Often, in the world of an IP attorney, solutions in litigation are limited to the area of law in which that IP attorney practises. For example, a patent dispute is normally resolved using the relevant legislation and a trade mark dispute normally involves the same, often with passing off thrown in too. Copyright is no different. Sometimes, there is a also a contractual dispute eg in theft of knowhow cases or use of companies legislation where company names are involved. Occasionally though, the dispute becomes more complicated either because the potential litigation traverses unique or different areas of law or because the IP attorney or his/her client wants it to or because his opponent does. A deliberate move into a "non traditional" form of litigation can often be extremely effective against a specialist IP litigator and his/her client but should be considered carefully.
In a recent case decided in the Cape High Court, we see an example of litigants using (and ultimately abusing) insolvency laws to resolve a domain name dispute. The letter below between litigants directly, disclosed by the court in rehabilitation proceedings for a certain Mr Dave Harris, reveals, quite alarmingly, both the frustration of litigation and the tactic:
Hope all is well your side and that your health has improved. I have received your attorneys notice of withdrawal as attorney of record. He reminds me of the skipper on the Oceanos who made it to shore first when he saw that the tide had turned. Clever man, I will definitely be using him in future.
Dave, I have been keeping you fully informed of my actions from day one i.e
1) When you ‘stole’ the website, I told you that all I wanted was the website back or I would go to Brian Shaw (your curator) and fight ‘dirty’. I gave you a full copy of the documents and my reasoning that I would use to institute a 152 investigation. I did this as I did not want your money and did not want to fight. I wanted our website back. Your actions or lack thereof left me with no alternatives;
2) You gave me the middle finger and simply chose to ignore it. Your comments to certain of your staff was that it would just ‘create a bit of admin’ for you.
3) My repeated comments to you that the website is starting to cost you a fortune, fell on deaf ears. Even the blind could see that you had come to a gun fight with a water pistol with so much water that it could possibly keep you ‘in liquidation’ for a long time. If you dont settle we will ensure that you dont rehabilitate;
4) My last text to you on the 29 April in which I made it clear that you should pay our legal costs to date and return our website or else it would consume you, also fell on deaf ears. It was at this point that I started buying up the claims in your estate and realised that once I start spending serious money on claims any chances of a throwing you a life raft was over. At the moment the life raft that you holding onto is unfortunately tied to the Titanic with the captain having left by helicopter.
5) Your sneaky little move to try and rehabilitate before we could stop you was very feeble to say the least. Reading your application brought me to tears…. I thought I was reading the story of the Dalai Lama…. A good guy that had been handed a terrible hand. You should consider writing fairy tails and not commit your imagination to court papers;
6) I am in the final stages of negotiating the purchase of two more BIG claims in your estate that are going to cost you a fortune. I dont want to pay as much as I am about to but unfortunately they have come to realise that there might be some money in it for them. They are greedy…. Sorry I am trying my best not to blow more than another 5 million rand of yours on claims;
Looking at the crystal ball:
1) You will in all likelihood choose to ignore this email once again and hope that it goes away. It will not. This website will become your Bermuda Triangle. It will swallow everything you have and spit you out the other side… Please don’t ignore it;
2) If you don’t settle quickly, I am going to commit purchasing the next two large claims in your estate. I have got them down to 70 cents in the rand (you are welcome to use your stash and pay them a bit more and become my fellow creditor in your 152 enquiry…. You can ask yourself questions and answer them, which would be easier on you because you don’t have to ask yourself the difficult ones, I will ask those. At this point there will be no settlement at all and I will come for every last cent that you have. You have also spread so much negativity and false information that I will be left with no option but running a series of advertorials to rectify the situation. I am already thinking of the headlines…’Dave Harris spends his hidden treasure on a website’….’ Dave Harris web of deceit finally sinks him’… could be fun… or on Twitter ‘Twit overpays for website’.
My suggestion to you is as follows: (I am typing slowly)
1) Let’s settle this thing. I believe that your health has taken a turn for the worse that could possibly positively effect your judgement. Dont let this website become your epitaph www.fairHEAVENestates.now
2) Its costing you more and more daily….STOP IT
3) Even if you happen to get the website (which we don’t think will happen), you will be the loser….BIG time. We will use our gain on your estate to change Fairhavens name at YOUR COST;
4) We have put an offer to you that you must seriously consider. I cannot believe that after all this water under the bridge, you think it is remotely possible to continue at Somerset Lakes with Otto? Is it the nice Dave that works there? The bad one stole the website? We only know one leopard with one set of spots…. Let me once again tell you what I will be doing…. Your shareholding in Somerset Lakes is an asset in your estate. I will be bidding up to the amount of the shortfall in the claims that I will own (I intend to own about R7,8 million in claims shortly. Presently I only own R 1 million for that shareholding i.e I will be paying your estate, who will pay me out on the claims I have (less their 10% commission) I am even sure if I settle your curator his 10% commission he will net my offer and my claim off. I am not sure if Otto has a pre-emptive right on the shares? Possibly I will become Ottos partner…. exciting times;
A FINAL FINAL FINAL FINAL attempt at settling. I dont want to talk to you but dont mind if it will help to resolve the situation. I suggest that you sit with Otto and agree on a deal so that this utter madness can stop. I will be committing another approximately R 6 million of your money on Tuesday. I dont believe that it is too late to stop the ‘Slow train coming’ It has unfortunately cost you a fortune to date. It has the potential to cost you everything. Its in your ability to stop it. If you dont accept this generous olive branch, we will see you in court and I suggest you see a psychologist….and o yes… if you want me to send you the list of questions we will be asking at the 152 I will gladly do so…. You can take crib notes.
THIS EMAIL IS SENT TO YOU WITHOUT PREJUDICE AND I RESERVE ALL OUR RIGHTS IN THIS REGARD IN TOTO “
This was followed by a series of threats by phone and through intermediaries.
“Hi matey, I know that we no longer associate on a social basis but I’m sure you know why! I do however care about you and Carin. If you are even aware of today’s email from Dennis and the extent of the problem you should swallow your pride and consider it carefully. You and your dad have so picked the wrong guy to piss off. He is prepared blow millions just to get even with you. We really don’t want to see you guys burn. Think about yourself and Carin mate.”
If anyone still thinks that IP litigation cannot become vitriolic, they should think again. Ultimately the court found the tactic to be an abuse and ordered a punitive cost order against the litigant. Mr Harris successfully rehabilitated - though, one suspects, only in a legal sense.