>----- Start of forwarded message[s] -----
>
>Fry's fights for 'Frys'
>
>Electronics giant sues Frenchy Frys owner for rights to domain name
>
>Published: Dec. 5, 1996
>
>BY JODI MARDESICH
>Mercury News Staff Writer
>
>David Peter has something Fry's Electronics Inc. wants -- very badly.
>
>Peter, a somewhat eccentric businessman who says his home is in Seattle,
>owns the rights to the Frys name on the graphically oriented part of the
>Internet known as the World Wide Web. It is a name, that for Fry's
>Electronics, is the Holy Grail of Internet names.
>
>On the Internet, the name of a Web site, called a domain name, is paramount.
>And for Fry's Electronics, the supermarket-like seller of everything
>electronic, the domain name frys.com is the equivalent of prime retail space
>in a bustling shopping mall.
>
>According to court documents, Fry's Electronics has been exploring the
>opportunity to develop an online service -- the equivalent of an electronic
>mall -- on the Internet under the name Frys.com. The company already owns
>the rights to the names fryselectronics.com and fry-s.com.
>
>''They just kind of want a nice short catchy name and they want to try to
>take it,'' Peter said in a phone interview Wednesday. ''I just don't think
>that's right.''
>
>Peter purchased the frys.com name in late 1994 to jump-start his Frenchy
>Frys business, which sells vending machine franchises. And it is not clear
>whether french fries really have anything to do with the business.
>
>Fry's Electronics believes Peter's purchase of the Fry's name is nothing
>short of outright theft and fraud. The Palo Alto-based company has used the
>Fry's name since 1985. So the company has sued Peter not just for trademark
>infringement, but for allegedly violating the much more serious federal
>racketeering laws. Fry's has argued in court documents that people have
>mistakenly sent electronic mail to frys.com, thinking the address was for
>Fry's Electronics. From the retailer's point of view, that constitutes mail
>fraud.
>
>San Francisco hearing set
>
>Peter disagrees and isn't giving up the frys name without a fight. The suit,
>which was filed more than a year ago, has its next hearing scheduled in U.S.
>District Court in San Francisco next month, although a decision could be
>rendered sooner.
>
>At first blush, it looks like a David vs. Goliath tale. Peter is defending
>himself against the well-armed, retailing Goliath of Frys because he says he
>can't afford the $85,000 he said would be necessary to retain an attorney.
>
>From Fry's Electronics perspective, however, the story is more like
>blackmail on the information highway.
>
>Peter, according to court documents, is an unreasonable man attempting to
>extort money from deep-pocketed Fry's.
>
>Fry's contends in the documents that Peter has refused to answer lawyers'
>questions in a deposition because he does not want to admit a few facts:
>namely that he actually lives in the San Jose area; that he is intimately
>familiar with Fry's Electronics, and that he even went to school with the
>Fry brothers, the owners of the chain.
>
>Peter won't take a legal oath, he said, because of ''sincerely held
>religious beliefs,'' so he vouches for the veracity of his statements to the
>court under penalty of the biblical Ten Commandments (to whit, thou shalt
>not commit false witness).
>
>Fry's has asked Peter to turn over confidential documents, including e-mail
>messages sent to his Web site and records of who has looked at the site, but
>Peter has refused. Indeed, Peter turned over more than 2,700 pages to U.S.
>District Judge Charles Legge, who deemed the papers irrelevant.
>
>How much is name worth?
>
>Peter claims Fry's has spent about $100,000 to fight him, while offering him
>a nominal $500 for the domain name.
>
>Peter's statements prompted Fry's attorney to step outside Fry's usual cloak
>of silence involving press inquiries.
>
>''That's absolutely untrue,'' said William Curtis, an attorney with the
>Lafayette law firm of Foley McIntosh & Foley. ''It's nowhere near that
>amount. ... He's demanded $1 million for the name.''
>
>Peter, who initially was reached through a business associate, could not be
>reached to respond to Curtis' comments. He refused to give a reporter his
>phone number and the only way Peter said he could be reached was through a
>voice mail message system used by the Populist Party of Washington state.
>The Populist Party is known for its connection with militia groups and its
>rightist Christian leanings. (Peter said he is not a member or officer of
>the party, but just a ''lunchtime friend.'')
>
>Disputes over Internet domain names are common, since big businesses want a
>piece of prime real estate on the World Wide Web, where they believe
>consumers are heading to spend a portion of their disposable income.
>
>Domain names are given on a first-come, first-served basis by Network
>Solutions Inc. of Herndon, Va., and Peter got there first. If there is no
>trademark for a domain name, Network Solutions is likely to grant the name
>request. That, for several years, led enterprising entrepreneurs to purchase
>names like McDonalds.com, television.com and other marketable names with the
>hope of reselling them at a nice profit.
>
>In this case, neither Fry's Electronics nor Frenchy Frys has a trademark on
>the simple name Frys. Fry's has registered for two domain names: fry-s.com
>and fryselectronics.com, but neither is in operation on the Web at this
>time.
>
>''On the Internet you have a situation where there are 12 million trademark
>holders, and 700,000 domain name registrants. They're going to clash,'' said
>Phillip Sbarbaro, outside general counsel for Network Solutions. Fry's
>attorneys are in the process of filing a motion for default judgment because
>of Peter's refusal to comply with court orders.
>
>''That's the 'final step' in the resolution of the matter,'' Curtis said.
>
>Lawsuit puts things on hold
>
>Meanwhile, Peter's Frenchy Frys business is on hold. He said he has received
>inquiries from people interested in buying his franchises, but he has been
>advised not to conduct any business because if Fry's wins its racketeering
>suit against him, he could be liable for triple damages.
>
>''That division called Frenchy Frys hasn't had any profits for two years
>because of this lawsuit,'' Peter said.
>
>However, expenses are low, and his other company, Crisis Food and Things,
>which sells survival food and supplies, is still in business.
>
>The clock is ticking against Peter.
>
>''I hope the public interest might bring about a real hearing or real
>investigation of the merits of the case, rather than the (focus on)
>technicalities,'' he said. ''There are some procedural things that Fry's is
>trying to use to skip having a trial. They just want to be granted all their
>wishes. The RICO (Racketeer Influenced and Corrupt Organizations) damages?
>They really don't want those things. All they want is the name.''
>
>------ End of forwarded message[s] ------
>
---
Simon Hackett, Technical Director, Internode Systems Pty Ltd
31 York St [PO Box 284, Rundle Mall], Adelaide, SA 5000 Australia
Email: simon§internode.com.au  Web: http://www.on.net
Phone: +61-8-8223-2999          Fax: +61-8-8223-1777