From: Thomas Leavitt (thomasleavitt[at]hotmail.com)
To: declan[at]well.com
Cc: Jeanne.Hamburg@bakerbotts.com, jericho[at]attrition.org,
    theresa.melody@bakerbotts.com, staff[at]attrition.org,
    sgamsin@mastercard.com, ayde_ayala@mastercard.com
Date: Wed, 27 Jun 2001 20:17:19 -0700
Subject: Re: FC: Mastercard lawyers threaten Attrition.org over satire site

Declan,

I wonder if the MasterCard people realize how completely idiotic they 
appear? Do they not bother to research the nature of the sites they launch 
these volley's against? It constantly amazes me that large companies sick 
lawyers on people without any thought to the PR consequences... harassing a 
site with the grassroots reach of attrition.org is nothing short of 
criminally stupid.

Are they aware of the hundreds of different "parody" versions of their 
commercials floating around the internet, exchanged in hundreds of thousands 
of emails daily, the vast majority of them obscene or scatalogical or 
otherwise referring to something offensive or humiliating relative to the 
person involved? I'm not sure how this plays out in the legal field, but it 
seems to me that a very strong case could be made that "priceless" mark is 
already substantially diluted, and has come to represent a generic situation 
or use - ala "Kleenex" or "Xerox".

Take a look at this, for example:

A search on Google.Com in their "image" search section (off Advanced Search 
screen) for "priceless".

http://images.google.com/images?q=priceless&btnG=Search&site=images

This yields, let me count:

1, 2, 3, of the top four images are MC parodies - two with *NO* reference at 
all to MasterCard, a third with a "meta" reference "MasterRace". Two of 
these could be considered "obscene".

Of the next four images, three are MC parodies, 3 of which use the MC symbol 
trade dress, 2 of which do so in a parodic fashion "TurkeyNecks.Com" and  
"MasterHard" (which is at least indecent, if not obscence).

Of the several remaining four duplicate images which make us of this pattern 
(several of which are no longer public), two of them are clearly obscene, 
and I suspect the rest are. Three make no reference at all to MasterCard.

On the next page returned, there are four non-duplicate images, none of 
which refer to MasterCard, all of which are obscene or scatalogical.

And, I suspect any person with a fair amount of Internet experience has been 
exposed to numerous examples of this generic pattern over the past few 
years... I recognize almost every image returned by this search from emails 
and URLs sent me by friends and associates.

Not once is anything returned referring to MasterCard financial services. 
Not once has anyone ever sent me anything referring to MasterCard's 
financial services.

In short, MasterCard's mark can be demonstrably proven to have already 
experienced substantial dilution and damage due to association with 
obsenity, separate from and prior to attrition.org's activities and the 
items enumerated demonstrate it to have transitioned into "folk" usage in a 
context where the meaning is commonly understood, with no reference to 
MasterCard's at all in many situations. I would suspect that there are many 
people accross the world who have no idea that this pattern of usage 
originated with MasterCard.

In short, I suggest that MasterCard's lawyers go crawl back in the hole they 
came from, and that corporate America get a clue, and reign in the sharks 
before they wind up getting savaged themselves.

Regards,
Thomas Leavitt
Internet Citizen since 1990