DS-MAX Tries To Shut Down Our IDT-Energy Investigation
UPDATE: Nu-Life Owns The Trademarks For Innovage AND DS-MAX
While reporting the results of our undercover investigation into IDT-Energy through one of their marketing outfits, a battle waged in the background between us and the current owners of the DS-MAX trademark.
This is our favorite part:
WE ALL SOMETIMES STRETCH MORALS FOR ACCOMPLISHING THE GOAL. IT IS NOT RIGHT IN THE EYES OF GOD, BUT MAN’S LAWS DO STRETCH SOMETIMES TO ACCOMPLISH A GOAL. THE GOAL MAYBE GREED BUT WE ALL SOMETIMES DO IT. IT IS REALITY.
This is our second favorite part:
Maybe they should write about Hungary, although we think the editors wouldn’t survive how they handle criticism. At least N.A. you can say what you want and not get shot…
This is our third favorite:
It is the individual corporation like Midtown that does the action….Something like Hitler and Nazi Germany, as we probably can both relate.
Rereading the correspondence inside makes us want to puke, all over again, for the very first time…
EXECUTIVE SUMMARY: Information on Ripoffreport lead us to believe Midtown Promotions operated using the same procedures and techniques DS-MAX and their myriad of affiliate spawn were notorious for. In October 2006, Nu-Life bought DS-MAX. Old DS-MAX became Innovage. New DS-MAX goes after online sites like DS-MAX The Aftermath, Wolfram, RipoffReport, and now, us, trying to get them to change their references so as to “protect its trademark.” They don’t conduct any actual business as they’re “still trying to figure out which direction to go.”
In our opinion, the old DS-MAX name was getting too hot so its owners decided to do a little brandwashing. — BEN POPKEN
“Richard(office)” richard@activegroup.com
to ben@consumerist.com
date May 31, 2007 8:30 AM
subject re: https://consumerist.com/consumer/investigations/consumerist-undercover-at-idt-energy-day-one-264628.php
Gentlemen: Re the attached link https://consumerist.com/consumer/investigations/consumerist-undercover-at-idt-energy-day-one-264628.php
We wonder if you may be so kind as to correct any references to DS-MAX.
This corporate name, trade mark, trade name and logo is no longer the same organization.
Through legal agreement, we have obtained the full rights and do not have an organization that you refer to.
They have changed their name to Innovage, and therefore your reporter’s reference is erroneous and damaging.
As of October 2006, this agreement was finalized.
We would appreciate a correction, in order that dilution and adverse reference is not attached to this corporate name.
Respectfully yours
Nu-Life Inc.
Richard Shapero
Director
—
Ben Popken ben@consumerist.com
to richard@activegroup.com
date May 31, 2007 8:55 AM
subject Re: https://consumerist.com/consumer/investigations/consumerist-undercover-at-idt-energy-day-one-264628.php
There’s no false statements of fact. The post stands. I’ll add a note about the name changes and sale, though.
—
BEN POPKEN
EDITOR
CONSUMERIST.COM
ben@consumerist.com
AIM: benpopken
718-306-9088
—
Richard(office)” richard@activegroup.com
reply-to richard@activegroup.com
to Ben Popken ben@consumerist.com
date May 31, 2007 10:18 AM
Thank you. We are not questioning false statements, merely the company you refer to at the time of your posting does not refer to ours.
As of October 2006 DS-MAX was no longer permitted to represent themselves as DS-MAX and as of April 07, 2007, the name was officially transferred to us for our exclusive use. Therefore, we are tied into what ever actions they have done, yet innocent.
October 2006
11. DS-Max International and DS-Max Canada may continue to use their respective corporate names, namely “DS-Max International Inc.” and “DS-Max Canada Inc.” for one year following the Date of this Settlement Agreement, but only as corporate identifiers, and not to market any services or goods in association with those names; and after one year following the Date of this Settlement Agreement, the Innovage Parties shall transfer all rights in and to the corporate names DS-Max International and DS-Max Canada to Nu-Life or such other entity as designated in writing by Shapero, but the Innovage Parties shall use their reasonable best efforts to complete such transfer within six months of the Date of this Settlement Agreement.
January 2007
11. DS-Max International and DS-Max Canada may continue to use their respective corporate names, namely, DS-Max International Inc. and DS-Max Canada Inc. until April 7, 2007. On or before April 7, 2007, each of such corporations shall either terminate its existence or change its name to a name which does not include the words “DS-Max” or “DSMax” or to a term confusingly similar to the terms “DS-Max” or “DSMax”.
As you can see DS-MAX no longer trades as DS-MAX as of October 2006, and terminates as of April 2007. We have registered trade names, trade marks and logo.
Although we understand your right to report, we only ask for accuracy in that we are not tainted by their reputation of the past.
Respectfully yours and thanks,
Nu-Life Inc.
Richard Shapero
—
Ben Popken ben@consumerist.com
to richard@activegroup.com
date May 31, 2007 10:09 AM
Right, understood, but the reporter is merely saying that when he read about Midtown, people talked about it being connected to DS-Max. And when he looked up DS-Max, various things were described. So that’s all that’s being said, and those are accurate statements. The clauses you cite don’t impinge on our ability to describe the nature of what was once called DS-MAX. Surely you were aware of DS-MAX’s reputation before buying them.
—
Ben Popken ben@consumerist.com
to Brian Fairbanks
date May 31, 2007 10:14 AM
Yeah, his site looks 100% sketch. A curious turn. Welcome to the rabbit hole!
Here’s the WHOIS info for activegroup.com . Hmm, looks like they’re based in Toronto, where DS-MAX was started.
Registrant: Make this info private
Active Customs Brokers Ltd.
645 King St W. #600
Toronto, ON
CA
Domain Name: ACTIVEGROUP.COM
Administrative Contact :
Shapero, Richard
admin@ACTIVEGROUP.COM
645 King St W. #600
Toronto, ON M5V 1M5,
CA
Phone: (416) 504-6227
Technical Contact :
Foster, Carl
cfoster@GERONIMOGROUP.COM
2350 Dundas St. West
Suite 701 Toronto, ON M6P 4B1,
CA
Phone: (416)538-3129
Fax: (416)533-0586
Record expires on 12-Feb-2010
Record created on 11-Feb-1996
Database last updated on 15-Jun-2006
—
Richard(office)” richard@activegroup.com
to Ben Popken ben@consumerist.com
date May 31, 2007 8:10 PM
We were aware of DS-MAX. Midtown were instructed by Innovage not to refer their organization as DS-MAX as it was conditions of our agreement.
When was this interview? Who were the persons representing Midtown. If after October 2006, then DS-MAX has breached their agreement by not issuing firm statements about the cessation of the corporate name.
eing aware of some of DS-MAX reputation, we were aware of. They are however a multi billion dollar corporation, we understand and there is goodwill with the name.
Not all of DS-MAX (the old one is negative), as they are successful. This MLM appears to have some bad apples in them, but it is a MLM with Independent contractors.
We saw the opportunity to obtain the name, trade mark and then take it either with a “good” DS-MAX or use it for another branding (Dollar Store Maximum???). We saw benefit and yes knew there is some negativity with it. Even tried appealing to DSMAXtheaftermath to start a NEW organization, using their experience to make something that would be in line with correcting the bad. They simply want to complain not create.
Understand your position but think you understand ours. DS-MAX is no longer a name connected with the people you refer and it is a written agreement. If Midtown says this, then it is not correct and certainly not with Innovage’s blessing. All contracts, agreements were to be changed. Yes Innovage could be breaching and you could be correct or accurate in reporting what Midtown said, but this also leads to us going back to Innovage and going after them for breach.
We win either way… J
Regards
Richard Shapero
—
Ben Popken ben@consumerist.com
to richard@activegroup.com
date May 31, 2007 11:36 PM
You may have misread. Midtown never referred to themselves as DS-MAX. Other reports talking about Midtown said it behaved like what they conceived of as a DS-MAX affiliate. That’s the information we’re relaying, that there are reports and they said such and such.
What’s the correct URL for Nu-Life? There seem to be some variations out there and I can’t tell which is correct.
—
“Richard(office)” richard@activegroup.com
to Ben Popken ben@consumerist.com
date Jun 1, 2007 9:06 AM
Nu-Life is one of our holding companies, we do not have a website. We will be developing dsmax.com etc., for our decided application using the mark. We have the world trade mark for consumer items and have not decided which way to go. We also have the mark for dsmax, so in essence there will be no confusion.
Still interested, when Midtown people talked about it being connected to DS-MAX. As of October 2006, they should have talked about being connected to Innovage, so DS-MAX’s name starts to vanish in the association with this MLM
We were aware of DS-MAX. The reputation, questionably may be the individual corporations, not the actual corporation DS-MAX. When you review the corporation, they appear quite clean, as they do not sell or represent the product or service. It is the individual corporation like Midtown that does the action. Some attempt to present DS-MAX as training them to do so, rather like twisting their arm. If it was so clear then they would be charged.
Something like Hitler and Nazi Germany, as we probably can both relate. Did Hitler do everything or in fact did the Germans want to do what they did and said Hitler told them to. Take out the threat of death element, was it all Hitler or a desire of the people? Not quite a great example but it does give a thought.
All MLM’s have a certain blueprint, so they must all have the same mannerisms.
Regards
Richard
—
Ben Popken ben@consumerist.com
to richard@activegroup.com
date Jun 1, 2007 5:10 PM
* Let me make this very clear: no one at Midtown said DS-MAX. We read that in complaints found online. That’s called “following up on leads,” something you, being a salesman can relate to. Part of our story is about that process.
* I’m curious as to who were the exact people at Innovage who signed the other part of the trademark change of ownership contract.
* I guess people got that impression about the DS-Max network because the original DS-MAX (now called Innovage) people trained managers, who then opened offices using the methods of running a business they learned. Then they trained new managers in the same methods who then went on to open their own offices, and so on and so forth, like a virus. Presumably, these tactics were also reinforced at the DS-MAX rallies and conventions. Sure, the whole individual offices system is very clever and creates plausible deniability, but that’s mainly useful for avoiding legal entanglement. A discerning reader, however, can see the connections.
* Interesting point about Hitler and the Nazis. The same can be said about Stalin and the Russians. I think when you create a system of rewards and punishment, and then apply it to a vulnerable set of people, and deploy propaganda and brainwashing techniques against them, curious things can happen. In Adolph and Josef’s case, millions upon millions of people were murdered.
—
“Richard(office)” richard@activegroup.com
to Ben Popken ben@consumerist.com
date Jun 2, 2007 1:14 AM
* Let me make this very clear: no one at Midtown said DS-MAX. We read that in complaints found online. That’s called “following up on leads,” something you, being a salesman can relate to. Part of our story is about that process.
CURIOUS WHAT DATES WERE QUOTED.
* I’m curious as to who were the exact people at Innovage who signed the other part of the trademark change of ownership contract.
WITHOUT PREJUDICE, THE PRINCIPLES….TOP GUNS OF DS-MAX…ALL IS VERY LEGAL AND BINDING.
* I guess people got that impression about the DS-Max network because the original DS-MAX (now called Innovage) people trained managers, who then opened offices using the methods of running a business they learned. Then they trained new managers in the same methods who then went on to open their own offices, and so on and so forth, like a virus. Presumably, these tactics were also reinforced at the DS-MAX rallies and conventions. Sure, the whole individual offices system is very clever and creates plausible deniability, but that’s mainly useful for avoiding legal entanglement. A discerning reader, however, can see the connections.
IN OUR INVESTIGATION, TRAINING MOTIVATION WAS MADE, BUT INDIVIDUALS USED THIS PLUS THEIR OWN METHODS TO OBTAIN. THE CANDIDATES ARE YOUNG. SEX, DRUGS, FREE THINKING OF YOUTH WITH IMMORTAL IDEOLOGY OF YOUTH TO SCREW THE “OLD SYSTEM” (THEY KNOW NOTHING) (PS I WAS A PRODUCT OF THE 60’S). VERY INTERESTING SYSTEM OF CONSIGNMENT WITH YOUTH. IT GETS OUT OF HAND, AND YES METHODS ARE DISMISSED IF HEAD OFFICE GETS NUMBERS IN SALES.
* Interesting point about Hitler and the Nazis. The same can be said about Stalin and the Russians. I think when you create a system of rewards and punishment, and then apply it to a vulnerable set of people, and deploy propaganda and brainwashing techniques against them, curious things can happen. In Adolph and Josef’s case, millions upon millions of people were murdered.
WE TOTALLY AGREE, BUT THE PEOPLE THEMSELVES FOR WHATEVER REASON ARE WANTING TO BE VULNERABLE. EITHER POOR STANDARD OF LIVING, IMMIGRATION, THE HOME BOYS NOT WANTING TO WORK, BUT HATE FOREIGN PEOPLES WANTING TO WORK. EACH EXAMPLE HAS A REASON WHY IT HAPPENED, AND YES THERE WAS A LEADER, BUT THE MASSES WANTED TO CHANGE AND HUBRIS IS THE DEFEAT OF ANY SUCCESS. SOMETIMES YOU CAN MAKE MONEY, BUT NOT THE PERFECT SOCIETY OR ORGANIZATION AS IMPERFECTION IS INHERENT IN MAN’S PERSONA ALTHOUGH EGO AND GREED MASK IT. MARXISM WAS TO BE ENGLAND, NOT RUSSIA, NAZISM WAS TO BE AUSTRIA, NOT GERMANY. STRONG ECONOMIC POWERS WERE TO ADOPT THESE SOCIALISTIC, IDEOLOGY OF EQUALITY, YET ALL HAD TO APPEAL TO THE MASSES, ROB THE RICH, POWERFUL MINORITY. UGANDA, TANZANIA, RHODESIA, EASTERN BLOCK CHANGE FROM COMMUNISM TO CAPITALISM, AND EVENTUALLY CHINA WILL SHOW THE SAME. MAN IS GREEDY, RELIGION USES FEAR OF SOMETHING BEYOND MAN’S CONTROL, GOVERNMENTS CONTROL THE NATURAL INSTINCT OF MAN TO SELF SATISFY, AND EVEN MLM TURN CORRUPT. PEOPLE AT THE TOP WANT ALL, AND ALL THROUGH THE SYSTEM AT EVERY LEVEL, EVERYONE IS OUT FOR THEMSELVES. A BLIND EYE IS USED WHEN THE BOTTOM LINE IS SUCCESSFUL. IN YOUR BUSINESS, IF INFORMATION IS OBTAINED BY SORTING THROUGH GARBAGE AND IT ISN’T ILLEGAL, IT’S ACCEPTABLE AND CONSIDERED ACCEPTABLE, BUT MORALLY IT IS NOT RIGHT. WE ALL SOMETIMES STRETCH MORALS FOR ACCOMPLISHING THE GOAL. IT IS NOT RIGHT IN THE EYES OF GOD, BUT MAN’S LAWS DO STRETCH SOMETIMES TO ACCOMPLISH A GOAL. THE GOAL MAYBE GREED BUT WE ALL SOMETIMES DO IT. IT IS REALITY. WE WISH THE WORLD WAS PERFECT AND ALL BLAMELESS, BUT SOMETIMES WE LOVE THE OLD ADDAGE ….WHEN YOU POINT A FINGER, REMEMBER ONE IS FORWARD AND FOUR POINT BACKWARDS. BUSINESS SOMETIMES IS LOOKING AT A SITUATION THROUGH DIFFERENT ENDS OF THE TELESCOPE.
* WE BELIEVE THAT THE IDEAL OF DS-MAX IS CORRECT, BUT HOW PEOPLE OBTAIN SUCCESS AND USE OTHERS IS NOT. ALL BUSINESSES THAT HAVE OWNERS VERSUS WORKERS, DO USE PEOPLE TO OBTAIN SUCCESS. WE DON’T CARE WHAT BUSINESS…THAT IS PART OF A CAPITALISTIC SOCIETY AND YES IT HAS BOUNDARIES. SOMETIMES PEOPLE STRETCH THEM. SOMETIMES BOTH ON THE TOP AND ON THE BOTTOM. REALLY HOW MUCH DOES DS-MAX DO ILLEGAL, OR DO THEY EXPLOIT PEOPLE BY INSTILLING FALSE SUCCESS AND DREAMS, AND THEN IT CARRIES ON ALL THE WAY DOWN THE LINE. A SNOWBALL EFFECT OF GREED.
* HOW DO YOU PROTECT YOURSELF WHEN YOU ARE AT THE TOP OF THE LINE. EVEN THE CHURCH HAS IT’S OWN CORRUPTION. IN THE NAME OF GOD, SOME PRIESTS ARE PLAYING WITH CHILDREN, STEALING FUNDS, HAVING SEX. IS THE POPE RESPONSIBLE?…HOW MUCH DOES HE KNOW OR THINKS HE KNOWS? HOW MANY HAVE BEEN HURT IN THE NAME OF GOD.
* WE OBTAINED DS-MAX EVEN THOUGH WE KNEW THERE WAS NEGATIVE, BUT IT DOES HAVE A WORLDWIDE NAME. THE QUESTION IS, CAN THE KNOWLEDGE OF THE NAME, THE PAST USE OF IT, BE TURNED INTO SUCCESS IN ONE WAY OR ANOTHER. DS-MAX CAN STAND FOR MANY THINGS. WE THOUGHT OF DSMAX (DATA STORAGE MAXIMUM/DIGITAL SYSTEM MAXIMUM,/DOLLAR STORE MAXIMUM) BY OBTAINING THE NAME, RIGHTS, HISTORICAL USE AND TRADEMARKS WE ELIMINATE OTHERS FROM INFRINGEMENT AND PASSING OFF, TO EVENTUALLY LAUNCH SOMETHING, SOMEWHERE, WITH THE DUCKS IN ORDER, SO INFRINGEMENT CAN BE LEGALLY DEFENDED. DS-MAX CAN BE PROTECTED LIKE SONY OR IBM OR DELL’S NAME.
* WE TRIED APPEALING TO THE AFTERMATH PEOPLE AND THEY JUST WANTED TO BASH. UNHAPPY PEOPLE, BURNED IN THE ORGANIZATION, WITH NOTHING BUT NEGATIVE. WE ASKED IF THEY WANTED TO HELP CREATE THE SYSTEM IN THE RIGHT WAY BUT NO TAKERS. ONLY BASHERS. LIFE’S SUCCESS IS BASED ON POSITIVE ACTION NOT NEGATIVE. YET IF YOU ASKED ALL THESE PEOPLE WHAT THEY DID, WE ARE SURE THEY WERE PART OF THE DRUG, SEX, SCANDAL, SCREW THE DUMMIES, LIFE AND ENJOYED IT, UNTIL THEY GREW UP AND REALIZED THEY WERE GOING NO WHERE. YOUTH DOES THAT IN ALL OF US, UNLESS WE WERE NERDS DURING THAT TIME. REBELLION IS PART OF YOUTH, ALL KNOWING, BIG EGO AND GOING TO FIX THE SCREWED UP WORLD. YOUTH IS BLACK AND WHITE WITH NO GRAY. GROWING UP, REALIZES MOST OF LIFE IS GRAY AND BLACK AND WHITE IS LESS AND LESS. DS-MAX PLAYS ON YOUTH TO SELL PRODUCT BASED ON DREAMS YOUTH CAN CONQUER ALL FOR THE ULTIMATE GOAL OF MONETARY SUCCESS. ALL MLM’S PROFESS THAT. MOTIVATORS PROFESS THAT TO FIRE UP PEOPLE. DS-MAX DOES IT TO SELL A CALCULATOR. DON’T YOU THINK THE INDIVIDUALS KNOW THEY SHOULD HAVE CERTAIN LICENCES, PERMITS, ETC., YET THEY ABUSE THAT. DON’T YOU THINK THEY KNOW THEY HAVE TO PAY TAXES. THEY ALL PLAY A GAME FOR THEIR OWN BENEFIT AND THEN POINT A FINGER AT OTHERS FOR BEING WRONG.
* PLEASE KEEP THIS BETWEEN US, AS WE THOUGHT WE WOULD CONVEY OUR THOUGHTS OF WHAT THE COMPLAINT IS. COPS ARE ON THE TAKE, THE CHURCH IS CORRUPT, YOU SOMETIMES GET INFORMATION VIA A ROUTE THAT IS NOT ALWAYS ABOVE MORALS BUT WE ALL DO IT AND YES IT IS NOT RIGHT, BUT WE ALL WANT TO FEED OUR FAMILIES AND OUR DREAMS.
* REGARDS
* RICHARD SHAPERO
—
Richard(office)” richard@activegroup.com
to Ben Popken ben@consumerist.com
date Jun 2, 2007 8:14 PM
Funny how we have advised you of our position, and just recently your article after our disclosure, has now posted the exact logo we own, and we don’t know of anywhere on the internet you could find the logo.
http://www.consumerist.com/consumer/ds_max/
Could you explain, where you are finding the logo that is not permitted and why it looks so similar?
http://tess2.uspto.gov/bin/showfield?f=doc&state=7il50g.2.2
We are quite puzzled, how the name DS-MAX seems to be more used and we had hoped it would be contained.
Are we inciting you, or have offended you to develop the name DS-MAX more in an adverse manner?
Regards
Richard Shapero
—
Ben Popken ben@consumerist.com
to richard@activegroup.com
cc legal@gawker.com,
date Jun 3, 2007 10:50 AM
Richard,
Just because the USSR split into the Commonwealth of Independent States doesn’t mean you can’t use the hammer and sickle to illustrate the Soviet Union.
I never gave you off the record status, nor see a compelling reason to do so, so I cannot promise we will fulfill your request at the end of your previous email to “keep this between us.”
I’m happy to continue to talk with you about MLM, DS-MAX, and even WWII history. However, I do not recognize your claims of alleged adverse development, and if you wish to develop further discussion along those lines, you can contact our lawyers at legal@gawker.com.
—
Richard(office)” richard@activegroup.com
to Ben Popken ben@consumerist.com
date Jun 3, 2007 9:28 PM
If you made an agreement under legal counsel with the USSR to use the hammer and sickle and they no longer could use, plus the Name USSR, then the Soviet Union could only call themselves the Soviet Union and not use the hammer and sickle.
Of the record is quite mute, with your interpretation of political and possibly poetic license.
Who is gawker.com and are you affiliated with them?
Do you have the specific lawyer’s names, so our counsel can contact them. We would appreciate specifics on your company Name and Address, together with theirs.
Consumerist and Gawker both appear to be Hungarian. Is this why you used the USSR analogy?
It appears there is no address other than e-mail with contact. Is this the address of Gawker Media, who controls your content.
Gawker Media
76 Crosby
New York, NY 10012
(212) 655-9524
The domain names seem to be held by non Americans, although Gawker Media appears to be US. Maybe they should write about Hungary, although we think the editors wouldn’t survive how they handle criticism. At least N.A. you can say what you want and not get shot… J I think Gawker somewhere says everything is anomynous unless you want your name posted. Does that apply throughout all their divisions????
Regards
Richard
Gawker.com appears to be:
Administrative Contact:
Attila Talos (NIC-14521774) BLOGWIRE HUNGARY SZELLEMI ALKOTAST HASZNOSITO KFT.
Frankel Leo u. 106-108. Budapest – 1023 HU
domains@gawker.com +36.12126559524 Fax- –
Technical Contact, Zone Contact:
Attila Talos (NIC-14521774) BLOGWIRE HUNGARY SZELLEMI ALKOTAST HASZNOSITO KFT.
Frankel Leo u. 106-108. Budapest – 1023 HU
domains@gawker.com +36.12126559524 Fax-
Consumerist.com appears to be:
Administrative Contact:
Attila Talos
(NIC-14521774)
BLOGWIRE HUNGARY SZELLEMI ALKOTAST HASZNOSITO KFT.
Frankel Leo u. 106-108. Budapest
–
1023 HU
domains@gawker.com +36.12126559524 Fax- –
Technical Contact, Zone Contact:
Attila Talos
(NIC-14521774)
BLOGWIRE HUNGARY SZELLEMI ALKOTAST HASZNOSITO KFT.
Frankel Leo u. 106-108. Budapest
–
1023 HU
domains@gawker.com +36.12126559524 Fax- –
—
Ben Popken ben@consumerist.com
to richard@activegroup.com
date Jun 4, 2007 4:37 PM
Richard,
Email legal@gawker.com and you will receive a response.
—
Richard(office)” richard@activegroup.com
to Ben Popken ben@consumerist.com,
lega@gawker.com,
rdas@berkowcohen.com,
Jack Smugler
date Jun 4, 2007 9:44 PM
Ben:
Thank you, but my counsel does not write to e-mails without an address. It is not normal, professional protocol.
If you would be so kind as to confirm the address we gave you it would be complete.
We have c.c.’d our litigation team to prepare our reply, in order that we don’t have a p*ssing match over this.
We believe you are entitled to freedom of information, but have been advised that your references to DS-MAX after the date of October 2006, are not valid
And the information you have is not accurate. Some of your information, appears to have been developed since 2004, so we are not aware if Midtown even exists today, or the information you have obtained is current or dated.
We wish to address the appropriate party and not deal with a moving target. We presume you are a legitimate information bureau and part of Gawker Media of New York.
We wish that your information is not diluting the value of our asset, while attempting to address a MLM called Innovage Inc.
Regards
Richard Shapero
Nu-Life Inc.
DS-MAX Inc.
DS-MAX International Inc.
DS-MAX Canada Inc.
—
Gaby Darbyshire
to richard@activegroup.com
cc Ben Popken ben@consumerist.com
date Jun 5, 2007 11:52 AM
subject DS-Max
Dear Mr Shapero,
Ben has forwarded me all of your correspondence. I handle legal matters for Consumerist, and I have reviewed the matter in hand.
I am not sure what it is that you think we have done that is in breach of the law. It is fair use for us to use a trademark to describe its user, even a former user: it’s common practice to illustrate stories about companies with their logos. There is simply no basis for a claim against someone who refers truthfully to a former use of a trademark, even if the current holder of the mark wishes to distance himself from that use. Particularly where the use is in the context of news reporting, rather than competition; I can thus see no valid objection to Ben’s posts.
If you bought a trademark with baggage, I’m sorry, but that is not a legitimate reason for us not to report on a valid story using the principles of free speech enshrined in this fair country’s constitution. I’m afraid that in the circumstances, we are not prepared to remove any of the material in question.
You must of course proceed as you see fit, but as a matter of common sense, I am sure you must know that news stories tend to become old pretty quickly if they are not given legs.
Best regards,
Gaby Darbyshire
—
from: “Richard(office)” richard@activegroup.com
Date: June 6, 2007 12:57:00 AM EDT
To: “‘Gaby Darbyshire'” “‘Ranjan Das'” rdas@berkowcohen.com
Dear Ms. Darbyshire:
Thank you for your e-mail of the 5th instant, contents of which are duly noted.
While we agreed with much of what you say, to report a matter that occurred in 2006, and your undercover reporter, “apparently” in 2007, uncovers a breach of agreement between ourselves and Innovage. With all due respect, it is very important to be accurate. Without accuracy it is of no importance to the public, yet damaging to our company.
We have requested from Ben Popken, if the company still exists and the advised him of the existence of an agreement to the rights of the name and mark, together with excerps of agreement and trademark holder as of October 2006 and 2007.
If you are accurate, then DS-MAX (Now Innovage) is in violation of the agreement. If you are inaccurate, then you are in violation of presenting inaccurate and false information.
To bring up this issue, years after, and quote some representative as knowing the actions are DS-MAX is inaccurate and damaging. You, or should we say, Gawker Media, Consumerist, have a fiduciary duty to report accurately. Failing to do so, is in our opinion a breach of the law. Reporting accurately, is a witness to a breach of agreement between Innovage and ourselves. Which is it?
While we have enjoyed the banter with your colleague, our purpose was in attempt for Ben to report accurately. We do appreciate one mention of DS-MAX referred to as Innovage Inc..
Presuming you have not studied the corporate relationship and contracts, of Midtown, with DS-MAX and IDT, we find it hard to accept the report as accurate but would appreciate you clarifying, in order that we may proceed against Innovage for breach, with you as witness.
We would appreciate your advising us of exactly when your people were advised of DS-MAX as the culprit, or alternatively correct and cease referring to DS-MAX.
As we used a Germany/Nazi reference to Ben, we simply would like you to refer to the correct company. Today you refer to Germans as Germans. To refer them to Nazi’s was what German were, not now and inaccurate reference does them no justice. Hungarians are Hungarians now, not Communists as they were before. It would be only fair and accurate to refer to what you are talking about at the time you are talking. Innovage is today, Germans are today and Hungarians are today, not DS-MAX, Nazi’s and Communists. The past is the past and present situations should reflect accuracy.
As a question, are you actually legal counsel under the Bar of New York State, or only a representative? If not, we would appreciate being directed to your legal counsel, in order that our counsel can continue with them directly.
Although, you state this article will eventually disappear, unfortunately, the internet will retain this information, unless you remove this from your archives and lose the link. It will continue to effect the name DS-MAX, unjustly due to inaccuracy.
Regards
Richard Shapero
—
From: Gaby Darbyshire
Date: June 7, 2007 11:13:14 AM EDT
To: richard@activegroup.com
Subject: Re: DS-Max
Richard,
Once again, it is simply not our problem that you chose to purchase the brand name and mark of a company about which there is a lot of factual, undisputed, adverse material in the public domain. So, DS-Max became Innovage. The renaming of a company doesn’t affect the right of journalists to comment and report on the actions of the company as it was, and as it now is: it’s the same company, doing the same things it always did. We have clearly stated in the article that DS-Max became Innovage. It *is* the same company. We can’t not refer to DS-Max, which is a well-known entity, or our coverage would make no sense, because Innovage did not exist at the time of the actions referred to. Whether or not Innovage and the new DS-Max (your company) are in fact still associated is a matter we have not yet addressed, but we would have every right to do so. That is called investigative journalism, and that’s what we do. But that is not currently the focus of our coverage.
Nonetheless, as a matter of courtesy, we have edited the piece to make it clear throughout that we are referring to the old DS-Max (now Innovage).
Other than this, we are simply not going to change our coverage. You should consult your lawyers. I am certain that they will tell you that we are not breaking any laws in reporting as we are.
Best regards,
Gaby
—
From: “Richard(office)” richard@activegroup.com
Date: June 8, 2007 12:01:51 AM EDT
To: “‘Gaby Darbyshire'”, “‘Ranjan Das'” rdas@berkowcohen.com
Subject: RE: DS-Max
Thank you for your information, and thank you, as a matter of courtesy, edited the piece to make it clear.
Please be assured, that our company and Innovage ARE NOT associated in any manner and legal documentation is quite clear about this.
We can understand your comments about DS-MAX becoming Innovage, the right of journalists to comment and report and you can not refer to Innovage, as your coverage would make no sense.
However, if the independent company, Midtown, which is not a subsidiary of DS-MAX, tells you they are affiliated with DS-MAX, and our agreement controls reference to the name of DS-MAX, on and after October 6, 2006, there is some breach of use of the name. If the information you receive is erroneous, and you ignore our advices of such error, you continuing developing a story, is in essence improper reporting, with knowledge that the information is incorrect.
If, finally, in the end, you discover that your report using Midtown information is quite factually wrong about impropriety of a company, whether you call it DS-MAX or Innovage, and Midtown’s actions are not attributable to DS-MAX or Innovage, you do have a sticky wicket, in that, firstly the content of your report is erroneous and damaging to Innovage and secondly, totally damaging to us DS-MAX, with full knowledge that not only has your source given you poor information, but also one of the parties has advised you of effective dates, and separation of the company name DS-MAX.
You are of course, permitting to publish whatever you wish, but do have a possible liability from both Innovage and ourselves, for two different reasons.
Magazines are sued for misinformation on a daily basis, and some do have to pay for there erroneous, damaging information. We believe we have provided you with sufficient information as to the dates of application of the name, usage and rights of the independent parties DS-MAX (us) and INNOVAGE. At the same time, we have advised you, that Innovage, formerly DS-MAX is not related legally to Midtown, and contracts exists as we believe separating these companies. Under contract law, sub contractors and contractors do have limited liability and responsibility.
From our limited knowledge, these independent companies and Innovage, have been attempted to be married for decades without legal satisfaction or precidenct.
Certain reference areas, such as DSMAXtheaftermath, Ripoff Report, etc., are in themselves quite questionable, and a moving target, that no one can serve legal service. You, however are more like a bona fide Inquiry or Star type reporting source, that is not a moving target and appear to have assets.
This is our opinion, and believe concurred by our legal counsel, as unlimited rights are not yours, and have a responsibility to report accurately.
Again, we ask if you are legal counsel for the company and qualified to represent them. We do not wish to have any misunderstanding and direct our legal counsel’s instructions to the proper areas, being able to quote statements as representation of the company.
For your information, Rippoff report has the following questionable standard that we believe places a cloud of doubt to their ligitimacy.
http://www.klaasdevriesjr.nl/k-files/talentrock/Bureau%20of%20Ethical%20Internet%20Commerce%20(BEIC)%20050310.htm
http://www.ezripofflawsuit.com/
http://www.bad-business-rip-off.com/
http://www.bad-business-rip-off.com/wsvnvideo.html
http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/07-25-2003/0001989115&EDATE=
http://www.goodbusinessbureau.com/absconded.html
http://www.goodbusinessbureau.com/rap1.html
http://www.goodbusinessbureau.com/rap2.html
http://www.goodbusinessbureau.com/rap4.html
In reference to the people of DSMAXtheaftermath, we believe that a great many of them, knowingly worked illegally with many of the subcontractors, none worked for DS-MAX (Innovage) directly and many never paid US income tax or properly filed returns. Federal offenses, we believe.
Wofram appears to have a disclaimer. What is a DS-MAX sales associate?
http://wolfram.org/eric/ This is your author and disclaimer.
The content of this Ds-Max information was written by an ex Ds-Max sales associate who asked me to publish the information on my web site. We hope that others will find the information that they need to make informed decisions. The author asked that his or her name be withheld. If you have any questions, additions or suggestions, please feel free to ask Eric.
[ed. Official status of DS-MAX trademark from the US Patent and Trademark Office:
Serial Number: 77176000
Serial Number: 77185343
Note the points were some of Richard’s paragraphs are signed “J…” Those could possibly be places where Richard cut and pasted from Jack Smugler’s emails. In the original email, these parts are indented and use a different font, potential evidence of a cut-and-paste.
There’s definitely fun to be had by looking up each of the party’s addresses via WHOIS, as well as then address in the trademark office listing, and then Googling to see what turns up.]
UPDATE: Even more gobblydeegook!
—
From: “Richard(office)”
Date: June 12, 2007 11:15:51 PM EDT
To: “‘Gaby Darbyshire'”, “‘Ranjan Das'”
Subject: RE: DS-Max
Thank you for your information. We will pass this on to our litigators (barristers) as you being the contact. Will you accept service for the company, and would appreciate the full name and address for such service?
As we worked many decades ago in the UK, and Canadian law is similar to British, we are aware of the limits of a barrister, versus solicitor, the most famous of which we directly dealt with was Sir
We will reserve the right to comment on your opinion of liability and what your company can and can not represent in your article. As we have obtained all rights to the trade name and trade mark, including interest and power to defend, we wonder if the source of information, if inaccurate, falls within US law of damages due to misinformation given to your people, that is not accurate but merely some figment of someone’s imagination. Your articles and exhibits, do not show any reference to DS-MAX and the interview may not be from a knowledgeable person. Although, we are not in the position to defend or confirm the information given to your company, you do have a fiduciary duty to report accurately. Even the “Inquiry” and other rag magazines, have through court decisions required not to defame an actor’s reputation with misinformation. This may also apply to reporting on companies and the sources of your information. Again, that will be a decision on our counsel’s part.
Our rights are as follows FYI : Subject to the provisions of paragraph 11 and 12 below, as of the date of this Settlement Agreement, the Innovage Parties shall and do transfer to Nu-Life all of their rights, title and interests anywhere in the world in any trade mark, trade name, corporate name or domain name which includes the term DS-MAX or the term DSMAX and any term confusingly similar to the term DS-MAX or DSMAX:
We appreciate Ben’s comment “ed. In 2003, DS-MAX split into three groups, Innovage, Cydcor, and Granton Marketing. In 2006, a company called Nu-Life bought all the rights to DS-Max’s name. Why? We have no idea.]” but would have appreciated a correction to every reference to DS-MAX, especially after October 2006 referenced dates.
Regards
Richard Shapero
Nu-Life Inc.
P.S. In respect to your continued membership of the UK bar, it does appear to be evident. The only Darbyshire is the below member of an active member Darbyshire.
home / directories / the bar directory / individual barristers / by name: d / mr william robert darbyshire
self employed barrister profile
Mr William Robert Darbyshire
9 St John Street
Manchester
M3 4DN
[ed. Note: No definitive ties have been established between Midtown Promotions and DS-MAX/Innovage.]
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