Wednesday, September 30, 2009

Emotional Distress in Trademark Lawsuit

Dear Rich: I am preparing to file a pro se lawsuit. A company contacted me directly and asked me to bid on a domain of mine that they were cybersquatting. I had used it in commerce for over a decade. Two questions about this action: (1) How long do you think my lawsuit will take? (2)  How might I best demonstrate the emotional distress they intentionally caused me? The short answers to your questions are (1) it is not possible to predict how long your litigation will last, and (2) mixing emotional distress claims and intellectual property claims sometimes occurs, but it rarely succeeds and it opens up discovery about your mental and physical history. 
If you have a clear case of cybersquatting ... we would recommend that you pursue an ICAAN arbitration. Though the rulings can be hit-and-miss, in general, it's faster, easier and more efficient than a lawsuit. The Dear Rich Staff has participated in these proceedings and they tend to run their course in three to six months. If the issues are a little murkier, the arbitration may not be a good idea and you may need a judge's assistance in sorting things out.
Getting Emotional. As this article indicates, courts can be unfriendly to claims of emotional distress. The difficulty in making them is that you must prove that the other party acted in a truly outrageous manner. You may believe that what occurred in regards to your domain name was outrageous but courts will be looking for something more -- for example, a pattern of behavior, or a fiduciary relationship, or a powerful party abusing a vulnerable one. As noted, making a claim of emotional distress opens up your entire medical and mental history. You may find the experience of answering psycho-babble questions posed by a $500-an-hour attorney leads to a serious bout of liticaphobia.