Paul Blair

110 West Madison

Coalinga, CA 93210

(559) 935-8533

 

July 26, 2004

 

Sullivan & Worcester LLP

One Post Office Square
Boston, MA 02109

(617) 338-2800

Attention: Kimberly B. Herman

 

Dear Madam:

 

This letter is in response to the cease and desist letter you've sent I and other website operators regarding "Operation LoJack." I am the author of Operation LoJack, the material with which your client takes issue.

 

I would like to start by clearing up a few misconceptions you may have about what Operation LoJack is and isn't, and about the nature of the website/domain toadlife.net.

 

Toadlife.net is my personal website, which I launched in 2002 to host my personal projects and share them with others. Toadlife.net does not serve, nor has it ever served as a platform for any type of commerce.

 

Contrary to what your letter claims, Operation LoJack is not a "tactical computer game." It is an add-on to the PC game, Operation Flashpoint, which is a military simulator. The file available from my site is useless without this game. Operation LoJack is nothing more than an interactive fictional story which is driven by scripts, where the player of the game is the lead character in the story. Players of the game refer to these add-ons as "missions."

 

Operation LoJack is about a soldier who is taken hostage while carrying an "experimental tracking device." The player of the game must find the hostage using this device.

 

The full text from inside the mission's "briefing" is located on my website at the following link:

http://ofp.toadlife.net/publicfiles/briefing.html

 

The relevant parts of from this briefing are printed on the next page:


Summary of the story (taken directly from the mission's briefing):

 

"Sergeant Richard Moore disappeared three nights ago from one of the last outposts in Northern Kolgujev. Normally we would not send in a rescue team until we found out Moore's exact location, but Moore was carrying a prototype of an experimental tracking device, which was being tested by Army Rangers. It seems, whoever is responsible for his disappearance has no knowledge of the tracking device, and Moore has managed to activate the device.

Reconnaissance teams have reported picking up his signal on the Southern end of the island, but they were too far away to get a precise location.

We need your squad to find him and bring him back. You will be inserted via Helicopter
here. Intelligence reports light or no activity in the vicinity of the landing zone, though you will be flying over the only known militant compound on the island."

 

 

Section of Briefing that pertains to the "tracking device":

 

Unit Tracking Device
(Code-Named "LoJack")

Regarding the use of the tracking device to locate your hostage: The device is very easy to use. Use the radio interface to turn the device on and off. The device should emit a beeping sound. The pace of the beep will increase as you point more towards the target and the pitch of the beep will increase as you get closer to the target. When pointing directly at the target, the beep should sound almost constant.

Good luck sir."

 


Using the game's internal programing language the mission emulates the aforementioned "tracking device," which allows the player to find the hostage and complete the mission.

 

In the game this briefing appears in a book form for the player before he/she begins the mission.

 

I would like to make a few observations regarding Operation LoJack and your assertion that I am violating your client's trademark.

 

 

  • All of the work I have ever done around the game Operation Flashpoint, including, but not limited to Operation LoJack is no more than a hobby of mine. I am not selling, nor have I ever sold or made any money from Operation LoJack, or any of my other work related to the game Operation Flashpoint.

 

  • There is no connection or similarity whatsoever between the "goods" (Operation LoJack) I offer and the goods (The LoJack Vehicle Recovery System) that your client offers. Operation LoJack is an interactive and fictitious story, while the LoJack Vehicle Recovery System is a physical electronic device that is installed onto a vehicle.

 

  • Operation LoJack does not contain any wording which is likely to confuse consumers as to who owns the right to your client's trademark, or which services are being provided. On the contrary, due to the widespread knowledge among consumers of the LoJack product, it is reasonable to believe that consumers would know that the "experimental tracking device" in the mission has nothing to do with your client's product, and that the use of the term "LoJack" as a nickname for the device is mere wordplay.

 

  • Your client's product is so widely known among the public, that the name "LoJack" is frequently used to describe any type of tracking device which is used to find or keep track of objects. As an example, please refer to the following news stories from that last few years, which are completely unrelated to your client's product, yet use your clients mark, and serve to demonstrate the widespread notoriety of the LoJack mark.

 

http://www.lantimes.com/98/98feb/802b072a.html

 

http://www.nonliteral.com/lawson/weblog/articles/lojack_your_pet

 

http://www.gadgetmadness.com/archives/20040419-lojack_for_kids.php

 

http://www.photodude.com/article/1785/baby-lojack

 

http://www.techdirt.com/news/wireless/article/1590

 

http://www.cnn.com/2000/TECH/computing/03/14/laptop.alarm.idg

 

http://www.usatoday.com/tech/techreviews/products/2002-08-12-gps-device_x.htm

 

http://www.ec.com.my/article.pl?sid=04/07/08/0343213

 

http://stillwater.csd.uwo.ca/~wade/Research/Legacy/PVC/Scenarios/wade-lojack.html

 

http://macscripter.net/unscripted/unscripted.php?id=P12_0_1_0_C

 

 

  • Operation Lojack is nothing more than an interactive piece of literature. Usage of the term "LoJack" in this instance is for literary purposes only. Numerous pieces of literature, both fiction and non-fiction, bare titles and content that contain widely known trademarks in a similar manner.

 

At this time, I am not compelled to comply with your demand to remove Operation LoJack from my website. Your letter is based upon a false assumption about what the disputed content is, and given the true nature of the content, I do not see any compelling evidence that Operation LoJack violates U.S. or international Trademark laws.

 

If you or your client can offer any further reason for me to remove the content, or if you or your client can offer any other remedies to this situation, please let me know.

 

 

 

Respectfully,

 

 

 

Paul Blair