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I Received Cease and Desist???

Discussion in 'Legal Issues' started by EmmanuelFlossie, Oct 5, 2013.

  1. #1
    Yesterday I received this shocking email from markmonitor.com Claiming i'm infringing a copyright on one of my domains. As I don't agree with what they say I sent Tumblr an email (awaiting response). My site has nothing to do with Tumblr, im not copying, im not doing anything similar.

    My site does ad network research.

    I would like to receive some help in this, as im running an opensource site I don't see what i'm doing wrong.

    I can't post the url but if you do some research you will find which site im talking about.



    ---------- Forwarded message ----------
    From:
    To: ccc
    Cc:
    Date:
    Subject: Unauthorized Use of Tumblr, Inc. Properties - ccc- Second Notice
    This letter is being written to you on behalf of Tumblr, Inc. (“Tumblr”). Tumblr is the exclusive owner of all trademark and other intellectual property rights in and to the TUMBLR and T trademarks (the “Trademarks”), including the stylized TUMBLR and T logos. Tumblr owns trademark registrations for the Trademarks. Tumblr uses the Trademarks in connection with, among other things, its publishing platform for online media, Internet-based social sharing and media network services, and mobile applications, and these marks have become firmly associated with Tumblr in the minds of the public. Based on the foregoing rights, it is a violation of federal and state law for others to advertise, utilize, offer for sale, and/or engage in services in connection with the Trademarks without the express written permission of Tumblr.

    It has come to our attention that you have registered the domain name(s) listed below and are operating an active website at such domain name(s):

    ccc

    Your selection and use of the above listed domain name(s) creates the impression that your website is an authentic Tumblr website, when in fact it is not. The Tumblr name and mark is fanciful and strong and entitled to a broad scope of protection. There is no other reason for registering a domain name incorporating the Trademarks other than to trade off the established goodwill in the famous name and mark TUMBLR. Consumers are likely to be confused that the domain(s) is somehow associated with or sponsored by Tumblr when it is not.

    Your use and registration of the famous TUMBLR name and mark constitutes counterfeiting as well as infringement of Tumblr’s trademark and service mark rights in violation of the Federal Trademark Act, 15 U.S.C. § 1051 et seq. and constitutes common law trademark infringement and unfair competition under state law. Your actions are also in violation of the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d). Accordingly, you may be liable for up to $100,000 per domain name registered.

    We therefore demand that you immediately cease and desist from infringing Tumblr’s intellectual property. To that end, you must:

    1. Immediately deactivate the website located at:


    2. Do not sell, offer to sell, or transfer the domain name to a third party;
    3. Let the domain registration expire; and
    4. Immediately cease using the famous name and mark TUMBLR and any other intellectual property owned by Tumblr or any other intellectual property confusingly similar thereto on any other Internet web sites that you run, or otherwise in connection with your activities.

    The demands herein are not made to the exclusion of other rights or remedies to which Tumblr is entitled, and nothing in this letter, nor any act or omission by Tumblr, shall limit those rights or remedies, all of which are expressly reserved.

    Very truly yours,

    Global Brand Protection, Tumblr, Inc.
    SEMrush
     
    EmmanuelFlossie, Oct 5, 2013 IP
    SEMrush
  2. terrymason

    terrymason Well-Known Member

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    #2
    I would not spend any time worrying about an email. No real lawyer would operate that way. If you get a letter in the mail then that's a different story.

    I also would not respond to an email. All that does is acknowledge that you received theirs.

    At the end of the day, if they can blast out a bunch of emails and get people to take down their sites then they see that as a win.
     
    terrymason, Oct 5, 2013 IP
  3. EmmanuelFlossie

    EmmanuelFlossie Active Member

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    #3
    Thanks for the reply terrymanson, I can start relaxing again now, and have a good weekend.

    After i posted this thread I looked up if anybody else received this email without any correct reason. And found this guy got a reply from Tumblr apologizing for the inconvenience. So that made me relax even more :)

    This is the site i found > http://istumblrdown.com/
     
    EmmanuelFlossie, Oct 5, 2013 IP
  4. matt_62

    matt_62 Notable Member

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    #4
    I am wondering if it is an automated message sent out by bots that seek out domains that have the word "tumblr" in it.
    No doubt the site that got away with it, did so due to no earnings, and if your site has ads, it may not go down very well.

    I do not know the right answer, but ignoring the message is definitely not it. Perhaps, take the site offline, just for a day or two until it is either resolved, or you find the right LEGAL answer.
     
    matt_62, Oct 5, 2013 IP
  5. terrymason

    terrymason Well-Known Member

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    #5
    You are infringing on their trademark, and when they do go after you they will win.

    I'd get a new domain and be prepared to repoint the current one.

    Using a companies trademark in your domain name isn't a good idea.
     
    terrymason, Oct 5, 2013 IP
  6. fgro

    fgro Member

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    #6
    It maybe automated cease and desist letters, tumblr or any business entity usually outsource this task. Depending how you use the domain their case maybe legitimate, at least ask for clarification what is infringing in your site.

    more info : http://www.chillingeffects.org/domain/faq.cgi
     
    fgro, Oct 5, 2013 IP
    matt_62 likes this.
  7. EmmanuelFlossie

    EmmanuelFlossie Active Member

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    #7
    Thanks guys, I'll await for Tumblr's response. Why i'm in violation according to there 3rd party "markmonitor"

    Hopefully they will see there is no connection with my domain to there site.
     
    EmmanuelFlossie, Oct 5, 2013 IP
  8. Arick unirow

    Arick unirow Acclaimed Member

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    #8
    I have very nice conversation (in the past) with someone (could not mention the name) about MarkMonitor.
    MarkMonitor is a company which specially designed and built to protect the trademark and copyright. The company work only with big company and offer protection for many things. If I didn't wrong, the company is working with famous search engine and big companies that respect legal things.
    MarkMonitor were working with Big G to scan any contents available in each server and make report based on the crawling process (I couldn't verify it but most webmaster would be aware with Google and MarkMonitor bots crawling the sites to find any 'copyrighted files/stuffs'). If you carefully looks at the IP, both of Big G and MarkMonitor use the same IP. :)
    There are lots of rumors that the company would do anything to protect their clients. There is good reason why big companies trust MarkMonitor. For small sites and webmaster whom 'doing nasty things', they may start to make lots of report in many search engine that would bring down not only the sites/domains which infringe their clients but also would make all the sites operated by the individuals to be 'burnt and ranked lower' in many aspect. What more worse is the company would try to find any associated profiles and use it for further actions. But all of them were just rumor and don't ask me whether it is right or wrong.
    MarkMonitor is trusted and very respected company. It would bring lots of solutions to their clients and it is up to the clients to choose any actions. Most clients would not take legal actions and let the case being managed by the company. If you ask me how Markmonitor solve the case, "They solve it quite smart and efficient". :D
    So what should we do if we deal with MarkMonitor?
    In my opinion, MarkMonitor is a company which offer protection (and actions) to their clients just like as another big companies which offer the same thing. Just make sure not to infringe the trademark and everything would be easier. All of us didn't want our products/services/stuffs infringed by the others, right? :)

    By the way, Don't think too much this comment. It just an opinion. I write it with my limited knowledge so most of them (if not all) may be not correct. :)
     
    Last edited: Oct 5, 2013
    Arick unirow, Oct 5, 2013 IP
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  9. EmmanuelFlossie

    EmmanuelFlossie Active Member

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    #9
    Ok a different question as I have a backup plan another domain that is 10 years old. I am wondering if somebody could take that domain if they trademarked there brand 10 years after my registration. Surely they cant demand me to close down my site. This site would be a blog with adsense.

    Because otherwise all trademarks could start hogging all domains that are 10 years old
     
    EmmanuelFlossie, Oct 5, 2013 IP
  10. Arick unirow

    Arick unirow Acclaimed Member

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    #10
    If the domain was registered earlier than the trademark, there is no worry about it. It even a plus because We could hand over the domain for higher price (if it is necessary). :)
    Just make sure to protect the domain/stuffs with 'lots of protections' such as legal terms and special privacy policy along with exclusive notice.
    However, most company surely will do lots of research before they choose the name for their brand. Most of them will only choose name which is not being used by anyone.

    The key to solve any problem is communication. :)
    Make sure to explain about the domain/stuffs and the reason why We use (register) it. It would be helpful if we could explain the difference between our domains/stuffs with the products from their clients. If everything else didn't work, just communicate directly with the clients who hold the copyright/legal trademarks. Carefully explain to them if the domain/sites/stuffs were not being used for bad things and 'would' behave just like their partner that will support them in many aspects.

    About creating blog and use Adsense in domain/sites which has the possibility to infringe legal trademarks, I couldn't answer that question because I am not professional in that field nor representatives of the Adsense. However, I hear the rumor if they didn't like any sites/domain which possibly infringe legal trademark/copyright of the other parties. It always risky to develop any sites/domain which possibly infringe the others.

    I am not person with lots of knowledge in legal stuffs and law related things. I believe other would give you better advice to solve the problem. :)

    Arick.
     
    Arick unirow, Oct 5, 2013 IP
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  11. EmmanuelFlossie

    EmmanuelFlossie Active Member

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    #11
    Thank you for taking the time and effort to respond to my queries.

    I think what I will do, to solve any headaches is to start setting up my old domain name so that it is ready. Because i don't want to build up a site and than after 5 years when Tumblr said it was ok, to change there minds and demand to take it down. My other site uses common words so nobody can trademark that :)

    Kudos @Arick unirow
     
    EmmanuelFlossie, Oct 5, 2013 IP
  12. Arick unirow

    Arick unirow Acclaimed Member

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    #12
    Best of luck to you. I think you already choose the right path. :)

    Arick.
     
    Arick unirow, Oct 5, 2013 IP
  13. Dave Zan

    Dave Zan Well-Known Member

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    #13
    Believe it or not, many lawyers and law firms (especially in the U.S.) have been sending notices via email for years. Just because they traditionally send notices via postal mail, it doesn't mean they can't do that via email.

    In fact, none of them have to send C&D notices in the first place. They can always file legal action and then notify their respondents about it via mail.

    Generally, a domain name that is registered before its trademark namesake existed can withstand TM claims. It's if you do something that essentially acknowledges the TM's existence after (i.e. adsense shows competing products/services of TM) that can get you into trouble.
     
    Dave Zan, Oct 5, 2013 IP
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  14. matt_62

    matt_62 Notable Member

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    #14
    im not certain that your arguments are correct. have you guys checked out nissan.com? (I realise this is slightly different in that both companies have a legit claim to the name, in your case, you might not have such an established claim) So yes, you might legally get away with it, but you might still have a legal battle, one that may not be worth the fight in the first place.

    Perhaps what we should be doing, is once we have sites that earn decent levels, get a trademark to protect your sites identity.
     
    matt_62, Oct 5, 2013 IP
  15. browntwn

    browntwn Illustrious Member

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    #15
    This is ignorant and completely false.
     
    browntwn, Oct 6, 2013 IP
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  16. EmmanuelFlossie

    EmmanuelFlossie Active Member

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    #16
    Thanks again for the update, I have decided even if Tumblr says it's ok for me to continue, to use my 10 year old domain. Nobody can claim that site. I'm a little sad, but this is a learning curv. And for everybody out there even if you intentions are good. People still want to bully you! So be safe than sorry.

    The best way to learn, is to learn from your mistakes. And luckely im still in low traffic with my sites. So the redirect will be pretty swift.
     
    EmmanuelFlossie, Oct 6, 2013 IP
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  17. monkeye

    monkeye Member

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    #17
    This is wrong.
    I manage a webhosting service and I get Copyright Infringement Takedown Notices all the time.
    If I were to do nothing about them as you suggest, my domain name would be suspended as quick as a wink.
     
    monkeye, Oct 6, 2013 IP
  18. fgro

    fgro Member

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    #18
    email is a method of communication, so it's a valid medium for lawyers to use.
     
    fgro, Oct 6, 2013 IP
  19. it career

    it career Notable Member

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    #19
    Mark the email as spam.
     
    it career, Oct 6, 2013 IP
  20. Dave Zan

    Dave Zan Well-Known Member

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    #20
    And then you don't get someone's email that you've been actually sued. Great idea.
     
    Dave Zan, Oct 7, 2013 IP