Gambert Strikes Back!! The Confidential Official Response to SEOmoz's Opposition Proceeding

May It Please the Mozzers,

Happy De Facto Legal Monday!

Little did I know what an exciting morning it would turn out to be! Definitely worth an update to the blog! Jason Gambert has delighted us with another literary and legal masterpiece in his misguided effort to trademark "SEO."

Here's the brief refresher/update on the Gambert Saga:

1. In April, I discovered that Jason Gambert was trying to trademark the term "SEO."  Several people in the community, including Rhea Drysdale, Beanstalk Search Engine Positioning, Arteworks, SEO.com, LLC, JE Hochman & Associates and myself filed opposition proceedings to block the application.

2. Gambert created a website, jasongambert(dot)com, insisting that he was merely trying to protect SEOs from themselves by creating and imposing standards upon the community. Ahhhh... He was trying to help us!

3. As part of the opposition process, I mailed a copy of my opposition papers to Gambert. My package was returned even though I sent it to the address provided by Gambert. The other opposers have had similar mail issues. Gambert is going out of his way to be unavailable except by electronic means. hrm. The forwarding address may be worth looking into...

4. Rhea, Michael VanDeMar, and Matt Foster of Arteworks.net discovered that Gambert had been using sock-puppet accounts to make it look like his position had popular support among the community.

5. Gambert missed his May 19th deadline to file an official response to SEOmoz's opposition proceedings. Thus, I prepared a Motion for Default Judgment, which is basically a request for an automatic win because the other party failed to respond. I filed the Motion this morning.

6. Apparently, Gambert has been watching Law and Order and reading Black's Law Dictionary. He filed lots of very interesting paperwork this morning!

That's right ladies and gents, the zaniness continues.  Mr. Gambert and I must be psychically connected because apparently he filed an official response to our Notice of Opposition at the same time I was filing our Motion for Default Judgment. You can take a look at the case documents and download copies of both Jason's 41-page response and my motion, here.

It's forty-one pages and truthfully, I haven't sat down and studied the whole thing yet. But it's too delicious to withhold any longer.

• First, he requests that his response be confidential. That's right. He doesn't want anyone in the community to read his response. Why should this legal proceeding be conducted in secret? According to Gambert, SEOmoz "along with their [sic] supporters are clearly using this case by creating negative images to deceptively thwart all their blog followers to increase their support within the internet community." That's right, folks. Apparently I'm somehow "deceptively thwarting" my readers by merely writing about the application....not sure where the deceptive part comes from and I'm not sure how I'm thwarting my readers either.
  
• To be fair, Gambert is also concerned about harassment. Apparently people have threatened physical harm, publicized his personal phone numbers, his home address, and otherwise acted maliciously. I'm an attorney, so I'm the last person to favor mob rule. After all, if people always took justice into their own hands, I'd be out of a job. So for the record folks, let's let the legal process work here. SEOmoz has never advocated harassment and certainly does not condone it.
  
• Gambert also attempts to shock the moral conscience of the Trademark Trial and Appeal Board by revealing that SEOmoz is self-interested in this proceeding. Holy Not-A-News-Flash! Of course SEOmoz is self-interested. We provide SEO services. The whole point of filing a Notice of Opposition is that we would be harmed if someone were permitted to trademark the term.
• Gambert also claims that SEOmoz, "being a blog, will try to drag out everything as long as possible, try to benefit from this kind of free publicity as much as possible, and try to attract as much attention from everywhere online as possible." I'm not a psychologist, but I believe one could call this phenomenon 'projection.' Trust me. I have no intention of "dragging this out." I was hoping to quickly knock out this risk to our company and then move onward to bigger and better things.
  
• Gambert is requesting that the Board "strike" SEOmoz's Notice of Opposition. He has several arguments and I'm only going to cover some of them here.
  
  • SEOmoz didn't try to contact him to settle the claim. First, this isn't a defense. You don't have to try and settle. Second, SEOmoz has no intention of paying any kind of settlement. Nor are we going to agree to drop our opposition in exchange for any kind of amnesty/license for using "SEO." Definitely not going to happen.
    
  • SEOmoz didn't "serve" Gambert. Apparently he thinks that we shouldn't be able to oppose his application because he refused to pick up his mail. Note to Gambert: See 37 CFR § 2 .114(a) and Fed. R. Civ. P. 55, and Trademark Rule 3.12.  There is a service exception for filing a Notice of Opposition. Not accepting your mail only prolongs this mess. And I'm sure you wouldn't want to 'drag this out.'
  • Search engine optimization is a process and not a service. This argument harkens back to the unintelligible arguments he made in his original application. Interestingly, it is very different from the argument he made on jasongambert(dot)com in which he claims his goal is to impose standards upon everyone providing SEO services. Funny he didn't make that argument to the Board, right? Must have slipped his mind.
    
  • Wikipedia proves that "SEO" describes a service and is distinguishable from "search engine optimization," which describes a process. According to Gambert, Wikipedia is "the world's most trusted online encyclopedia." As further evidence that Wikipedia is conclusive evidence that SEO is a service and not process, Gambert states "Please also note the first result to show 'SEO' in a Google search is 'Wikipedia' above all other sources in the online world. Further adding to the overwhelming evidence SEO publicly known as a 'Process' and accepted as the true definition of 'Search Engine Optimization.'" I don't know who this zero-web-visibility, I-use-flash-to-build-my-website SEO is, but I think it's really shameful that he is trying to secretly con the Board into treating Wikipedia as the world's most reliable source. The irony!
    
  • Because Google wasn't registered until 1997 (according to Wikipedia), it cannot be used to find evidence that SEO was used to describe internet marketing services prior to 1997.  Yeah. He actually makes this argument on pages 6 and 7. Apparently search engines can't find documents that existed before they did?
  • Gambert owns Tosonoe875.com and claims he received an email about search engine optimization on July 27, 1997. This is way out of left field. Gambert includes a printout from Wikipedia that states that the first known use of "search engine optimization" was a spam message posted on Usenet on July 26, 1997. Then he attaches an email from a nonsense aol email to a nonsense tosonoe875.com email address allegedly delivered on July 27, 1997. Then he attaches GoDaddy information showing that he owns Tosonoe875.com. This effort is so misguided that it's hard to know where to begin discussing it. First, an email talking about "Search Engine Optimization" is not evidence that one used the proposed mark "SEO" in commerce. Did he forget what he was trying to register? Further, evidence that you received an email doesn't prove that you used the term in commerce. It just proves that you received an email. Finally, the WhoIs information for tosonoe875.com shows that it was created in April of this year, not in 1997.
    

Are you as baffled as I am? Why would someone put so much effort into a doomed case? As misguided and nonsensical as the response is, it surely took significant time to prepare. Why bother? And was he seriously thinking that he could hold this entire conversation behind closed doors? Whatever happened to wanting to involve the SEO community in developing the standards that he would use to govern it?

And who is the real "Jason Gambert," anyway?

Good grief.