THE UNANSWERED QUESTION: WHEN IS IT
IN AN ATTEMPT TO CLARIFY TrialGraphix's position with regard to the use of the phrase "trial graphics," GW's Cal Deal sent a small battery of questions to their attorney, Eric Isicoff. Rather than respond to the questions, Mr. Isicoff wrote:
Below is Deal's question-filled March 23, 1998 letter to Mr. Isicoff.
In your letter of March 10 you state that The Graphic Witness has "begun using the mark 'Trial Graphics' in large capital letters in connection with the promotion of services via its Internet website."
This is a rather vague allegation, and I would appreciate the courtesy of some specifics. Precisely where is the deeply offending phrase to which you refer, and why do you object to that particular use?
Since this is the second time that you have made your initial contact by threatening me with a federal lawsuit in a warm and diplomatic letter, I would appreciate the courtesy of some clarification with regard to your position concerning the service mark "TrialGraphix." Specifically:
1. Is it your position that the commonly-used phrase "trial graphics" has been excised from the English language because your client has adopted a misspelled, run-together version of the phrase as their company name? Or...
2. Is it your position that the phrase "trial graphics" may not be used in all capital letters? Or...
3. Is it your position that the phrase "trial graphics" may not be used in big and small capital letters? Or...
4. Is it your position that the phrase "trial graphics" may not be used in all capital letters in Times Roman or a similar font? Or in big and small capital letters in Times Roman or a similar font?
5. Is it your position that "large" capital letters are unacceptable, but smaller capital letters are OK? What about upper and lower case letters?
6. Is it your position that use of the commonly used phrase "trial graphics" in a commonly used type style in a commonly used font constitutes the adoption of their service mark, which is black on white and white on black, misspelled and run together like two cars on I-95?
7. Is it your position that the phrase "trial graphics," buried somewhere deep inside a web site and used as a descriptive phrase in part of a headline or promotional copy, is going to cause such confusion in the marketplace that consumers will be scurrying to my little office in Fort Lauderdale thinking that I am a long-established, Miami-based enterprise?
8. Is it your position that companies that make "trial graphics" cannot use the phrase "trial graphics" because your guys got it first?
9. Do you think your clients would have chosen the name "TrialGraphix" if it wasn't a common phrase used to describe graphics that are used in trials?
10. Do you understand that there is a difference between trial graphics and trial exhibits, and that one phrase is more precise than the other?
11. Do you seriously believe that The Graphic Witness Inc. is attempting to "mislead consumers as to the true origin" of GW's services with a couple of words buried in a little-seen web site?
Consider this: People who view GraphicWitness.com see a home page focusing on the name Graphic Witness and see that virtually every page contains the title "The Graphic Witness Inc.," the logo of The Graphic Witness Inc., the line "Copyright by The Graphic Witness Inc." and frequent references to The Graphic Witness. Do you think that a fair-minded person will then see the words "trial graphics" somewhere in the promotional copy and think, "Hey, is this TrialGraphix?" Do you think it's fair and appropriate to make allegations of infringement without regard to the context in which the phrase was used?
I look forward to your letter clarifying your position.