Posted by Sarah Bird, Esquire
May It Please the Mozzers,
I have an update on the Jason Gambert Saga. For those of you wanting a refresher, please see my first post on the internet marketer trying to trademark "SEO" and my first update.
When I last I provided an update, Gambert had filed a 41-page response to SEOmoz's opposition proceeding and requested that all further legal proceedings be kept secret from the public.
The TTAB (Trademark Trial and Appeal Board) rejected Gambert's 41-page response and his request for secrecy because of its numerous procedural and legal flaws. However, it gave him a second chance to get it right by giving him a month extension to file a properly formatted response.
He took advantage of the extra time! Gambert filed an improved response in July that essentially denies everything. If he had stopped there, then I wouldn't be writing this post today.
But the persistent, misguided man went on to file two frivolous motions in the case. For today's Legal Monday, I'm going to take you through more of Gambert's flawed attempts to bend the TTAB office to his will.
Copies of all the documents in the case, including Gambert's Motion, SEOmoz's Responses, and the TTAB's rulings, can be found on the TTAB's Case Site.
Gambert's Motion for Default Judgment
On July 11, 2008, Gambert filed a very strange motion requesting a "default judgment." I don't want to get too technical and overdose you on lawyer-talk, but basically he asked the TTAB to grant his claims against SEOmoz. He argued that he should win his claims because SEOmoz never served (i.e., "properly delivered") him the opposition paperwork.
How did SEOmoz allegedly fail to serve or deliver our opposition paperwork to Mr. Gambert? SEOmoz sent the paperwork to the address that Gambert registered with the TTAB, but he didn't receive it. Why didn't he receive it? Because he failed to pick up his mail. In fact, he has failed to pick up any of the mail (four or five packages) we sent him.
There are at least two important problems with Gambert's request for a default judgment against SEOmoz:
First, Gambert can't win a default judgment because he never made any claims against SEOmoz. Rather, the converse is true; SEOmoz made claims against Gambert. He is asking the Board to rule on claims he never filed.
Second, SEOmoz did, in fact, conduct proper service on Gambert according to the laws and rules of the TTAB. SEOmoz is required to mail the documents to him, but we can't make him pick them up.
I argued these points in SEOmoz's response to Gambert's request for default judgment:
Because there is no request for a judgment or affirmative relief pending against SEOmoz, the Motion for Default Judgment was improper and should be denied. The Applicant’s motion is nonsensical given the facts of the case and falls short of professional and pro se standards for motions practice.....
In addition to the fact that the motion is improper, the Applicant’s motion for relief should be denied because personal service of the Notice of Opposition is not required pursuant to 37 CFR § 2.105 and Trademark Rule 113. Further, the Board’s notice suffices as notice to the Applicant. 37 CFR § 2.105 and TBMP 113.
As you can see, SEOmoz responded to both the procedural problem with Gambert's motion (he never filed a claim against SEOmoz) and the substantive problem (SEOmoz did in fact serve him in accordance with the cited rules).
Before the TTAB could issue a decision regarding his Motion for Default, Gambert filed yet another baseless request.
Gambert's Motion for Dismissal
On July 24, 2008, Gambert filed another motion with the TTAB requesting that the case be dismissed because SEOmoz failed to properly serve him the opposition documents. Basically, Gambert attempted to self-correct his earlier procedural error by filing for a dismissal instead of a default judgment.
Well, I'll give it to him that asking for dismissal makes more sense than asking for default. However, Gambert should have read my first response regarding service rules instead of making the same faulty substantive argument.
In SEOmoz's August 11, 2008 response to Gambert's slightly refashioned argument, I cited the same service rules proving that SEOmoz doesn't have to personally deliver the mail or make sure that Gambert picks up his mail. In fact, the TTAB's electronic notice of the opposition proceedings is sufficient. In addition to citing the actual laws and court rules on service, I also highlighted that Gambert's refusal to claim his mail or update his address amounts to an abuse of process:
It is disingenuous and disrespectful to the tribunal for Gambert to repeatedly make frivolous motions based on lack of service arguments while failing his duty to update his address for the tribunal. It is at a minimum an abuse of process and at worse a fraud on the tribunal. Gambert cannot be permitted to claim the benefits of the tribunal (trademark registration) while repeatedly disregarding his duties to the tribunal (updating his contact information and filing proper motions).
Fortunately, the TTAB agreed with me.
The TTAB Rejects Gambert's Requests and
Requires Him to Get Permission Before Filing Any Further Motions
On August 13, 2008, the TTAB issued a ruling resoundingly rejecting Gambert's requests.
Regarding the Motion for Default Judgment, the TTAB states:
Upon reviewing the motion, the Board agrees with the opposer [SEOmoz] that applicant's motion has no foundation in law and is nonsensical. Accordingly, the motion is denied.
Regarding the Motion for Dismissal, the TTAB states:
...Opposer [SEOmoz] has complied with the requirements set forth in Trademark Rules 2.101(a) and 2.119(a). The Board notes that opposer indicates in its response brief that the copy of the notice of opposition which it sent to applicant [Gambert] at his address of record, was returned as 'unclaimed.' Applicant contends that opposer had an obligation to make sure service of the notice of opposition was made, but failed to do so. Applicant further indicates that he 'travels and is not always available at one address" but has a forwarding address on file with the United States Post Office. Applicant further admits, interestingly, that "not all mail is delivered one hundred percent of the time." Essentially, applicant seems to be arguing that opposer was responsible for ensuring that the notice of opposition was properly forwarded to applicant wherever he was in April 2008. Applicant is mistaken. The onus is on him to ensure that his mail is properly forwarded.
In view therefore, applicant's motion is hereby denied.
Not only did the Board flatly reject Gambert's requests, it actually barred him from further wasting its time:
The Board notes that applicant [Gambert] has made many procedural errors during the course of this proceeding. In the interest of moving forward on this case and to avoid further disputes, the Board will not entertain, and applicant is not to file, any further papers...without prior leave of the Board. In order to obtain prior leave, applicant must contact the interlocutory attorney assigned to this case...by telephone and receive verbal permission to file a paper. [emphasis in original]
Next Steps
Unfortunately, the case isn't over. We've just gotten through Gambert's attempt to abuse the process by filing frivolous motions. We haven't even gotten to the merits of the case yet!
I'm really looking forward to the next steps because SEOmoz gets to ask Mr. Gambert for all of his evidence on the case. In fact, I will finally be able to meet Mr. Gambert in person when I get to ask him questions about the case, under oath, in front of a court reporter. Finally, I'll get some insight into Mr. Gambert's history in internet marketing, his business practices, his marketing strategies, and his understanding of trademark law.
As always, I'll keep you updated as the case develops.
Best Regards,
Sarah
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