1 June 2004
VIA ELECTRONIC MAIL ("E-Mail") AND CERTIFIED POSTAL MAILSAVVIS Communications
Re: Response to SAVVIS demand letter dated 18 May 2004
First, allow me to express my appreciation for the scratched out "Terranson", and the overlying scrawled "Alif": it is always a nice touch to have "personalized" mail these days.
As to your demand letter - for the sake of clarity, I have elected to address the various issues touched upon in a sequence which differs from the one presented in your demand letter. I trust this does not present any difficulties, however, in the event you feel that any additional information is needed to clarify anything I have stated herein, please do not hesitate to write.
[two unrelated paragraphs elided]
(b) "In addition SAVVIS reminds you of your post-employment obligations of confidentiality. While in SAVVIS' employ, you signed a Non-Disclosure Agreement ("Agreement"), attached hereto. This Agreement restricts you from making use of any SAVVIS confidential information for your benefit for a period of five years following termination of your employment."
Since SAVVIS has made it a point, on multiple occasions since my severance, to repeat this NDA mantra, allow me to make the following point: notwithstanding anything which may or may not appear within the actual Non Disclosure Agreement, the Savvis NDA does not, and cannot, be used to prevent me from disclosing illegal activities which Savvis has knowingly engaged or continues to engage in. I am aware of the remainder of the responsibilities imparted by the NDA, and will of course abide by them where they are both applicable and enforceable.
(c) "SAVVIS hereby demands that you immediately (1) cease and desist from registering any domain name(s) and e-mail account(s) containing the SAVVIS Marks, and (2) identify and return to SAVVIS, without any expectation of payment, any and all domain name(s) and/or e-mail account(s) you have registered to date containing any SAVVIS Marks. These demands apply to any actions you have or are contemplating taking in the United States and any and all foreign jurisdictions. Please be advised that SAVVIS will vigorously pursue any and all rights and remedies it may have at law or equity to protect its[sic] interest in the SAVVIS Marks."
Savvis appears to be taking the [clearly erroneous] position that by registering a trademark, any use, whether commercial or non-commercial, by any entity, foreign or domestic, is somehow enjoined. A quick examination of existing case law shows that there is a wealth of case law which allows non-commercial use of such Marks. In fact, almost all recent case law involving disputes between domain holders and companies claiming trademark infringement or dilution have been decided in favor of the domain holder, where the domain holder has scrupulously maintained a non-commercial position. Nevertheless, Savvis' current position goes even further - claiming that even non-use (that is, neither commercial or non-commercial - simply ownership without usage of any kind) is prohibited under trademark protections afforded to registered Marks - a position that I doubt Savvis will be able to convince a court to ratify.
For the record, I have registered the domains in question exclusively for non-commercial use. The web sites posted upon these domains all clearly state, in huge, high contrast lettering, that these web sites are not in any way affiliated with SAVVIS Communications Corporation. Within the web sites, I reiterate that said web sites are not produced by, or affiliated in any way with, SAVVIS Communications. A quick examination of any of these web sites will show that it is clearly impossible for a visitor to believe, accidentally or otherwise, that they are viewing a SAVVIS Communications Corporation sponsored or endorsed web site.
These web sites use the SAVVIS Mark in full compliance with the non-commercial use provisions of the Lanham Act: no income of any kind is or will be derived by the operation of these web pages. There are no banner ads, and no requests for, nor acceptance of, donations of any kind. All expenses are being paid by me, personally, out of my own personal funds. No items or services of any description are offered for sale or rental. In short, there is, and will be, no commerce of any description engaged in on any of these domains.
Since the use of the Mark in question is clearly allowed under both the letter of the Lanham Act and it's many and various court challenges, I hereby refuse your aforementioned demands. These web sites are not for sale, they are not for use in any kind of commerce, and I will not transfer ownership of them over to SAVVIS Communications Corporation, or any other entity, unless specifically ordered to do so by a court of competent jurisdiction.