According to Fred Von Lohmann, senior intellectual property attorney for the Electronic Frontier Foundation, while using a trademark in a metatag has been found illegal in trademark cases in the past, suits where this has been the case have involved companies trying to steal each other's business, as in the case of two competing video stores, "Brookfield Communications Inc. v. West Coast Entertainment Corp."

"It sounds like in this case there is no intention to mislead anybody," Lohmann says. "These are not competitors trying to attract customers. The question will be: Does it really mislead or confuse anybody?"

But for many of the defendants this is already a moot point. According to Resler, at one point, the money in the defense fund ran out, and when the defendants had to start paying out of their own funds, they got scared. (Novak is representing himself "pro se" in the case.)

Before the court had even officially accepted Novak's amended complaint, VanDersarl, along with a number of the original defendants, including Resler, settled. "I have three kids and bills to pay," says VanDersarl. "It's terrible when you believe in something so strongly, but you have to look at the reality of it, which is that I couldn't afford my own defense." She declines to mention a specific figure, but says that she has spent "in the thousands" out of her own pocket. As part of the settlement, she turned over the rights to her domain to Novak, because she'd shut down PlantedTank.com when she was named in the suit. Other defendants had to run banners on their sites promoting Pets Warehouse. As part of the settlements, the defendants and plaintiff both agreed to make "reasonable efforts" to delete any online posts referring to the other.

Dan Resler agreed to pay $4,150, according to the "stipulation of settlement" as posted on the defendants' information site.

"We believed strongly that we could win," says Resler, "but I was not prepared to spend $50,000 to do it. So, I settled."

"This is a big problem with our court system in general," says Lohmann. "Many of these people might well have a good defense, but the problem is going to court, and raising the defense can cost thousands of dollars."

On March 25, 2002, Novak filed a second amended complaint, raising new accusations, including "threats of violence and even death threats against Robert Novak and staff." The complaint gives no specifics as to the identity of any individuals making such threats. Novak says that he purposely did not name the threatening individuals in the complaint to avoid further antagonizing them. He cited the death threats as evidence of "acts in concert to conspire against the company."

It's clear from e-mail quoted in the complaint that some of the supporters of the original aquarists may have gotten more than a little carried away in their rhetoric. In court filings, Novak cites e-mail he says he received from Edward Venn, a member of the APD list from Saitama, Japan: "On March 5, 2002 another threat by Edward Venn stated: 'It's amazing what some Filipino hackers can do while your (sic) on the web ... havoc with your credit by now.' Both of these threats were reported to the FBI and sent to forums to expose the threats."

While the aquarists do not excuse the behavior of some of their more outspoken supporters, some say they see Novak's continued litigiousness as an attempt to silence criticism through legal intimidation. "It looks to me like they're doing whatever they can to stop people from talking about the company on the Internet," said Rosenstein, the list's technical host, one of the original defendants who chose not to settle.

While none of the defendants named in the case compete with Pets Warehouse for customers, casting some doubt on the trademark infringement argument, Novak maintains that the existence of the defense fund itself amounts to an infringement. "Because the money was raised on the back of my trademark, I want to disgorge the fund of the monies," he said.

Beyond the lawsuit itself, other supporters of the case say they have received cease-and-desist letters for using the words "Pets Warehouse" on their sites. Olson, president of the Aquatic Gardeners Association, who is also the webmaster of TheKrib.com, an aquarium site, says he received a cease-and-desist letter from Novak in March 2002, accusing him of illegally using the Pets Warehouse trademark.

Olson's site features a banner advertisement that mentions the case with this headline: "Pets Warehouse Sues Hobbyists" and links to the aquarists' site about the case. "I'm just literally reporting that the case exists and linking to another site," he says. "I think that Novak's trying to shut up anybody who is putting any negative comments about his business online."

Resler, the computer scientist who started the thread on the APD list about Pets Warehouse, says that he believes the whole mess could have been avoided if only Pets Warehouse had responded differently when his plants were late and he complained. "If Pets Warehouse had sent me e-mail saying: 'We're sorry you're upset. What can we do to make it better?' I would have vented to them, they would have sent me a $20 gift certificate. I would have posted to APD: 'Yeah, we had a bad deal, but let's give them another chance, and it would have been over.' But instead, he [Novak] sued. It is his act of suing us that has caused all the bad feeling. He has brought this upon himself."

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