Handling Accusations of Trademark Infringement? 108
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?
slashdot (Score:4, Funny)
Re:slashdot (Score:1)
In addition to seeking professional legal advice, (Score:4, Insightful)
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.
Re:In addition to seeking professional legal advic (Score:2)
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......
Re:In addition to seeking professional legal advic (Score:2)
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.
play with grammer. (Score:3, Interesting)
Re:play with grammer. (Score:2)
play with grammer.
Play with spelling. (It's "grammar")Re:play with grammer. (Score:2)
spellin' po'ly sinse 1978
Re:play with grammer. (Score:2)
You were funny (Score:1)
Re:play with grammer. (Score:2)
Just pull the tags (Score:2)
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
Re:Just pull the tags (Score:3, Interesting)
Another idea is to get this story on as many blogs as possible. That way searches for "hard radio" pull up the story of some lawyer beating up on a "public access", not for profit, little-guy website.
Paybacks....
Of course, I'm not sure how you pull this kind of attention back when hardradio.com lawyers back off.... Well they did bring it on themselves.
Re:Just pull the tags (Score:2)
The company that I work for got one of those "letters" via email once over our metadata. The guy claimed that they had a trademark on the term "Safety Software". I looked it up and he did in fact have the trademark. I turned it over to the Vice President of the company and that was the last time I had heard about it. The phrase is no longer in our metadata, but I have no idea if this guy's letter had anything to do with it.
The VP thought it was rather funny that this guy got a trademark on something t
Change your metadata (Score:2)
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.
Re:Change your metadata (Score:2, Informative)
Even better (Score:1)
Don't let them bully you. (Score:2)
Re:Don't let them bully you. (Score:1, Offtopic)
I actually kind of think you are in the wrong WRT embed bits being a protection mechanism under the DMCA.
I honestly think that the real problem is the over-broad DMCA.
I kind of wish that the EFF had been able to take this one to court...the ridiculousness of the argument would have been a good argument against the DMCA.
Re:Don't let them bully you. (Score:1)
Re:Don't let them bully you. (Score:2)
Re:Don't let them bully you. (Score:2)
Re:Don't let them bully you. (Score:1)
The CMU with DST?
And a DMCA threat?
Hahah, Monotype/AGFA can't have the brains they were born with!
It's good to see your story, in particular with the little guy and his voice of common sense.
FightForRock is one of my favourite radio stations (Snakenet Metal Radio being my preference for harder stuff, and Aural Moon for progressive stuff). I'd like to see FightForRock make a stand too.
Rockers being bullied by lawyers. NO IT JUST ISN'T RIGHT!
Bike chains for coshes and a rendez-vous in the fucking
And that's why (Score:2)
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.
Re:And that's why (Score:2)
If
Of course, it wouldn't solve this problem...
Re:And that's why (Score:2)
Re:And that's why (Score:2)
Meta data is dead (Score:4, Informative)
Simple really (Score:3, Insightful)
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. :-)
Re:Simple really (Score:4, Informative)
When a company wants to change their (TM) to an (R), they have to go through a registration process, part of which involves checking for existing uses of the term. Should there be too many instances of the term that are prior to their own, then it becomes more difficult for them to acquire the (R). It is my guess that they are going through the registration process, and are trying to smooth the way as much as possible.
Ignore them if you want, change it if you want. Legally, you're safe. Again, IANAL, so my advice is legally worthless.
Re:Simple really (Score:3, Insightful)
Re:Simple really (Score:1)
Blow me. My advice is just as good as anyone elses in this forum, certainly better than some abstract phrase like "unfair competition and passing off".
I was having a good day before I met you. Asshole.
Re:Simple really (Score:1)
If your phrase looks _somewhat like_ their trademark, then you could be infringing.
Of course, if your phrase doesn't cause an average person to confuse it with their product or service, then you're in the clear.
HardRadio should never have been granted a trademark, IMHO, as it's simply an adjective and a noun that would naturally (as FfR have seen) be seen together.
OCI2ANAL.
YAW.
Donald Trump said it best... (Score:3, Interesting)
Re:Donald Trump said it best... (Score:2)
There are many of us who see no reason to listen to someone just because of net worth. Many of us judge people by deeper things than dollars.
As to fighting or not fighting -- some of the bravest people I've ever read about or known are those strong enough to NOT fight. (People like the Quakers who ran the Underground Railroad, or Ghandi
Re:Donald Trump said it best... (Score:2)
It is important to remember that bankruptcy is not an end all in the business world, but a tool. Donald Trump has a history of playing hard ball with his bond holders by threatening bankruptcy; bonds in Atlantic city go for four times the interest rates of bonds (mortgages) for properties in New York City. Add to that the fact that t
Re:Donald Trump said it best... (Score:2)
On the other hand, it's probably important to point out nobody really knows just how much of his net worth is tied up with the casinos. It could be as small as 1% or as big as over 50% -- the info isn't public, so we don't know.
Re:Donald Trump said it best... (Score:2)
Re:Donald Trump said it best... (Score:2)
This only applies when you will be seen being weak. If Microsoft backed down on the Lindows thing, everybody would see them being weak and your aphorism would be in full force. If FFR backed down without a peep, nobody would ever notice and nobody would really see them as a weakling. (And a trademark issue doesn't imply that the currently aggreived party will have any interest in following up on the perceived weakness, either.)
Wtf? (Score:1)
You Americans have got to stop worshipping false gods.
(Boy, do I look forward to getting flamed)
Cost Them Money (Score:5, Interesting)
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.
Re:Cost Them Money (Score:2)
Re:Cost Them Money (Score:2)
Use your imagination.
Idiot: he might end up with an expensive civil suit if he took your advice, the guy needs to speak to someone who has a clue about trademarks, and preferably someone with legal training. Honestly, these type of questions are similar to "I've noticed small lumps around my testicles, what do I do?" - the answer is that there's a lot of your time, effort and money riding on the answer: you go straight to professional advice. If you can't afford professional advice, well just ride the r
Trademarks are case insensitive (Score:2)
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 [uspto.gov] and doing a search for word mark linux; the results will contain LINUX.
They're only doing what they have to... (Score:3, Insightful)
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.
Re:They're only doing what they have to... (Score:3)
Therefore, you can write about "xeroxing", "googling", "windsurfing", "jetskiing", etc., and there's nothing Xerox or Google etc. can do but whine.
Re:They're only doing what they have to... (Score:3)
They don't want their company name to become a verb.
Re:They're only doing what they have to... (Score:4, Funny)
1. To claim unrealistic rights under trademark law. Those Microsoft people really hardradio like mad when it comes to Lindows, or I'll bet SCO's pissed that they only claimed patents and copyright infringement, and can't try to hardradio Linus for using the suffix "-nix".
Re:They're only doing what they have to... (Score:3, Insightful)
No. The German chemical firm Bayer lost their trademarks and patents on aspirin and heroin per the Treaty of Versailles; they were surrendered as reparations for World War I. See http://inventors.about.com/library/inventors/blasp irin.htm [about.com] or just search for aspirin and versailles on google.
To the best of my knowledge, no company in recent memory has lost a trademark due to dilution from gene
Re:They're only doing what they have to... (Score:1)
Re:They're only doing what they have to... (Score:2)
I haven't done the research (yet, but I will) but isn't this what happened to "Vice-Grip" brand tools? Didn't vice-grip become a generic term for "locking pliers"?
;-)
I will do the research, and I will return tomorrow
Re:They're only doing what they have to... (Score:2)
Your knowledge is incomplete. They may not all necessarily fit your definition of "modern" but refrigerator, escalator, cellophane, shredded wheat, thermos, yo-yo, murphy bed, and nylon are terms which have lost some or all of their trademark protectio
Re:They're only doing what they have to... (Score:1)
Chuck D and Flavor Flav say "Fight the Power!" (Score:1)
I have already despatched several ninja teams... (Score:1)
Too bad I live in another country.
Vice President of Danish Ninja Party
His letter (Score:3, Insightful)
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?
Re:His letter (Score:2)
That said, we should also remember that FFR isn't a commercial website with a corporation behind it. This guy does the site, and foots the bill, because he loves the music.
Re:His letter (Score:1)
What's its domain?
That's gonna be a losing argument.
YAW.
Re:His letter (Score:1)
Anyway, HardRadio and I worked it out.
IANAL, but I play one on Slashdot (Score:3, Insightful)
This sounds like fluff to me... (Score:2)
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 ad
What about these guys... (Score:2)
Maybe you can sic them on each other...
;-)
Back down (Score:3, Informative)
I think that the courts have ruled incorrectly on metatagging, but there's not a lot we can do about stupid judges.
Re:Back down (Score:2)
His letter is a bit off-the-cuff, but it's also reasonably respectful. He essentially said "this is silly -- I Think I'm in the right, hard rock is a generic phrase (very generic in my world) and I reserve the right to put it back if you're out to lunch on this.
Now, most lawyers will tell you that it's a bad idea to talk to lawyers without lawyers of yo
mess with them (Score:2)
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.
You can research some things yourself (Score:2)
and
You get into trou
What HardRadio(tm) is saying.. (Score:4, Informative)
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.
Re:What HardRadio(tm) is saying.. (Score:2)
The other problem is that it's entirely legitimate to say "better than HardRadio" on his page, since then he clearly isn't claiming that his product is HardRadio (it's using the term in a descriptive sense), but it does drive the same traffic to you (and drives the HardRadio people bananas, which I'm sensing is an underlying goal).
Re:What HardRadio(tm) is saying.. (Score:2)
Dilution is only for famous marks, and I don't think they're claiming that HardRadio is famous or that they would be successful with such an argument.
Re:What HardRadio(tm) is saying.. (Score:2)
How, exactly, is he creating brand confusion if the text never appears in a place that human beings would read? How can it cause confusion if it just a depreciated tag for machines? How can a branch of law ostensibly setup to allow a purchaser to know when something comes from one company rather than another be applied in a situation where the purchaser never sees the mark?
Don't get me wrong, I think the guy should cave imme
Do NOT seek legal advice (Score:1)
Compose a clearly written letter telling the infringed to fuck themselves.
Keep checking Slashdot for advice, on all topics.
ROCK ON DUDE!!!
Re:Do NOT seek legal advice (Score:2)
Trademark Infringement Notice #2
Brandon,
You are still using the words "hard radio" together in your meta tags. Under trademark law, this will cuase trademark confusion and dilution of our registered and established marks.
Please remove "hard radio" from your meta tags immediately.
Tracy Barnes
Re:Do NOT seek legal advice (Score:1)
== MS Windows should really be MS Shutters because you can't see through them ==
My advice (Score:3, Informative)
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.
Simple solutions (Score:2)
Or you could just drop the keywords.
Re:Simple solutions (Score:2)
Where do you live? (Score:2)
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.
easy solution (Score:1)
When the revolution comes the lawyers will be the first against the wall
But... (Score:1)
Re:But... (Score:1)
the organised religions and law makers follow the lawyers !
and then the marketing division of the sirrus cybernetics Corperation
but lawyers first
Re:But... (Score:1)
Yes.
That is the order of things.
"Learn the words" is, as far as I recall, actually a real-life quote from the darker side of Catholic history...
Re:But... (Score:1)
the Patrician has a thing about Mimes
that's his punishment for them.
not sure if TP had a historical reference in there.
He's all silly about history, (Score:1)
Half the stuff we laugh at whilst reading is based on real life events.
Okay, so a quarter, but *still*...
Does it even fucking matter? (Score:2)
Re:Does it even fucking matter? (Score:2)
I agree. Espically since the metadata does not matter anymore, just put this jerk's nastygram in there. For increased pleasure make sure that you strip out any other TM'd phrases or words so they can't tell you to remove the letter's text.
What Tracy Impotent Jerk [hardradio.com] Barnes doesn't realize is that modern search engines use links like hardrock [fightforrock.com] to figure out relivance. So a few links could start moving your website above their website for the "hardrock" search term without you changeing a single metatag on y
zerg (Score:2)
Re:zerg (Score:1)
Run. (Score:1)
Joking.
You should look back occasionally. You never know when Darl's running after you with a brick waving a license contract.
just ignore it, (Score:1)
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
IANAL but at least I know enough to fake it (Score:2)
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
Our experience (Score:1)
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
Thanks Everyone! (Score:1)
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 wa
Learn From Other Trademark Cases (Score:2)
Go one up on them... (Score:1)
Change it to HarderRadio!
Register your own trademark (Score:2)
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.