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Act 10: Taubman Imposes New Conditions

On August 23, 2001, a week after we came to an agreement (or so I thought), I received the following letter from Ms. Greenberg.

Dear Hank:

In furtherance of the settlement agreed to between the parties, please review and sign the enclosed Settlement Agreement and Release, and fax a copy of the signed agreement back to me. Please mail the original to me for signature by my client.

We will immediately take care of the paperwork for the transfers.

Very truly yours,
Julie A. Greenberg

View the Original Letter (in a separate window)

Seems pretty straightforward, don't you think? And look at the salutation: Suddenly, we're on a first-name basis! That clinches it, everything must be OK!

Or, at least, that's what I thought until I actually read the "enclosed Settlement Agreement and Release."

Settlement Agreement and Release

This Settlement Agreement and Release is entered into as of this ____ day of August, 2001, by and between The Taubman Company, Limited Partnership of 200 East Long Lake Road, Suite 300, Bloomfield Hills, Michigan 48303 ("TCI") and Henry Mishkoff and WebFeats, of 2661 Midway Road # 224-225, Carrollton, Texas 75006 ("Mishkoff") on behalf of themselves, their agents, heirs, executors, administrators, successors and assigns, and all parties in privity with them.

WHEREAS, Mishkoff has registered certain domain names which incorporate trademarks belonging to TCI, or otherwise make reference to TCI or its agents, principals or property.

WHEREAS, an action has been filed in the U.S. District Court for the Eastern District of Michigan, Civil Action No. 01-72987 (the "Action").

WHEREAS, the parties desire to enter into an agreement to resolve matters relating to the Action, and accordingly avoid the expense, delay and uncertainty of proceeding with litigation.

RESOLVED, that the parties, in consideration of the following obligations, agree to the following.

  1. Mishkoff agrees as follows:

    1. Mishkoff shall immediately shut down all web sites under his or WebFeats' control which promote, make reference to, or incorporate any trademark or name of TCI's, or its agents, principals or property, including, but not limited to the following web sites:

      • shopsatwillowbend.com
      • willowbendsucks.com
      • willowbendmallsucks.com
      • theshopsatwillowbendsucks.com
      • taubmansucks.com

    2. Mishkoff shall cooperate with TCI in effecting a transfer of the above domain names to TCI;

    3. Mishkoff warrants and represents that he has disclosed all domain names owned or under his control which promote, make reference to, or incorporate any trademark or name of TCI's or its principals, agents, or property, and that he will not register any such domain names in the future;

    4. Mishkoff shall refrain from making any public comments, on the internet or otherwise, about TCI or its principals, agents, or property.

    5. Mishkoff shall keep the terms hereof confidential, and shall refrain from disclosing the terms hereof to third parties.

    6. Mishkoff shall stipulate to an order of dismissal as set forth in Paragraph 2(c) hereof.

  2. TCI agrees as follows:

    1. TCI shall pay Mishkoff $1000.00 in exchange for compliance with the above terms, which shall be paid after all domain name registrations are transferred to TCI;

    2. TCI shall cause to be prepared all necessary documentation for the transfer of the domain names from Mishkoff; and

    3. TCI shall take all steps necessary to obtain a stipulated order of dismissal of the Action, which shall indicate that the Court maintains limited jurisdiction over matters involving disputes relation to this Settlement Agreement.

  3. In consideration of the foregoing obligations, and for other good and valuable consideration, receipt of which is hereby acknowledged, the parties do hereby fully and forever release and discharge the other together with their agents, successors and assigns, and from any and all claims make or relating to claims made in the Action.

  4. This Settlement Agreement and Release may be executed in any number of counterparts, each of which, when so executed and delivered, shall be deemed an original. All such counterparts taken together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties hereby have duly executed this Agreement as of the date and year indicated above.



Henry Mishkoff




Julie A. Greenberg
Attorneys for Plaintiff
The Taubman Company Limited Partnership

View the Original "Agreement" (in a separate window)

I was surprised to notice that the "agreement" explicitly states that my domain names incorporate Taubman's trademarks, which sounds an awful lot to me like an admission of guilt on my part, which certainly wasn't part of our understanding.

I was also startled to see that the "agreement" said that I would make no public comments about Taubman, which was also not part of our understanding.

But what really upset me was the new clause that said that I couldn't tell anyone about the terms of our agreement! I had already told the story to many of my friends – it's a good story, and I couldn't see any reason why I would agree to stop telling it to anyone who might want to listen.

But more to the point: As far as I'm concerned, Taubman and I had a contract. I had received a detailed, unambiguous, written offer from their legal representative. I had sent an unambiguous written acceptance in reply to their offer. There was consideration on both sides. I'm not a lawyer, but I have to tell you that it sure sounds like a contract to me.

Which is why I was surprised and upset to find that the paperwork – the purpose of which was, to my way of thinking, to formalize the informal contract into which we had already entered – contained entirely new conditions that not only were beyond the scope of our agreement, but which we had never even discussed!

I've always thought that one of the basic principles of business law is that we're all supposed to honor our contacts. Doesn't that apply to lawyers?

Next: I Refuse the New Conditions

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