Subject: Re: Unauthorized Use of Intellectual Property
Date: Tue, 20 Mar 2001 17:56:36 -0500
From: gafcounsel@gibney.com (Gibney Anthony & Flaherty)
Organization: Gibney, Anthony & Flaherty, LLP
To: duvernoi@physics.umn.edu
CC: "Angelo E.P. MAZZA" <aepmazza@gibney.com>,
     Matthew Carlin <mwcarlin@gibney.com>

            March 20, 2001

BY E-MAIL: duvernoi@physics.umn.edu

    Re: Unauthorized Use of Intellectual Property

Dear Sir or Madam:

    This firm is counsel to Lyons Partnership, L.P. (“Lyons
Partnership”), the owners of the exclusive right to use the copyrighted
children’s dinosaur character Barney® as well as the federally
registered and famous trademark and service mark Barney.

    It has come to the attention of Lyons Partnership that you are
operating a website found at URL:
wwws.physics.umn.edu/~duvernoi/barney.html. We have reviewed your
website and have concluded that it incorporates the use and threat of
violence towards the children’s character Barney without permission from
Lyons Partnership.

    As a result of Lyons Partnership's continuous promotion of the
Barney character, Barney has come to be recognized as a distinctive and
famous trademark and service mark. Lyons Partnership vigorously objects
to the unsavory and unwholesome content that you have associated with
its trademark and service mark Barney.  The content that you have placed
on your website, used in conjunction with the federally registered and
famous trademark and service mark Barney, including all relevant
hyperlinks to third-party websites, constitutes a violation of the
Federal Trademark Dilution Act pursuant to 15 U.S.C. 1125(c)(1). By
associating the Barney trademark with violence, your website tarnishes
the distinctive qualities of the trademark and service mark Barney.
Remedies available to Lyons Partnership based upon a violation of the
Federal Trademark Dilution Act include a permanent injunction, damages,
costs and attorneys' fees.

    Your actions also constitute direct copyright infringement, and make
you subject to injunction and liable to Lyons Partnership for its
damages, costs and attorneys’ fees. Pursuant to 17 U.S.C. § 501(a),
“anyone who violates any of the exclusive rights of the copyright owner
as provided by sections 106 through 118, or of the author as provided in
106(a), is an infringer of the copyright or right of the author….” Lyons
Partnership hereby demands that you immediately cease and desist from
diluting its trademark Barney, as well as reproducing, distributing,
performing by means of digital audio transmission, displaying, or in any
other way infringing upon Lyons Partnership’s copyrights.

    Lyons Partnership is prepared to pursue all available remedies to
protect its intellectual property rights. However, Lyons Partnership
will refrain from taking immediate legal action upon condition that you
provide written assurances by April 10, 2001, that you have ceased and
desisted from diluting the trademark and service mark Barney, as well as
reproducing, distributing, performing by means of digital audio
transmission, or displaying the copyrighted character Barney.  Your
written assurances must also state that you have removed all web page
content relating to the unlawful use of the Barney trademarks or
copyrights as well as any links to the official Barney website.

    We await an immediate response from you or your counsel.

            Sincerely,

            GIBNEY, ANTHONY & FLAHERTY, LLP

            By: ________________________________
                     Matthew W. Carlin

cc: Angelo Mazza, Esq.