after this, Small goes on the offensive

This declaration is, in effect, testimony given by John Cpaatty. It is, for the most part, self-explanatory.

This second declaration (of two by Cpaatty) is much more comprehensive. The major points addressed in the second declaration are in bold, and designed to serve as a prelude to Small's own motion for preliminary injunction. Originally, Small took the position that a preliminary injunction for either side was inappropriate, but Small later concluded that this position was not correct, based upon facts Small had learned in the course of discovery.

Those facts included the discovery that Big would, upon receipt of an inquiry from an entrepreneur or start up business, refer that business to NewBiz, and that Big went to some efforts to obscure the fact that there was a relationship between Big and NewBiz.

This declaration directly attacks the validity of the first of the two Big registrations, which was the registration for the use of TaxHQ as the name of the newsletter. Cpaatty relates his discovery that the corporation which applied for the registration in the first place did not exist then, and does not exist now, and the discovery that Big had abandoned TaxHQ as the name of its newsletter well before the registration of TaxHQ for newsletter purposes was approved by the USPTO.

Cpaatty also recounts actions by Big and NewBiz with respect to loading the Big TaxHQ website on the domain name, when Small's principal website was One purpose of this evidence, of course, was to undercut the allegations that Small and Cpaatty had engaged in electronic piracy in the use of and by placing TaxHQ keywords on that website.

In his first declaration, Cpaatty had alleged the telephone conference with Big Official on November 1, 2004 to establish that Big had knowledge of the activities of Small and Cpaatty well before June, 2007. In the second declaration, Cpaatty goes into much greater detail, alleging that the telephone conference lasted 27 minutes and that there was a recording and a transcript of the telephone conference in existence. In the absence of an admission by Big concerning the time and content of that telephone conversation, there would always be the question of who to believe (Cpaatty or Big). The obvious purpose of relating the detail with respect to the telephone conversation and existence of the recording and transcript was to tip the balance of credibility in favor of Cpaatty and against Big. As previously indicated, significant matters in this declaration are in bold.

after this, Small goes on the offensive Home       TM Overview       TM Case Index

(c) Copyright 2010-2014 Milliken PLC