Dale Miller

Via Certified Mail
Return Receipt Requested and
First Class Mail

Mr. Dale Miller
3204 Fair Park #4
Little Rock, Arkansas 72204

RE: Unauthorized Photographs of Honkers Employees and Infringement of Honkers’ Proprietary Rights on www.aristotle.net/”domiller

Dear Mr. Miller:

I am an attorney for Honkers of America, Inc. (“Honkers”). As you are probably aware, Honkers owns and operates and/or franchises Honkers restaurants across the United States of America and overseas under an agreement with Honkers, Inc., the holder of the Honkers trademarks and service marks (the “Marks”). In connection with its operations and restaurants, and in order to cultivate the consumer’s image of its Honkers stores, Honkers has the exclusive rights to an array of trademarks, logos, trade dress and other proprietary indicia (the “Honkers Proprietary Rights”). As a result of its widespread and continuous use of the Honkers Proprietary Rights, these rights are valuable assets of Honkers and Honkers, Inc.

It has come to our attention that your Internet homepage, www.aristotle.net/”domiller, (the “Home Page”), contains numerous photographs of yourself and several Honkers employees at Honkers locations in Arkansas, Kansas, and Missouri. The unauthorized use of photographs of Honkers employees which depict the Honkers Proprietary Rights constitutes at a minimum trademark infringement, dilution, unfair competition, and deceptive business practices in violation of federal and state laws and the common law.

In view of the foregoing, Honkers understandably demands that you immediately remove the aforementioned photographs and any references to Honkers from your home page and that you cease and desist from any and all further depictions of Honkers employees and/or Honkers Proprietary Rights.

Please confirm in writing by return mail that you agree to comply with the foregoing. Unless we receive such a written assurance from you by June 17, 1998, we will be forced to take such further steps as may be necessary to enforce and protect the Honkers Proprietary Rights.

We look forward to hearing from you.

RBB/rms

cc: Aristotle Internet Access (via Certified Mail, Return Receipt Requested and First Class Mail)

1815 The Exchange ?? Atlanta, GA 30339 ?? (770) 951-2040

Regina B. Bellamy
Honkers of America, Inc.
1815 The Exchange
Atlanta, GA 30339

Re: Your letter of June 3^rd regarding

Unauthorized Photographs of Honkers Employees and Infringement of Honkers’ Proprietary Rights on www.aristotle.net/"domiller [sic]

Dear Ms. Bellamy,

While I can respect Honkers’ exclusive rights to its trademarks and service marks, your letter struck me as more of an attempt to bluster than as a serious objection to the pictures on my pages.

The attempt at a URL www.aristotle.net/"domiller is incorrect in several respects. First, it does not specify a transport. Since I do know that http is implied, I will assume it, but that is by no means universal, particularly for older browsers. Further, the character preceding domiller should be a tilde (~) not a quotation mark ("). A quotation mark is not a legal character in a URL specification (see RFC 1138 for the allowable character set). Thus, the correct URL would be http://www.aristotle.net/~domiller. However, when querying the HTTP server at www.aristotle.net for that page, you will discover that it returns a status of "301 Moved Permanently" and provides a resolution of http://www.aristotle.net/~domiller/ (note the trailing slash). Since I am computer literate, I will make the assumption throughout the rest of this letter that the proper URL was supplied. Had I not made that assumption, I could truthfully say that you could type in the URL as given, and not find any page of mine.

Since you refer to the aforementioned page in the singular throughout your letter, you will be happy to know that there are not currently, nor have there ever been any pictures containing Honkers employees or Proprietary Rights located on the "Home Page".

There are, however, several photographs of myself at Honkers restaurants and featuring Honkers waitresses on the page http://www.aristotle.net/~domiller/hooters.html, and referenced on the pages http://www.aristotle.net/~domiller/gallery.html and http://www.aristotle.net/~domiller/personal.html . Could that have been the page you actually intended to reference?

Further research would have found that there are three mirror copies of my web pages (with minor variations on the main page) located at http://www.geocities.com/FashionAvenue/4069/, http://free.prohosting.com/~skirtman/, and http://www.fortunecity.com/westwood/chanel/69. Each of them follows the same structure. Even though you didn’t mention them, I assume that the same issues apply.

Your second paragraph leaves me even more confused than the first. In it, you state that my use of these photographs "constitutes as a minimum trademark infringement, dilution, unfair competition and deceptive business practices". I believe that you would find any of these claims hard to substantiate.

• To prove trademark infringement, a plaintiff has the burden of proving that the defendant’s use of a mark has created a likelihood-of-confusion about the origin of the defendant’s goods or services. Since my web pages are of a non-commercial nature, no such likelihood-of-confusion exists. I make no claim to be associated with Honkers restaurants in any manner other than as a satisfied customer, nor do I claim to be in the business of running a restaurant of any type.
• To show dilution, commercial use (among other criteria) must be shown. 15 USC 1125(c)(4)(b) specifies that non-commercial use of a mark is not actionable under this section.
• Unfair competition requires that I be in a competing business. Since I am not a restaurateur, nor do I sell promotional items (calendars, shirts, hats, etc.), I am unclear how this might be applied.
• Deceptive business practices would again require me to be in a business. Since I am not, and make no claims that I am, it would be difficult for any such practices to be deceptive.

Since the group photographs in question were purchased from Honkers’ restaurants as a promotional item, it could be argued that Honkers not only condones, but actually encourages distribution and display of such photographs.

Now, having said all that, I have removed the offending photographs and references from my pages for the moment. I do not have the time to be involved nuisance lawsuit. However, you might wish to modify the tack that you take in such letters prior to finding someone who is willing to fight you over it. I strongly believe that I would win such a case should it go to court, but I really don’t want to fight to be able to provide you with free advertising.

If you didn’t like the pictures on my page, a polite email message asking me to remove them would have been a much simpler and more cost-effective method of accomplishing your goal.

I would also very much like to know where you obtained the address to which you mailed your letter. Had you checked the contact information on my web pages, you would find the address at the top of this letter. It was only by chance that I received your letter, since I no longer live at the address to which it was mailed. The woman now living there happened to see me and mentioned the card. If you need to contact me in the future, please do so at the correct address. Any mail sent to the one you used will be returned unopened. Better still, send me an email message.