Other option (Score:1)
Kierthos
Re:Other option (Score:2)
You mean MSN Passport [passport.net]?
Other addresses at risk too (Score:4, Informative)
ivisa.com and myvisa.com
which are also registered on who-is
and where does it end?
bluevisa.com, redvisa.com...
Re:Other addresses at risk too (Score:2, Interesting)
What they want is for every time you hear the word 'Visa', you think of their credit card, and not something else.
This means doing everything they can to quash alternate uses of the word.
It's the way the system works, and frankly I'm bored of people getting excited every time something like this happens.
I mean, sure, you could go ahead and open a donut shop called "Radio Shack", but you'd just be asking for it.
Re:Other addresses at risk too (Score:3, Informative)
Except that:
1. JSL does business dealing with
2. JSL owned evisa.com since 1997. VISA applied for TM status in 1999.
Re:Other addresses at risk too (Score:2)
Re:Other addresses at risk too (Score:2)
bluevisa.com, redvisa.com...
Here's where it will start: cervisa [cervisa.com], a website belonging to the Development Director of the EFF.
Re:Other addresses at risk too (Score:2)
Avis Rent A Car have announced that they're suing Visa International for an anagramatic infringement of trademark.
Cy Bersquatter, lawyer for Avis, told the media today that his client was deeply concerned that Visa International was causing confusion in the marketplace.
"They even have a Gold Card -- and we have a Gold Car in the carpark -- how confusing is that?"
It is believed that Avis have requested the death sentence.
Visa will lose (Score:4, Insightful)
I, for one, cannot imagine how someone might be mislead into thinking that they were utilizing Visa's credit services.
Re:Visa will lose (Score:2)
Re:Visa will lose (Score:2)
the definition of visa (Score:2)
http://dictionary.reference.com/search?q=visa
my new domain name (Score:2, Funny)
I'm calling it e-macs.com or I might drop the dash. But it seems like I've heard that
name before...I think it's a text editor, or maybe an IDE, or a browser...
Oh well, I can just claim that they have dilluted their own trademark.
Re:my new domain name (Score:1)
Re:my new domain name (Score:2)
a case perhaps, but a losing one (Score:3, Interesting)
Personally, I'd have to agree with the above poster -- I did originally think electronic Visa, as in the card. But you can't trademark a common word unless it's acquired a secondary meaning linked to the product. This isn't like calling all tissue papers "Kleenex" or all snowmobiles "Skidoo". I'm sure visas (the passport related ones) were around before Visa was, and this business is using the word with a minor adjustment.
Another factor is supposed to be the point of sale. Are visas and Visa transactions done at the same place? No. So the possibility for confusion diminishes yet again.
juries and judges (Score:3, Interesting)
"Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a
jury, shall be otherwise re-examined in any Court of the United States, than
according to the rules of the common law."
Re:juries and judges (Score:2)
When will the madness end? (Score:1)
An official authorization appended to a passport, permitting entry into and travel within a particular country or region.
I thought words in the dictionary weren't copyrightable? Can anyone shed some light on this subject?
Re:When will the madness end? (Score:2)
They aren't, but they are valid trademarks. And they should be.
what justice system? (Score:1)
So, the site was using the term in its correct usage, and somehow a Las Vegas federal court was not observant enough to notice this? How could this possible dilute the tm of Visa?
Maybe I'm too naive, but shouldn't the justice system work for the benefit of society?
obligatory joke (Score:1, Funny)
Conversation at the border:
"Do you have a visa?"
"No, I have a mastercard"
Dictionary (Score:1, Funny)
I think Visa may have a point (Score:2, Interesting)
what if.... (Score:1)
Next, State Dept to be sued (Score:2)
Re:Next, State Dept to be sued (Score:2)
Re:Next, State Dept to be sued (Score:2)
Re:Next, State Dept to be sued (Score:2)
Who saw this coming? (Score:4, Funny)
Technology professionals: massive unemployment
Lawyers: massive employment
Lucy You should go into high technology. That's where the future lies.
Charlie Brown Yeah, right. Just hold the football.
Well, if the EFF is involved.... (Score:2)
I don't know about you guys... (Score:3, Interesting)
I think the best option for him is to buy the domain ePassport.com (if it's still available).
Doh! I forgot, he will then be sued by MS for 'diluting' MS's cross-site authentication trademark...
I guess he's screwed then... too bad.
But then... (Score:2)
Won't Apple be able to sue emacs.org?
From the article: (Score:5, Funny)
Later that day, the judge assigned to the case was seen in a Jaguar dealership, obviously conducting an investigation into the visa case by using the above mentioned cards. He refused to comment.
Who owns the trademarks? (Score:2)
Visa also owns 'e-visa' and 'e visa', but not 'e-visa.com' or 'evisa.com'. Interestingly, they only own the TM in one international category IC036, while JSL owns it in IC046. I'm surprised VISA didn't register their TM in every single possible field.
Typed Drawing
--
Word Mark EVISA
Goods and Services IC 042. US 100 101. G & S: COMPUTER SERVICES, NAMELY DESIGNING AND IMPLEMENTING WEB SITES; PROVIDING TRANSLATION SERVICES FOR OTHERS VIA A GLOBAL COMPUTER NETWORK. FIRST USE: 19971227. FIRST USE IN COMMERCE: 19971227
Mark Drawing Code (1) TYPED DRAWING
Serial Number 75816558
Filing Date October 6, 1999
Published for Opposition May 15, 2001
Owner (APPLICANT) JSL Corporation CORPORATION NEVADA 3540 W. Sahara #081 Las Vegas NEVADA 89102
Attorney of Record PARKER H. BAGLEY
Type of Mark SERVICE MARK
Register PRINCIPAL
Live/Dead Indicator LIVE
Typed Drawing
---
Word Mark EVISA
Goods and Services IC 036. US 100 101 102. G & S: Broad based financial services, namely, banking, payment, credit, debit, charge, pre-paid, stored value, cash disbursement, travelers cheque, travel insurance, deposit access, automated teller machine, point of sale, point of transaction services; providing electronic funds and currency transfer services; providing transaction authorization and settlement services; dissemination of financial information via a global information network
Mark Drawing Code (1) TYPED DRAWING
Serial Number 75779435
Filing Date August 19, 1999
Filed ITU FILED AS ITU
Published for Opposition October 10, 2000
Owner (APPLICANT) Visa International Service Association CORPORATION DELAWARE 900 Metro Center Boulevard Foster City CALIFORNIA 94404
Prior Registrations 1065272;1071114;1313366;AND OTHERS
Type of Mark SERVICE MARK
Register PRINCIPAL
Live/Dead Indicator LIVE
No, he doesn't have an issued trademark yet (Score:2)
Registration Number: (NOT AVAILABLE)
Mark (words only): EVISA
Current Status: An opposition is now pending at the Trademark Trial and Appeal Board.
Date of Status: 2001-10-16
Filing Date: 1999-10-06
Registration Date: (DATE NOT AVAILABLE)
Law Office Assigned: TMEG Law Office 107
Attorney Assigned: DIXON JENNIFER HAZARD
Current Location: 848 -TTAB
Date In Location: 2001-10-19
Shouldn't this be the other way around? (Score:1)
Visa (Score:2)
Microsoft is whacking Lindows for the same thing. (no news here) Which in a way i can see why, but in another way, I think it's just stupid. There should be a law made where if your company name or product is a word that can be found in the dictionary, you shouldn't allow to register it, period.
Why is it that companies think that they can claim a heavily used word as their own? And why is that every company on earth thinks that someone out there may confuse two similar names?
When i saw the link www.evisa.com, I thought it was a site relating to passports or something along those lines.
*whips out credit card*...humm what's the site for this company. 1st guess: www.mastercard.com. *whips out another card* 1st guess: www.visa.com, and so on. Now if Visa has a credit card named "E-Visa" or "eVisa" then i could see the point for the lawsuit.
Re:Visa (Score:2)
Your GrayStation 2 and FameCube examples are so hidiously obvious, with only a letter difference from another brand name. However if those were consoles then I'd see nothing wrong with bitchslapping a company for ripping your name off.
But if your a credit-card company, and some guy is running a travel, foreign language, and other multilingual applications on his webpage, The simuliarities between the two companies becomes very different and very fast. I could also understand why they chose a name with visa in it. After all, Visas and travel go hand in hand (passports)
Imagine for a moment, evisa makes it big...take that a step further and imagine they advertise their services just as much as Visa does such as in magizines and on TV. Do you'd really think you'd confuse the two? Especially when their marketing is likely to be different anyway. Different slogans, narraritive, um...product.
The atomic particle formerly known as "electron" (Score:5, Funny)
reply to umm everyone (Score:2)
acbay.net (Score:3, Informative)
Corporate contact info (Score:2)
Read the Court Document! (Score:5, Informative)
usadirect-online.com (USADirect is an AT&T trademark)
picturebookmaker.com (Picturebook is a SONY trademark)
Now usadirect.com is not an AT&T website and usadirect-online.com is no longer registered. The picturebookmaker.com was registered in 1995 so there's more to it but either this guy had a horrible attorney or the judge was asleep the day they explained those two domain names.
While this is a small business, it has a total of one employee... the owner. He also has two corporations. You incorporate in Delaware to keep corporation officers anonymous. You incorporate in Nevada to avoid paying income taxes. So what does this guy do? Incorporate two companies. He owns the Delaware one directly (anonymously) and the Delaware one owns the Nevada one. The Nevada one is the company that holds evisa.com and "operates" it.
Re:Read the Court Document! (Score:2, Interesting)
JSL has a great attorney (Bradley Booke of Las Vegas), and of course he did point out that the "point" about JSL owning picturebookmaker etc. is absurd. Obviously the domain was chosen for the meaning and not for the little-known trademark it "contains". (Anyone here ever heard of Sony Picturebook or ATT USADIRECT before?) I don't see any evidence that the has judge considered *anything* that JSL's attorney has said.
Boring details about corps: Delaware v. NV. These were two separate corps, both owned 100% by Joe Orr (not anonymously). The tax situation is the same for both states - no taxes paid on income created out of state. I had the Del corp first, and then got the NV corp bc someone told me it was a better idea to have the biz location in NV in case I ever have actual employees, which I would have by now, if I wasn't using all my resources defending the company against this lawsuit. I was told that it was simpler just to get a new corp in NV than to get a license for the Del corp. I've now disbanded the Del corp.
Believe me, in the hands of VISA's lawyers, one single overworked person's bumbling attempts to get his paperwork straight while writing 10,000 lines of code per month can look like some kid of fiendish plot...They also cross examined me in my deposition about dates on my resume...unfortunately for them they couldn't find any discrepancies...
-Joe Orr
JSL
Does anyone else think (Score:2)
If Visa (the CC company) was to dumb in this day and age to not register Visa.com, VisaCreditCard.com e-visa.com evisa.com and any other variations they might use that they don't deserve to have the domain unless they want to pay the owner for it? I mean seriously, it's not like the internet is a new thing and they didn't know about it. If you're to dumb to get your name space, that's too bad.
perspective (Score:2)
How long can we ignore the obvious?
domain dispute scoreboard (Score:3, Funny)
Some-guy-at-home : 0
Common usage is another good response. (Score:2)
For example, the company Xerox became the term for copying a document, such was their popularity. And I recall someone winning a lawsuit over using the word, arguing that people in every day usage said "I'm going to Xerox this document", which turned out to be true, and Xerox lost the suit.
Same with Federal Express. It isn't uncommon for someone to hear "I'm going to FedEx this over", which is why Federal Express now calls itself FedEx, to associate more strongly with the popular contracted use of its name.
So it is always important to assess this avenue when dealing with companie names. Think of all the companies sued by Apple over the name Apple in a product or company title. That has to be the worst example of all - Apple is a word in such broad usage that there is no way they should have won a suit.
Also, again with regards to an Apple product name, Apple didn't deem it fit to sue Compaq over the iPaq product, which has the exact length and format of the iPod name brand.
Obviously there is DEFINITELY a bullying consideration when suing a company, otherwise Apple would have had a strong case suing Compaq over the name, but didn't, but they've sued a bunch of smaller companies in this regard.
The Current Court Order and the Lawsuit (Score:2, Informative)
The first story is about VISA being involved in a classic reverse-cybersquatting action.
The second story is about the most recent ruling in the case, which involvesonly the "dilution" claim, and basically claims that EVISA "dilutes" VISA because "it contains the VISA mark in its entirety". (See the full Court Order on the eff.org site or on 3Dtree.com.) This ruling if left unchallenged could result in a considerable consolidation of Internet domains in the hands of holders of "famous" common-word marks. This is a separate issue from arbitrary coined words like "Kodak". Allowing "Kodak" to control
commercial use of the word "kodak" is obviously less problematic than allowing VISA to control commercial use of the word "visa". Or it should be obvious.
The EFF is NOT assisting JSL with the lawsuit as a whole. It is only assisting JSL in trying to get the most recent ruling overturned. As for the other charges in the lawsuit as a whole, the EFF is not involved, nor should it be, because: 1. The EFF has its hands full with the continuous assualt on cyber-rights so well chronicled on slashdot day after day, and 2. the fact that a huge corporation is using the courts to try to bankrupt a small company by issuing complaint after complaint, is not news, and in any case not an issue particular to the Internet.
Still, if the EFF was as powerful as, say, the NRA, VISA would never have even filed this suit. Anyone here not join yet?
I for one don't object to Visa defending their trademark. There is nothing per se wrong with a large company sueing a small one. If I'm hurting their mark, then I deserve to be punished, small or large. Not only that, the "dilution" claim is not on its face completely absurd and abusive. This is mainly because the Federal Antidilution Act is so difficult to interpret that even different federal judges have had major differences in interpretation. We believe that EVISA does not dilute VISA, and we'd like to be able to present the facts supporting this position in a trial. We think our position is the correct one. We disagree with the current ruling because it denies JSL the chance to present evidence at a trial, and because it gives VISA and other common word trademark holders broad powers not intended by Congress.
The other charges: cybersquatting and infringement are a blatant abuse of the court system. We have to defend ourselves, and VISA is making this as expensive as possible. They are also refusing to cooperate as much as they can. If VISA really believed they had any kind of case for cybersquatting they could have submitted the case to WIPO at any time for a quick and cheap resolution. However according to the rules, they would have clearly lost. So instead they literally decided to make a "federal case" out of it, 2 years after JSL started development of evisa.com, and 4 years after development of evisa-jp.com. In all of those years, Visa never sent a cease-and-desist letter or in any way complained about JSL's use of EVISA - because VISA was not in fact concerned about infringement. They're just after the domain. Their strategy was to get a registered mark for "EVISA" and then claim that we were infringing that. When we opposed their registration, they sued us within weeks.
As for playing by the same rules, Visa has subpoenaed me and others, but has refused to allow us to subpoena the person or persons most knowledgable on their side. They have demanded hundreds of documents from us, including virtually all business records and emails (which we provided), yet they have simply refused to provide virtually any important documents to us. They have not divulged one single email. Of course, we can then appeal to the judge to make them comply, but the judge then stayed discovery pending ruling on the summary judgement motions.
It would be nice if there was some way of preventing these kinds of tactics, since they give inordinate power to large entities at the expense of the law. But that would be another discussion.
-Joe Orr
JSL