Legal threat to skyrunner.com resolved!!!

9/30/99 Thanks to almost 3 hours of hard work by our mediator the legal threat to skyrunner.com has been resolved:-) I received an apology for the way this issue was handled and Pikes Peak Marathon Inc. insured that their trademarks and service marks remain protected. Further, as a bonus I learned a little bit about liability issues and put up some protection for myself while at the same time the TCR now has it very prominent that my site is not the official race site.

Below is the day by day for those that want to know how this came about:

SKYRUNNER.COM
going to court?

Pikes Peak Marathon

America’s Ultimate Challenge

Here is the text of the letter I got in the mail on Thursday, September 16th, 1999, from the law firm of Hanes and Schutz.

September 15, 1999

Matt Carpenter
36 El Paso Boulevard
Manitou Springs, CO 80829

Dear Mr. Carpenter:

We are intellectual property counsel to Pikes Peak Marathon, Inc. (“PPM”). PPM is a non profit corporation which for many years has, along with its sister non profit corporation, the Triple Crown of Running Club, Inc. (“TCRC”), owned, operated and directed the following three races: (1) Garden of the Gods 10-Mile Run; (2) Pikes Peak Ascent; and (3) Pikes Peak Marathon. The names of these races are trademarked with the State of Colorado. Federal trademark registrations are pending.

Recently, it has come to the attention of PPM that you have been using its mark Pikes Peak Marathon America’s Ultimate Challenge without its consent or permission. Indeed, PPM expressly directed you to cease using this mark, but you have refused. For your information, I am attaching hereto a copy of the trademark registration issued by the State of Colorado for the mark Pikes Peak Marathon America’s Ultimate Challenge. Confirming what you already know, the registration identifies PPM as the owner of the mark, and indicates that it has been using the mark to promote the Pike Peak Marathon since 1956. Also enclosed are excerpts from your web site which appears under the domain name www.skyrunner.com. These materials again confirm that which you already know; you have been using the mark Pikes Peak Marathon America’s Ultimate Challenge for your personal gain and benefit.

Your unauthorized use of the PPM mark constitutes trademark infringement in violation of state and federal law. The remedies for such infringement are extremely broad, including injunctive relief, lost profits, disgorgement of the infringer’s profits, and in appropriate cases, enhanced damages and attorneys fees. The remedies are available not only against individuals and entities which infringe, but also against the officers, directors and employees who actively facilitate such infringement.

As evidenced by its past communications with you, PPM would prefer to resolve this matter without the necessity of formal legal action. On the other hand, PPM is absolutely committed to protecting its trademark rights. Your prior refusals to cooperate have necessitated this escalation. PPM is still hopeful the matter can be resolved without court intervention. If that is to occur, however, you must immediately remove the mark from your web site and any other materials which you, or those acting on your behalf, have created. This must be accomplished by no later than September 30, 1999, and must be accompanied by your written confirmation that you have ceased using the mark. If such action is not completed by the stated date, PPM will proceed with its formal legal remedies. We trust that you will give this matter your immediate attention so that such a course can be avoided.

Sincerely,

HANES & SCHUTZ, P.C.
Timothy J. Schutz

cc: Board of Directors, Pikes Peak Marathon, Inc.

Attached to the letter was a copy of my Pikes Peak Page, a copy of the Application for Registration of Trademark, and a copy of the PPM logo. I would scan the logo to show you but they would probably start a lawsuit for that too;-) Just look on the Triple Crown of Running web site to see what it looks like. It is the logo with the jagged peak with the word marathon appearing at its base. Pikes Peak is curved over the top of the mountain and America’s ultimate challenge is curved along the bottom. The ultimate irony here is that the logo does not appear anywhere on my site. It is what you see above that prompted the legal threat!

At any rate, here is the letter I wrote after reading the letter from the attorney.

September 16, 1999

Timothy J. Schutz
Hanes & Schutz
7222 Commerce Center Drive, Suite 243
Colorado Springs, Colorado 80919

Dear Mr. Schutz

This letter is in regard to your recent correspondence dated September 15, 1999. I am not sure who on the board of the Triple Crown of Running and/or Pikes Peak Marathon (“TCR/PPM”) has contacted you but below are some relevant facts pertaining to my use of the words “Pikes Peak Marathon America’s Ultimate Challenge” on my web site www.skyrunner.com.

1. The page has existed close to its present state (had the exact layout of those words) for about a year and a half now.

2. I have NEVER by any means (voice, paper, e-mail, fax etc. etc.) been informed not to use anything, anywhere on my www site. Let alone something “expressly directed” to me by the “PPM” with regard to “Pikes Peak Marathon America’s Ultimate Challenge” as you claim. I find it odd that you would not include said document or whatever, if in fact it exists, along with your correspondence especially since you would use the phrase “As evidenced by its past communications with you.”

3. Your letter is the first time I have heard of anyone having any problem of this nature with my site.

Further, perhaps whomever contacted you did not know the following:

1. Starting in January of 1998 and going through May of that year with the same pattern again occurring in 1999, Mr. Zehrer of the TCR/PPM called me on a monthly basis (sometimes more often) to inform me of the status of the entries for the Pikes Peak races with the EXPRESS purpose of having this information posted on the page to which you refer. I received at least seven calls of this nature in 1998 and at least that many in 1999.

2. On 5/26/98, I posted a FAQ (Frequently Asked Questions) page concerning the peak races to help cut down on the e-mail requests for information about the races that were coming my way. This did reduce the number of e-mails a little but because of the still large volume of e-mails I was receiving from my site regarding the peak races I asked Mr. Zehrer in phone call in November of 1998 if the TCR/PPM would be interested in paying for some of the expenses of the site. In a follow-up meeting with Mr. Zehrer on November 25, 1998, I provided copies of about 30 pages of my site including a copy of the page in which you sent me with the EXACT layout as on your copy! Mr. Zehrer then gave me a check for $150 to cover some of the expenses of my site. This is only a portion of the yearly cost of putting up my site.

3. Soon after that November 25, 1998, meeting Mr. Zehrer called my house asking how to access my site as he was having problems. It turns out that he was entering “www.skyrunner.com” into a search engine which of course just gave him a listing of pages from my www site. I directed him on how to enter “www.skyrunner.com” into the browser’s URL bar. On another occasion he called asking if I had just removed the results archive from my site because the results he had just accessed were no longer available. It turns out that his phone line had call waiting or something to that effect and he had been trying to access my site after he had been disconnected from the internet.

4. In the 1998 TCR/PPM confirmation booklet, which must be printed early in the year, part of page 10 reads: “Want training tips?? Try www.SKYRUNNER.com and see what Matt Carpenter has to offer (he holds the current course records).” Further page 12 reads: “Results… Also on the web at www.PPRRUN.org and www.SKYRUNNER.com.” Further on the cover of my copy of the booklet is a hand-written note from Mr. Zehrer which reads, “Matt – thx for the help! Dave.”

5. The results from the 1998 TCR/PPM races, printed in August or September of 1998, has on page 9: “Special recognition for volunteers supporting the Triple Crown races through individual or group efforts … Matt Carpenter for his web page at www.SKYRUNNER.com which provides detailed information on the Pikes Peak Ascent and Pikes Peak Marathon courses and race results.”

6. In the 1999 TCR/PPM confirmation booklet, which as mentioned must be printed early in the year, part of page 7 reads: “Information about the trail and on training for the races is available at www.pikespeakmarathon.org or from Matt Carpenter’s internet site at www.skyrunner.com. Matt is the current course record holder and has made a science of knowing and running the trail. Check his training tips.” Part of page 12 reads: “Results… Official results also on the web at: www.PIKESPEAKMARATHON.org or www.PPRRUN.org or www.SKYRUNNER.com.”

7. Sometime around January of 1999 the TCR/PPM put up its own www site and Mr. Zehrer asked me to link to it from my site. I did this in at least three different areas on the page on which you refer and also put a link to their site on the FAQ page. I was very glad that they put up a www site because almost instantly a lot of the administrative type questions (did you get my entry?, Am I in the race? etc.) that I had been getting stopped. This allowed me to concentrate further on the purpose of that section of my www site – helping people to run a better race on Pikes Peak.

8. Since its inception the TCR/PPM web site has had many links to my web site. Indeed, on the training page of the TCR/PPM site (www.pikespeakmarathon.org/training.htm) one of only two training tips reads: “Information about the trail and on training for the races also is available at Matt Carpenter’s internet site at www.skyrunner.com. Matt is the current course record holder and has made a science of knowing and running the trail. Check his training tips.” Stop the presses! While I was copying that text I just discovered that four of the other six pages that had links to my site a few days ago no longer have them today! Why would 1998 results get modified on September 16, 1999 – more oddities in this tale? In any event, I have printouts of seven TCR/PPM www pages as they existed with the links to my site available for inspection.

I could continue but the point is that Mr. Zehrer has been using the skyrunner.com site himself for almost 10 months now. He has known about the site and has been pointing runners to it for almost two years. Most relevant however is the simple fact that Mr. Zehrer paid $150 knowing the EXACT layout of the page to which you refer! So I suggest whomever your contact is at the TCR/PPM should contact Mr. Zehrer who is the TCR/PPM president. It should be quite clear that Mr. Zehrer has authorized the use of those words on the page in which you refer! In the meantime, and until they contact Mr. Zehrer I have changed the page by adding a “*” to the end of “Pikes Peak Marathon America’s Ultimate Challenge” and a footnote to the bottom of the page which provides yet another link to the official TCR/PPM www site.

If on the other hand your contact is Mr. Zehrer then I am most flabbergasted at this recent development. Indeed, it would seem that after the runners it has been Mr. Zehrer himself who comes next in line as far as personal gain and benefit from that section of my site. Until this year it served as one of the few sources of information about the Pikes Peak races and has caused many a runner to sign up for his races! I can only conclude that his actions are retaliatory in nature because I have openly expressed my concerns with the way the TCR/PPM is being managed. Indeed, such frivolous and needless use of attorneys such as yourself is just but one example of how he misuses his power. All he had to do to get this changed was ask (as you claim he did) and the offending words would have been deleted in a matter of moments! While Mr. Zehrer and I do not see eye to eye on many things we have both worked together in many areas.

Finally, I am requesting from you a more detailed explanation regarding the intentions of this action. If this is where it stops then great! However, I fear that this is just another in a series of petty little steps that will be taken on the part of the TCR/PPM. I am troubled by what might come after this threat of legal action over my authorized use of the words “Pikes Peak Marathon America’s Ultimate Challenge.” A suit to remove the picture of my medal since it contains those words? How about where I mention that I was asked to write part of the book “America’s Ultimate Challenge – the Pikes Peak Marathon.” Is that OK? Perhaps a lawsuit against the city of Colorado Springs because it has a street called Pikes Peak?

Matt Carpenter
36 El Paso Blvd.
Manitou Springs, CO 80829

I have not mailed the letter yet because I have until September 30th and will probably make some changes. But at this point it looks like I may be going to court. Why do I say that when I could just take 5 seconds and remove the words from the page?

First, I am thinking about leaving the page just as it is with the small change of adding the footnote I mentioned just in case this was not Mr. Zehrer’s doing. (It should be noted that while I am trying to give Mr. Zehrer the benefit of the doubt he is in fact the president of the TCR/PPM and therefore should have been informed of this threat to me.)

Next, given the facts I outlined in my draft letter it should be obvious this claim is bogus. Not only has that page been seen and accepted by Mr. Zehrer, it has been used by him to promote his race!

Finally, if I do go to court, perhaps I will end up having to remove the words but that is not the point. The point is that the way this was done is wrong. Like I said I never got anything about this until the letter from the attorney and yet if you reread the attorney’s letter he seems to be claiming this has been some ongoing battle. This just is not true.

9/22/99 Update

I want to thank all of you that have been sending me such great feedback and suggestions not to mention just plain support! I am working on revisions and additions to the letter and will take some of your suggestions to heart. Also three different people caught three different typos. Let me say now — lest I get another legal threat — that while inputting the letter from the attorney I typed a “you” instead of a “your” in the last sentence of the second paragraph. This has been fixed and the original letter did not have this typo, albeit, the words “disgorgement” and “infringer’s” do bring my spell check to a halt.

A good deal of you have been recommending that I get an attorney. I assure you I have spoken with several of them and the more I talk with them the better this sounds. Putting aside for a moment the fact that PPM/TCR has known about my site and has used my site to promote their race, it would seem that my use of my 1993 medal (a medal PPM/TCR gave me and 1000s of other runners) and the words that appear on it constitute something called “fair use.” Without “fair use” Coke could never say that they taste better than Pepsi without being sued by Pepsi! Whether one is entitled to refer to another’s trademark depends not on where the reference appears but on whether the reference is truthful. I am using my medal and the words that appear on it to say that another Pikes Peak Marathon race is coming and then give a whole bunch of information on how to best train for that race. This is truthful and therefore, I feel, a valid reference. Further, my web site is not intended to deceive users into thinking that it is the “official Pikes Peak Marathon site” and, in fact, the first question of my Pikes Peak FAQ should make that perfectly clear and has done so for well over a year now (before the TCR/PPM had e-mail and a www site I simply listed the phone number for the TCR). Consumer confusion (or rather user confusion since my site is a free site) is a big part of trademark infringement. The addition of the footnote should make it even more clear that I am not the “official race site” and hopefully this will satisfy this legal threat against me. (OK, a guy can dream;-)

Bottom line, I love helping people to run better and derive great pleasure from doing so but that is about the extent of my “personal gain and benefit” from Skyrunner.com. I know getting letters from attorneys does not feel like much of a benefit!

9/27/99 Update

On Thursday, September 23, the following form letter was forwarded to me by someone who had written the TCR/PPM. I have now received this exact letter from several people in addition to it being CC’d to me by Mr. Zehrer himself as part of one of his responses to a letter writer:

----- Start Original Message -----
Dear [name removed by me]:

Thanks for your comments regarding the attorney’s letter (on behalf of the Pikes Peak Marathon) with reference to the use of our registered name on Matt Carpenter’s web site. I would like to apprise you of some relevant facts.

Matt Carpenter was requested, on November 25, 1998, to properly attribute ownership of the race name and “America’s Ultimate Challenge” and to prominently note that his web site was not an official site or extension of the PPM. Rather reasonable requests but ones which were ignored entirely (even though on the same day $150.00 was donated to support the site because it does provide excellent information on the trail.). Considering Mr. Carpenter’s dislike of many aspects of the races and his penchant for making them known on the site it seems reasonable to ensure that someone visiting his site would not blithely believe his site was at least tacitly an official site of the PPM.

Mr. Carpenter could very easily comply with our requests and the issue would be settled. Barring that, he leaves no recourse but to protect the names as to fail to do so would cede ownership rights. That, obviously, would not be prudent.

Sincerely,
Dave Zehrer
----- End Original Message -----

Within about 20 minutes I also received the following e-mail from the Dave Zehrer:

----- Start Original Message -----
Dear Mr. Carpenter:

From an e-mail of [name removed by me] and e-mail from two other persons, you apparently have posted some information on your website concerning the communication from our attorney (Mr. Timothy Schutz) about the issue of your use of names and marks which are registered by the Pikes Peak Marathon, Inc. I ask that you review the attorney’s letter as it only mentions legal action should you not comply with the requests concerning use of the registered names. To state or imply anything else would be incorrect and disingenuous.

Sincerely,
Dave Zehrer
----- End Original Message -----

Here was my replay to Dave:

----- Start Original Message -----
Dave,

I simply put up your attorney’s letter and my *draft* response to him. People can make up their own mind about what is going on. Of course the new spin you are sending to people with regard to our November 25, 1998 meeting will change things quite a bit because I will not stand for it — talk about disingenuous!

Bottom line, I gave you plenty of wiggle room in this matter not to mention more benefit of the doubt than you deserve! All it is going to take is an apology on your part and we can get this matter solved quickly and that will be the end of it. If not, I am going to post your new information and point out every inconsistency between what you now claim, what your attorney wrote, and what really happened. I know what you are claiming did NOT happen but even *IF* it did you still never even bothered to question me as to why I did not do what you claim you asked me to do despite our many communications. This does not even make sense and there is no way people (or judges) are going to accept that after almost a year you decide (again with no follow-up) to hire an attorney over something that could have been (*IF* it happened) a simple misunderstanding. However and again, I know you never asked me to do what you are claiming so giving you the benefit of those *IFs* is moot!

So it is your call now Dave! Apologize to me for the way this was done — and we can start over on this issue — or continue to claim it is all my fault and we will take this further and further. Up till this point (with this threat to me) the issues I have had a “penchant” (as you say) to put on my site have been directly relevant to the race (cut-offs, getting fast runners etc). How ironic that a lot of the other issues between us have not been on my site simply because I was truly grateful that you made a donation to my site. Now you would turn that gesture around by lacing it with stuff that did not happen and my gratitude has about run out!

I am only after an apology! The way you handled this tradename issue by using an attorney, and indeed the new path it looks like you wish to take as far as making up stuff about our meeting are not acceptable to me! If you can not admit mistakes and apologize for them then there is nothing else to say. I have about a week to respond to your attorney — how I respond is up to you!

Go out hard, when it hurts speed up...
Matt Carpenter
www.skyrunner.com
----- End Original Message -----

Obviously since this stuff is now posted on the site I have heard nothing back from Dave despite it being over three days. One thing is for sure: We can now put to rest the issue of if he knows about the legal threat to me or not;-) Now lets just consider a few points from the letter Dave is sending out:

• The attorney writes “PPM expressly directed you to cease using this mark,” Dave says he requested me to “properly attribute ownership of the race name and “America’s Ultimate Challenge” and to prominently note that his [my] web site was not an official site or extension of the PPM.”
• The attorney writes “recently discovered,” Dave says it has been almost a year now.

• As mentioned above, the FAQ went up more than 6 months prior to our meeting and it has always stated that I had nothing to do with the race. I think it has always been rather obvious that skyrunner.com is not an “official site of the PPM.” If people were ever confused they sure won’t be after reading this page:-)
• I just do not remember this issue coming up in our meeting. I had just given Dave copies of the site and showed him a few screens on the laptop I took in because he had never seen it — he was supposed to read over the stuff and get back to me. We talked about enforcing cut-offs. I got copies of the 1981 and 1983 race results. He gave me some photos to use if I wanted but I never ended up using them. I think we may have even talked about prize money. However he never told me there were any problems with the site that I can remember.
• The point remains the same: Something like this should have been followed up on before an attorney got brought into the picture!

9/29/1999 Update

Well its been about 2 weeks since this all started. Here is the final letter I hand delivered to the attorney today — one day before my deadline. Only point one is new in the first section, the next eight points are the same. After that the letter is pretty much new.

September 29, 1999

Timothy J. Schutz
Hanes & Schutz
7222 Commerce Center Drive, Suite 243
Colorado Springs, Colorado 80919

Dear Mr. Schutz

This letter is in regard to your correspondence dated September 15, 1999. Below are some relevant facts pertaining to my use of the words “Pikes Peak Marathon America’s Ultimate Challenge” on my web site www.skyrunner.com.

1. The copy you sent me of one of my www pages is of poor quality. Perhaps it is not obvious that the “mark” to which you refer is not the PPM logo you sent me but is in fact a scan of my medal that I got after finishing the 1993 Pikes Peak Marathon. The words that appear above and below my medal are simply the same words that are on the medal.

2. The page has existed close to its present state (had the exact layout of my medal and those words) for about a year and a half now.

3. I have NEVER by any means (voice, paper, e-mail, fax etc. etc.) been informed not to use anything, anywhere on my www site. Let alone something “expressly directed” to me by the “PPM” with regard to “Pikes Peak Marathon America’s Ultimate Challenge” as you claim. I find it odd that you would not include said document or whatever, if in fact it exists, along with your correspondence especially since you would use the phrase “As evidenced by its past communications with you.”

4. Your letter is the first time I have heard of anyone having any problem of this nature with my site.

Further, perhaps you were not aware of the following:

1. Starting in January of 1998 and going through May of that year with the same pattern again occurring in 1999, Mr. Zehrer of the TCR/PPM called me on a monthly basis (sometimes more often) to inform me of the status of the entries for the Pikes Peak races with the EXPRESS purpose of having this information posted on the page to which you refer. I received at least seven calls of this nature in 1998 and at least that many in 1999.

2. On 5/26/98, I posted a FAQ (Frequently Asked Questions) page concerning the peak races to help cut down on the e-mail requests for information about the races that were coming my way. This did reduce the number of e-mails a little but because of the still large volume of e-mails I was receiving from my site regarding the peak races I asked Mr. Zehrer in phone call in November of 1998 if the TCR/PPM would be interested in paying for some of the expenses of the site. In a follow-up meeting with Mr. Zehrer on November 25, 1998, I provided copies of about 30 pages of my site including a copy of the page in which you sent me with the EXACT layout as on your copy! Mr. Zehrer then gave me a check for $150 to cover some of the expenses of my site. This is only a portion of the yearly cost of putting up my site.

3. Soon after that November 25, 1998, meeting Mr. Zehrer called my house asking how to access my site as he was having problems. It turns out that he was entering “www.skyrunner.com” into a search engine which of course just gave him a listing of pages from my www site. I directed him on how to enter “www.skyrunner.com” into the browser’s URL bar. On another occasion he called asking if I had just removed the results archive from my site because the results he had just accessed were no longer available. It turns out that his phone line had call waiting or something to that effect and he had been trying to access my site after he had been disconnected from the internet.

4. In the 1998 TCR/PPM confirmation booklet, which must be printed early in the year, part of page 10 reads: “Want training tips?? Try www.SKYRUNNER.com and see what Matt Carpenter has to offer (he holds the current course records).” Further page 12 reads: “Results… Also on the web at www.PPRRUN.org and www.SKYRUNNER.com.” Further on the cover of my copy of the booklet is a hand-written note from Mr. Zehrer which reads, “Matt – thx for the help! Dave.”

5. The results from the 1998 TCR/PPM races, printed in August or September of 1998, has on page 9: “Special recognition for volunteers supporting the Triple Crown races through individual or group efforts … Matt Carpenter for his web page at www.SKYRUNNER.com which provides detailed information on the Pikes Peak Ascent and Pikes Peak Marathon courses and race results.”

6. In the 1999 TCR/PPM confirmation booklet, which as mentioned must be printed early in the year, part of page 7 reads: “Information about the trail and on training for the races is available at www.pikespeakmarathon.org or from Matt Carpenter’s internet site at www.skyrunner.com. Matt is the current course record holder and has made a science of knowing and running the trail. Check his training tips.” Part of page 12 reads: “Results… Official results also on the web at: www.PIKESPEAKMARATHON.org or www.PPRRUN.org or www.SKYRUNNER.com.”

7. Sometime around January of 1999 the TCR/PPM put up its own www site and Mr. Zehrer asked me to link to it from my site. I did this in at least three different areas on the page on which you refer and also put a link to their site on the FAQ page. I was very glad that they put up a www site because almost instantly a lot of the administrative type questions (did you get my entry?, Am I in the race? etc.) that I had been getting stopped. This allowed me to concentrate further on the purpose of that section of my www site – helping people to run a better race on Pikes Peak.

8. Since its inception the TCR/PPM web site has had many links to my web site. Indeed, on the training page of the TCR/PPM site (www.pikespeakmarathon.org/training.htm) one of only two training tips reads: “Information about the trail and on training for the races also is available at Matt Carpenter’s internet site at www.skyrunner.com. Matt is the current course record holder and has made a science of knowing and running the trail. Check his training tips.” Stop the presses! While I was copying that text I just discovered that four of the other six pages that had links to my site a few days ago no longer have them today! Why would 1998 results get modified on September 16, 1999 — more oddities in this tale?

I could continue but the point is that Mr. Zehrer has been using skyrunner.com himself for almost 10 months. He has known about the site and has been pointing runners to it for almost two years. Most relevant however is the simple fact that Mr. Zehrer paid $150 knowing the exact layout of the page to which you refer! It should be quite clear that Mr. Zehrer has authorized the use of those words on the page in which you refer. At the very least I have never received anything from Mr. Zehrer stating anything to the contrary during the entire time he has been using my site to promote his race.

Next, and more troubling to me, is the e-mail Mr. Zehrer recently began sending out on Thursday, September 23, and even CC’d me in part. For obvious reasons I am left totally confused as to what is now being asked of me. Am I to remove the offending words or just show ownership? I am also troubled by the fact that he claims this request happened almost one year ago in the above mentioned 11/25/98 meeting between us. I simply do not remember this coming up and find it unconscionable that almost one year later with no follow-up he would choose to use an attorney over something that, if it happened, could have been a simple misunderstanding. Why would Mr. Zehrer not offer the simple courtesy of a follow-up and why are you claiming he asked me to do something totally different than Mr. Zehrer himself claims to be after? It would appear that you and Mr. Zehrer are not communicating.

At any rate, the day after receiving your letter I was advised to change my page and to that effect I added an “*” to the end of “Pikes Peak Marathon America’s Ultimate Challenge” and a footnote to the bottom of the page which provides yet another link to the official TCR/PPM www site. Now that I have at least seen a back ended request from Mr. Zehrer I do not find his requests unreasonable. Further for me to ignore this request — back ended as it is — would put me in the position of being the one at fault. To that end, the above mentioned FAQ is a very popular page from that section of my site and it clearly states that “I have NOTHING to do with the race!” and points people to the TCR/PPM website. Before the TCR/PPM put up a website the FAQ listed their phone number. The new “*” and footnote combined with the preexisting disclaimer in the FAQ would seem to satisfy the request of Mr. Zehrer. If this is where this action stops then great! If not, I am respectfully requesting copies of the “past communications” that you claim took place with me and specifically where I was “expressly directed to cease using this mark” because your request and Mr. Zehrer’s request are entirely different.

Lastly, on 9/24/1999 I let Mr. Zehrer know that all I wanted out of this matter was an apology for bringing an attorney into this without first letting me know of the problem or, giving the benefit of the doubt to his latest claim, an apology for not at least following up with me before doing so. It was my hope that we could bring this matter to a close without having to further involve you or at the very least enable me to reply to you that the matter was settled. Further an acquaintance of ours has been trying to set up a “mediation” to try to settle this matter — again in the hopes of trying to avoid using your services. I agreed to this but either Mr. Zehrer is out of town or unable to return messages left at both his home and office. At any rate, Mr. Zehrer’s unwillingness to offer an apology brings to mind this quote from Abraham Lincoln’s, Notes for a Law Lecture, July 1, 1850, which ironically I found on your (Hanes & Schutz) web site:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time.”

Respectfully,

Matt Carpenter
36 El Paso Blvd.
Manitou Springs, CO 80829

List of attachments:

1993 Pikes Peak Medal (the real thing)
The 9/23/1999 e-mail from Mr. Zehrer to others who wrote him (his
      back ended request)
The 9/23/1999 email to me from Mr. Zehrer and my 9/24/1999 response
Overview of site showing:
	- Peak page is 4 levels deep in a personal www site
	- is only part of site
	- $150 from TCR/PPM is larger than all other donations combined
	  and does not cover the costs of the site.
24 pages from Pikes Peak page and the archive showing:
	- The “*” and the footnote added
	- 4 links to the TCR/PPM site
	- 15 updates about entry status from Mr. Zehrer
	- As far back as 8/17/97 when the page was just an
		on-line diary I was stating that I was not
		part of the TCR. Several other entries
		imply that too.
	- Date FAQ put up 5/26/98
	- Date of meeting 11/25/98
6 pages from the Pikes Peak Ascent and Marathon FAQ stating
	that I have nothing to do with the race in question
3 pages from 1998 confirmation booklet showing use of my site
	and handwritten note from Mr. Zehrer
1 page from 1998 results thanking me for my site
2 pages from 1999 confirmation booklet showing use of my site
	and stating that it had “official” results
3 pages from TCR/PPM www site showing 4 links to my site
	including training page which says to go to my site
	for “the real thing.”
3 pages from TCR/PPM www site showing that other links
	were removed the same day I received the legal threat.

9/29/1999 Update #2

After getting home late today I found out that the above mentioned “mediation” was agreed to by Dave Zehrer. I will contact the attorney and ask him not to start working on a response. Stay tuned!

9/30/99 Thanks to almost 3 hours of hard work by our mediator the legal threat to skyrunner.com has been resolved:-) I received an apology for the way this issue was handled and Pikes Peak Marathon Inc. insured that their trademarks and service marks remain protected. Further, as a bonus I learned a little bit about liability issues and put up some protection for myself while at the same time the TCR now has it very prominent that my site is not the official race site.

Read what others have said...

Your Comments...

          RED: Required Field
    Your Name: 
  Your E-mail: 
Retype E-mail: 

   Comment(s):