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Microsoft to sue Mike Rowe for Copyrights
An anonymous reader was among a host of submittors noting that a 17 year old named Mike Rowe has been sued by Microsoft for copyright infringment of their name.
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The Register should know better.
Shouldn't that be "trademark" infringement? I didn't know Microsoft had exclusive distribution rights to the series of sounds in their name.
I'd bet a nickel the reporter who wrote the first story and editor never looked up the difference between "copyright infringement" and "trademark infringement," and then the story was duplicated to other news services without anyone bothering to double-check it.
The phoenetic similarity may not be evident to someone that doesn't speak english natively...
No, they shouldn't.
The coolest voice ever.
Except this time the 'target' is a minor. I bet they didn't check that part. Now they're going to get raked over the coals for picking on a kid. :P
Ah well. Any bad press for Microsoft has to be a good thing.
www.lucernesys.comHorizon: Calendar-based personal finance
point is: not only /. posted this link today, but nearly every news-site in the world...
Phonenitics similarities aside, every time I speak "Microsoft" aloud versus "MikeRoweSoft" there is a difference in the phonetic spacing. Though that could just be because I want to find a difference. Personally, I serously doubt that anyone could possibly get the two companies confused. Though honestly I agree that his biggest mistake was to say that his domain was worth $X. Even thoug Mirosoft supposedly said they were willing to cover out of pocket expenses for the domain. Personally I'd like to see copies of these emails and letters.
Bork Bork Bork!!
"It seems that the big catch here is that Mike made a $10,000 offer to Microsoft ('s lawyers?), and that single act essentially made their case that it was a bad-faith registration."
The point is that it's not really down to the lawyers to decide, and it's going to have a hell of an uphill struggle trying to explain that 'Mike Rowe' was trying to use his chance grouping of syllables in his own name in 'bad faith', although he might've shot himself in the foot by admitting that he'd already thought about it.
However, now I'm thinking about names to register because a $10 cheque from Microsoft would be worth framing.
Oddly Draconis
Too cynical to live, too stubborn to die.
From the article:
He registered the domain in August because he thought it would be cool to have a site that sounded like the famous company to show his Web designing skills.
Well, that's exactly what a trademark is supposed to protect against; someone else using your brand-name for their own purposes. And because the way the trademark law works, Microsoft has to defend their trademarks; writing letters, suing; or else they risk the trademark being generic; free for anyone to use.
Microsoft may be an evil corporation, but I can't blame them for protecting their main trademark.
That the defendants name is Mike Rowe is interesting, but I personally think it is clear that mikerowesoft is intended to look alike and benefit from the name recognition of "microsoft". Mike Rowe can easily invent another domain name that includes his name and build his own brand name without leeching on Microsoft.
)9TSS
It was still dumb to send a counter-offer if one had no intention of selling it. (Though if I thought for a minute that one of my domains was worth that much to someone...)
"Learning is not compulsory... neither is survival."
--Dr.W.Edwards Deming
Instead he asked for 10,000 dollars so he appears to be extoring M$.
Smartest move ever.
Well, Mike is reassuringly candid and although we have not seen Microsoft's letter and the company has yet to confirm or deny its threats are real, it seems to hang together.
So The Register readily admits that they haven't seen a shred of evidence other than this kid's word that this has taken place?
Where does the school board find them and why do they keep sending them to ME?
As far as I understand he was not willing to sell, but if he had to he estimated that his cost for business cards, marketing, creating web presense etc was "at least worth $10000".
So he would consider selling the domain if M$ helped him regain that cost. IANAL but this sounds like a slam dunk for Mr Rowe.
I own maybe 7 domain names for various reasons. None of them were purchased with bad faith (eg, they're not designed to be similar to other companies or names, and as far as I know, none are). However, if someone came to me and claimed that I was infringing on their trademark, and offered me $10,000 for it, none of them are important enough to me that I wouldn't take it.
Likewise, if they came and offered me an absurd fee such as $10, it'd be a natural conclusion for me to counter offer something that I *would* be willing to sell it for. I'd say that there are few privately held domain names that there isn't some purchasing price for. Even corporately held domain names would come with a purchase price, though that price might lump in the corporation. Eg, if I offered Adobe $700 billion, I'm guessing I'd come away with a shiny new domain name, and probably a new office building filled with employees to go with it.
My point is that just because the kid *was* willing to sell the domain doesn't make it a bad faith offering. None of mine are bad faith, and I'd easily sell any of them for 10 grand.
Slay a dragon... over lunch!
The first and most important rule in ANY case where somebody is threatening legal action:
SHUT UP AND GET A LAWYER!
The second most important rule:
UNTIL YOU HAVE A LAYWER, STAY SHUT UP.
Suppose somebody contacts you and says:
"You are in violation of our copyright [sic] on our site - give us the domain or we'll sue!"
The proper response is something like:
"Very interesting - OK, please give me the contact information for your law firm, and I'll have my attourney contact your attourney. I prefer to have all furthur contact through my attourney, so please route everything through your legal group."
If they persist in contacting you directly, inform them firmly that all furthur contact should go through their attourney to yours, and any direct contact is harrassment.
In a case like this one, where you ARE being contacted by the other side's legal department, then you should GET AN ATTOURNEY LICENSED TO PRACTICE IN YOUR AREA. First thing. Then route all contact through him.
Otherwise, shut up - say nothing to the other side. While it may be a civil matter rather than a criminal matter, remind yourself that "Everything I say will be used against me in court."
www.eFax.com are spammers
Send the Register link to all your friends. This guy's only chance is turning this whole situation into a PR nightmare for m$. "Big bad corporation suing bright eyed teenager". I'd love a little report on the Daily Show on Comedy Central about this for starters.
Hook, line, and sinker.
When a company with as dubious a past as Microsoft attempts to take legal action against you, you should IMMEDIATELY consult with a lawyer before even gracing them with a response. It's similiar to being arrested (not that you can ever prove I have been). "Anything you say and do can be used against you." Or whatever the Canadian equivalent might be.
Seriously though. I didn't get the lawsuit until I actually read in the article that the supposed infraction was mearly phonetic. How many people pronouce things online?
And seeing as this Mike Rowe has ownership over his name and plans to study computer science and makes no mentions to MS on his site, the case seems pretty clear to me. It usually takes a lot for WIPO to overturn ownership on a website, and I don't see any clear evidence that Mike Rowe was cybersquating. Come on, phonetic spelling in a written medium? And I'd just like to know how MS found his site in the first place. Do they have a phonetical analyzer?
Why, o why must the sky fall when I've learned to fly?
Their point is that he could just register a new domain name, change the URLs, and keep all the work he put into the content.
They don't want the content, he can take that with him.
It's like parking next to a fire hydrant, they are saying move along, take your car.
And all you flamers who don't read very carefully, note that I make no mention of whether M$ is doing the smart thing, the right thing, the correct thing, or anything.
Infuriate left and right
Don't make them an offer. It seems that the big catch here is that Mike made a $10,000 offer to Microsoft ('s lawyers?), and that single act essentially made their case that it was a bad-faith registration.
Wow, there are already 3 or more +5 comments regurgitating this crap from the article. I don't buy this for a minute. Everyone has their price, and it shouldn't be an act of "bad faith" to name it.
Take slashdot for example. I doubt I could buy the domain for $10, but I bet valinux would be perfectly happy to sell it to me for 1 billion dollars. That's the reality of the situation. I fail to see how stating that reality is an act of "bad faith".
The only reason arguments like this work is because the other side doesn't have the resouces to fight them. It has basically nothing to do with the validity of the actual claim.
Life is too short to proofread.
The only way that this could be wrong is on Slashdot... Opening a restaurant called MickDonalds wouldn't be acceptable nor would a WaltMart. But hey... this is Slashdot! Right or wrong everything Microsoft does is hated >>:[
Microsoft made an offer; Mr. Rowe simply made a (perfectly legal) counter-offer. If Mr. Rowe had written microsoft and said "I'll sell you my domain for $10K", it would be evidence of a bad faith registration. Instead, Microsoft initiated the transaction by sending an offer letter, so any response or negotiation related to that initial offer is in good faith.
Why is it that the proponents of "one nation under God" are so eager to get rid of "liberty and justice for all"?
Many posters have mentioned that he screwed up by offering to sell the domain to MS for $10,000. (Why these posts have all been modded up when all they've done is re-state what the Register article says is beyond me. I guess moderators don't RTFA either.)
What he *should* have done when they offered to reimburse his out-of-pocket expenses (the $10) is ask for $10,000 to cover his costs not only for the domain, but also for the original marketing research he used to choose an effective domain name, the logo development, marketing expenses related to generating traffic to his website, his legal expenses, etc.
---------------------------------------------
SERENITY NOW!!!!!!!!!!!!!!!!
You also have to recgonize that Microsoft owns the trademark rights to the name "Microsoft" (or things that sound like it or are spelled like it).
Right or wrong, like it or not -- Microsoft has an obligation to their shareholders (you know -- the quarter million or so people who actually own the company) to protect its trademark from dilution. If MSFT loses, legal/management can say "fuck it, at least we can tell our shareholders that we did our best to protect their best interests".
Their offer to buy mikerowesoft.com out (for peanuts) was just a way to sidestep the trememdous costs associated with a lawsuit. Say after a lenghty lawsuit MS buys this kid's domain for $10,000. Is Mike Rowe really going to walk away happy after a half million in legal fees? That leaves him with a loss of $490,000.
BTW -- how is this about Microsoft promoting their power? By power, do you mean their bottom line? And since when have capitalists ever been driven by promoting capitalism itself? I'm a bit boggled by your logic. Capitalists are greedy and self serving...that's the point of capitalism. The system is designed so that society is able to benefit from the profits generated by the businesses (thus harnessing the power of individual/collective greed). Maybe I'm misunderstanding you...perhaps you should elaborate.
-Turkey
This is different from the nissan.com case--the owner of that domain didn't choose the name because it was like the car company's name--Mike Rowe openly admits to choosing the domain because it sounded like Microsoft. I doubt he has a registered trademark on "MikeRoweSoft" either.
it seems pretty obvious that, since he was actually doing something with the site, was actually using it, that his intent was not merely to turn around and sell the name, he was not just "squatting." every domain squatter i've ever seen buys domain names en masse and puts up a generic page saying, "this domain is for sale;" that's clearly not the case here.
he agrees that he thought the phonetic similarity to "Microsoft," a bit of wordplay, was amusing, but that's a separate issue.
his site didn't look like a Microsoft page, didn't offer the same services or products as a Microsoft page, in short, had nothing in common with Microsoft's website. there's no way that anybody with enough intelligence to recognize that the little plastic mouse moves the cursor on the screen could possibly confuse the two.
summary: he was not squatting, did not act in "bad faith," and is no threat to Microsoft in any way.
shame on you, Microsoft.
if i'm a grammar nazi, you're an illiteracy nazi.
It says in several places that he offers web site services. IMHO that means he is offering computer services under a name that is intentionally to be mistaken as microsoft.. He uses that entire domian name as his business name Mikeroesoft. He is NOT selling software as far as i could find (site is slashdotted for me now too) so why would he have soft in his name? OHHHH thats right, to mislead and use microsoft's name. It couldnt' be any more deliberate or obvious really. If this goes to court he'll get laughed at and lose potentially a lot of money.
IANAL:
The way I understand copyright law is that they can't sue for a breach, since he's not using their name, he's using MikeRoweSoft.
They may be able to say that he is deliberately trying to cash in on the similarity of the name, but if his name really is Mike Rowe, then he has every rigth to name his company Mike Rowe Software (some similar) and use the domain MikeRoweSoft.com
Soft is very common for many companies. This is especially true if the kid is a software designer. Perhaps Mike wanted to put up demos of programs he has created.
The problem is with companies claiming ownership to everything under the sun even remotely related to their trademarks.
If the domain with micrasoft or something similar I'd say it's a scam. I highly doubt anybody would misstype microsoft as mikerowesoft and end up at the wrong site.
Actually, it probably IS copyright that Mike Rowe
is being sued under, and here's why. Under
Canadian trademark law, a person is allowed to
use his or her own name. Smart & Biggar
are, I am sure, aware of this. That is probably
why they are trying to sue for copyright infringement.
The fact that they are making such a stretch
just shows how weak they feel their case would be
in an action for trademark infringement. So
it could be Mike Rowe stands a good chance after all.
Clearly the cargo company is playing off of Wells Fargo's reputation for secure transport. I suspect that the only reason they didn't get sued into the ground over violating the financial institution's trademark is that the founder's name is Maynard W. Wells.
I think using your own name in the mark offers you a fairly high degree of protection, for all the common sense reasons posters here are so quick to point out. So from a trademark dispute standpoint he might have a defensible case, although there's a big question mark regarding his ability to finance such a defense against Microsoft's horde of lawyers.
In any case he's almost certainly going to lose his domain name. ICANN has a long and unblemished history of spinelessly caving in to the demands of large corporations.
You're forgetting something really important here. First of all, the name White House is not trademarked by be the federal government. If you don't believe me -- check!
Secondly, the federal government is not a commercial entity (although it's probably the largest employer in the country and has insanely high revenues). The federal government has no responsibility to its shareholders and it has no trademarks to protect.
Finally, the fact that Mike Rowe is setting up a web design firm to sell consulting services (in an industry directly related to that which Microsoft does business in) rather than a porn site is the crux of the issue. They feel that he's diluting their trademark. What if I sold a soda called Caouk-ah-Coula? Still sounds just like Coke-a-cola, and a vendor at the ball game yells the same thing out loud, regardless of which product he's selling.
Like I said in my earlier post. I don't necessarily agree with what MSFT is doing, but I can certainly understand.
-Turkey
Allow me to edit #2 for ya there:
2.) put another few letters on the end, thus ensuring that the name sounds like a trademark, then put dot com after it.
"Derp de derp."
"...his domain would confuse Microsoft customers."
So microsoft is implying that their customers are so stupid as to confuse microsoft.com with MikeRowesoft.com? I sheepishly admit that i'm a microsoft customer and seeing that i've admitted it here, my browser admits it at every page and my undisclosed e-mail program admits the fact - microsoft has implied that I, like millions of other microsoft customers are morons.
With these facts brought to light I hereby bring forward a class action lawsuit against microsoft for slander and defamation of charachter.
Seriously, how can i e-mail my resume to a potential employer without their reading my mail header and instantly assuming stupidity due to the use of microsoft products? how many times will my resume, created by an undisclosed microsoft product, be passed over when a potential employer reads the html source code and notices that i'm a microsoft idiot?
I'm appalled offended and I won't stand for this horseshit.
Now, I'm sure that's not what really happened, but I think it would have been better if Rowe had not made an explicit offer. It could potentially be used against him later. Far better to simply do nothing, I think (except of course to call a lawyer, although I know that's somewhat difficult for a 17-year-old to afford).
- Do the two companies sell similar goods/services and are the names used for those similar goods/services?
- Are the names similar?
- Are the goods/services marketed in the same or similar channels of trade?
- Was there an intentional infringement of the trademark (i.e. to benefit from the credibility or visibility of the established trademark)?
In addition, some other criteria might include:- Is there proof of customers being confused by the names?
- How widely known the names are (federal trademark protection is typically extended to those who engage in interstate commerce).
- Would a reasonable person confuse the two companies?
Where things become dicey for Mike Rowe is if the following is true (from the article):"He registered the domain in August because he thought it would be cool to have a site that sounded like the famous company to show his Web designing skills."
This intention would likely violate the tenet of trying to benefit from the established name's reputation, economic value, marketing, etc (and regardless of your feelings about Microsoft, there's no disputing that the name Microsoft is well recognized with considerable economic value and economic goodwill). If Mike Rowe just had a software company called "Mike Rowe Software", he'd likely be ok (since usually, it's very hard for a company to strip one of their legal name) since most people know how Microsoft is spelled (a consequence of the widely known name)...and new customers would likely be quickly debunked of any confusion...not to mention I think there are any number of spellings tha people would try before getting to MikeRowe. Maybe MikeRow, MikeRoe, MicRow, etc...but Rowe is not really a common spelling of a common word...but more often a last name.
The counter offer is not unreasonable (names are sold all the time if there's no infringing trademark but similar sounding names - yes, that's very possible and happens all the time).
His minor status might give him some leverage PR wise - but it might also invalidate his registration depending on Candian contract laws (since the registration of a domain name is a contract and typically, contracts entered into with minors without a parental/guardian signature are usually unenforceable). On a PR basis, Microsoft can probably absorb this (especially since he's a 17 year old with a business...typically shows sophistication that most people will use to overlook the PR issue).
Anyways, some thoughts...I hope he get's to keep it if he wants it - and if not, at least get reimbursed for the cost of registering a new domain name and alerting all his customers (and perhaps fixing all his marketing). Contrary to popular opinion, reimbursement for the hosting, time to create the website, etc are not likely reimbursable (the only infringement is the name - and there's not evidence the site's design is tied into the name).
At the age of 17, can Mike Rowe legally negotiate the sell of the domain name without the authorization of his parents? He should try to back out of his trapped position stating an his age as a factor. Can microsoft legally negotiate with a 17 year old or is this in its self illegle?
You don't own the copyright to your face, but you can argue that including you in a game without your permission falsely implies you are endorsing it.
Well it isn't quite as simple as that. The game of cat and mouse between companies over brands has been played out for a number of years and there are plenty of ways of ways that Microsoft could tackle this domain.
:-)
Off the top of my head, I would have thought Microsoft could say:
1) This is trademark infringement - the name is confusingly similar.
2) They could say the domain registration was made in bad faith (Mike Rowe is aware of the Microsoft name and has registered a domain which he knows is similar to theirs).
3) They could accuse him of passing off (trading off their reputation - not sure if any product is sold at the MikeRoweSoft site).
4) If he provides any services based on microsoft products, he could be accused of reverse passing off (passing Microsoft's products off as his own, hence enhancing his own reputation).
5) They could accuse him of damaging their reputation (although I'm guessing their customers are unlikely to mistake his site for theirs).
There are probably a dozen other things, but you get the idea.
BTW, you're assertion that Mike Rowe can setup a company because it is his name isn't true. How far do you think i'd get setting up a company using my name which had anything to do with motor cars? They'd be lawyers parachuting out of the sky...
Have you read 1984? If youlet them redefine your language you let them control the agenda. The current US government is definitely capitalist, but definitely not pro free market (consider the trade barriers they throw up when asked by their backers, and consider all the extra subsidy Shrub put into agriculture).
classical liberalism is now often called libertarianism in the US.
No, liberatarians are anti-government in a way that liberals aren't. One of the defining causes of liberalism at its height was universal sufferage (the other two legs in the UK were repeal of the corn laws, and home rule for Ireland, I don't know enough US political history to point up parallels).
_O_
.|< The named which can be named is not the true named