JOSEPH J. HEATH'S letter to Bernhard P. Molldrem, Jr., Esq.

JOSEPH J. HEATH
ATTORNEY AT LAW
716 EAST WASHINGTON STREET
SUITE 104
SYRACUSE, NEW YORK 13210-1502
315-475-2559
Facsimile
315-475-2465

February 16, 2004 VIA FACSIMILE and REGULAR MAIL

Bernhard P. Molldrem, Jr., Esq.
333 East Onondaga Street
Syracuse, NY 13202

RE: YOUR February 11th LETTER TO FRANK HOGG

Dear Mr. Molldrem:

Thank you for sending me a copy of your February 11th letter to Mr. Hogg. I agree that my involvement may assist in putting a quick end to this matter.

Initially, I am rejecting your arbitrarily brief time frame for the resolution of this matter; certainly no decision can or will be reached by February 17th. Your letter did not arrive in my office until the 12th and since I was engaged out of my office all day on both the 12th, and the 13th, such a short response time has left no business days in which to respond. Further, I will be out of my office from February 18th until the 25th, so this matter will take more time to resolve. I will continue to work promptly on it, but we reject any such unilaterally set dead lines.

I have been able to do some preliminary research into the Anticybersqatting Act, 15 USC § 1125 (d) and even this preliminary research reveals that your attempt to use this statute in this factual situation is without merit.

If you would be so kind as to respond to these questions, I believe we can move forward towards a resolution of this matter:

1. What facts do you claim exist to support your burden, in 15 USC § 1125 (d) (1) (A) (I), that Mr. Hogg "has a bad faith intent to profit from" the activities complained of ?

2. What facts do you claim exist to support your burden, in 15 USC §§ 1125 (d) (1) (A) (ii) and (1) (E), that Mr. Hogg has "trafficked in" a "confusingly similar mark" ?

3. What facts do you claim exist to support your burden, in 15 USC §§ 1125 (d) (1) (B) (V) that Mr. Hogg's Song Mountain News has been posted for either "commercial gain", or "with the intent to tarnish or disparage [Song's] mark, by creating a likelihood of confusion" ?

4. What steps has Song's taken to protect its mark under 15 USC §§ 1125 (d) (1) (A) ?

5. In what manner is the article complained of "derogatory"? and

6. In what manner does the article complained of "disparage the commercial good will in the Song Mountain [Ski Resort] name" ?

Further, Mr. Hogg is sincerely of the good faith belief that he has First Amendment protected right to write and post newsworthy articles about Song Mountain Ski Resort and its attempt to use its commercial snow making well. These are matters of public concern in the Town of Preble and particular to those Preble citizens who live on Song Lake, whose wells are likely to be negatively impacted by this commercial well. My initial review of the articles on the Song Mountain News page leaves me with the conclusion that all of the facts contained therein are accurate, as they apply to the past activities of Song Mountain Ski Resort and its management.

Additionally, "Song Mountain" is a geographic location, which is used much more broadly in this area to refer to the entire hill that lies to the west of Song Lake; it is used more broadly than the more limited term "Song Mountain Ski Resort". Your client's complaints might have more validity if Mr. Hogg was posting something like: Song Mountain Ski Resort News.

I look forward to your answers to the issues raised herein, so that this matter can be quickly resolved. Please advise.

Sincerely yours,

Joseph J. Heath, Esq.

JJH/pe

cc: Frank Hogg

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