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Zille Str. 69, 10575
939 61ST STREET, SUITE #13
OAKLAND, CA 94608-1301

Published in: News & Politics, Business, Design
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  1. 1. 1 Mattaniah Eytan (State Bar No. 68561) Eric Schenk (State Bar No. 100193) 2 LAW OFFICES OF MATTANIAH EYTAN 21 Tamal Vista Blvd., Suite 219 3 Corte Madera, CA 94925 4 Counsel for plaintiff Gerard Angé; in his individual capacity and as assignee forWorld Indigenous Network Corporation; and 5 G.A.P. International 6 7 SUPERIOR COURT OF CALIFORNIA 8 COUNTY OF ALAMEDA – UNLIMITED CIVIL JURISDICTION 9 GERARD ANGÉ, an individual, etc. ) Case No. RG0 5241337 ) 10 Plaintiff, ) PLAINTIFF’S SEPARATE STATEMENT ) OF UNDISPUTED MATERIAL FACTS 11 v. ) IN SUPPORT OF MOTION FOR ) SUMMARY ADJUDICATION 12 ANTHONY TEMPLER et al. ) ) Date: , 2007 13 Defendants. ) Time: ) Dept: 14 ) ) Trial Date: to be determined 15 And Related Cross-complaints. ) ) 16 17 18 19 20 Plaintiff Gerard Angé submits this statement of undisputed material facts, together with 21 references to supporting evidence, in support of his motion for summary adjudication as to the 22 Eleventh Cause of Action of plaintiff’s Complaint: 23 24 25 26 F:ANGEMSAsep stmt.wpd Separate Statement re MSA
  2. 2. 1 ISSUE 1 – PLAINTIFF AND/OR HIS ASSIGNOR, G.A.P. INTERNATIONAL, INC., a CALIFORNIA CORPORATION, WAS THE LEGITIMATE OWNER OF THE RIGHTS TO 2 THE DOMAIN NAME AT THE TIME TEMPLER BEGAN TO HOST THE WEBSITE ASSOCIATED WITH THAT DOMAIN NAME 3 UNDISPUTED MATERIAL FACTS: SUPPORTING EVIDENCE: 4 1. Gerard Angé began doing business 1. Declaration of Gerard Angé 5 as Gerard Angé Productions, International in (“Angé Dec”) at paragraph 2. approximately 1985 or 1986. The business 6 done as Gerard Angé Productions, International, both before and after 7 incorporation has been related to providing satellite hookups for transmission of live 8 events. 9 2. In January 2000, through the web 2. Angé Dec at paragraph 2 and hosting company, QuickBooks, Angé applied corresponding Exhibit. 10 for and obtained rights to the worldwide web domain name, 11 3. Pursuant to my rights as owner of 3. Angé Dec at paragraph 3. 12 the domain name, I arranged for a website related to the business 13 of Gerard Angé Productions, International to be set up with the web address 14 in or around the first half of 2000. 15 16 4. In or about September 2000, Angé 4. Angé Dec at paragraph 4. took all steps necessary to have Gerard Angé 17 Productions, International, Inc. (“G.A.P. CA”) incorporated under the laws of the 18 State of California.. Thereafter, the rights to the domain name 19 belonged to G.A.P. CA. 20 5. At all times from September 2000 5. Angé Dec at paragraph 5 and through the present, G.A.P. CA was corresponding Exhibit. 21 commonly known at “G.A.P. International” and both its stationery and its website (prior 22 to its being commandeered) identified its as such. 23 24 25 26 F:ANGEMSAsep stmt.wpd 2 Separate Statement re MSA
  3. 3. 1 6. In or about March 2002, 6. Angé Dec at paragraph 6. QuickBooks informed Angé that it would no 2 longer be providing web hosting services. Consequently, he made efforts to locate 3 another company or individual who could provide that service for me. An individual 4 who worked with G.A.P. CA, Tom Knight, informed Angé that he knew an individual, 5 Anthony Templer, dba Atanda Web Presence Services, who could provide the web hosting 6 services G.A.P. CA needed. 7 7. Shortly after Tom Knight told 7. Angé Dec at paragraph 7. Angé about Mr. Templer, Templer and Angé 8 met and Templer agreed to provide G.A.P. CA and another project that Angé was 9 developing, World Indigenous Network Corporation (“Win-TV”) with internet related 10 services including, inter alia, web hosting. 11 8. Accordingly, in or around the 8. Angé Dec at paragraph 8. beginning of April, 2002, Angé provided Mr. 12 Templer with all of the information he needed to provide web hosting services, including, 13 inter alia, the passwords necessary to contact QuickBooks on behalf of G.A.P. CA and 14 Win-TV and take over web hosting from QuickBooks. 15 16 9. On or about April 7, 2002, Templer 9. Angé Dec at paragraph 9 and notified Angé by email that he (Templer) had corresponding Exhibit. 17 accomplished the transition in web hosting from QuickBooks to Templer’s operation and 18 he would be hosting the G.A.P. CA domain name thereafter. 19 20 10. Templer informed Angé although 10. Angé Dec at paragraph 10 and the technical contact information for the corresponding Exhibit. 21 domain had been changed that Angée was still listed as the Administrator and that G.A.P. 22 CA’s address was listed as the address for the administrator. 23 24 25 26 F:ANGEMSAsep stmt.wpd 3 Separate Statement re MSA
  4. 4. 1 ISSUE 2 – NEITHER PLAINTIFF NOR ANYONE ELSE ASSOCIATED WITH G.AP. CA TRANSFERRED OWNERSHIP INTERESTS IN THE DOMAIN NAME 2 EITHER EXPRESSLY OR BY OPERATION OF LAW TO TEMPLER OR ANYONE ELSE 3 4 11. At no time from the date Angé 11. Angé Dec at paragraph 11. first acquired the domain name 5 in 2000 until it wound up under the control of defendant Gap 6 International, Inc., a Pennsylvania corporation (“GAP PA”) did the registration for the the 7 domain name expire or lapse. 8 9 12. At no time from the date Angé 12. Angé Dec at paragraph 12. first acquired the domain name 10 in 2000 until it wound up under the control of defendant GAP PA 11 did Angé agree to or know of the transfer of ownership rights or interests in the domain 12 name except to the extent it became the property of G.A.P. CA 13 upon the incorporation of G.A.P. CA. 14 15 13. Neither Angé, nor anyone else 13. Angé Dec at paragraph 13. with the authority to act on behalf of G.A.P. 16 CA ever suggested to Templer that Angé or G.A.P. CA was transferring any sort of 17 ownership interest or rights in the domain name to 18 Templer or Atanda and Templer never suggested to Angé that he (Templer ) believed 19 or understood that Angé or G.A.P. CA intended to transfer any rights in the 20 domain name to Templer or Atanda. 21 22 23 24 25 26 F:ANGEMSAsep stmt.wpd 4 Separate Statement re MSA
  5. 5. 1 ISSUE 3 – AT NO TIME DID TEMPLER, NEITHER IN HIS CAPACITY AS AN INDIVIDUAL OR dba ATANDA WEB PRESENCE SERVICES HAVE A LEGITIMATE 2 COMMERCIAL CONNECTION TO THE DOMAIN NAME SUCH AS WOULD ALLOW HIM TO LEGALLY MAINTAIN OWNERSHIP OF THAT 3 DOMAIN NAME 4 14. The domain name, 14. Templer’s Admission of Request, does not CONSIST for Admission No. 1 as reflected in Exhibit A 5 (“as that term is used in 15 U.S.C. § and B to Declaration of Eric Schenk (“Schenk 1125(d)(1)(B)(i)(II)) of Templer’s or Dec”). 6 Atanda’s legal name. 7 15. The domain name, 15. Templer’s Admission of Request, does not CONSIST of a for Admission No. 2 as reflected in Exhibit A 8 name that is otherwise commonly used to and B to Schenk Dec. identify you. 9 10 16. Templer and/or Atanda never 16. Templer’s Admission of Request used the domain name for Admission No. 3 as reflected in Exhibit A 11 in connection with the bona fide offering of and B to Schenk Dec. any goods or services. 12 13 17. Templer and/or Atanda never had 17. Templer’s Admission of Request a bona fide noncommercial or fair use of a for Admission No. 4 as reflected in Exhibit A 14 mark (as that phrase is used at 15 U.S.C. § and B to Schenk Dec. 1125(d)(1)(B)(i)(IV)) similar to “GAP 15 International” in a site accessible under the domain name 16 17 18. Templer and/or Atanda sold the 18. Templer’s Admission of Request domain name to for Admission No. 5 as reflected in Exhibit A 18 defendant GAP International, Inc., a and B to Schenk Dec. Pennsylvania corporation for financial gain 19 without having used, or having an intent to use, the domain name in the bona fide 20 offering of any goods or services. 21 22 23 24 25 26 F:ANGEMSAsep stmt.wpd 5 Separate Statement re MSA
  6. 6. 1 ISSUE 4 – GAP INTERNATIONAL, INC., a Pennsylvania corporation, (“GAP PA”) HAD NO LEGITIMATE BASIS TO BELIEVE THAT TEMPLER AND/OR ATANDA HAD A 2 LEGITIMATE ENTITLEMENT TO OWNERSHIP OF THE DOMAIN NAME BEFORE, DURING, OR AFTER GAP PA “PURCHASED” THAT 3 DOMAIN NAME FROM TEMPLER AND/OR ATANDA 4 19. Throughout the fall of 2003, GAP 19. Deposition of Jon Greenawalt PA knew that it was illegal for a party to take attached as Exhibit C to Schenk Dec 5 ownership of a domain name to which it had (hereinafter “Greenawalt Depo”) at 31:12 – no legitimate commercial connection other 15. 6 than to sell it. 7 20. Prior to November 2003, GAP PA 20. Greenawalt Depo at 17:18 – learned that the domain name, 25:22, 31:22 – 32:2 and Angé Dec at 8 was used as the web paragraph 14 and corresponding Exhibit E. address for G.A.P. CA. 9 10 21. GAP PA knew of no commercial 21. Greenawalt Depo at 31:12 – 32:8; connection Templer and/or Atanda had to the 37:18 – 38:6; 44:25 – 46:14 and 11 domain name other than corresponding Exhibit G-8. that it was listed as the owner by a web 12 service named whoFLY and that Atanda hosted the website at the 13 web address. 14 22. Even after being contacted by 22. Greenawalt Depo at 54:19 – 56:23 G.A.P. CA, GAP PA continued to assert and Corresponding Exhibit G-9. 15 without obtaining any confirmation that Templer and/or Atanda had legal standing to 16 sell the domain name to GAP PA. 17 18 LAW OFFICES OF MATTANIAH EYTAN 19 20 Date: April , 2007 By: _______________________________ Eric Schenk 21 Attorneys for plaintiff Gerard Angé 22 23 24 25 26 F:ANGEMSAsep stmt.wpd 6 Separate Statement re MSA