[Cabal] AOL

[Sean Egan]

I'll talk with the lawyers tomorrow, and have more information then.

-s.

===

Karen,

Thank you for your e-mail.  AOL remains concerned about the name/mark
GAIM and would like to resolve this  issue amicably.  For several
reasons, however, AOL cannot accept the proposed agreement.

The proposed release goes beyond the GAIM issue and extends to all
claims "relating to AOL's trademarks arising out of conduct or matters
occurring as of and prior to the date of this letter."  This release
would apply to unnamed individuals (i.e., all people who contributed to
and distributed the software) who do not sign the agreement, regarding
any action that relates to AOL's trademarks, including potentially
cybersquatting, bad faith infringements, unauthorized licensing,
counterfeiting, and potentially numerous other trademark-related
matters.  This language is too broad.

AOL will not grant a release to unidentified people who are not
signatories to, or bound by, the agreement.  AOL similarly will not
execute an agreement that goes beyond the specific trademarks at issue.
To address AOL's concerns, and still provide your client with the
release it seeks, I propose something like the following:

"...any and all actions, causes of action in any form, suits, claims,
rights, damages, losses, costs and expenses (including attorneys' fees
and costs actually incurred) relating to use of the name and mark GAIM
on or in connection with instant messaging software, provided that such
use of GAIM occurred as of or prior to the date of this letter and such
use was known or should have been known to AOL."

I think it would benefit both parties if we identify the new software
name so there is no chance that a subsequent trademark dispute will
arise.

The agreement must be binding not only on Instant Messaging Freedom,
Inc., but also the same people and entities that are seeking a release,
i.e., its successors, assigns, officers, directors, owners, employees,
insurers, agents, representatives and attorneys and all persons acting
by, through or in concert with them.

Please confirm that Instant Messaging Freedom, Inc. is incorporated and,
if so, where.  We were unable to find any reference to this entity in
our corporate database searches.

To help prevent consumer confusion regarding affiliation or endorsement,
AOL requests that your client place disclaimers on its Web site,
publication, brochure, etc. stating that AOL is not affiliated with and
does not endorse the software.

Please confirm what is meant by "Web addresses that include the name
'Gaim' will only be used to the extent necessary to reflect the existing
use of the name 'Gaim' as a technical term or identifier in the source
code."  If your client stops using the mark GAIM, it seems that GAIM
should not show up in Web addresses, URLs or domain names.

AOL cannot accept the fifth paragraph.  The signatories do, in fact,
have an ongoing obligation to abide by the terms of the agreement, and
the obligation goes beyond merely renaming the software.  AOL must have
the right to file suit in the event of breach or other infringement.  To
address this issue, AOL proposes to amend the paragraph by deleting the
first sentence and deleting from the second sentence "is in any way
related to any" and inserting "includes a."

We look forward to hearing from you regarding the above-referenced
comments.  I would be happy to schedule a time when we can discuss this
matter.

Sincerely,


Jim Davis

James R. Davis, II
Arent Fox PLLC
1050 Connecticut Avenue, NW
Washington, DC  20036
Phone:  202-857-6169
Fax:  202-857-6395