Hi folks, I'm just writing to see if anyone can advise me of the correct procedure to take. I (as you'll see from my signature) run an eBay misspellings site and to drive traffic, I use adwords. I've been bidding on competitor terms (such as fatfingers, ebooboos etc) and I've also included some of the competitor sites names in my meta tags. I've now had an email from one of these competitors (not one of those named above) which you can read below... Well initially I took it as a compliment that they consider my site a threat! But then reality kicked back in and I was left wondering if they can make me do anything, for starters the wording of the email isn't in the usual legalese that I've seen before. Should I just comply for an easy life? Opinions please! Phil
Why do you assume that a letter that isn't thickly loaded with legalese isn't legal? Over the past decade, there's been a push for lawyers to ease up on legalese. Anyway, they could have written the letter on a napkin and sent it to you and it would be just as good. I think I remember reading some cases about similar instances. You'll need to research or contact a lawyer. I would ask yourself one question first. Why do you think you have the right to use their term(s)/name(s) for your own gain? Answer that and you'll be on your way to deciding on what action to take.
I'm sure they already complained to google. If google doesn't take any action you're probably fine. Just because they have a trademark on their name doesn't mean they can pick and choose who can mention the name. In my opinion your meta tag is your weakest point, because they can claim you're trying to pass yourself off as being affiliated with them.
Cheers for the feedback. I'll accept the points about the meta tags and I'll be removing them, I appreciate what you say about gaining advantage from another organisations name, either directly or not. I was under the impression though, that in advertising, (such as in Adwords or general advertising) it was acceptable to mention competitors. In Google for example, it is a search engine. If I put a link to this competitor on my site, I'd eventually start getting returned in the search results when that competitor name was typed in, so in the same sense, they should object to all users who link to their site as end users may think a link means some form of affiliation? Try typing Cartier into Google, you'll get a lot of adwords links returned which I as a typical webuser, know will not take me to the Cartier website (but at the same time, I will assume that they are selling legitimate Cartier goods so maybe I've shot my own argument down in flames)! To be honest, I've not set out to cause any issues so I probably will just comply anyway, its not really worth any further hassle, i just don't feeling like I might be getting steamrolled into a course of action that isn't necessary - what wrong with a bit of friendly competition? I'd hate to think what they might threaten if I actually did something like imply their site wasn't actually much good! Phil
4 things: 1. There is no legal precedent ("anywhere - globally") for "copyrights on a term"... check to see if trademarked. If so comply, if not go to number 2. 2. On the off-chance - if they are in US... search US Copyright Office Database for their firm/owner/suggested term being registered with anything... Common Copyright IS NOT actionable in civil court.. you must have registered before you can proceed. 3. If #1 & #2 produce a null - ignore them. 4. Please note: they could do a DMCA take down order and all search engines MUST comply (Raisin suggested possibly otherwise but that is FALSE) DMCA for search engines is merely a safe harbor meaning as long as they take immediate action the claimant have no claim against them. Since the search engine have no clue "what is a valid claim" and will not waste they legal team to prove or disprove - they will just comply. If they actually do a DMCA take down order - immediately counter claim - they will need to show proof of legal action to search engines - since they cannot file without registering and the Copyright Office WILL NOT validate a "term"... they cannot proceed. Reference: http://www.copyright.gov/circs/circ1.html#wnp What Is Not Protected by Copyright? Several categories of material are generally not eligible for federal copyright protection. These include among others: Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
It looks like the letter was written by a regular employee who doesn't understand the difference between copyright and trademark. Still, arguing the point is fruitless. They probably CCed a copy to legal and the legal department took a wait and see approach.
The US recognizes common law trademarks - which means the rights to the name are owned by the person who first used it (assuming it is a name able to be trademarked), and continue to use it, for that particular usage. You cannot go and file for a trademark on a name already in use just because they haven't filed for a Federal registration. Usage rights have already been established.
hmmm... well I was actually being facetious... but on reflection I would believe my statement is far more accurate than yours (in this specific case). In the "real world" common law marks are afforded protection within a geographical area known as a "Zone of Goodwill". This however does not prevent anyone else from factually registering such marks - it simply means that a claim cannot be made against the "first use" in that "Zone of Goodwill". Recent case law has correctly asserted that trademarks being widely used on the Internet are being done so illegally (i.e. cybersquatters without legal merit) since the World Wide Web is a borderless territory that cannot be geographically defined it is more of a "land grab of illwill†and much less about common law marks in a "Zone of Goodwill". (Merely an opinion though)
Wow, almost verbatim of a 1998 essay on the subject: "Recent case law has correctly asserted that trademarks are now be- ing widely used on the Internet. Although many of the first people to place a mark on the Internet were doing so illegally (i.e. cybersquatters)" I'd look over the past 8 years to see if there are any cases that set precedent on the matter. Getting a trademark is a little more complicated than simply paying a fee for something not yet registered.
Unlike patent law, trademarks are not granted based on who was first to file, but on first usage. Anyone can pay for a trademark filing, but it can be contested for a period of about 6 years (1 year publication, then 5 years). If there is a dispute on usage (as in this case) and you went out and attempted to file on someone elses non-registered mark, they would surely contest it and as their usage predates yours, they would win.
Your point? You can search out references as well as I can? ...or something else? I guess my original trademark comment wasn't overly helpful - I apologize. I agree - I doubt anyone would attempt to mark or find legal assistance to do so based only on wishing to pee on someone's pickles. That said - in a roundabout way - we have addressed the original premise... Fair use applies. For the original poster - short of registered trademark within your country of origin - their claim has no merit no matter whether a regular employee or a legal department is responding and doesn't know the difference between copyright and trademarks. A local competent attorney should be able to confirm that for free.