again you misinterpret what I wrote I said unregistered c&d letters/email MAY be effective (note: this means maybe yes or maybe no) in instances where the intended recipient is ignorant and naive... notice I did not say smart and savvy it is NOT horrible advice to advise someone to disregard an UNREGISTERED c&d did you conveniently skip over my paragraph regarding burden of proof? I'm not spending any more time on this topic... do as you wish. vanessa.
FYI, C&Ds don't have to be sent at all either. I'll be scratching my head if anyone ever sent a Cease or Desist letter.
A common mistake is to think the spelling has to be exact - it doesn't. Even a misspelling would be trademark infringement. Foreign translations can be infringement. It just has to be substantially similar or confusing to the consumer. The fact that he used their trademark in their title would prove he was aware of their trademark and was attempting to ride the goodwill they established when he chose the name. Even if a person had a good chance of winning, you need to decide if you want to spend $30K defending your right to a name? You'll likely be out attorney fees even if you win, and if you lose, even without damages you could be looking at paying treble their attorney fees since their mark is registered.
Here is an example of a cease and desist letter send VIA EMAIL by: Vice President and Senior Counsel SONY BMG MUSIC ENTERTAINMENT http://www.onecle.com/blog/archives/2007/01/11/idol-confidential/ (There are many examples of C&D's sent to onecle.com requesting contracts to be removed form their website.) Hmm, I guess real companies do send C&D's and do it via email. In this case, it had no merit as the documents they complained about had already been made public in an SEC filing.
Two attorneys I know also send C&Ds via email. One of them even sends a PDF. Nothing illegal with that since there's no law saying a C&D must strictly be sent via postal mail, email, or a native american indian rain dance. And there isn't a law saying a C&D has to be sent first before filing suit, either.
I ran this situation past my lawyer who is a close friend and specialises in internet law. His comments was that your main problem is the use of the word 'proxify' in your meta tags and any mention of the words in the site. This can be considered a direct attempt to mislead internet users into thinking you are related to the brand and trademark Proxify. With regards to the actual domain names and what your site does... they do not have a leg to stand on if you remove all 'proxify' words from the site. Although you have handed the sites over, i would suggest you pay a lawyer a few dollors to look over it. you might have a case to get them back and claim loss of earnings against the company. If you would like my legal guy to look at it some more.. PM me I might get him to do it anyway and post his findings to help give people a heads up in the future.
This has nothing to do with internet law, it deals with intellectual property rights. I would really like to hear this "lawyers" spin on how a person could be awarded damages, especially in a situation where they were using their trademark. Even if you could prove damages, there is no prevailing party agreement for attorney fees - which would be considerably more than any damages you could even hope to recover.
Actually in the Trademark world you as the owner of a Trademark are not allowed to pursue any avenue towards someone using your Trademark "unless" you are going to take legal action. I can't just e-mail people and say "hey i own the trademark on yada yada" so quit using it...... Can't do it.....
Of course you can. In fact, it would be encouraged to settle disputes in an informal manner without resorting to litigation. Do you care to cite any authority for this absurd position. There is nothing that forces someone to file a lawsuit regarding their trademark. They are certainly free to try to settle the matter out of court without the necessity of filing a lawsuit.
Damn, you gave it to them. I would happily have bought them from you just to piss them off. Then they could take me to court in Norway. proxify is not the same as proxified, they cannot own that. I just have to go and buy proxifiedsomething and set up a proxy now.
Im sure the person that sent you this email just does this to get domains from people. The letter is just to scare you. Im no law expert here but it would make sense if they have a trademark on "proxify" and not "proxified" itself they cant do anything.
Lot's of bad advice from people who have never owned a registered mark nor ever had to defend a trademark claim in court - or whom have a net worth that wouldn't buy a cup of coffee.
On the other hand, proxiedinternet.com IS still available Whether or not anyone could get away with has to be up to someone else besides me, though!
Yes, in my opinion they would win - but the most important point is that you have to choose your battles. Even if I thought they would lose, are you willing to spend $30K to keep the name? You don't get to recover that. Trademark law isn't about what you think is fair, or what is right, it's about the law and your risk/reward. Many times trademark cases are won by the company with the deepest pockets. If a company "thinks" you are infringing upon the mark, they can sue you - there is no disputing that. You must defend yourself in court unless you want a default judgment award against you. Does the domain or website justify spending tens of thousands of dollars? I own several registered trademark and have been involved in many trademark infringement lawsuits, on both sides, and one of the biggest mistakes is thinking that a trademark only protects the "exact" spelling - it can be much more broad. "proxify" is a made up word and those marks usually hold the most protection. Proxified is a variation of a made up word that is trademarked. They certainly have a legitimate claim that a person tried to ride the goodwill of their mark - whether or not they would win is unknown. Having used "proxify" on their site only makes it harder/impossible to argue they had no intent to do so. Also, it often isn't a the case of a big company picking on a little guy because they are worried about loss of income - when you own a registered mark, you are obligated to defend that mark. If you don't, you can lose the trademark by it becoming genericized i.e. Bayer's loss of a US trademark on a drug called.... Aspirin.
True, true. And in this case its not fair so proxifiedmyspace.*** will soon be up. Come and get me proxify suckers.
What's worse is posting them as supposed well-intentioned "advice" without bothering to check further. Ah well, it's peoples' risk whose "advice" to give weight to.