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[Greebo]

You have a good lawyer there, 112233.  Good job!

[Cushie]

I now have a rather large crush on your lawyer. 

[LoanChimp]

I never have before, but I am now beginning to believe that Karma exists...

[112233]

thanks everyone for your support

[Fred93]

That letter needs to be placed somewhere Google has a chance to index it.

Absoluteley.  A good start might be to post the contents of the letter in text format (not a .pdf) here on the Public Boards.  Also, is prosperreport.com itself Googled?  If so, the letter should be posted in text form there too.

Precisely.  Google can't read the scanned text.  If you post a text version then google can index it.

I heartily recommend that prosperreport's extensive staff create and post text versions of BOTH the letter received  and the letter sent.

Google should be able to find prosperreport.com just fine.  More links to prosperreport.com will naturally appear as it naturally gets mentioned in forums etc, which will increase google's interest over time.

[onthefence]

That letter needs to be placed somewhere Google has a chance to index it.

Absoluteley.  A good start might be to post the contents of the letter in text format (not a .pdf) here on the Public Boards.  Also, is prosperreport.com itself Googled?  If so, the letter should be posted in text form there too.

Typing is a good skill to have.  Text is copied into the attached txt document (for formatting)
& here to:

Public Citizen Litigation Group
1600 20TH STREET, N.W.
WASHINGTON, D.C. 20009-1001
---
(202) 588-1000

BY TELECOPIER: 305-358-3309

December 24, 2007

James Gale, Esquire
Feldman Gale
30th Floor
One Biscayne Tower
2 South Biscayne Boulevard
Miami, Florida 33131-4332

Re: PropserReport.com domain name

Dear Mr. Gale:

   I am writing to confirm what I told you on the telephone -- our client will not agree to your demand that he give up the domain name prosperreport.com, which he used for his web site that (among other things) provides links to forums for uncensored discussion abou flaws in the business practices of your client, Prosper Marketplace, Inc.  Your client does not have any viable claims for damages or injunctive relief.  Hence, my client will not execute the agreement that you have proffered for his signature.


   My client's web site features a collection of links to discussions by Prosper's members of their concerns about the way in which Prosper is conducting its business, and specifically about some of the problems with Prosper.  He created the web site because, although your client previously encouraged such open discussion, more recently it has been engaged in heavy censorship which, my client believes, is intended to mask problems from members.  Thus, his web site provides access to discussion archives that Prosper has deleted from its own web site, as well as links to the official Prosper forums and various unofficial prosper forums.  Of course the law protects your client's right, as a web host, to censor discussions on its own web site to its heart's content.  47 U.S.C. § 230.  (Whether such censorship is wise is a different question).  That does not mean, however, that your client is entitled to invoke judicial process to censor discussions on other web sites, or to prevent would-be discussants from using your client's name accurately to show that the web sites are ones where Internet users can locate discussions about Prosper.  Whether it is denominated as fair use, or lack of trademark use, or lack of likely confusion, a third-party's right to use a trademarked word accurately to depict the subject matter of discussion is a fundamental precept of the trademark laws.  Moreover, the use of a trademarked company name to identify a web site about that company is non-commercial speech that is fully protected by the First Amendment.

James Gale, Esquire
December 24, 2007
page 2

   The fact that your client is one of many businesses that uses the "prosper" name, and one of many holders of a trademark in the term "prosper" (in your client's case, for less than two years) does not mean that, under the trademark laws, concerned members of the Prosper community cannot use the mark as part of a domain name to denote a noncommercial web site that features commentary on Prosper itself.  My client's right to use the name in this way is well-established by the case law, including decisions of the United States Courts of Appeals for the Fourth, Fifth, Sixth, and Ninth Circuits, as well as many different United States District Courts, and extends to the threatened claims for infringement/unfair competitions as well as under the ACPA.  E.g. Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005), rev'g 360 F. Supp.  2d 768 (E.D. Va. 204); Bosley Medical v. Kremer, 403 F.3d 672 (9th Cir. 2005); TMI v. Maxwell, 368 F.3d 433 (5th Cir. 2004); Lucas Nursery and Landscaping v. Grosse, 359 F.3d 806 (6th Cir 2004)(ACPA);Taubman v. WebFeats, 319 F.3d 770 (6th Cir. 2003)(Section 32); Lighthouse Ministry v. Discovery Computing, 2007 WL 951542 (D. Utah March 26, 2007)(Section 32 and ACPA); Mayflower Transit V. Prince, 314 F. Supp.2d 362 (D.N.J. 2004; Ficker v. Tuohy., 305 F. Supp.2d 569, 572 (D. Md. 2004) (ACPA and Section 43); Northland Ins. Cos. v. Blaylock, 115 F. Supp.2d 1108 (D. Minn. 2000).

Nobody would come to our client's web site and be confused about whether it is sponsored by Prosper itself.  The very top of the page contains a prominent disclaimer of the affiliation, along with a hyperlink to your client's web site.  Thus even if the buzzword doctrine of "initial interest confusion" that you invoked when we spoke had any proper application in this non-commercial context, any misunderstandings about who sponsors the web site would be immediately dispelled when a user first reached the prosperreport.com home page, and a visitor who really wanted to reach your client's web site could immediately proceed there with only the click of a mouse button.

   Although the cases would not even countenance your suite if the domain name were identical or similar to your trademark, the domain name at issue here is "prosperreport."  This domain name is not "confusingly similar" to your client's mark under the ACPA, and is not likely to cause any confusion because the manner in which domain names have been said to create a likelihood of confusion is by diverting customers who guess at the name of a web site when looking for a trademark holder on the Internet.  But a member of the public who is looking for your client's web site is highly unlikely to type "prosperreport" into his or her web browser; hence, there is little basis for your claim of likely confusion, not to speak of the "initial interest confusion" you mentioned in our telephone conversation.

Indeed, it is apparent that your client has no problem with the use of such domain names that include its trademarks.  Not only are there several third party websites that use such domain names -- some of them expressly making clear that they do so without your client's endorsement -- but your client's own web site proudly "showcase[s ]" some of those web sites and their contents.  http://www.prosper.com/tools/3rdPartty.aspx.  The domain names for those web sites include "proprosper.com," "lendsmartand prosper.com," "fantasyprosper.com," and prosperanalytics.com," not to speak of the "prosperlending.blogspot.com."  Although your client may believe that it can invoke

James Gale Esquire
December 24, 2007
page 3

the trademark laws to block public access to criticism while allowing access to praise, this belief is sorely mistaken.(1)

   Although the fact that "prosperreport" is not confusingly similar to your client's mark is sufficient to dispose of Porsper's ACPA claim, your client cannot meet the second element of the "bad faith intent to profit."  This requirement embodies the purpose of the ACPA to stop "the Internet version of a land grab.... Cybersquatting is the practice of registering 'well-known brand names as Internet domain names' in order to force the rightful owners of the marks 'to pay for the right to engage in electronic commerce under their own brand name."'  Virtual Works v. Volkswagen of America, 238 F.3d 264, 267 (4th Cir. 2001).  My client registered the domain for the purpose of fostering discussion and has never sought to sell the domain name.  That is sufficient to defeat any claim of "bad faith intent to profit" under the ACPA.

   Finally, your client may hope that by filing suit it will send a message to critics that the use of the Internet for uncensored comment on its activities will be costly.  But its decision to file suit over this domain name may be even more costly for your client.  Our experience with the other domain name cases that we have litigated is that the litigation itself brought more attention to the criticisms than they would otherwise have received.  For examples, a Google search for "prosper" does not bring up our client's site on the first page, or even the first several pages, of search results.  If your client makes the mistake of filing the lawsuit that you threaten, that may well change.  Indeed, although your client has become known to some Internet users, it is not well-known to the general public.  I scarcely think it would be in your client's interest if the first thing that the general public learned about your client is that it is so afraid of open discussion that it needs to sue to stop easy access to that discussion.

--------------------
(1) When we spoke, you suggested that my client should adopt the domain name "prospersucks.com."  That name would be inappropriate, because it is not an accurate depiction of either of his web site or of his views about Prosper Marketplace.  My client does not believe that your client "sucks."  In fact, he is a member of the Prosper community who has made numerous loans to other Prosper members.  His concern is about flaws in your client's collection processes, and even more importantly, about your client's attempts to conceal those flaws from members who seek to have the flaws corrected for the better protection of all members.  His web site does not seek to tear down Prosper, but rather to promote transparency about Prosper which he believes is essential to the proper functioning of the Prosper community.  Moreover, the domain names prospersucks.com, prospercusks.org and prospersucks.net are currently registered (albeit by somebody who is not using them in any manner related to Prosper).  In any event, the lesson of Taubman, Bosley, TMI, Lamparello, and the many similar cases that we have litigated for Internet speakers is that accurate domain names need not couple trademarks with vulgarities in order to be protected.

James Gale, Esquire
December 24, 2007
page 4

   I hope this letter will persuade you and your client to leave my client alone.  If not, I note that your letter cites California law as one legal theory supposedly supporting your position.  Although we might prefer to have you sue in California where Bosley is the circuit precedent, my client does not live in California and we do not agree that you can get personal jurisdiction there.  My client lives in New York and would accept personal jurisdiction there.  Pleas let me know when and where you intend to file suit so that we can identify local counsel and be ready to litigate.  On the other hand, if you decide not to pursue your demand, I should be grateful if you would let me know that too.

Sincerely yours,

Paul Alan Levy

[PatriotLender]

If they sue, I too would like to contribute.

Could the contact info be a stickied somewhere in case this goes down?

[AmexFan]

This is in Google's cache already:

http://www.google.com/search?hl=en&q=prosper+public+citizen+responds&btnG=Google+Search

[Mtnchick]

Oh....that....rocks!!

I love that he mentioned the P-----r attorney recommending 123456789 register Prospersucks 

[nonattender]

That letter makes me smile every time I read it.

-t

[Fred93]

I love that he mentioned the P-----r attorney recommending 123456789 register Prospersucks 

I was astonished to hear that James Gale (Prosper's lawyer) said that.  Seems like it was an unprofessional suggestion.

[traveler505]

I doubt that his comment was made as a serious suggestion.  My guess is that Levy cited the case law that upheld the rights of a company's critics to own whateversucks.com domains, and Gale replied "Well, why don't you use prospersucks, then?" 

[Mtnchick]

I doubt that his comment was made as a serious suggestion.  My guess is that Levy cited the case law that upheld the rights of a company's critics to own whateversucks.com domains, and Gale replied "Well, why don't you use prospersucks, then?" 

Oh, I agree - I'm sure it wasn't serious. Just the fact that the P-----r attorney said it and 123456789's attorney repeated it on paper just made me giggle. I'm easily amused

[xraider]

Unfortunately, prospersucks.com, .net and .org are all taken... and all by someone unrelated to Prosper.  (Can I still use that word?)

[Mark12547]

I love that he mentioned the P-----r attorney recommending 123456789 register Prospersucks 

I was astonished to hear that James Gale (Prosper's lawyer) said that.  Seems like it was an unprofessional suggestion.

It's not only unprofessional, but it also diminishes the claim that having "prosper" in the URL hurts Prosper's service mark. One is no more likely to type "prosperreport.com" than "prospersucks.com" when looking for Prosper Marketplace, Inc. Where there might be confusion is if one is looking for Prosper Marketplace, Inc., one might type "prospermarketplace.com", but I see Prosper Marketplace, Inc., already has that name so that base is already covered.