The answer is, unsurprisingly, that I won. However, it ended not with a bang but with a whimper.

The fight was over in November of 2013 and I could have written about it then but decided to hold off in case there was any further legal trickery that required attention.

After serving me with a Universal Domain Name Dispute Complaint, I found myself to be luckily connected with Paul Alan Levy and Public Citizen, who decided to take my case. There was a series of emails that went back and forth between the counsel of Gaijin Entertainment and my own counsel, all of which were entertaining to read.

Paul told them “no, nothing doing, and we’ll be going to court if you persist.” At this point, Gaijin Entertainment’s legal team opted to “suspend” the UDRP complaint. Suspension of these complaints lasts for one calendar month, during which time parties are expected to come to a settlement. At the end of the month, if there has been no activity, the complaint is automatically withdrawn (though without prejudice – meaning it can be refiled), and a certain percentage of the fees are returned to the complaining party.

Eventually, Gaijin Entertainment offered a “settlement” agreement, which effectively read as follows:

• I, and all successors of the domain, recognize and acknowledge Gaijin Entertainment’s ownership and rights to the trademark “Gaijin”, worldwide;
• I, and all successors of the domain, agree not to challenge the trademark;
• I, and all successors or the domain, agree not to seek registration of the trademark “gaijin”;
• I enter a confidentiality and non-disparagement agreement regarding Gaijin Entertainment;
• I agree to place a prominent disclaimer on my website pointing visitors to the Gaijin Entertainment website;
• And that the agreement would be binding to all successors of the domain.

Unsurprisingly, our response was akin to “sit and spin”. The language was stronger, however. I’ll leave it as an exercise to the reader to guess the precise vocabulary.

After another few weeks, the URDP suspension period expired and the complaint was automatically withdrawn.

I’ve heard nothing since.

Hopefully now I’ll be able to write more without fear.

Obviously, I was not going to do that. I have never operated a game development business through this domain or name. Even if I had, there exists seven years of prior art in my name. My attorney, Mike Godwin, sent them a letter stating that I was not going to entertain the idea and that they should retract their claim.

There were no further comments from Gaijin Entertainment and I thought that was the end of it.

On Friday, October 4th, Mike Godwin and I were notified that Gaijin Entertainment had filed a Uniform Domain Name Dispute Resolution (UDRP) claim to the World Intellectual Property Organization (WIPO). In it they claim that I am doing damage to their trademark and seek to have the domain name stripped from me and awarded to them due to trademark violation.

I have the word “courage” tattooed on my arm. I am not going to let this happen without a fight.

Paul Alan Levy of Public Citizen has agreed to represent me regarding this issue. He has asked opposing counsel to withdraw the UDRP claim.

If they do not, we will seek a declaratory judgment of non-infringement in the United States District Court for the Northern District of California, taking the fight to them rather than waiting around.

Among the complaints are some interesting bullet points.

• My domain name, registered on May 22, 1995, “fully incorporates” the “Gaijin” wordmark, which was not registered until October 11, 2011.
• One of the most prominent tags within my blog is “Games” and this apparently confuses people.
• I am apparently not using the word “gaijin” correctly (note that Gaijin Entertainment is not, either, so I’m unsure why this would be a thing). For sake of explanation, I chose the word “gaijin”, meaning “foreigner” or “alien” because at the time I was studying philosophical principles regarding identity and definition – specifically about how things are defined through contrast and opposition, and therefore my own identity, from my perspective, was always and forever going to be “alien” to me (since I cannot see myself except as in opposition).
• Certain blog posts of mine have bad words in them and apparently tarnish other people’s reputations.
• My email address apparently confuses people into thinking I am an employee of their company.
• I am apparently attempting to extort $750,000.00 dollars from them. This comes from a throw-away email exchange I apparently had with one of their employees. I have never had any intention to sell the domain but if someone seriously offered me a million dollars I’d be negligent in not considering the offer. I get offers at least once a month and always for some paltry sum (like $100 dollars). Telling people to throw out a “big number” usually ends the conversations quickly.
• The fact that I show up after them in Google searches means that I am somehow diverting traffic from them.

Below is a pdf of the complaint.

Gaijin_WIPO UDRP Complaint_AS_v10 4 2013

On that same afternoon, my attorney Mike Godwin sent their counsel the following email:

Dear Mr. Goldstein-Gureff,

Please be advised that my client, Brandon Harris, disputes your trademark-infringement claim in every particular.

That is the most polite way to state how vigorously we dispute your attempt to assert flat ownership of the word “gaijin,” a word so well-established in English that it is an entry in the Oxford English Dictionary.

Currently, I’m advising my client to publicize your demand letter, so that the entire game-consuming public will be made aware of your client’s overreaching trademark assertions. In addition, we will of course continue to make clear that Brandon Harris’s website in no way gives rise to any kind of marketplace confusion of the sort that American trademark law is designed to address.

In the interests of allowing you and your client to gracefully retract your claim, we have chosen to refrain from publicizing your demand until you respond to this message, provided that you respond no later than close-of-business Monday. Since I am currently in DC, Eastern time applies.

–Mike Godwin

P.S. I understand that your clients are possibly Russian nationals. You may wish to explain to them the scope and limitations of the Lanham Act in the United States.

–MG

As the time granted to Mr. Goldstein-Gureff has expired, I am publishing this information.

The text of their letter is as follows, with contact information removed.

International Legal Counsels PC
[Contact information redacted]
Re: Trademark Infringement by Gaijin.com

Dear Mr. Harris:

Our firm represents Gaijin Entertainment Corporation (“Gaijin”). Gaijin is a well-known game development company that specializes in creating video games for various platforms (PlayStation3/Xbox 360/iOS/PC). Gaijin is the biggest independent PS3, Xbox 360 and iOS games developer in the Russia Federation and an official partner of Activision, 505 Games, Microsoft, TopWare Interactive, SouthPeak Interactive, Sony Computer Entertainment, 1C Company, Apple and many others. Gaijin’s games have received a range of media and game industry awards including such KRI Awards as “Best Simulation Game,” “Best Technology,” “Best sound” and many more. Gaijin also owns, among other intellectual property, a U.S. trademark registration “GAIJIN” (Reg. No. 4,037,227) (“Gaijin Mark”).

It came to our attention that you registered and maintain a website www.kingofnovember.com (“Infringing Website”) that infringes Gaijin Mark. By maintaining and offering to public your content via the website, i.e., Infringing Website, having the same domain as Gaijin Mark, you create consumer confusion and mistake as to the source, sponsorship and/or affiliation of the
Infringing Website and Gaijin, thereby infringing Gaijin Mark. Consequently, the main purpose of this letter is to demand that you immediately cease and desist from maintaining and offering your content via the Infringing Website or any other site having the domain substantially similar to Gaijin Mark. Gaijin also demands that you immediately transfer the Infringing Domain to Gaijin.

If you wish to amicably resolve this matter, we should hear from you not later than five days from the date of this letter regarding the demands listed above. Should we not receive your response that would be satisfactory to our client, we intend to undertake all legal actions and seek statutory and actual damages (including punitive damages and attorneys’ fees) afforded to our client under applicable law and equity, including, without limitation, pursuant to ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP).

This letter is written for the purpose of bringing to an end the illegal activities described above and with a view of potential settlement of our client’s claims and may not be used by you for any other purpose whatsoever without our written consent. Our client reserves all rights granted to it by law and specifically reserves the right to withdraw any offers before they are
accepted or before any payments are made and to avail itself of any enforcement, legal action or relief available to him in law or equity. Additionally, this letter is without prejudice to all further rights our client or its publishers, licensors or licensees may have, including, without limitation, rights to injunctive relief, profits, damages, statutory damages, royalties and attorney’s fees. Should you have any questions, please address any communications regarding this matter to us as follows:

Leo V. Goldstein-Gureff, Esq.

[Contact information redacted]