Saturday, April 17, 2010

The Midknight Review "Formally Requests" The Midnight Review To "Cease And Desist" Use Of Name

Here is the latest development in the blog war between John Smithson of The Midknight Review and The Midnight Review:

John Smithson had recently left a comment on an article April 17th stating the following:
I am making a formal request that this blog and Kevin Kelley cease and desist in the use of Midknight Review and any substantially similar form of that title i.e. “The Midnight Review.”
I find this statement to be ignorant of intellectual property law.

John Smithson has failed to realize that there is a difference between my website and his, and he has continued to make false accusations against this site, believing that he owns the rights to my website, despite having a different spelling.  What he does not comprehend is that a trademark, should he have one, does not guarantee ownership of every variation of a combination of words.  For example, should Smithson register a mark under the name of "Right-Wing Blogger," he would not automatically become the owner of such blog titles as "Right Blogger," "Wing Blogger," "Wing Right Blog," or the acronym "RWB," or an even better example, the New York Daily News can't sue the New York Times for copyright infringement, despite the similarities.  Each moniker would require a separate filing.

Smithson also has forgotten common law. America, being different from other nations, registration of a trademark is not necessarily required to secure rights over usage. Common law dictates that ownership and protection of a trademark is automatic once a mark is used in commerce. Considering my website features advertising, links to purchase suggested reading, and an online apparel shop featuring clothing branded with "The Midnight Review" or "," while The Midknight Review features zero instances of commerce, it would appear that Smithson's threat against myself to cease and desist is empty and without merit.

Smithson has also repeatedly stated that he owns the name "Midknight Review," as well as any and all variations, citing that he is the owner of "Midknight Review . com, Midknight Review . org and recognized blogspot 'owner' of the url ''," but it appears that Smithson's statements are not necessarily true. As I had indicated in a previous blog post, Smithson does not own any of these websites - a company, Domains By Proxy, Inc., owns these websites, providing a specific service - registering and owning domains for the purpose of keeping registrant's names private, which is information that is required to become public in the "Whois" directory, as determined by ICANN policy. In order for Smithson to become the owner of these domain names, he would have to cancel his service with Domains By Proxy, which would subsequently lead to the transfer of ownership.

As for Smithson's "ownership" of "," that has no relevance to the status surrounding my website. That particular domain had been taken down by Google for spamming, and should he have read Google's terms of service, Google retains "the right to modify, suspend or discontinue the Service with or without notice at any time and without any liability to you."

Considering the facts - Smithson has not met the proper requirements to grant intellectual property over my domain or even own the name he is claiming to protect, I do not see why I should "cease and desist" blogging under my current name, which I do own, and for which I have met the general requirements under common law that protect my use of the mark "Midnight Review."  Why should I listen to the complaints of someone who essentially owns nothing in relation to my site?

I would also like to point out that by Smithson wanting to debate my website, he does even more to legitimize this site's existence.

Also, as a side, I find it interesting tht Smithson is a supposed constitutionalist, yet he has continually attacked my freedom of speech.  Great work being a hypocrite as well as an idiot, Smithson...

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