Tags: chester street, copyright law, digital millennium copyright act, direct dial, dmca, dow chemical, dow chemical company, e mail, englewood co, good faith, gregory d, howard phillips, intellectual property enforcement, intellectual property rights, law offices, professional corporation, salt lake city, several different ways, south chester, written authorization,
LAW OFFICES
HOWARD, PHILLIPS & ANDERSEN
A PROFESSIONAL CORPORATION
GREGORY D. PHILLIPS 560 East 200 South, Suite 300 Telephone: (801) 366-7471
Direct Dial: (801) 366-7707 Salt Lake City, UT 84102 Facsimile: (801) 366-7706
E-Mail: gdp@hpalaw.com
December 3, 2002
VIA EMAIL (abuse@verio.com; support@verio.com; dlthompson@verio.com;
copyright@verio.com) and
FACSIMILE (303) 708-2445
Verio, Inc.
8005 South Chester Street, Suite 200
Englewood, CO 80112
Re: DOW-CHEMICAL.COM
Dear Verio:
This law firm represents The Dow Chemical Company ("Dow") on intellectual property
enforcement matters. I an agent of Dow authorized to act on its behalf.
Dow has recently discovered that the operator(s) of dow-chemical.com (the "Website") is
blatantly violating Dow's intellectual property rights. Dow provides this notification of
infringement pursuant to the Digital Millennium Copyright Act (the "DMCA"). The Website
violates Dow's rights in several different ways:
1. Violation of the Digital Millennium Copyright Act.
The Website displays numerous trademarks, images, texts and designs taken directly from
Dow's website located at dow.com. This material is protected by copyright law and may not be
reproduced, in whole or in part, without the express written authorization of Dow. A
representative list of the addresses within the web site where Dow's trademarks, copyrighted
images, texts and designs appear is attached hereto as Exhibit A.
I declare in good faith that the use of the material referenced in Exhibit B is not
authorized by the copyright owner, its agent or the law.
Accordingly, Dow requests that pursuant to 17 U.S.C. § 512 of the Digital Millennium
Copyright Act that Verio immediately cease to provide hosting services for this domain.
2. Violation of the Anticybersquatting Consumer Protection Act.
The domain name, dow-chemical.com, violates Dow's trademark rights by incorporating
the world-famous and distinctive trademark Dow®. The term Dow® together with its
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December 3, 2002
Page 2
corresponding design trademarks or logos, are duly registered trademarks in numerous countries,
including the United States. Use of these trademarks, or any confusingly similar variations
thereof, without the express, written consent of Dow, violates state and federal law, is misleading
to the public, and constitutes a misappropriation of the goodwill and reputation developed by
Dow.
The United States Congress has enacted the Anticybersquatting Consumer Protection Act,
which makes it unlawful for a person to register a domain name that incorporates the famous
trademarks of another and provides for statutory damages in the amount of $100,000.00 per
domain name against those who do so. See 15 U.S.C. §1117(d).
3. Violation of the Lanham Act.
The Website also violates Dow' s trademark rights by displaying Dow' s design
trademarks and logos on the web site.
The Website' s content is defamatory to Dow. The operator(s) of the Website has issued a
press release directing the media and the public to this site in an attempt to damage the reputation
and tarnish the goodwill associated with Dow, its products and services. A copy of the press
release is attached hereto as Exhibit B. The registrant of this domain has provided fraudulent and
fictitious WHOIS information to conceal his/her identity. A complaint with ICANN has been
filed to require that the registrant provide complete contact information.
In addition to violating United Stated Federal Law, the Website is in violation of Verio' s
Acceptable Usage Policy (" AUP" ), which describes, in pertinent part, intellectual property
violations as:
" Engaging in any activity that infringes or misappropriates the intellectual property rights
of others, including copyrights, trademarks, service marks, trade secrets, software piracy,
and patents held by individuals, corporations, or other entities. Also, engaging in activity
that violates privacy, publicity, or other personal rights of others. Verio is required by law
to remove or block access to customer content upon receipt of a proper notice of
copyright infringement."
Verio' s AUP further provides that in cases of intellectual property infringement, defamation and
other illegal activates that Verio will remove such content, as described below:
" When Verio becomes aware of harmful activities, however, it may take any action to
stop the harmful activity, including but not limited to, removing information, shutting
down a web site, implementing screening software designed to block offending
transmissions, denying access to the Internet, or take any other action it deems
appropriate."
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December 3, 2002
Page 3
The violation of Dow' s invaluable copyrights is causing and will continue to cause Dow
to suffer irreparable damage as long as the website remains operational. Therefore, Dow requests
that Verio take the actions prescribed by the DMCA and its AUP by removing and disabling
access to the Website.
I declare under penalty of perjury that the foregoing information is accurate. Should you
have any questions concerning Dow' s position in this matter, please do not hesitate to contact
me.
Very truly yours,
Gregory D. Phillips
Enclosures
jlc:GDP
cc: The Dow Chemical Company
Verio, Inc.
December 3, 2002
Page 4
Exhibit A
http://www.dow-chemical.com/r/about/aboutdow/lead/parker.htm.do.php
http://www.dow-chemical.com/r/about/corp/corp.htm
http://www.dow-chemical.com/r/assistance/assist_about.html.do.php?
http://www.dow-chemical.com/r/assistance/assist_about.html.do.php?folderName=r
http://www.dow-chemical.com/r/assistance/index.htm.do.php
http://www.dow-chemical.com/r/careers/index.htm.do.php
http://www.dow-chemical.com/r/dow_news/feature/2002/10_24_02/index.htm
http://www.dow-chemical.com/r/dow_news/index.html.do.php
http://www.dow-chemical.com/r/dow_news/speeches/20021028a.htm
http://www.dow-chemical.com/r/ebusiness/index.htm.do.php
http://www.dow-chemical.com/r/environment/care_info.html
http://www.dow-chemical.com/r/environment/ehs.html
http://www.dow-chemical.com/r/Homepage/index.html
http://www.dow-chemical.com/r/homepage/index.html.do.php
http://www.dow-chemical.com/r/products_services/index.html.do.php
http://www.dow-chemical.com/r/webapps/search/basicSearch.asp.do.php?
Verio, Inc.
December 3, 2002
Page 5
Exhibit B
-----Original Message-----
From: Dow Chemical Corporation [SMTP:press@dow-chemical.com]
Sent: Tuesday, December 03, 2002 9:49 AM
To: Breakfast R5L
Subject: DOW ADDRESSES BHOPAL OUTRAGE, EXPLAINS POSITION
December 3, 2002
FOR IMMEDIATE RELEASE
Contact: mailto:press@dow-chemical.com
DOW ADDRESSES BHOPAL OUTRAGE, EXPLAINS POSITION
Company responds to activist concerns with concrete action points
In response to growing public outrage over its handling of the Bhopal
disaster's legacy, Dow Chemical (http://www.dow-chemical.com) has
issued a statement explaining why it is unable to more actively
address the problem.
"We are being portrayed as a heartless giant which doesn't care about
the 20,000 lives lost due to Bhopal over the years," said Dow
President and CEO Michael D. Parker. "But this just isn't true. Many
individuals within Dow feel tremendous sorrow about the Bhopal
disaster, and many individuals within Dow would like the corporation
to admit its responsibility, so that the public can then decide on the
best course of action, as is appropriate in any democracy.
"Unfortunately, we have responsibilities to our shareholders and our
industry colleagues that make action on Bhopal impossible. And being
clear about this has been a very big step."
On December 3, 1984, Union Carbide--now part of Dow--accidentally
killed 5,000 residents of Bhopal, India, when its pesticide plant
sprung a leak. It abandoned the plant without cleaning it up, and
since then, an estimated 15,000 more people have died from
complications, most resulting from chemicals released into the
groundwater.
Although legal investigations have consistently pinpointed Union
Carbide as culprit, both Union Carbide and Dow have had to publicly
deny these findings. After the accident, Union Carbide compensated
victims' families between US$300 and US$500 per victim.
"We understand the anger and hurt," said Dow Spokesperson Bob Questra.
"But Dow does not and cannot acknowledge responsibility. If we did,
not only would we be required to expend many billions of dollars on
cleanup and compensation--much worse, the public could then point to
Dow as a precedent in other big cases. 'They took responsibility; why
can't you?' Amoco, BP, Shell, and Exxon all have ongoing problems that
would just get much worse. We are unable to set this precedent for
ourselves and the industry, much as we would like to see the issue
resolved in a humane and satisfying way."
Shareholders reacted to the Dow statement with enthusiasm. "I'm happy
that Dow is being clear about its aims," said Panaline Boneril, who
owns 10,000 shares, "because Bhopal is a recurrent problem that's
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December 3, 2002
Page 6
clogging our value chain and ultimately keeping the share price from
expressing its full potential. Although a real solution is not
immediately possible because of Dow's commitments to the larger
industry issues, there is new hope in management's exceptional new
clarity on the matter."
"It's a slow process," said Questra. "We must learn bit by bit to meet
this challenge head-on. For now, this means acknowledging that much as
it pains us, our prime responsibilities are to the people who own Dow
shares, and to the industry as a whole. We simply cannot do anything
at this moment for the people of Bhopal."
Dow Chemical is a chemical products and services company devoted to
bringing its customers a wide range of chemicals. It furnishes
solutions for the agriculture, electronics, manufacturing, and oil and
gas industries, including well-known products like Styrofoam, DDT, and
Agent Orange, as well as lesser-known brands like Inspire, Retain,
Eliminator, Quash, and Woodstalk. For more on the Bhopal catastrophe,
please visit Dow at http://www.dow-chemical.com/.
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