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ACB President Hires Attorney To Shut Down Braille Free Press  Patricia Price
 Apr 01, 2004 14:07 PST 

Since many of you have expressed an interest in this matter, I'm posting
the following note from the Editor of the Braille Free Press.

Pat
On March 5, I received a letter from Mr. Leonard D. DuBoff, an
attorney hired by ACB, who demanded that I take
www.braille-free-press.org off the internet. Mr. DuBoff's letter
claimed that ACB owns the rights to use the name, "Braille Free
Press," as a trademark, and that, by using the name, "Braille Free
Press," and the domain name www.braille-free-press.org, I was
infringing upon ACB's rights to use that name. In addition to
demanding that I take down the www.braille-free-press.org website,
ACB demanded I supply the names of any members of the
"Braille-Free-Press web site," make available all books and records
indicating any financial activity under the auspices of the site,
and--in an attempt to intimidate me into immediate silence--pay
ACB's attorneys' fees in the amount of $1,000 for having hired
DuBoff!

I went to the U. S. Patent and Trademark Office's web site, where
citizens are granted access to a database of all registered
trademarks. I found no record of any registration of the name
"Braille Free Press." There's no registered trademark for Braille
Free Press, for Braille Forum, or even for the American Council of
the Blind, ACB, or any of its several logos, for that matter!

I have spoken with the author of People of Vision. Jim Megivern
was gracious and forthright. He knew of no right to use the name
"Braille Free Press" acquired by the American Council of the Blind.
He had found no record, he told me, of any such acquisition among
the huge archive of information which he and Marjorie had mined
for more than ten years during the writing of ACB's history.

In fact, the last time "Braille Free Press" was used to describe a
publication was between 1959 and 1961, when a few brave
truth-tellers wrote, copied, and circulated those few editions of
the Braille Free Press. When ACB was first incorporated--after the
dissolution of the Braille Free Press Association--George Card,
who had been rather handily criticized in the pages of The Braille
Free Press, objected to calling ACB's new publication anything
resembling "braille free press." Marie Boring came up with the
name, "The Braille Forum." Everyone liked the name (believing
that any publication of the American Council of the Blind should
in fact provide a forum for free and open discussion), and so the
name, "Braille Free Press" has not been used for more than forty
years.

With these facts in hand, I sought advice from an attorney, who
agreed to help me by sending the following letter to Mr. DuBoff and
to ACB on March 12, 2004:
[Beginning of Letter]
Re: Alleged Infringement of the BRAILLE FREE PRESS mark

Dear Mr. DuBoff,

I represent Ms. Reeder in this matter on a pro bono basis.
Specifically, I have agreed to respond on Ms. Reeder's behalf to
your cease-and-desist letter of March 5, 2004, which alleges that
Ms. Reeder has infringed upon the right of the American Council of
the Blind (ACB) to use the phrase "Braille Free Press."

ACB's trademark infringement claim is without merit. Ms. Reeder,
who does not own the registration for the
www.braille-free-press.org domain name, has not infringed upon any
trademark right owned by ACB. ACB does not possess any right to
use the BRAILLE FREE PRESS as a trademark. ACB does not own a
federal registration for the BRAILLE FREE PRESS mark. Furthermore,
ACB has never used the mark in commerce. Although the individuals
who published "The Braille Free Press" between 1959 and 1961 used
the BRAILLE FREE PRESS mark, ACB has never sold, advertised, or
distributed any products, services, publications, or newsletters,
or conducted any business under the BRAILLE FREE PRESS mark.

Even if ACB actually used the BRAILLE FREE PRESS mark at some
point, it has long since abandoned its use of the mark. To the
best of Ms. Reeder's knowledge, use of the BRAILLE FREE PRESS mark
in commerce ceased 43 years ago in 1961. According to 15 U.S.C.
1127, nonuse of a mark for three consecutive years constitutes
prima facie evidence of abandonment. Nor has ACB demonstrated an
intent to resume actual use of the mark in commerce. In fact,
because no one used the BRAILLE FREE PRESS mark in commerce between
1961 and 2004, any use of the mark by ACB now would infringe upon
Ms. Reeder's senior right to use the mark, established by her
actual use of the BRAILLE FREE PRESS mark since February 2004.

Furthermore, a reasonable consumer is not likely to confuse
www.braille-free-press.org with ACB. A reasonable consumer would
realize "The Braille Free Press" is simply a forum for the free and
uncensored discussion of the policies and governance of ACB and the
issues affecting blind and visually impaired individuals.
Furthermore, a reasonable consumer would not be confused as to the
source of "The Braille Free Press" given the description of the
purposes of the website, which can be found at
www.braille-free-press.org/about.php. Although Ms. Reeder is a
proud ACB member, it is abundantly clear that neither ACB nor the
current officers and directors of ACB are the sponsors of
www.braille-free-press.org. There is no likelihood of confusion
and, therefore, no grounds for injunctive relief.

Even if ACB could establish trademark infringement, ACB would not
be entitled to an award of damages, or any other monetary relief.
Neither www.braille-free-press.org nor "The Braille Free Press" has
caused ACB any harm or injury, such as lost profits. Furthermore,
Ms. Reeder does not receive any income, profits, or commercial or
financial benefits from either www.braille-free-press.org or "The
Braille Free Press." Ms. Reeder does not use the BRAILLE FREE
PRESS mark to solicit donations, advertise, distribute, sell, or
offer to sell any products, services, or memberships. Ms. Reeder
has also not produced any packaging, cards, tags, or products
bearing either www.braille-free-press.org or "The Braille Free
Press."

Finally, ACB's counsel would not be entitled to attorneys' fees
should it pursue further legal action in this matter. Under the
Lanham Act, a prevailing party may recover attorneys' fees only in
"exceptional cases, 15 U.S.C. 1117(a), such as where the
defendant's adoption of a mark is considered willful, malicious,
fraudulent, or in bad faith. No reasonable person could consider
Ms. Reeder's adoption of a mark that no one has used in 43 years as
anything other than a good faith use. Because, however, ACB's
allegation of trademark infringement by Ms. Reeder is frivolous,
unreasonable, and pursued in bad faith, if ACB should pursue
further legal action, then Ms. Reeder shall seek reasonable
attorneys' fees and costs, and shall pursue all legal claims
against ACB available to her.

These are just a few of the many legal hurdles ACB would face
should it continue to pursue this matter. Further legal action
would not produce a successful result for either ACB or its
counsel, and would amount to a waste of ACB's limited financial
resources. In order to resolve this matter amicably, however, Ms.
Reeder is willing to discuss an agreement.

Sincerely,
Steven Lehotsky
[END OF LETTER]

Tonight, April 1, 2004 Chris Gray is bringing this matter before
the Board of Directors of ACB to secure the Board's blessings to
initiate a lawsuit. Although there is no proof of ACB's ownership
of any trademark; although there is no proof ACB is going to change
the name of its publication from The Braille Forum to the Braille
Free Press; although there is no proof ACB ever plans to provide
any good or service under the name Braille Free Press; although
ACB's predecessors(not ACB) were the last people to use the name
more than 40 years ago; although such a lawsuit would be expensive
and time-consuming for ACB, its officers and directors, and its
members; and although I make no money from the web site, and sell
no products or memberships, it appears that Chris Gray is willing
to squander the depleted resources of ACB to pursue litigation
against me and my publication. Gray has apparently decided that it
is more important to devote his time and anger, and the scarce
financial resources of ACB, to shutting down The Braille Free Press
and www.braille-free-press.org, than to use that energy and those
resources to fight for the rights of people who are blind.

What do ACB and its members have to gain from this lawsuit? Does
Chris Gray believe that if he shuts down our site, then he will
succeed in shutting off the truth? Is he still seeking revenge
against people who dare to question his judgement, question his
policies, and ask questions about campaign promises unkept? Will
members of the ACB Board recognize this attack for what it is:
Nothing more than a desperate attempt to limit free speech and keep
information from ACB members?

What do members of ACB think about this use of their membership
dues? Will the board recognize this attack for what it is worth
and stop this senseless waste of ACB resources and organizational
energy? With so much advocacy to be done, with the Randolph-
Sheppherd blind vending priority teetering on the edge of oblivion,
with another blind pedestrian being struck and injured or killed
about every ten days, with hard-won accessible voting equipment
being scrapped in state after state, with rehabilitation programs
so committed to the Federation's so-called "philosophy of
blindness" that a consumer of those services cannot even receive
training if he or she wants to participate with a guide dog, or to
forego training under sleep shades, why is the Gray administration
squandering ACB's resources on frivolous attacks designed to stifle
free speech and to harass and intimidate a member of the
organization?

You can make a difference: Tell Gray to cease and desist! Tell
your board members to act in your best interest. It's time for
ACB's leaders to get back to the business of leading our
organization and advocating for the legal and civil rights of
people who are blind!
	
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