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September 3, 2009Juliet U. KingAssociate General CounselTexas Department of TransportationDewitt C. Greer State Highway Building125 E. 11
th
StreetAustin, TX 78701-2483RE: Alleged Violations of Texas Penal Code TXDOT Dallas and Fort Worth Twitter®AccountsDear Juliet:I’m pleased to see that we’ve made some progress since our last communication, asyou’re no longer threatening me with imprisonment. That makes me happy.But I’m disappointed and confused by your rejection of my proposed solution and thenew tack you’re taking in harassing a news outlet for reporting on your organization.We did find that TXDOT had set up Twitter® accounts for Dallas and Fort Worth after our article was published and we had started our accounts. (However, you should notethat the Fort Worth account is actually athttp://twitter.com/TxDOTFTWPIO. The addressyour letter referenced for Fort Worth does not exist.)However, it is clear that TXDOT is not in the least bit serious about using these accountsto inform the wired populace of Our Great State. After a month, neither has more thanfour posts, and between the two accounts there are only three total postings of substantivelocal traffic information. In the same timeframe, each of our accounts has carried 28substantive alerts and news items.We wouldn’t necessarily expect a TXDOT account to post as frequently as we do, but theDallas and Fort Worth PIO accounts don’t even match the standard of the other TXDOT
PanLocal LLC / Pegasus News
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12900 Preston Road
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Dallas, TX75230Phone: 214-635-1895
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Fax: 214-363-9304
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offices. The main TXDOT account has more than 342 posts. Austin is averaging a postevery couple days. Beaumont(!) has more than 250 alerts. So you are incorrect in statingthat the opening of ill-used shell accounts addresses my “grievance.”Your claim that we are in violation of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) has no more merit than your prior claim of forgery andimpersonation. We have made as clear as possible on the Twitter® pages and on our ownsite that we are not representing TXDOT.I do appreciate your enlightened stance in extending the consideration of a newspaper tous, as should be done. Too many government officials do not recognize the standing of online publications, and I laud you for not falling prey to that syndrome. And as we donot have “knowledge of the false, deceptive or misleading acts or practices declared to beunlawful,” unless some new judicial or legislative powers have been extended to theoffice of The Associate General Counsel of TXDOT, your claim of violation has noweight until proven. We are not knowingly or otherwise engaged in any “false,misleading or deceptive act.”Twitter® sets the logo and bio sizes you reference. We have no control over their presentation. You also fail to note the clear link to our website with the story explainingthis situation. While I’m sorry that you don’t think these measures are adequate, I’mconfident any reasonable person can determine that this is not an official TXDOT feed.Further, the DTPA is designed to protect consumers, which is why consumers and theAttorney General (on the consumers’ behalf) are the ones empowered to bring acomplaint under the DTPA. When I become aware of a consumer making a claim thatour Twitter® feed deceived him, I may reevaluate my belief that your invocation of theDTPA is nothing other than posturing.Your claims of trademark violation are baffling. You assert that TXDOT has a registeredtrademark for “Pegasis®” – It’s actually a service mark for “PEGASIS PanhandleElectronic Guidance and Information System®.”I’m sure that you are aware that Common-law rights in a trademark can be claimedwithout explicit registration with the US Patent and Trademark Office. As a youngcompany, we went that route, starting in 2004. You will notice the ™ symbol on anygraphic representation of our logo. That was also true of older renditions of our logo,which have been publicly circulated since 2004.To be clear, regardless of dates, we don’t believe you have an infringement complaintunder the Lanham Act, 15 U.S.C. § 1051 et seq., or Texas trademark law, based on other considerations. The wording of the Pegasis® service mark explicitly states that it is the
Panhandle
Electronic Guidance and Information System. All available facts indicate that
PanLocal LLC / Pegasus News
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www.pegnews.com
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12900 Preston Road
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Dallas, TX75230Phone: 214-635-1895
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Fax: 214-363-9304
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mikeorren@pegasusnews.com
the Pegasis® Panhandle Electronic Guidance and Information System explicitly servesthe Amarillo area. Pegasus News™ only offers information to the Dallas / Fort WorthConsolidated Metropolitan Statistical Area. Geographic separation has been upheld as areason for similar trademarks to coexist in a number of cases, including CiticastersLicenses Inc. v. Cumulus Media, Inc,189 F. Supp. 2d 1372 (S.D. Ga. 2002), aff'd, 45 Fed.Appx. 879 (11th Cir. 2002). It is, however, also clear that our respective logos aredistinctly different and that the atrocious spelling of your mark is not present in ours.Consequently, I see no merit in your assertion that our respective marks are confusinglysimilar.But even
IF
we removed those points from consideration, there remains the fact that youfiled for your service mark in June of 2005 and received it in September of 2006.Granted, I’m no attorney, but it would seem that under your logic TXDOT might well beinfringing on
our
trademark, as we have been publishing in some form and providing,among a great many other services, some traffic and transportation information to theDFW metro area under the banner of PegasusNews™ since 2004. We would seem tohave established ourselves as the senior user of the “Pegasus” name, potentially puttingTXDOT in violation of our trademark.For all of the above reasons, I will not acquiesce to your demand that we remove theaccounts immediately. Additionally, to do so would make the accounts available toanyone in the world who wanted to register them, and before you know it, someInterWebs hooligan would be using these accounts to clog the tubes with Photoshopped®Jessica Simpson photos.So, in the interest of protecting TXDOT from these accounts falling into the hands of athird party without the good intentions of a local news source, I renew my original offer:1.Send me an email to mikeorren@pegasusnews.com (let’s not waste any moretaxpayer money on snailmail) stating that the local offices of TXDOT intend touse these accounts at a service level on par with their peer offices around the state.2.On receipt, I will provide you with the account passwords, transferring control of them to TXDOT. That action will eliminate our feed to them and you will be freeto dispose of them as you see fit – and I am confident that your office will be trueto its word. (Although TXDOTDALLASPIO doesn’t exactly roll off the tongue.You might want to redirect those accounts.)There really can’t have been any good reason not to accept my offer in the first place,other than a desire on the part of TXDOT to harass a news outlet whose reportingdispleased your organization. Let’s be clear about what happened: TXDOT sent out a press release touting its social media savvy without considering how it would look tohave two of its biggest offices not participate. We did what journalists have been doingsince the days of Daniel Defoe: We asked questions and printed answers that were
PanLocal LLC / Pegasus News
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www.pegnews.com
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12900 Preston Road
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Dallas, TX75230Phone: 214-635-1895
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Fax: 214-363-9304
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mikeorren@pegasusnews.com
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