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Handling Accusations of Trademark Infringement?
Dredd2Kad asks: "Recently I've been accused of trademark infringement because of something in the metadata of my website. What are my rights? Should I stand and fight or let it go? Part of me doesn't care, because my website is nothing but a special interest group, the other part of me is mad as hell that someone has come to my place and threatened me. I feel the plaintiff chose to trademark something really generic (HardRadio), and my choice of metadata (hard radio) should be allowed some wiggle room, especially since I'm not a commercial entity like they are. Please read
my story and let me know what you think. I know someone out there must have had a similar problem." In addition to seeking professional legal advice, what other steps can one take to handle these problems?
Get you page slashdotted -> problem solved
Why is anything anything?
Step One. Seek professional legal advice.
Step Two. Disregard all advice that you might get on slashdot, with the exception of the people who tell you to:
Step Three. Seek professional legal advice.
Step Four. ???
Step Five. Profit!
"It's not hard, Radio is easy to use."
If you are one in a million, then there are six thousand people who are just like you.
Really, you are probably better off just pulling the tags for now - they are obviously a company with a bit of an ego. There doesn't seem to be any value (you yourself mention that having it in the meta tags has no effect on the site at all). This is just not worth putting up the fight.
While I do see it as a hot-headed company bent on protecting their so-called "IP", and there is certainly merit in standing up for what seems like a silly dispute. I think it best to just lay down your weapons and call for a truce.
Of course you could pull a Dave Barry and post contact information for Tracy Barnes, thus leveraging the might of slashdot against him.
Make it obvious that your metadata is not intended to infringe on the HardRadio trademark by changing it.
Change "hard radio" to "hard radio (Important note: hard radio is not intended to infringe on the trademark HardRadio)"
That should make your intent perfectly clear.
Blogging Weight Loss, Distance Education, and more at verlin.com
It's unlikely that they will really sue you. Just saying a phrase doesn't constitute trademark infringement. Since you're not a commercial site, you're not really engaging in trade. The cost of suing you, given the fact that the case is hardly slam and dunk, would certainly outweigh the benefit -- especially since, if you're sued, the phrase "hard radio" will be google-immortalized to your page from all of the bad press they'll get. (The final irony!) I say, make sure you don't spend any money on it, and wait for them to at least actually sue you before you start worrying about it (this strategy worked for me). Sending threatening letters from lawyers is really cheap, and everyone who doesn't like being bullied should be working to make it more expensive.
By the way, "legal action" within 48 hours sounds an awful lot like barratry to me.
the commercial and personal domain spaces should be completely separate.
Companies get to do whatever companies do in the commercial space, and have no rights in the personal space, and vice versa.
Don't mod me down - insult my intelligence instead! Come on, you know you want to.
Google gives it almost no weight (descriptions get a little bit of weight, but keywords almost none), and neither does any other modern search engine. It was just too easy to abuse, so they rightly dropped the idea. I'm not saying you necessarily need to give up your fight, but you're fighting over an antiquated piece of search optimization.
This should be pretty easy to fight. The company HardRadio(tm) doesn't own trademarks on the words "hard" or "radio", but on the single term "hardradio". Alternatively, would they drop the suit if you changed your metadata to "radio hard"?
Having said that, I didn't say it'd be quick or inexpensive to fight. :-)
Ita erat quando hic adveni.
Donald Trump said in his first book, The Art of the Deal, that if you don't stand and fight when someone wrongs you, you will be seen as weak, and the vultures will have no problems trying to screw you over and over again. I firmly believe that -- and, hey, a guy worth billions is worth listening to, IMHO.
Ask for proof that they have registered "hard radio" in addition to the one-word bumpycaps "HardRadio". Ask for proof that in addition to "HardRadio" they registered "hardradio". Ask if they are claiming the words "hard" and "radio" individually. Ask if they are claiming "radio hard". Use your imagination.
Ever heard of a brand called Asprin? They didn't protect their trademark, now it's generic and they've lost it. When I used to read Writer's Digest, I saw ads from Chrysler (who owns Jeep) specifying that Jeep was a vehicle made by a specific company, and asked (paraphrased), "When you're writing, remember, it's not a Jeep unless it's made by Jeep." (As opposed to calling a Suziki Samuri a jeep -- small j.)
Companies have to do this. They have to prove they are aggressively defending their trademark, or they could lose it. That's happend with a number of companies. Another example -- Xerox. In many offices people say, "Please xerox this." (Note small X at start of word). This could lead to xerox, as a word, meaning to make a copy. If it continues, Xerox would lose the trademark for their name, which could hurt them. After they've spent years and millions building up brand recognition, if the name is considered generic, any company could come in and capitalize on the benefit of the name.
Contrary to what some people are saying, this does not mean a company has a big ego -- they're just doing what they need to do, and it is even possible it is automated so there may not be any human even aware of your situation.
You could just change the tags, which would be easiest, or you could even write a response, explain that you are using the two words (instead of one combined word), and you might even ask if you could have permission to continue to use these words in this fashion.
I know it's frustrating, makes you feel violated, and seems pigheaded, but they're just doing what they have to in order to protect their investment. Don't blame them.
It still baffles me that anyone can claim rights to a word or phrase that they didn't make up on their own. I say fight it to the best of your ability, and fight with knowledge, for knowledge truly is power. Those jackasses think they can squander on anyone who puts two words together and write threatening letters... just say the word, and I'll send my army of ninja warriors to teach them a lesson!!
"Would you rather be right, or happy?"
Did you read the letter he sent to them? For one thing, using the phrase, "Fight For Rock isn't even a pimple on your ass" isn't exactly the best way to present yourself as a respectful person interested in calm negotiation.
Also, I found this comment funny, "So I've decided to contact some legal experts and do some research so I can know exactly what my rights are." All right! I've always wanted to be a legal expert.
There are several other glaring grammatical issues in there too. I find this one of the worst things he could have done. Why in the world would you fire off an angry, inflammatory letter to them and then seek legal advice?
We may experience some slight turbulence and then...explode. -Capt. Mal Reynolds
The funny thing about trademark law is that you can loose your trademark if you don't send out threatening letters like our FightForRock admin got. Combine this with a company that has a trademark that is very close to a generic term (and generic terms are not trademarkable) and you get a legal department that is pretty much forced to by hyper-paranoid about trademarks. This leads to a sort of little-big-man syndrome, where the company acts like it thinks everyone is picking on it. So HardRadio has a chip on it's shoulder. FightForRock accidentally stepped on their shoes, and now HardRadio has been forced into a legal pissing contest. What do you do when the short guy gets all pissy at you for no good reason? You can either kick his scrawny ass (which is usually more trouble than it's worth) or you can smile and apologise for whatever minor thing set him off and be on your way. Those are pretty much FightForRock's options. I don't see that HardRadio really has a case, but it's probably more trouble than it's worth to kick their asses in court. ------- P.S. This post was designed specifically to propogate negative stereotypes about short people. Tall Power!
At the bottom of the page with the metatag, wirte in smallest possible font something like: "Disclaimer: All rights of the herein mentioned trademarks are the legal property of their trademark owner" - in light grey or something.
Perhaps, instead of going after FightForRock.com who, admittedly, is making no money for them to get, they should start searching the web for all the big "Hard Radio" stations out there and sue them for trademark infringement. I know of two in my area alone that use the term Hard Radio all the time in both ads and print media.
My advice is to go to a trademark lawyer and ask him to review your case. Chances are they can make you stop using "HardRadio" but not "Hard Radio". Of course, with the Microsoft and Lindows thing going on who knows where they might stand. Talk to a lawyer.
Anthony
Anthony Papillion
Advanced Data Concepts, Inc.
"Quality Custom Software and IT Services"
What about these guys?
Maybe you can sic them on each other...
;-)
--Phillip
Can you say BIRTH TAX
Sadly you're probably in the wrong.
I think that the courts have ruled incorrectly on metatagging, but there's not a lot we can do about stupid judges.
May we never see th
Change it to "die hard radio" and tell them to get smarter customers.
Or... change it to "hard radio sucks" and claim first ammendment rights to expressing an opinion.
In short, the sky is the limit to the number of ways to screw with them.
--Phillip
Can you say BIRTH TAX
and
You get into trouble with the last bullet item. Your website also broadcasts music information via an electronic computer network. Someone else mentioned "Aspirin", and the fact that companies have to aggressively defend themselves against dilution of their trademark, so they pretty much had to go after your goofed metatags.
You might be able to defend "Hard Radio", but that is where a real Trademark Attorney would come into play.
You never really know how far things like this can go. For example, this recent Supreme Court case was decided in favor of the little guy, but three courts ruled against the little guy before the Supreme Court overturned them all. And the Supreme Court even said that they had to prove that there was confusion and dilution - if they really do have customers who complained to them that they found your site while searching for theirs ...
Either change it, or see an attorney.
Chivalry is not dead, it's just frequently misspelt. - M. Langley
I would qualify that with two points:
Seek GOOD legal advice, i.e. from someone who deals with these types of issues; and
If you can't afford good legal advice (it is going to be expensive) then if you can avoid this whole issue by simply changing your website that would be much simpler and MUCH MUCH less expensive.
Principles are good, but litigation is EXTREMELY expensive and a huge pain so it is best to avoid it at all costs if you can......
--Kobayashi--
They are no longer claiming trademark infringement. They are claiming trademark confusion and dilloution(sp). It's the exact same thing that Microsoft(tm) is doing with Lindows. They aren't really saying Lindows is infringing on the Microsoft Windows(tm) trademark but rather that they are creating brand confusion.
So even though FFR might not actually be infringing on the HardRadio(tm) trademark, they might still be ruled against because they are creating brand confusion. Asking questions to the lawyers as suggested wouldn't tie the lawyers. It would just show that he has no idea what he's doing.
Anthony Papillion
Advanced Data Concepts, Inc.
"Quality Custom Software and IT Services"
Change "hardradio" to "hard radio" in your meta data.
Compose a clearly written letter telling the infringed to fuck themselves.
Keep checking Slashdot for advice, on all topics.
ROCK ON DUDE!!!
Many search engines (I think) treat commas and spaces in meta keywords the same, as many sites are inconsistent in whether they use commas or spaces to delimit single words. Repeated words can actually hurt your ranking. So taking out "hard radio" may actually have a positive effect on your search ranking since those words appear elsewhere. It's very unlikely that they'd take action against you at that point.
I agree that they are acting like assholes though. Most infringers worth worrying about are a lot more blatant. The company I work for encountered a website with our company's name and the names of several competitors in a hidden list (white on white), with insults for each that would only show up in search results. We didn't take legal action, but we did email them and email a link the dozen or so of our competitors who were also infringed upon. Got a long winded apology and the list was removed.
Start listening to Acid Jazz.
You'll find the jazzers a far less aggressive crowd to run with - no proxy violence via lawsuit. And there are actually real, live girls that will hang around when you play this stuff.
"Flyin' in just a sweet place,
Never been known to fail..."
Try changing the order of the keywords in the META tag. It might be harder if you use "radio hard", or if there are other keywords try "hard radio".
Or you could just drop the keywords.
It's good to use your head, but not as a battering ram.
I got a nastygram from one of my competitor's lawyers for using their client's trademark as a metatag. They advised that in Brookfield Communications, Inc. V. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999), a jury awarded Brookfield Communications excess of $1,000,000 for a metatag infringement.
So yes, at least in the 9th Circuit Court jurisdiction, you have a problem.
I am not a lawyer and this is not legal advice.
"Eve of Destruction", it's not just for old hippies anymore...
When the revolution comes the lawyers will be the first against the wall
Type unto others as you would have them type unto you.
Right up to the paranthesis
What does that have to do with anything? It's not like he's running a business where someone's trying to get to his assets?
You Americans have got to stop worshipping false gods.
(Boy, do I look forward to getting flamed)
... to my local radio station!
/empaler
Too bad I live in another country.
Vice President of Danish Ninja Party
I thought that was the mimes... And before the mimes, I thought it was the Jehovas... and before the Jehovas, I thought... [etc]
Why are you so particularly attached to having those words in the metadata? Search engines don't look at that shit anymore, they have gotten more sophisticated. Unless you feel like spending $$$ on lawyers to affirm your right to having that stuff in your metadata, just remove it. It's a lose-lose situation, so minimize your losses.
If he's stupid enough to ask slashdot for legal advice, maybe we should tell him *NOT* to get a laywer, then sit back and laugh. (pass the popcorn plz)
[o]_O
Run like hell and don't look back...
Joking.
You should look back occasionally. You never know when Darl's running after you with a brick waving a license contract.
I'm amazing. You aren't. SUCK IT
"hard radio" is not the same as "hardradio" and you are not causing them any monetary loss. you are not a company.
no one can stop you using a metatag. trademarked or not it bears no direct relation. Putting "microsoft" in your meta tag is not illegal is it? i bet you could find thousands of sites with microsoft information on them that have "microsoft" in their metatags.
at the core of it they have to prove you are taking profit from them, which basically becomes impossible if you are not actually getting any cash at all.
and it is only your position in a search engine which causes traffic to be diverted so you could probably just blame the search engine for puttin them below you....
i hate HardRadio(tm) because they are stupid jerks.
if you read closely.
Half the stuff we laugh at whilst reading is based on real life events.
Okay, so a quarter, but *still*...
U.S. trademark law pretty much requires the owners of trademarks to bitch and whine about people who might be weakening those trademarks, or they'll lose them. Those laws may very well be a conspiracy involving the Intellectual Property Law industry to ensure more work for them, but nonetheless that's how the laws work.
What you should do when/if you receive this kind of cease-and-desist letter depends on whether you think their trademark is worth overturning or not. If you really want the right to use their trademark in your metatags and feel their claim to it is invalid, then get your own member of the IPLaw guild and fight it. If not, then do what they ask and apologize. Because if you fight it, they'll be forced to fight to win, because what's at stake for them isn't just the metatags on your web site, but their ownership of the name they're doing business under. With them having more money, and more at stake, the only way you'd win is if you're clearly in the right and have the drive to prove it.
http://alternatives.rzero.com/
Some time in the last century (shortly after PCs had been invented), we created an estate agency software package called Monopoly. PC User published a review of it and illustrated it with a photograph of a certain property trading board game.
We got a letter from Waddingtons' lawyers. We wrote back to them saying that (a) we were not using "Monopoly" as the name of a game; (b) we were not implying endorsement by Waddingtons or association with their game; (c) we were not mentioning their game in any way in our documentation or marketing material.
They didn't have a leg to stand on and they didn't even reply. We carried on using the name.
If it's a registered trademark then it is registered for particular classes of goods. For example, VAX is the trademark of a vacuum cleaner, of a type of computer, and of coloured felt-tips. Three different trademark classes, three different owners, no conflict. You must not use the trademark to denote goods in those classes. In addition, you must not imply association with the trademark or promote confusion among the public. If you are using "hard radio" to mean something that is nothing to do with what HardRadio is or does, (eg. if they are using it to make people think of "hard-core radio" and you are using "hard radio" to mean radio implemented by hardware rather than software) then they don't have much of a case. If you are using it to promote something similar with or competitive to them, then they have a very good case. Remember what trademarks are for, and you won't go far wrong.
This is UK rather than US law. As far as I can see, it would be quite reasonable under UK law for someone to market a brand of too-small too-tight condoms under the name Microsoft... as long as they could show that they were using the brandname to sell the condoms and not merely to devalue the trademark of another company. Even if the case went to court, it would hinge on whether such devaluation was actually likely.
Hey everyone!
Thanks for the practical advice and...*ahem*..impractical advice.
Parts of this thread made me laugh and others made me think
Since last night HardRadio and I have reconsiled are differences. But to give you a little history, since I took down the page I wanted all of you to read..
I do respect their right to the trakemark of HardRadio and it is wrong for someone to go out and try to gain market share off of their trademarks...not that is what I was trying to do.
What got me raging mad was the cease and desist letter that stated I could not use "hard radio" in any of my correspondance and or content..at all. That seemed wrong to me...and I'm sure that was just a heavy handed response to me getting mad at them and pushing their buttons in response to the first letter.
It even got to the point when I posted some things they had done in the past that raised some eyebrows, They threatened to take my ISP into the court battle try to fice them to shut me down. Something about "disparagement and defamation", which wasn't the case because I was repeating information I found about them in a magazine article.
So both of us were bickering back and forth to no end...
I finally just wanted to break the cycle and wrote back saying the only reason I was being a jerk was because the letter they sent me was pretty harsh and too general.
We've both finally stopped fighting and HardRadio says we are cool now.
http://loudcity.net - Keeping Internet Radio Legal, Afford
Publicity seems to be the most important approach, besides good and specialized (read expensive) lawyers. Also you may learn from these trademark cases against Open Source projects and from the history of my personal trademark infringement Obelix./.MobiliX against my former project MobiliX, which is now named TuxMobil - Linux On Laptops, Notebooks, PDAs and Mobile Cellular Phones.
Go one up on them...
Change it to HarderRadio!
Ask for proof that in addition to "HardRadio" they registered "hardradio".
Easy. Registrations for word marks at the USPTO are case insensitive. At least they all seem to be stored in databases upcased. Thus, the mark would be listed as HARDRADIO. You can verify this by going to TESS and doing a search for word mark linux; the results will contain LINUX.
If you register a trademark and it's rejected for the "principal register" as not being unique enough, you may be able to get registration on the "supplemental register". If your trademark is on the supplemental register, you can't enforce it against others, but you're protected against claims by others. So it's worth doing in cases like the one here.