Trademark Squatters 0001 – OutbackZack – Part 2

Trademark Squatters have become a huge problem in the last couple of years. The value of a mark in commerce can be immense, but often marks are not registered, with the owner depending upon common law recognition of rights.

Trademark Squatters take advantage of inability of government agencies to check the truthfulness of statements made when a mark is registered, and the lack of sanctions for lying under oath. Most especially the lack of sanctions means that there is no effective action taken against Trademark Squatters.

The Government Agency which supposedly exists to protect the Mark Owner instead protects the Mark Squatter against the Mark Owner. When ownership is finally settled at great cost to the Mark Owner, the Mark Squatter walks away unscathed, with the profits that he or she has accrued from his or her actions, ready to do it all again, against some other unsuspecting Mark Owner.

In all cases I will be working with published information. It is possible that this information may not be up to date, or may not accurately reflect the current status of the situation. If I am supplied documentary evidence which shows a different status, I will publish an update. In cases where a lawsuit ensued, and the settlement was sealed, I will not update the published information, unless I am provided with:

1) A copy of the settlement
2) Permission to publish the settlement

While I realize this may cause problems for one or more of the parties involved, I believe in only publishing things I can reference, so that those who read this have an evidence trail to follow.

Note that the above text will appear in every article, if you’ve read it once, feel free to skip down to the divider.

*****

Wolverine - Public Domain Image from Wikimedia
Wolverine - Public Domain Image from Wikimedia

I was rather nice to Trademark Squatter OutBackZack’s Legal Beagle when he posted a comment on my earlier coverage of the Trademark Squatting incident the other day. First time around, it doesn’t hurt. Besides, I hadn’t a chance to check him out. He might have actually been competent, and telling the truth.

Problem is he annoyed me. I don’t know if you know about Wolverines. Wolverines have a bad reputation. To quote Wikipedia:

The wolverine has a reputation for ferocity and strength out of proportion to its size, with the documented ability to kill prey many times its size.

In other words, Wolverines tend to be vicious when aroused. For some reason getting a Legal Nastygram has this tendency to annoy me, like a wolverine gets annoyed. And when I’m annoyed, I do something about it.

You shouldn’t have said anything Mat. I had some other things I was intending to write about, including an update on the Libre Office situation. Instead, you got me upset, so I’m turning my word processor on YOU.

Let’s Look At The Dates

Dates are very important. In his Nastygram Mat Swyers stated:

It has been brought to our attention that you have published serious accusations and falsified claims, stating that our company Outback Zack Productions, did not have the legal premise to register the trademark “Outback Zack”. Prior to publishing your material that is a defamation of character, we suggest you do the research as is warranted. Our company commenced using the name “Outback Zack” in commerce in 2004, and is evident in this USPTO registration; http://www.trademarkia.com/out… The name was thoroughly researched and was not found to be used anywhere in 2004.

We ask you to immediately remove your post and put a retraction on your website stating your error in this matter.

He makes a claim that ‘his company’ started using the name ‘Outback Zack’ in commerce in 2004. He claims that it’s evidenced by the Trademark filing. This is fallacious. All it proves is that he provided the United States Patent and Trademark Office with a sworn statement. It does not prove that what was in the sworn statement is true. That is why we have courts of law – to settle disagreements, which are often about sworn statements.

My publication was not a defamation of character. Under Canadian Law, you cannot defame someone’s character by telling the truth. So I if were to say that Mat Swyers was a rotten American Rebel, there is no defamation. Technically all Americans are rebels, and ought to be hung, for rebelling against their legal King, George III, back in 1776. It might make Mat less than happy, but I don’t care about him.

He claims that the name was thoroughly researched, and was not found to be used anywhere in 2004. Note that I used the word ‘claims’, because he has provided no proof, quite possibly because he has none.

The problem is that his company doesn’t appear to have existed in the United States in 2004. In 2004, Simmons Nick, as he was listed in IMDB.com, was a ex-stunt man who for some reason was no longer working on Australian television productions. There is this unexplained multi-year gap where he wasn’t working on television. When he returns to television, he is using the Zack Heart name. Someone has attempted to sanitize the Internet Movie Data Base, however it continues to list the Simmons Nick name in the credits. FAIL.

The earliest use by Simmons Nick of the name Outback Zack appears to have been in 2008, when he directed, wrote, and stared in a one person show called Outback Zack’s Australian Animal Fire Victims Appeal, which is reported to have raised $500,000.00 for wildlife rehabilitation on a cost of $85,000.00, a truly excellent rate of return, for a laudable project. Note that this information was taken from his IMDB biography, which was supplied by his production company, not a third-party source.

Still, I have no reason to doubt what was printed, and I applaud what he is trying to do. Now if we could just talk him into feeding some politicians I know to the crocodiles. Nah. That would be cruel to the crocodiles. Wouldn’t want to poison the poor beasts.

Facebook – The First Account

He first joined Facebook as Zack Heart in early September, 2007. Then there’s this interesting entry:

uploaded Nick Simmons TV Host / Presenter Kiteboarding TVC to YouTube

 

Note that the name is reversed, it is now Nick Simmons. Also on the same day:

uploaded Nick Simmons Television Host / Presenter Extraordinaire to YouTube

 

A bit later:

is in LA

October 2, 2008 at 1:45am · Like ·

And at the end of October:

What we are seeing is very typical ‘early Facebook’ promotional work. Back in 2008 most people who got Facebook accounts to promote themselves didn’t know a lot about the platform. We see a lot of that on Twitter still. So you end up with huge chunks of dead time, and crazy spelling mistakes. This is not an attempt to make fun of Zack Heart. It just an observation of what things were like on Facebook at the time. No one really had a clue about what they were doing. Wonderful resources like Kristen Lamb‘s We Are Not Alone: The Writer’s Guide to Social Media didn’t exist yet, and we had to make it up as we went along (thanks again Kristen!)

But the point is that no where is Simmons Nick, or Nick Simmons, or Zack Heart calling himself Outback Zack, not at least until:

Zack Heart

is filming Planet Explorer with Outback Zack in San Diego

January 9, 2009 at 9:14pm · Like ·

Note the date. It’s very important. Because the real OutbackZack registered his YouTube channel on December 29, 2007. In other words, he was using the name Outback Zack a year before Nick Simmons (as it’s spelled in the uploads from Zack Heart’s Facebook page, see above) used the name.

The problem is, that no matter where you look, there is NO evidence that Nick Simmons, AKA Zack Heart, has used the name Outback Zack in trade before January 2009. There are claims that he used the name for the Australian Animal Fire Victim’s Appeal. The problem is that the IMDB is maintained by the production companies. It credits Zack Heart, but claims he played Outback Zack. Without an actual copy of the video, it is impossible to be certain.

Even that however still leaves him with a problem. The release date was March 5, 2008, and this was a talk show. In other works it was either live, or close to it. That means that the OutbackZack on YouTube still beat him to the name by a good two months.

Curiously while his Trademark issuance date was October 12, 2010, he then appears to have sat on them for a while, before taking any action. Why he took no action for so long is unknown. Eventually he did, which is where I got involved, since someone I know is a fan of the original OutbackZack, and they know I’m a writer who covers Intellectual Property Issues.

No matter where you go, you just cannot find solid proof that Zack Heart was using the name Outback Zack prior to January 2009. Take a look at his mostly dormant MySpace page for example.

And then of course you’ve got his OutbackZack.com website, which doesn’t exist. Maybe he’s gone bankrupt? Or for that matter his Zack Heart website. He’s let the registration lapse. I was halfway tempted to cyber squat it. But hey, that’s not my style. I’ll call you an asshole to your face, but I won’t steal your site.

But then we get into the fun stuff. I love research. I really do. So I go poking into odd corners of the internet, and I find the oddest things. Really.

Did you know that the Zack Heart entry on Wikipedia was started on April 30, 2011? A user named Krystic1 started the entry. It was Krystic1’s first edit. Krystic1 has spent almost all of his/her/it’s time editing Zack Heart’s entry. Well that and Outback Zack’s entry, until someone else merged them. Doesn’t this look just a bit suspicious to you? It does to me.

Here’s the full listing of edits by Krystic1:

Search for contributions Show contributions of new accounts only
User: Namespace: Deleted only
Only show edits that are latest revisions

Tag filter: 

From year (and earlier): From month (and earlier):

Help:User contributions

The account has edited only a few pages. I took a look at the pages involved. One is the Zack Heart page. Another page was for Outback Zack, but it was merged into the Zack Heart page.

There were also a couple of edits to the Yvette Rachelle ‎page. Krystic1 tried to upload pictures of Yvette Rachelle from IMDB, without proof that he/she/it was the person who owned the pictures. A bot that watches for possible copyright violations killed the picture uploads both times.

And a page was started for Outback Zack’s Australian Animal fire Victims Appeal. Almost all of the edits on that page are from Krystic1, with the exception of the clean ups forced on them by the Wikipedia Police.

But then let’s take a look at the revision history of the Zack Heart page:

Browse history From year (and earlier): From month (and earlier): Tag filter:  Deleted only

For any version listed below, click on its date to view it. For more help, see Help:Page history and Help:Edit summary.
External tools: Revision history statistics · Contributors · Revision history search · Number of watchers · Page view statistics


(cur) = difference from current version, (prev) = difference from preceding version,  m = minor edit, → = section edit, ← = automatic edit summary

Why the Dates Are Important – Conflict of Interest?

You’ll notice something curious. The Zack Heart page was started on the same date that the Krystic1 user was. Add that to the limited number of pages that the Krystic1 account has been involved in editing, and you have to ask, is the Krystic1 account operated by Zack Heart?

This raises some real issues. If, as I suspect the Krystic1 account is operated by Zack Heart, or someone associated with him, there is a problem. Wikipedia has a set of Conflict of Interest guidelines.

To quote  the Wikipedia Conflict of Interest page:

A Wikipedia conflict of interest (COI) is an incompatibility between the aim of Wikipedia, which is to produce a neutral, reliably sourced encyclopedia, and the aims of an individual editor. COI editing involves contributing to Wikipedia in order to promote your own interests or those of other individuals, companies, or groups. Where advancing outside interests is more important to an editor than advancing the aims of Wikipedia, that editor stands in a conflict of interest.

COI editing is strongly discouraged. When editing causes disruption to the encyclopedia through violation of policies such as neutral point of view, what Wikipedia is not, and copyright compliance, accounts may be blocked. COI editing also risks causing public embarrassment for the individuals and groups being promoted.[1]

Editors with COIs are strongly encouraged—but not actually required—to declare their interests, both on their user pages and on the talk page of the related article they are editing, particularly if those edits may be contested. Editors who disguise their COIs are often exposed, creating a perception that they, and perhaps their employer, are trying to distort Wikipedia. When someone voluntarily discloses a conflict of interest, other editors should always assume the editor is trying to do the right thing. Do not use a voluntarily disclosed conflict of interest as a weapon against the editor.

When investigating possible cases of COI editing, Wikipedians must be careful not to reveal the identity of other editors. Wikipedia’s policy against harassment takes precedence over this guideline. An editor’s conflict of interest is often revealed when that editor discloses a relationship to the subject of the article to which the editor is contributing. Where an editor does not disclose an existing affiliation or other conflict of interest, carefully following Wikipedia’s neutral point of view policy may help counteract biased editing.

Quite frankly there are times that Wikipedia’s policies don’t make a hell of a lot of sense. That last paragraph for example, is an absolute wonder of something, but it sure as hell isn’t clarity.

That said, the first paragraph is abundantly clear. If Krystic1 is associated with Zack Heart, he/she/it should declare the association. And it damned well looks like they are. They can scream, cry, and howl. But they can’t do much about Wikipedia’s tracking systems, which are more reliable than anything that Sony has ever produced. Sony has been hacked into Sixteen ways to Sunday. Wikipedia, the source code to which is publicly available, has never been successfully hacked. Think about it.

Where Does This Leave Us?

In three places.

First, I would be damned careful about hiring The Trademark Company to do anything. They might or might not have liked what I did. But only an idiot would escalate things by trying to argue it publicly, especially when a quick perusal of my back articles would indicate that I’ve carried on battles with a series of lawyers for the last several years, and I haven’t lost one yet (note that I’m not claiming that I’ve won – I’m just saying that I haven’t lost – there is a huge difference). So far, they have not shown themselves to be all that impressive. FAIL.

Second, if there’s any possible point of conflict about a Trademark, you are better off working out things with the other parties before hand. Applying for a Trademark, swearing that you’ve done your research, and that you’ve been using the mark in commerce, when THERE IS NO EVIDENCE THAT YOU HAVE BEEN DOING SO, is a dangerous game. If this gets in front of a judge, unless you have a hell of a lot better evidence than I can find, and I’m a trained researcher, you are dead, and you will loose the trademark. At which point, you’ve just wasted a lot of money for nothing.

Third, it doesn’t matter whether you are right or wrong, getting involved in a legal wrangle generally doesn’t do your reputation any good. Unless you are someone like me of course, for whom fighting is a way of life. In my case every fight enhances my reputation…

Regards

Wayne Borean

Friday June 3, 2011

 

Advertisements

8 thoughts on “Trademark Squatters 0001 – OutbackZack – Part 2

  1. Hello Mr Borean,

    I usually like your posts but I must say this last one with Outback Zack made me look at society differently. You have one person devoted to saving animals and another who I personally watched on youtube that creates crude and vulgar videos that abuse nearly everyone, including people with disabilities. He uses constant profanity,  pornographic content, and the list goes on. It saddens me that my kids are exposed to this.

    Best wishes,
    Sarah

    1. Sarah,

      The guy who claims wanting to save animals is only doing so to get famous. If he really wanted to promote saving animals he wouldn’t be posting pics and stories about rats in his car engine, he would instead spend his weekends working at animals shelters. What’s even worse is that the guy made up the character “Outback Zack” instead of using his real name, Nick Simmons. That alone shows he’s thinking more about marketing as oppose to the animals.

      Yes, the YouTuber may be vulgar, but he’s being himself. He says what’s on his mind and people tend to agree with him. Furthermore, the YouTuber has done more for charity than what we’ve seen from this Nick fellow. Zack has donated money to Autism charities and has been raising awareness.

      So what we have here is one guy who makes up a character and tries to get famous from saving animals, and another guy who is being himself, making a living off of it, and giving back at the same time. 

    2. Sarah,

      What we have is one person who was using a Trademark, and another person who stole it from him.

      Now if this was a shoplifting case, you’d be saying that we should let the shoplifter get away with shoplifting, because you don’t like the person he stole from. Are you sure that this is the sort of society you want to live in?

      Wayne

      1. Hello Wayne,

        Thank you for your reply, but I feel you are putting the cart before the horse. I think he is being treated unfairly. I went and did some research of my own and saw that Outback Zack/Heart has been around along time, perhaps late 30’s. He supports numerous wildlife foundations & I watched his animal fire victims appeal on the internet which was very moving. He was genuinely humane and caring, and came across as a sincere person. I tr to look at everything neutrally and with open eyes and I think the wrong Outback Zack is being supported. At the end of the day we’re not lawyers & regardless of what this is about my point is as a mother of 2 teenagers, I find Outback Zack/James to be offensive. I’m horrified by his videos, and am sure I speak for most mothers and adults that he is doing a disservice to today’s youth.

        Thanks for listening Wayne, Ive had my say.

        Best wishes,
        Sarah

        1. Perhaps late 30’s – you mean he’s been around since the late 1930’s? Or you mean he’s in his late 30’s. Neither matters, since he does not appear to be the first person to use the mark in commerce.

          Whether you like someone should not be the basis for your judgement about whether they are right or wrong. Ask any judge. They make decisions based on the Rule of Law, not the Rule of Personality.

          You aren’t the only one with kids. I have kids too. It was my teenage daughter who pointed me at the Trademark Squatting incident. I’m not so sure that you speak for most mothers and adults. You don’t speak for me. I’m an adult. You don’t speak for OutbackZack,  who is a legal adult. You don’t speak for my teenage daughter, WHO IS ALSO A LEGAL ADULT.

          Instead of making a totally immoral decision based on your dislike of a person, make a moral decision based on God’s law. Theft is Theft. The Ten Commandments say Thou Shalt Not Steal. Act in a moral and ethical manner, and back the party who was stolen from, not the thief.

          Wayne

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s