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gagged!

It seems that Barney's lawyers didn't like our version of Barney, or our later Baaarney, or even our very own Barmey.

Despite the fact that US law allows the limited use of copyrighted images for the purposes of satire, the reality is that big bully corporations can silence criticism with the threat of law suits.

We here at urban75 didn't enjoy a team of heavyweight New York lawyers harassing us and our ISP, so we thought we'd turn it round and see just how much of their highly expensive time we could waste - and have a good laugh in the process.

Below is a copy of the correspondence between us and Barney's lawyers. Enjoy!

1. Cease and desist order from Barney lawyers
19.12.00 Re: Unauthorized Use of Intellectual Property

Dear Sir or Madam:

As you are aware, this firm is counsel to Lyons Partnership, L.P. ('Lyons Partnership'), the owners of the exclusive right to use the copyrighted childrenís dinosaur character Barney¬ as well as the federally registered and famous trademark and service mark Barney.

We previously notified you of our clientís objection to your website www.urban75.com/Punch/barney.html on the basis that it incorporates a violent game featuring the children's character Barney without permission from Lyons Partnership.

Lyons Partnership maintains its objection to the unsavory and unwholesome content that you have associated with its trademark and service mark Barney for the reasons set forth in our September 7, 2000 letter.

THIS IS YOUR SECOND NOTICE. We must hear from you by January 3, 2000. Your response must provide written assurances by that you have ceased and desisted from diluting the trademark and service mark Barney, as well as reproducing, distributing, performing by means of digital audio transmission, or displaying the copyrighted character Barney. Your written assurances must also state that you have removed all web page content relating to the unlawful use of the Barney trademarks or copyrights as well as any links to the official Barney website.

Your immediate response is imperative to avoid legal action. Sincerely,
GIBNEY, ANTHONY & amp; FLAHERTY, LLP


2. urban75 ISP pulls page under threats from Barney lawyers

3. urban75 reply to Barney lawyers

21.12.00 I have now received legal advice from both the UK and US, and from my ISP, all of whom inform me that they can find no case for copyright infringement.

The only reference to Barney (on the 'Punch' home page) has now been removed, so, for the third time of asking, could you explain your claim fully and point out the areas in which you feel copyright is being infringed? I may be happy to comply with your requests, but I will need full details to be able to assist you.

At the moment the page has been removed, but will be going back up unless you - finally - have the courtesy to explain your claims.

Mike

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4. urban75 letter to Barney lawyers (sent three times)

I note that you still haven't had the courtesy nor decency to respond to my previous three emails (reproduced below).

I have repeatedly asked you to list the grounds for your claim of copyright theft, and unless I receive a detailed description of the disputed infringements within 10 days, I shall assume that you have no objections and shall put the page back up.

I have discussed this matter with UK legal advisors and my ISP who are all of the opinion that you have no case, and will therefore look forward to you explaining your claim.

Copy of email sent 19/12/00 and 20/12/00

The urban75 non-profit site features a wholly different character with a different name and a clear notice stating that it has "absolutely no relation" to the trademarked 'Barney'. This would seem to clear up any potential confusion and make it absolutely obvious that there is no connection claimed whatsoever.

Furthermore, the character on urban75 bears no resemblance to the trademarked Barney:

1. it's a different colour (orange)
2. it's a different shape (thinner head shape, different shoulders)
3. It has ears
4. It needs a shave
5. It makes entirely unique noises, absolutely unrelated to Barney's character
6. It features a cow's skull underneath
7. It's eyes are in a different position (lower down the head)
8. It has the words 'buy me' on its forehead
9. It has a black outline
10. It has different colour eyes
11. It features 'fangs'


Seeing as all the above features are entirely unique to our original creation, 'Baaarney' , perhaps you could clarify what similarities you are claiming between this character and Barney¬ so that we may take full and proper legal advice and consider complying to your request?

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5. Reply from Barney lawyers

16 Jan 2001 Dear urban75:
As you know, this firm represents Lyons Partnership, L.P. ('Lyons Partnership'), the owners of the exclusive right to use the copyrighted children's dinosaur character Barney as well as the federally registered and famous trademark and service mark Barney.

I am writing in response to your January 8, 2000, email requesting "a detailed description of the disputed infringements" in the former content of the website you operate at URL: www.urban75.com/Punch/barney.html (the "Infringing Page").

In your December 19, 2000 email, you made various points which we believe are clearly false, starting with your belief that your "wholly different character with a different name . . . bears no resemblance to the trademarked Barney." The Infringing Page, clearly had a picture of the trademarked character Barney which was not altered significantly, if at all, and featured the name "Barney."

Attached please find a copy of the Infringing Page, which we printed before it was removed. In the first place, please note that the name "Barney" appeared four times on the page.

The page's header read "Smack that stupid Barney right in the mush!", the word "barney" was in a text larger than the rest of the text towards the top right side of the page, the "instructions" for the "game" on your page stated, "So slip on your virtual gloves and give Barney the thumping the so obviously wants!" and the text box below the picture stated "sing along with Barney as you punch!!"

Thus, we do not understand your claim that your character has a different name than Barney.

As to your claim that "your" character looked different than the trademarked and copyrighted image of Barney, please note that the picture on the attached printout is, quite apparently, a picture of Barney, with no significant alteration, if any.

You erroneously claimed that the character which used to be featured on your page "has ears," "needs a shave," "features a cow's skull underneath," "has the words 'buy me' on its forehead," "features 'fangs,'" etc.

We again refer you to the printout; please note that the character on the printout has no ears, is clean-shaven (if, indeed, dinosaurs need to shave), has no cow's skull underneath, does not have the words "buy me" on his forehead, nor does he have fangs.

Further, although the printout attached does not contain, as you claim your page did, the phrase, "absolutely no relation to Barney," and that your character is named "Baaarney," we believe if these words had been present on our page, our case for a trademark infringement claim against you would have been bolstered. It is a well settled concept in trademark law that altering the spelling of a trademark does not make it a non-infringing use.

Thus, we trust that your concerns regarding our request for your web page being removed have been answered, you will not take your threatened action of restoring the Infringing Page, and in the future you will refrain from infringing upon Lyons Partnership's trademarks, in particular Barney.

Sincerely,

GIBNEY, ANTHONY & FLAHERTY, LLP


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7. My reply to Barney lawyers

17.01.01 In your December 19, 2000 email, you made various points which we believe are clearly false, starting with your belief that your "wholly different character with a different name . . . bears no resemblance to the trademarked Barney." The Infringing Page, clearly had a picture of the trademarked character Barney which was not altered significantly, if at all, and featured the name 'Barney'.

You are quite wrong. The character appeared *exactly* as described and I suggest that perhaps you hadn't cleared your browser cache correctly or are using an outdated print out.

If you had, you would have observed that the image had changed substantially from the original image you complained about. Indeed, this was the image that Direct Connection and my legal advisors commented on, finding no valid cause for copyright infringement claims.

As I'm obviously desperate not to offend your beloved glove puppet, I've enclosed the exact image that was online as of Dec 19th, 2000, in both 'pre' and 'post' punch states.

Once again, I ask you to list exactly what copyright infringements you perceive there to be with this character, which - you will be thrilled to learn - is now to be called 'Barmy'.

Barmy, as I'm sure you know, is British slang for 'mad' and that's exactly what my creature (note: not dinosaur) will be. In fact, it's going to be one crazy, orange, twin-eared, shaving, cow headed mutha!

Now, if I do not hear any reasonable objections from you within 14 days of this post, I will assume that you have no claims of copyright infringement and will post up my very own (not for fat profit) Barmy for all the world to punch at will. Repeatedly.

Looking forward to hearing from you.

8. Reply from Barney lawyers

30 Jan 2001 Dear urban75:

As you know, this firm represents Lyons Partnership, L.P. ("Lyons Partnership"), the owners of the exclusive right to use the copyrighted childrens dinosaur character Barney as well as the federally registered and famous trademark and service mark Barney. I am writing in response to your January 17, 2000, email requesting "any reasonable objections" against the "Barmy" character that you want to repost to your website at URL: www.urban75.com/Punch/barney.html.

We are writing to inform you that we do not share your view that your "Barmy" character is significantly different from the beloved Purple Dinosaur Barney. If the "Barmy" character is posted to your website, Lyons Partnership is prepared to pursue all available remedies to protect its intellectual property rights.

Sincerely,
GIBNEY, ANTHONY & FLAHERTY, LLP


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9. urban75 reply to Barney lawyers

30.1.2001 I'm afraid such a blanket statement is unacceptable and once again request you list the exact areas where copyright infringement purportedly exists.

I have already pointed out a host of key areas where my crazy, orange, twin-eared, shaving, cow headed mutha called Barmy is completely different to your expensive gibbering sock puppet.

Allow me to remind you:
1. it's a different colour (orange)
2. it's a different shape (thinner head shape, different shoulders)
3. It has ears
4. It needs a shave
5. It makes entirely unique noises, absolutely unrelated to Barney's character
6. It features a cow's skull underneath
7. It's eyes are in a different position (lower down the head)
8. It has the words 'buy me' on its forehead
9. It has a black outline
10. It has different colour eyes
11. It features 'fangs'

I'm also considering dressing Barmey in some saucy stockings, have him smoking a large cheroot and allow an air of transsexuality to pervade his cheeky, cow headed, non-purple personality. His catch phrase might even be, "Is that a Pterodactyl in your pocket or are you just happy to see me?"

I'm confident that these changes will make any claims of copyright infringement with your beloved Barney frankly ridiculous, so unless I hear back from you within 14 days I will assume that you have no objection to my all-new, cheroot smoking, transsexual Barmy.

Mike

10. Reply from Barney lawyers

08.02.01 Dear urban75:

As you know, this firm represents Lyons Partnership, L.P. ("Lyons Partnership"), the owners of the exclusive right to use the copyrighted children's dinosaur character Barney¬ as well as the federally registered and famous trademark and service mark Barney. I am writing in response to your January 31, 2000 email wherein you requested we provide you with the "exact areas where copyright infringement purportedly exists" in the "Barmy" character that you want to repost to your website at URL: www.urban75.com/Punch/barney.html.

Because your site originally used the BARNEY trademark and an image of Barney which is a trademark and is copyrighted, your site has become strongly associated with Barney. Neither the insignificant changing of the name from "Barney" to "Barmy" nor making changes to the appearance of the character, while keeping the same basic shape and appearance, excuse your infringement.

Due to your site's past infringement of Barney and the fact that "Barmy" is still recognizable as Barney, your defacing of Barney is arguably worse trademark infringement and dilution than your original site was. Your suggestion that you will continue to degrade this lovable character would further increase the level of your violation of our client's intellectual property rights. The violent nature of the pictures of "your" Barmy character, in combination with the fact that Barney is a children's character, also increases the degree of offense to those rights.

Unless you make the name and the appearance of your character completely unrecognizable from Barney, you will be infringing upon the Barney trademarks. We suggest that you create your own character from scratch rather than defacing our client's character.

Therefore, we reiterate again that if the "Barmy" character, or any character that is recognizable as being derived from Barney, is posted to your website, Lyons Partnership is prepared to pursue all available remedies to protect its intellectual property rights. We do not wish entertain further discussion of this matter and we will not explain our position further via correspondence. If you insist on continuing this dispute, please have your legal representative contact the undersigned.

Sincerely,
GIBNEY, ANTHONY & FLAHERTY, LLP


Look out for the reappearance of the urban75 cheeky, transexual, cheroot-smoking, cow headed, non-purple personality sometime soon!



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