Clark Baker & OMSJ: Analyzing Baseless Legal Documents

In my last post I promised to detail some of the outrageous untruths in Mr. Baker’s ICANN Dispute Resolution (DR) filing. Since he has now also filed a lawsuit against me, I thought I would kill two birds with one stone and detail some of the untruths in both documents. There are entirely too many to enumerate and discuss them all.

1. First let’s start with the most easily verifiable untruth.

On page 13 of the lawsuit, Baker makes this statement about the Dispute Resolution:

“Unfortunately, the arbitration body had no expertise in trademark or trade name infringement and allowed DeShong’s unsupported assertions of good faith usage to stand.”

The “arbitration body” Baker is referring to is Houston Putnam Lowry. His resume with his law firm is here: That very impressive and very extensive resume clearly shows under Complex Commercial Litigation heading that one of Mr. Lowry’s areas of litigation includes trademark infringement. If Mr. Baker would have the audacity to make such an easily verifiable untruth such as this, then how can anyone take any of his legal documents seriously?

2. Second let’s look at Baker’s lengthy and continuous omission of the name his “organization” was called in the very beginning.

Mr. Baker first began using the name HIV Innocence Project in 2009 when he started his little venture. I believe Mr. Baker began using this name in an attempt to gain credibility via name recognition with the legitimate Innocence Project. Whether or not that is true is irrelevant. The Innocence Project contacted Mr. Baker twice to get him to cease and desist using their name. I have an email asserting this by Meryl Schwartz, the Deputy Director for the Innocence Project which I made part of my exhibits in the Dispute Resolution. Mr. Baker used the term HIV Innocence Project from inception in 2009 until at least April 2011. This is documented April 2011 in a news report out of Kansas, KSN and saved for posterity here.

Despite the fact that Mr. Baker used the term HIV Innocence Project from 2009 until at least April 2011, Mr. Baker neglects to mention this in either the DR or the lawsuit. In fact, Mr. Baker goes out of his way to claim otherwise.

As examples:

A. In the beginning of the Dispute Resolution, as well as in the lawsuit, Mr. Baker claims that he has used the term HIV Innocence Group since 2009. Mr. Baker proudly states that the term HIV Innocence Group is registered as U.S. Trademark No. 4,164,161 because of the use of this term since 2009. Mr. Baker provides the Trademark Application as an exhibit in the DR. In the portion of the application Filing Basis SECTION 1(a), there are two areas that are neither wholly truthful nor accurate: FIRST USE ANYWHERE DATE and FIST USE IN COMMERCE DATE. The entered information for both of these is “At least as early as 00/00/2009.” This is blatantly false.

B. In Section #2 of the Dispute Resolution, Mr. Baker states: “Since at least 2009, Complainant has used the service mark HIV INNOCENCE GROUP throughout the United States to identify its private investigation services…”

C. Page 4 of the lawsuit states: “Since its inception in 2009 the HIV INNOCENCE GROUP has successfully provided…” Again, this is blatantly false.

I could provide more examples, but it would be redundant. As I wrote in my DR Response (which applies to the lawsuit as well): “It is obvious that Complainant is trying to hide this fact from this arbitration proceeding and in so doing, admits that Complaint is deceptive at worst, or at the very least, is obfuscating the facts. The Complaint never mentions the fact that the original name of his organization was HIV Innocence Project and therefore cannot claim that any ‘goodwill’ associated with that name would simply transfer to the new name HIV Innocence Group.”

3. Let’s look at a specific example to see how Mr. Baker applies his own brand of “magical logic” to make a specious claim. Page 10 of the lawsuit, Part 16 (a) Baker says:

“Deshong’s stated purpose is not informational or in any way fair use. He admits in writing on-line that his purpose it (sic) to ‘deconstruct’ the HIV INNOCENCE GROUP. He states that his goal is the economic destruction of Clark Baker and OMSJ.”

As proof that I am out to “economically destroy Baker and OMSJ” Baker supplies this from the portion of my website titled The Purpose of This Site:

“It is therefore the sole purpose of this site to provide the general public, and attorneys seeking Baker’s help, and any interested parties, the proof that Clark Baker’s Innocence project, now called the Innocence Group is a useless tool of AIDS denialist propaganda.”

The quote he supplies in no way supports this accusation and it is taken out of context as well. The tag line for my website is: Truthfully Deconstructing The HIV Innocence Group. The words “deconstruct” and “destroy” are not synonyms. Deconstruct means to take apart or examine in order to reveal the basis or composition of, often with the intention of exposing biases, flaws or inconsistencies. That is what my sites do. I break down Baker’s claims, examine them, and provide documentation as to why they are not truthful.

4. Lastly I will specifically examine a major flaw in Baker’s lawsuit. Page 4, Part 9 Baker writes:

“The Ryan White Act passed in 1990 provides billions of dollars of federal aid to prosecutors seeking to enforce HIV related statutes. These cases involve a high degree of technical expertise and most of the medical and scientific expertise that does exist provides little assistance for attorneys in the criminal law field and most of the funds available are earmarked toward prosecution, not defense.” Bolding mine

From my extensive research, this is not the case. The Ryan White Care Act is set up to provide assistance with medical expenses, housing expenses and the like for those with HIV who are not financially able to provide these items on their own. I have not been able to find one instance where monies are set aside for the specific purpose of helping “prosecutors enforce HIV related statutes.”

For Baker to make such a claim that billions of $$ have been earmarked for prosecutions of HIV related crimes via the Ryan White Act is outrageous to most people, but just the type of casual remark that needs no documentation in his world.

My sources are here and below. I would be happy to amend this if it is not accurate.

42 U.S.C.
United States Code, 1996 Edition
Title 42 – THE PUBLIC HEALTH AND WELFARE
CHAPTER 6 – THE CHILDREN’S BUREAU
SUBCHAPTER XXIV – HIV HEALTH CARE SERVICES PROGRAM
Part C – Early Intervention Services
subpart i – formula grants for states
Sec. 300ff-47 – Requirement of State law protection against intentional transmission
From the U.S. Government Printing Office, http://www.gpo.gov
§300ff–47. Requirement of State law protection against intentional transmission
(a) In general

The Secretary may not make a grant under section 300ff–41 of this title to a State unless the chief executive officer determines that the criminal laws of the State are adequate to prosecute any HIV infected individual, subject to the condition described in subsection (b) of this section, who—

(1) makes a donation of blood, semen, or breast milk, if the individual knows that he or she is infected with HIV and intends, through such donation, to expose another to HIV in the event that the donation is utilized;

(2) engages in sexual activity if the individual knows that he or she is infected with HIV and intends, through such sexual activity, to expose another to HIV; and

(3) injects himself or herself with a hypodermic needle and subsequently provides the needle to another person for purposes of hypodermic injection, if the individual knows that he or she is infected and intends, through the provision of the needle, to expose another to such etiologic agent in the event that the needle is utilized.

(b) Consent to risk of transmission

The State laws described in subsection (a) of this section need not apply to circumstances under which the conduct described in paragraphs (1) through (3) of subsection (a) of this section if the individual who is subjected to the behavior involved knows that the other individual is infected and provides prior informed consent to the activity.

(c) State certification with respect to required laws

With respect to complying with subsection (a) of this section as a condition of receiving a grant under section 300ff–41 of this title, the Secretary may not require a State to enact any statute, or to issue any regulation, if the chief executive officer of the State certifies to the Secretary that the laws of the State are adequate. The existence of a criminal law of general application, which can be applied to the conduct described in paragraphs (1) through (3) of subsection (a) of this section, is sufficient for compliance with this section.

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