In the early days of Team Kimberlin’s attempts at online harassment, their tactics often involved Cybersquatting and Cyberstalking. This post from seven years ago described part of what they were up to.
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Cybersquatting, according to the United States federal law known as the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), includes using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. The sharp-eyed Gentle Reader will notice the ™ symbol next to the Hogewash! logo in the site banner. The Fine Print for this site provides this notice:
Hogewash! and hogewash.com are trademarks owned by W. J. J. Hoge.
The hogwash dot net website is an example of a cybersquatting. It isn’t a parody so much as an attempt to use the goodwill of the Hogewash! trademark to provide a benefit for someone not entitled to use the mark.
OK, so why haven’t I taken action against that site?
The principal reason is that the person creating the site is actually giving my lawyer information that is helpful to me in a legal matter. Another reason is that I believe the material on that site is so outlandish and offensive as to do more damage to the site’s operator than to me.
In any case, I reserve the right to file a complaint either via ICANN or the courts if I choose.
Let’s move on to cyberstalking. Cyberstalking is the use of the Internet or other electronic means to stalk or harass someone. Stalking is a crime in Maryland. Some people think that the Maryland law requires the act of following someone around and that a homebound invalid really couldn’t be a stalker.
In Hackley v. State, 866 A.2d 906 (2005), the Court of Appeals (Maryland’s highest court) ruled
… that the General Assembly did not intend the stalking statute’s requirement of a “malicious course of conduct that includes approaching or pursuing another person” to be limited to conduct that is done in the victim’s actual physical presence and with the victim’s concurrent awareness.
Md. Criminal Law § 3-802 defines stalking as
[A] malicious course of conduct that includes approaching or pursuing another where the person intends to place or knows or reasonably should have known the conduct would place another in reasonable fear:
(1) (i) of serious bodily injury;
(ii) of an assault in any degree;
(iii) of rape or sexual offense as defined by §§ 3-303 through 3-308 of this title or attempted rape or sexual offense in any degree;
(iv) of false imprisonment; or
(v) of death; or
—and this bit is often overlooked—
(2) that a third person likely will suffer any of the acts listed in item (1) of this subsection.
Yep. In Maryland, it is possible to stalk someone by stalking someone else, a provision intended to allow a parent or spouse to seek protection because someone is stalking a family member (for example.)
The Court interpreted “includes” to mean “this is an example that doesn’t rule out others.” It upheld Hackley’s conviction which was based on his delivering messages to where his victim might find them. The Legislature has since revised the statute without correcting the Court’s interpretation.
Given that precedent, it’s possible that a Maryland court could find a person who delivered threats of the sort listed in § 3-802 via the Internet to be guilty of stalking.
UPDATE—I see that Team Kimberlin has already been in touch with their legal advisor at Acme.
They are entitled to their opinion, but I’ll stick with the fact that the U. S. Patent & Trademark Office says that federal registration of a trademark is not required. As the Harvard Law webpage cited in the attempted comment notes:
Assuming that a trademark qualifies for protection, rights to a trademark can be acquired in one of two ways: (1) by being the first to use the mark in commerce; or (2) by being the first to register the mark with the U.S. Patent and Trademark Office (“PTO”).
[My emphasis.] While registration does offer some legal advantages by providing a presumption that the mark is valid, prior use in the marketplace will usually defeat a registration. The Hogewash! trademark has been in continuous use by this website since 24 July, 2011.
UPDATE 2—At 11:57 am ET (15:57 GMT on the time stamp), Bill Schmalfeldt sent the following tweet:
I just reread my post, and I can’t find where I say I am suing anyone. In fact, I explain why I’m not suing anyone. Other than by accident or mistake, does Bill Schmalfeldt ever tell the truth?
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My podcasting partner Stacy McCain has referred to Bill Schmalfeldt as a deranged cyberstalker. Ken White (aka Popehat) has called Schmalfeldt a demented freak. Rather that choose, I believe this is a case where I can embrace the power of AND.
Also, not only were Team Kimberlin inept at these and other forms of cyberbullying, they failed when they tried construct cases to frame Aaron Walker or me with cyberstalking charges.