My hometown's attorney attempts to bully local resident (AP picked up story)

My hometown is West Orange, New Jersey. Previously we were known as the location of Thomas Edison's factory and for the first planned residential community in the country, Llewllyn Park.

We now seem to have garnered some additional noteriety as one of our more vocal and politically active residents received a threatening cease and desist letter for the town attorney. Jake Freivald, the reciepient of the letter, has been an outspoken critic of the the town's current and past political leanings and is a member of the local Tea Party group. He started a domain name, westorange.info, to facilitate discourse about the town and was promptly sent a cease and desist email from the town attorney, Richard Trenk.

Jake reached out to a friend (and fellow West Orange resident) who responded, pro bono, to the town and the response has made its way through the blogosphere all the way to the Huff Post, Gawker and finally to the Associated Press (who ironically also know about government bullying).

The cease and desist and the humorous repsonse are below:

Dear Mr. Freivald:

I am the Township Attorney for the Township of West Orange (“Township”). It has come to our attention that, on or about May 13, 2013, you registered and began to use the domain name “westorange.info” (the “Info Domain”). The Township interprets this action as an effort by you to confuse and conflate the Township’s official domain name and Web site with the Info Domain that you maintain.

The use of the Township’s name is unauthorized and is likely to cause confustion [sic], mistake or to deceive the public and may be a violation of the Township’s federally protected rights. The Info Domain falsely creates the impression that the Township is associated or affiliated with the Info Domain. At a minimum, this action has been taken with constructive knowledge of the Township’s name and Web site, and constitutes bad faith use of the Info Domain.

Accordingly, the Township demands that you cease and desist from use, ownership and maintenance of the Info Domain. The Township further demands that, within ten (10) days, the Info Domain be withdrawn from the current registrar, and that you cease all current and future use of the Info Domain, or anything else confusingly similar thereto.

The Township reserves all rights and remedies.

Please be guided accordingly.

Very truly yours,

Richard D. Trenk, Township Attorney source

Stephen B. Kaplitt
Member of the Bar in New York * New Jersey * Maryland * District of Columbia (inactive)
1271 Avenue of the Americas
Suite 4300
New York, NY 10020
www.KaplittLegal.com

June 17, 2013

VIA EMAIL ONLY

Richard D. Trenk, Esq.
Township Attorney for the Township of West Orange
Trenk DiPasquale
347 Mount Pleasant Avenue
Suite 300 West Orange, New Jersey 07052

Dear Mr. Trenk:

I am pro bono counsel to Jake Freivald and write in response to your “cease and desist letter,” dated May 13, 2013, regarding his domain westorange.info. Obviously it was sent in jest, and the world can certainly use more legal satire. Bravo, Mr. Trenk !

Not that we didn’t get the joke … but since Mr. Freivald had not previously encountered a humorous lawyer, he actually thought your letter may have been a serious effort by the Township to protect its legitimate interests. Rest assured, I’ve at least convinced him that it was certainly not some impulsive, ham-fisted attempt to bully a local resident solely because of his well-known political views. After all, as lawyers you and I both know that would be flagrantly unconstitutional and would also, in the words of my 4-year old, make you a big meanie.

Nonetheless, to further allay my client’s concerns, will you kindly forward to me copies of the prank cease and desist letters you have no doubt also sent to the owners of the following domains:

westorangeinfo.com (don’t tell me you overlooked this one … ?)
westorange.patch.com
westorangenj.net (now that sounds like a Township website !)
westorangehistory.com
westorangetax.com
westorangnurseries.com
westorangeins.com
westorangebassanglers.com (my personal favorite)
westorangephoto.com
westorangeparade.com
westorangenephrology.com
westorangeplumber.com
westorangerotary.org
westorangemassagetherapy.com (hopefully not a euphemism, suggest you investigate)

Oh, and just to play along, had you intended for your letter to be taken seriously, even in some small measure, we would have sent in response something along the following lines:

* * *

Dear Mr. Trenk:

1) The suggestion that Mr. Freivald’s website is “likely to cause confusion” or “falsely create the impression” of association with the Township is farcical. As is evident from the attached home page snapshots, the Township’s website is a “virtual” masterpiece developed by Icon Enterprises, Inc., d/b/a CivicPlus, at a cost to West Orange taxpayers of $35,000 (plus $5,000 per annum for hosting and maintenance). By contrast, my client’s rudimentary website (cost: $3.17,1 free hosting) is so minimalist that it arguably qualifies as modern art.

2) To date, all ICANN rulings in this area have held that geographic domain names, by themselves, are not protected marks – especially when claimed by government or municipal authorities.2

3) I can’t believe I really have to explain this, but here goes … after nearly a century of First Amendment jurisprudence, it is well-settled that content-based restrictions on free speech by the government3 are subject to “strict scrutiny”, and will only be upheld upon a showing that such restrictions “promote a compelling [governmental] interest” and are the “least restrictive means to further the articulated interest”. See, e.g., Sable Communications of California, Inc. v. Fed. Comm. Commission, 492 U.S. 115, 126 (1989), and about a kajillion other U.S. Supreme Court free speech cases.

4) Will you kindly explain exactly which of its “federally protected rights” the Township believes my client “may” have violated.

5) So that I may properly counsel my client, please also explain what in Sam Hill’s name you meant by “anything else confusingly similar thereto.”

6) Last but not least, will you kindly provide to me the specific legal basis or bases for the Township’s demand that my client cease and desist from “use, ownership and maintenance” of his domain. To paraphrase the bar exam instructions, feel free to cite any authority you consider relevant, including Federal, state or local laws, rules, regulations, ordinances, etc. (even those voluminous Township playground rules no one pays attention to). Since New Jersey Rule of Professional Conduct 4.1(a)(1) prohibits a lawyer from making a “false statement of material fact or law to a third person”, surely you must have persuasive authority for the Township’s extraordinary demand that my client relinquish private property lawfully purchased and owned by him.

If you manage to produce supporting authority that even remotely passes the laugh test, I will donate $100 in your honor to the American Civil Liberties Union – NJ Chapter. I plan to make the donation online, assuming the State of New Jersey has not shut down aclu-nj.org.

* * *

But of course, only a humorless suit would have sent such a response to your literary gag gift.

Sincerely yours,
Stephen B. Kaplitt

P.S. Off topic, but as long as we’re chatting, I hereby demand from the Township a refund in the amount of $28,763.22 for excess property taxes levied on 74 Terrace Avenue since my acquisition of ownership on August 9, 2010. Detailed calculations and legal authority available on request.

P.P.S. Wait, I have a better idea. I just learned that westorange.gov is still available and any state or local agency can license it from the U.S. General Services Administration for only $125 per year. Since the whole refund thing might trigger a stampede if word got around, instead how about if I form a limited liability company to conceal my identity, and then use it to license westorange.gov from the GSA – I’ll just need a letter from Mayor Parisi designating my LLC as an authorized Township agent – and then my LLC will sublicense it to the Township for a paid-up royalty of $28,763.22 ! Pretty clever, huh ? Krakoviak will be a hard sell, but Sayers should like it. Just something to consider …

—–

[1] Jake swears that was his actual cost. Looking at his website, I believe him.

[2] See, e.g., City of Dearborn v. Dan Mekled d/b/a ID Solutions, FA 99602 (Nat. Arb. Forum Nov. 12, 2001)(insufficient evidence that “City of Dearborn” is a protected common law mark); City of Myrtle Beach v. Information Centers, Inc. FA 0112000103367(Nat. Arb. Forum March 8, 2002)(“The City of Myrtle Beach is a geographical place. There is insufficient evidence that the name has acquired any secondary meaning [to create a protected trademark interest]”); and City of Salinas v. Brian Baughn, FA 97076 (Nat. Arb. Forum June 4, 2001)(insufficient evidence that “City of Salinas” mark acquired secondary meaning such that the City of Salinas may claim the exclusive right to use as a trademark).

[3] Yes, that includes the Township of West Orange. See Herbert v. Lando, 441 U.S. 153, 168 n. 16 (1979).

This shows that the lack of transparency in our government and their desire to bully the common citizen is not just relagated to the federal government but exists at all levels and we must all be vigilant and respond to it at every opportunity.

What a great lawyer, you got to love a smart aa.....um..smart guy....

Originally posted by terriblyvexed
What a great lawyer, you got to love a smart aa.....um..smart guy....

I agree, my favorite line was:

Not that we didn’t get the joke … but since Mr. Freivald had not previously encountered a humorous lawyer...

The cease and desist letter really showed the absurdity of government and what they are willing to do to repress opposition.

Love the response given by the pro bono lawyer who decided to help this gentleman out with a real pain in the butt. Thanks for the chuckle...

I do agree with the responding attorney, as if they really wanted to protect those names, they would've bought them up and made sure no one else could purchase the names involved. I hope the offending attorney gets his hands slapped for being so stupid as to attempt to bully a citizen who was doing nothing wrong. Guys like that give lawyers a bad name.

Originally posted by SweetKarma
Love the response given by the pro bono lawyer who decided to help this gentleman out with a real pain in the butt. Thanks for the chuckle...

No worries.

I do agree with the responding attorney, as if they really wanted to protect those names, they would've bought them up and made sure no one else could purchase the names involved. I hope the offending attorney gets his hands slapped for being so stupid as to attempt to bully a citizen who was doing nothing wrong. Guys like that give lawyers a bad name.

As of this point Trenk has yet to respond to any inquiry or questioning, either by Jake's attorney or by the Associated Press. I live near a few of our Town Council members and I know this is shaping up to be a major issue at the next council meeting. Residents are already calling for him to resign and determine who authorized the sending of this letter and whether other letters were sent to the domain owners with sites using 'westorange' in their names as was pointed out by Jake's attorney or if this was a targeted attack.

the Township’s website is a “virtual” masterpiece developed by Icon Enterprises, Inc., d/b/a CivicPlus, at a cost to West Orange taxpayers of $35,000 (plus $5,000 per annum for hosting and maintenance)

Holy crap. When did the NJ mob get into website construction. Guess it is covered by the fact that government spends taxpayer monies, not monies they earn.

Edit:
At the next meeting, Someone should point out that website costs are beyond outrageous. The answer should be a hoot.

Originally posted by roadgravel
Holy crap. When did the NJ mob get into website construction. Guess it is covered by the fact that government spends taxpayer monies, not monies they earn.

They can certainly spend it here in New Jersey. Trust me. I could buy you a new Honda with my property taxes.

That man may be the only worthwhile attorney in the entire country. The Tea Party should have that guy on retainer.

reply to post by madmac5150


Given that he obviously takes great delight in sending up officious twats I suspect he is more likely to be "on the other side" from the Tea Party!

reply to post by AugustusMasonicus


Can this guy start sending out letters like this to the EPA?

It seems they are in the business of bullying anyone, with non-sense such as this.

I bet the attorney could just write up a form letter to send to any gov't agency that seeks to bully private citizens.

And, now that we know the NSA has everyone's private conversations recorded and printed out, ask for gov't conversations regarding any such "bullying" acts upon private citizens.

reply to post by AugustusMasonicus


Great letter! I did a quick search and found his bio:

www.kaplittlegal.com...

He apparently got his JD at Georgetown.

Originally posted by Happy1
Can this guy start sending out letters like this to the EPA?

Considering the political rumor that Dear Leader is going to bypass Congress in his mission to minimize the coal industry it would be advisable for someone to take action on that point.

It seems they are in the business of bullying anyone, with non-sense such as this.

I agree. This is the sentiment that arises when government thinks it needs to tell you what to do instead of the other way around. It is obvious that this mindset is systemic.

reply to post by AugustusMasonicus


I am a firm believer that the ordinary citizen should be able to access the court system without an expensive lawyer - I really think this is the wave of the near future.

You can get a divorce for less than 200 hundred dollars and do your own paperwork - you should be able to fight the federal gov't -whom we have to fund - with much less.

With this NSA disclosure of survellance (sp?) on everyone - that we as taxpayers are paying for - should be free to use as the taxpayer deems necessary (no privacy laws when the citizen has no expectancy of privacy for their info?).

And, of course, in this case, the extravagant amount of taxpayer money used (allocatted - I'm having a problem with spelling it seems -from the tax payer dime) to set up township web pages?

Abuse of property tax funds to the township.

Holy crap! $35k to maintain a website????
I build and maintain websites, if I ever charged a client that much, I'd be out of business REAL FAST!!!
Great job on the responding atty
S&F

Originally posted by Happy1
I am a firm believer that the ordinary citizen should be able to access the court system without an expensive lawyer - I really think this is the wave of the near future.

I think this is where the bullying tactic came into play:

Send resident threatening cease and desist letter
Resident panics and either hires attorney (expensive) or drops website (privately owned property)
Town becomes emboldened and repeats on other political nonconformists

The wrench in the works for the town was they did not realize Jake's friend is a high profile attorney and that he recognized the unconstitutional aspect of the power play.

Originally posted by HomerinNC
Holy crap! $35k to maintain a website????

In the sake of fairness it was $35,000 to design and $5,000 per year to maintain.

I do not know whether this is typical or not for a township or similar entity as my knowledge of what it costs to design and maintain a webpage is limited.

reply to post by AugustusMasonicus

In the sake of fairness it was $35,000 to design and $5,000 per year to maintain.

I charge clients the cost of hosting the website plus the yearly renewal of the website, which comes to the whopping cost of MAYBE 150.00 A YEAR, plus a little extra for my time and labor, usually between $50 & $100, depending on the type of website and how often I have to update it...
No wonder I'm broke....

Reply to post by AugustusMasonicus

All you need to know is that website expenses are a monstrous scam.

It used to be that everyone was getting scammed but as the public smartens up the last bastion of scammers is municipalities and ignorant small business owners.

Web design thrives on consumer ignorance. In the case of municipalities its ignorance paired with a blank check.

If more people would do a little research theyd see too many web design firms/individuals are as crooked as car salesmen if not moreso.


Posted Via ATS Mobile: m.abovetopsecret.com

Originally posted by thisguyrighthere
Reply to post by AugustusMasonicus

 

All you need to know is that website expenses are a monstrous scam.

It used to be that everyone was getting scammed but as the public smartens up the last bastion of scammers is municipalities and ignorant small business owners.

Web design thrives on consumer ignorance. In the case of municipalities its ignorance paired with a blank check.

If more people would do a little research theyd see too many web design firms/individuals are as crooked as car salesmen if not moreso.

 

Posted Via ATS Mobile: m.abovetopsecret.com

 

You hit the nail right on the head. Web designers of today are like car mechanics of the past and present. Some people get so intimidated when it comes to building a web page, they will pay whatever a designer will charge them.
Most times, their hosting services have templates to build on, a couple of clicks, some text entry and you have a professional looking website in a couple of hours. I feel I am an HONEST web designer, and would never charge a client a buttload of cash for a website. Like I said earlier, this is why I'm probably broke LOL

Originally posted by HomerinNC
reply to post by AugustusMasonicus

 

In the sake of fairness it was $35,000 to design and $5,000 per year to maintain.

I charge clients the cost of hosting the website plus the yearly renewal of the website, which comes to the whopping cost of MAYBE 150.00 A YEAR, plus a little extra for my time and labor, usually between $50 & $100, depending on the type of website and how often I have to update it...
No wonder I'm broke....

seems like you don't actually design them, i design websites and if i were designing one for a huge client like that i would expect a more substantial pay than i would get from a smaller client. 30k on a single project is crazy though, that designer was a lucky guy.as for the article kudos to the responding lawyer for that reply, highly enjoyed it.