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|Can a competitor request a 'Shut Down'|
Received a letter from a lawyer with the request to shut down my web site
I today received a letter from a lawyers firm. In this letter it's stated that
quote:'your company's website is infringing on the "trade dress" of <competitor.com>'s website .... by creating a coycat site for <mydomain.net>'
I have never ever copied anything from their web site. We are online with a successful service since end of 1999 while their web site is on the net since end of 2001.
I'm from Germany and don't know much about the US laws. Perhaps anyone can help me a little bit to get some information / answers:
1.) Can they sue me with the result that I would have to shut down my domain?
2.) How to answer this folks?
To make matters a bit more complex: Even if they are able to obtain a favorable judgement in the US this is no guarantee that a German court will allow them to enforce that judgement in Germany. There are several ground for refusing this. So unless you have any assets in the US that may help you as well.
You really opened a can of (expletive) here. Donít sweat it. Take a deep breath move slow and for heaven sake hold your money as long as possible.
I'm not a lawyer, and I strongly agree with what others have said about consulting an attorney.
That said, I would reply and request that all correspondence be sent by certified postal mail. If they're serious about legal action, let them mail you something in writing, on corporate letterhead.
If this is just a hoax, or a cheap attempt to "push" a competitor out of the marketplace, they'll probably back-off before going to the trouble.
If they do send you something, and it's not a legitimate legal request, that's mail fraud. They could be sued under US law.
If they are serious, you'll at least know for sure, and they'll probably provide much more detail than you received in the e-mail. That will be very helpful for any attorney you consult in German.
Best of luck!
I sure have seen some bad legal advice and mis-statements of law in this thread. Won't comment on specifics. Just remember, legal advice is worth what you pay for it (sometimes ;)).
I refuse to grab hold of this tar baby
I was wondering how long it would take you to notice this thread. If you haven't guessed, I was kinda thinking the same thing myself.
Lawyers can be very expensive, but oftentimes the expense is more than worth it in the long run! ;)
The opinions in this discussion are strictly the personal opinions of the individual members, and in no way should they be construed as being authoritative or valid. As always, appropriate legal counsel should be obtained from duly authorized and licensed qualified practitioners of the law.
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|22. You are responsible for your own posts and agree not to hold PHD Software Systems (webmasterworld.com) liable for any messages posted. |
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I was feeling like the lone voice in the wilderness there till the posse showed up...
I have to go back up to the best advice in this whole thread was Mardi_Gras first response:
|Anytime you are threatened with legal action, you need professional advice, not conjecture. You need an attorney. |
Although there are attorneys in the audience, never take any legal advice in groups, lists, or forums - including this one.
Been with you from the git-go, Mardi_Gras. I just didn't remember there being anything in the TOS that covered this situation!
You were indeed, Syren_Song...
I know I am not alone in seeing these type threats before. Without reading your letter this whole thing smells like a scam or extortion tactic.
This could be the latest, biggest internet scam since you got emails from a deposed Nigerian royal official asking for money to free up his secured $40,000,000 that was temporarily "inaccessable" due to blah, blah, blah and he will pay you back 300-percent blah, blah, blah.
I smell a scam. Somebody might be trying to play the percentages to their advantage and sending out 1,000s of these. If you respond, I bet they tell you they will let you license their trademark/whatever for a fee.
(Disclaimer: I am not a lawyer. I am a student of Law, but that counts for nothing in this post. This post is merely opinion, and not fact.)
If I were in the original poster's shoes, I'd store the letter away and ignore it.
European law is different to the US law. In Europe you have to prove someone is guilty, rather than force someone to prove their innocence.
If you end up spending $XXX on lawyer's fees just to read the letter you got sent, then you've already been conned. Why should you have to spend money on lawyers when you've done nothing wrong?
If they want to take you to court, let them see you in Berlin. Chances are, they won't bother.
I'd contact your ISP about this immediately though, as the only other attack that could be made is to complain to your ISP. Many ISPs deactivate any accounts that get legal hassles, so if they're warned, they should be able to ignore it.. and the chance of a suit being filed on your ISP is minimal.
The Chilling Effects Clearinghouse [chillingeffects.org] is a great resource for dealing with Cease and Desist letters.
Only to make it a little more clear:
1.) I've received no email but a letter by FedEx overnight mail and ordinary mail.
2.) Letter is dated Dec 26, 2002
3.) Letter was received (I had to sign for it) Jan 2nd, 2003
4.) The letter's subject is 'Trade Dress, Copyright and Trademark Infringement of ...'s website'
They have as well filed a complain with Google which can be found at Chilling Effects. It's the first of the recently filed Cease and Desists Links there.
As you see there they have taken action against 3 different web sites.
My ISP is already warned. I'm in contact with a German lawyer but I havn't received his statement as of now. Still waiting.
Does anyone know how to react on this Google / Chilling Effects thing. Do I need to answer? How? Who to send an anwser to?
- What exactly do they claim you infringe against?
(They have to state exactly what words/graphics they
*think* or better "want to believe" you infringe)
- You have any proof of your work being older then theirs?
- Where is the server located?
- Is the infringement about the domain name itself?
PM me the details (domain names etc) please, you can send them in german if that suits you.
I'd like to remind you all of Marcia's post [webmasterworld.com] and of the forum charter. [webmasterworld.com]
We cannot solve legal problems here at WebmasterWorld and that this is a discussion board only.
Quick Primer On Legal Terminology From A U.S. Lawyer's Perspective
Just to clear up a couple of things. First, I've seen more than one post refer to guilt or innocense. The situation referred to in this thread is a civil matter (tort), not a criminal matter. Guilt or innocense does not figure in (you are guilty or innocent of a crime, your are liable or not for a tort).
If you are sued in a civil case, the trier of fact will determine if you are liable for damages (money).
As to burdens of proof, there are several. I will speak of the two most common. One is proof beyond a reasonable doubt. This is the heaviest burden that the party with the burden of proof (prosecutor in a criminal case) must carry.
The other is proof by a preponderance of the evidence (just tip the scales, e.g. 51% to 40%). This is the lightest burden and applies to civil matters such as the subject matter of this thread. The party who initiates the lawsuit (complainant or petitioner) has the burden of proof in a civil matter.
Whilst I agree we cannot address specific legal isues on these boards, there is a very pertinent general issue, to wit large companies attempting to "corner" generic terms.
In this case there is an attempt to link a fairly general keyword, say "widgits" to a company URL that uses "widgits" in the URL.
If this became accepted practice, then generic URL sites could sue a lot of us, how about hotels.com or TravelNow and what they might contend that they own in "trademark" terms.
There have been a number of fairly bitter cases, and anyone can access them by searching ICANN background information, rather than me posting the URLs here
Google do have a major problem in separating out real copyright questions from "chancers" wanting to bully smaller opponents
|Why should you have to spend money on lawyers when you've done nothing wrong? |
So you don't lose your livelihood? That would be motivation enough for me...
engine wrote [webmasterworld.com]
|this is a discussion board only |
... and people are discussing legal issues ;).
We cannot even solve webmaster problems here at WebmasterWorld and that this is a discussion board only. All you get here are the opinions of individual members. And one can only hope that those opinions are more informed when it comes to webmaster matters than legal matters ;).
lawman wrote [webmasterworld.com]
|I sure have seen some bad legal advice and mis-statements of law in this thread. |
That probably depends on the law as you understand it. There is, however, always the possibility that the Snark (which never got hunted down, if I remember correctly) will once again appear in court and server as barrister, jury and judge again. If that happens, then every advice is as good as every other ;).
>>All you get here are the opinions of individual members.
Well put, andreas. The opinions of individuals, not advice in lieu of appropriate legal counsel.
Attorneys and solicitors have to be licensed to practice in their jurisdiction. Fortunately, webmasters don't need to be licensed to practice, or a lot of us would be out selling shoes or used cars to make a living. ;)
>>That probably depends on the law as you understand it. There is, however, always the possibility that the Snark (which never got hunted down, if I remember correctly) will once again appear in court and server as barrister, jury and judge again. If that happens, then every advice is as good as every other
All the more reason not to hand out legal advice.
Notice that I only defined terms and provided the caveat that the definitions were provided by a lawyer based in the U.S.
I did not provide advice (see my first post about the "tar baby").
I have a very small company. One of my clients stiffed me for over $2000.00. He is a millionaire several times over. I had my portfolio up with the web work I did for their site. His lawyers sent me nasty letters for 3 months. I merely sent them a note saying "Your client didn't give you the 'other' side of the story - mine. They stiffed me for $2000.00 - so they did not pay for this material and it is part of my personal portfolio, which I am intitled to in my contract anyway (should they have bothered to read it)."
I went on to give them a list of 38 things I wanted as proof and evidence to substantiate the claim, or else I did not want to hear from them again.
That was the only letter I sent to them and never heard back. I still have my portfolio intact.
Hopefully, if you send them a demand for 38 -48 or so items that is required for you to ever respond again, they will most likely see that the evidence is stacked "against" them and drop it altogether.
I note that the letter sent rainbow and quoted by him/her in post 1 stated that:
|'your company's website is infringing on the "trade dress" of <competitor.com>'s website .... by creating a coycat site for <mydomain.net>' |
A swift Google search on "trade dress" reveals that "trade dress" appears to be different to trademark. The claim seems to be that the overall look and feel of rainbow's site is similar to that of the competitor and that this would confuse consumers.
The Google search came up with the following that might help:
A summary of "trade dress" from a book publisher's perspective [copylaw.com]
A full-bore academic treatise on trade dress [tomwbell.com]
Therefore, it might be prudent for rainbow to use wayback.org to document (as best as can be) the history of rainbow's and competitor's redesigns of site appearance ("look and feel") over time. If competitor has bricks-and-mortar, their look and feel might also be relevant.
CAVEATS: I'm ain't nobody's IP lawyer and this ain't legal advice. Get both before its too late.
Rainbow, I think it would be wise to take all the advice you are being given, consider it in relation to Lawman's comments, and realize that taking action based on people's opinions on legal matters would be tantamount to accepting a medical diagnosis and treatment for a disease. Not smart. I sure am interested in what happens with this - if people start suing for "look" and "feel" of a website design - we could all be potential targets from somewhere!
I think many of us are following this with interest, because we also defend our own copyrights in various ways, and we are interested to learn when, how, and when not to go after copyright violators. We all get the point, to "ask a lawyer", but I for one, want to learn more.
I think it is educational to look at the actual complaint on chillingeffects.org. It is confusing because it mixes complaints against 3 different websites, presumably only one belongs to rainbow.
One complaint is a "trademark" thing, from using a certain 2-word phrase in a "competitive ad on Google". ( That seems easy enough to avoid using that certain phrase in a subsequent ad)
Another complaint is that searches for that trademarked 2-word phrase, find rainbow's site. But the actual pages themselves don't contain the phrase, so the complaint alleges that cloaking and redirection is going on. ( But older versions of the page on archive.org used the 2 words individually, not as a phrase.)
Then, complaints continue about a longer phrase made up of really common words. (This complaint aspect seems silly to me, and an archive.org version from 2001 ought to prove you are OK here.)
But the next aspect of the DMCA process, is what are you going to do next. Now that Google will be removing your site, you'll need to follow the "counter-notice and put-back procedures". Are you going to do it? Doing so put the ball back in the complainers court, to file a lawsuit in 14 days.
Given the importance of a Google ranking, and the lack of the complainers presence on archive.org, are you going to force their hand and defend yourself, or regroup from a different domain?
Some of this seems to hinge on a trademark of a 2-word phrase. I tried using a US Patent & Trademark search for that phrase, but didn't find it. Is there someplace else to search for that?
I am *not sure*, but can't Google get in trouble if they remove *Rainbow's* site for no reason (or for this issue) and it comes out that Rainbow had not done anything - then what about the losses that Rainbow suffered due to the Google ban caused by this issue. I don't think Google would ban the site without seeing any solid evidence.
But again, right now I have been awake for more then 48 hours and had tons of Coke to drink, but still I think Google might not/ should not / would not ban the site when the webmaster is not at fault (Google has some real smart people there, who are humans and can think too :) ).
1) I have seen both the sites - the layout is *TOTALLY* different, so they cannot be talking about layout.
2) Content is also different (that is what I say) - so no fights over there either.
3) After seeing the domain names and from the behavior of the other company, the only thing I can think that the other company wants is the *domain*. Now the domain name is pretty generic - like the word *Search Engine*. Now if someone has *Genius Search Engine* as trademark, but I bet they still can't stop Bret from using www.searchengineworld.com - because *search engine* is too generic word to be owned by one company.
The other company *seems* to be having more $$$$ then Rainbow (sorry Rainbow, if I am wrong, but their site might have fooled me), and what I feel is, they are just trying to use their image/money/status to run-over small webmasters/companies - VERY BAD THING TO DO - VERY VERY VERY BAD THING TO DO.
Look and feel cases for websites will happen. It is inevitable, and in fact, if used appropriately, it is desirable. There is already protection for registered and unregistered designs - it's logical to extend this to websites. The concept of "trade dress" is used in the UK as the term "get up", and is actionable in torts of passing off, etc.
From a social / economic perspective, it's a good thing to allow this. If a website expends time, and effort into developing a particular look and feel that gives it competitive advantage, they should have some protection over having that look and feel stolen at no cost by a competitor. This is precisely why registered and unregistered design protection exists. In the same way with design protection, you shouldn't have protection for "basic function" (i.e. where there is no other way to represent a particular look and feel), and naturely there are going to be grey areas (as occur with all parts of the IP family), and abuse in different ways (e.g. unfair claims of look and feel simply to put a competitor out of business).
Note that copyright doesn't apply in this case: because copyright is explicitly about copying an expression, whereas look and feel is a particular set of design principles (not as a strong as a patent, perhaps a utility model, but more appropriately fitting to the edge of copyright in the family of IP).
I'm confused, mgream.
|This is precisely why registered and unregistered design protection exists. |
Do you mean there's a way/place/agency/etc. to register a website's design? I know you can file a copyright with the Feds here in the States. Is that what you're referring to? Or is there some other way of registering a site's design that I don't know about?
>> This is precisely why registered and unregistered design >> protection exists.
> I'm confused, mgream.
You didn't understand me in the context of my work, and there are international issues.
I mean: This is precisely why registered and unregistered design protection exists ... as an existing mechanism in IP family (at least in the UK under UK Copyright and Designs Act 1988). It exists for products, but not for websites (yet), but the concept is clearly there in the IP family (in between copyright and utility models / patents).
>Do you mean there's a way/place/agency/etc. to register a >website's design? I know you can file a copyright with the >Feds here in the States. Is that what you're referring to? >Or is there some other way of registering a site's design >that I don't know about?
There's no such thing, I didn't mean to suggest there was such a thing. It doesn't exist. It's a figment of our misunderstanding.
You don't need to register for either copyright or unregistered design rights, but you do need to register for registered designs (and trademarks, and utility models, and patents).
There isn't any legal advice in this post, just that I find this truly "chilling."
>>a lot of us would be out selling shoes or used cars to make a living
According to one of these folks' complaints we'd all have problems selling shoes or cars on the net. If your site is named comfortable-shoes dot something you can come after me for stating that I "sell comfortable shoes" and complain to Google that my site comes up in the SERPs.
Likewise, if your site is reliable-used-cars I would not be able to say "our used cars are reliable."
And sadly, two of the three sites named in the complaint are no longer listed by Google. I am very curious as to whether the complaint has anything to do with it.
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