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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
rainbow




msg:925001
 6:30 pm on Jan 2, 2003 (gmt 0)

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?

 

Mardi_Gras




msg:925002
 6:33 pm on Jan 2, 2003 (gmt 0)

Anytime you are threatened with legal action, you need professional advice, not conjecture. You need an attorney.

Mike_Mackin




msg:925003
 6:40 pm on Jan 2, 2003 (gmt 0)

INTERNET LAW [google.com]

VICIOUS INTERNET LAW [google.com]

rainbow




msg:925004
 6:43 pm on Jan 2, 2003 (gmt 0)

Hi Mardi_Gras

that's absolutly true. I had been in contact with some German lawyers this afternoon starting the discussion about what has to be done.

Unfortunatly this competitor is from the US. I don't know that much about US laws. And the German lawyers aren't much better.

Perhaps anyone here knows of a good lawyer in the US who has some references with similar issues. Or someone had some similar experiences.

korkus2000




msg:925005
 6:48 pm on Jan 2, 2003 (gmt 0)

The problem is that a international court case will be very expensive. No matter what is right or wrong it will take a lot of money to battle this case. I would think your german attorneys would have some US contacts.

Syren_Song




msg:925006
 6:48 pm on Jan 2, 2003 (gmt 0)

As a former legal secretary, I've got to agree with Mardi_Gras. Get yourself a lawyer. And be sure you've got some pertinent information with you when you go, such as:

* Proof of when your site went up (domain registration, bills from your host, etc.) and as much information as possible about the content at that time. You should also provide as much info as possible regarding any content that's been added since. Dates are going to be very important to your attorney.

* A disk with your site's code (just in case the attorney needs it for any reason).

* Any information you can provide for your attorney regarding your competitor's site. Dates of domain name registration for starters.

* Any other info you think might support your claim that you did not copy anyone else's work or site. If you've got former customers/clients who might be willing to provide affidavits to show that your site was there first, put a list together for your attorney.

* Anything else you can think of that might help your attorney prove that you haven't infringed on anything. The more work you do for the lawyer, the less he'll have to charge you for his time.

And put it all in writing (preferably typed so it's easy to read). It'll make it a lot easier forh im and a lot cheaper for you.

Remember - it's better to give an attorney too much info than not enough. He's being paid to find you a way out. The more information you can give him, the better chance there is that he'll be able to find a way to help you.

Good luck!

Syren_Song




msg:925007
 6:52 pm on Jan 2, 2003 (gmt 0)

One more thought if you're looking for a US attorney to contact, the attorney who runs Gigalaw who might be of help. I know he's written a book in Internet law, though I don't know if he's any good or not. My expertise is in personal injury/medical malpractice/ etc., not Internet law.

Again, best of luck to you!
Michelle

mansterfred




msg:925008
 7:07 pm on Jan 2, 2003 (gmt 0)

Rainbow

First US Lawyers are like barking Dogs. And we have tons of them here. You are in Germany they are in the US. Huge Dollars for them to communicate with you, let alone sue you.
If what you stated is true, that you have been on the web since 1999 and they are new 2001, further that you did not copy any of the other sites content; I would not get a lawyer yet.
Communicate this information back to the attorneys who wrote you, make them give you specifics and let them know that you consider this harassment and an unfair business practice on their clients part as well as them. And finally you are going to contact consul to see if they broke any international law if they do not cease and desist immediately.

What will this accomplish?
1)If you are telling the truth, your competitor’s attorneys will do the math and unless your competitor has bucks, this is over.
2)In a subtle way you have threatened the Attorneys by mentioning harassment, unfair business practice and International law. Unlikely you are dealing with a large firm and they will not know if there are any implications.
3)You have asked them to cease and desist. A must if you are going to fire back with a malicious litigation claim.
4)You have caused your competitor to spend more money.

Do not be afraid to talk directly to the attorneys. MAKE them spend $$.:)

Note: I am not an attorney, but I have been threatened a lot in the general course of business over the last 20 years.:( If they persist you will need consul. :(

rainbow




msg:925009
 7:13 pm on Jan 2, 2003 (gmt 0)

Thanks to all of you.

Michelle: One minute ago I've subscribed to gigalaws mailing list to read through.

BTW one more question: In the lawyers letter in question the company name of the competitor isn't mentioned at all. The letter starts with:

Quote: 'Our firm acts as litigation counsel for <domainname.com>'

where domainname.com is completly different from the competitors company's name.

And they do not provide any form of legitimation that they are really acting for the competitor. Does this matter or not?

korkus2000




msg:925010
 7:15 pm on Jan 2, 2003 (gmt 0)

I don't think that matters. Are you sure that this is a real legal firm or fictitous. Have you tried calling them?

Syren_Song




msg:925011
 7:21 pm on Jan 2, 2003 (gmt 0)

Quote: 'Our firm acts as litigation counsel for <domainname.com>'

where domainname.com is completly different from the competitors company's name.

And they do not provide any form of legitimation that they are really acting for the competitor. Does this matter or not?

As I said before, I didn't do much work in business law, so I'm not sure what the situation might be that the attorney would provide a domain name, but not a company name. It may be that the domain name matches the actual business entity's name, but the online name is different. Try doing a search in WhoIs or BetterWhoIs to see what you can find out about the company who registered the domain name.

Either way, no real attorney would say he represented a client he had not actually been hired to represent.

If you want to try to get a little moer information about the attorney and his/her lawfirm, try looking him up in Martindale Hubble [martindale.com]. They provide a great deal about some (though not all) attorneys and law firms in the US. You may also be able to find some information from the State Bar Association where the attorney practices. Not guaranteed, but again it may help.

Michelle

stevenha




msg:925012
 7:30 pm on Jan 2, 2003 (gmt 0)

And remember to check the Wayback machine at archive.org to look for proof of your (and their) web presence on the net.

mack




msg:925013
 7:36 pm on Jan 2, 2003 (gmt 0)

stevenha is right on with his post.

In efect archive.org is a mutual witness.

This is probably the only reason for allowing IA_archiver to crawl your site.

rainbow




msg:925014
 7:39 pm on Jan 2, 2003 (gmt 0)

Found the lawyers on Martindale Hubble. Thank you for the info.

WayBackMachine is simple in that case: zero results for their web site. 13 results starting at Nov 29, 1999 for my site.

Whois is simple as well.
mydomain.com registered Jul 8, 1999
competitor.com registered Sep 1, 2001

Is it allowed to post domain names in this forum?

Mardi_Gras




msg:925015
 7:47 pm on Jan 2, 2003 (gmt 0)

Is it allowed to post domain names in this forum?

No...

Crazy_Fool




msg:925016
 7:59 pm on Jan 2, 2003 (gmt 0)

i get the same kind of nonsense all the time, mostly by email. in general, US laws extend as far as the US borders. US lawyers seem to think US law applies throughout the world. don't let it worry you too much. it's most likely your competitor paid the lawyer just to send a standard letter hoping to frighten you into submission.

before you spend money on lawyers, check your laws online including things like german trademark laws and US trademark laws. check if the US company has applied for or been granted a german or international trademark on your trading name. you can find most of this information on the internet - you may even be able to do a trademark search online. you'll find a lot of legal information on government websites.

you can also post a message to www.freeadvice.com to get some advice on US law - make sure to get the right forum and give as much information as possible. ask where to look up the US laws you need etc. someone with more knowledge of US law than us will post a response there.

and if in doubt, then get a lawyer - never rely 100% on anything without a lawyer - at least after looking up information you'll have a pretty good idea of where you stand.

FoodPlaces




msg:925017
 8:21 pm on Jan 2, 2003 (gmt 0)

If talking to them and explaining that they are in the wrong doesnt work, then it's probably just the too common practice in the US as was mentioned or alluded to here is to kill the competition by having more or better lawyers, or simply more money to carry the suit out till they win. Be careful, dont give up too much of your hand until you are ready to slam them with it all... in the meantime, it will make them work to try to find something legitimate.

Good luck. GigaLaw (and maybe EFF) are good starting points. EFF is well overworked right now, but Fred vonLohfman (sp?) seems to be a pretty decent guy and can probably refer you to someone who handles issues like this.

- Robert

msr986




msg:925018
 9:20 pm on Jan 2, 2003 (gmt 0)

> I today received a letter from a lawyers firm.

Did you sign for this letter? Or did it come regular post?

The sender must be able to prove that you received the letter.

andreasfriedrich




msg:925019
 9:30 pm on Jan 2, 2003 (gmt 0)

Not only must he proved that you got the letter, he must prove as well that the envelope actually contained the letter he claims to have sent.

Andreas

NeedScripts




msg:925020
 9:55 pm on Jan 2, 2003 (gmt 0)

Hi Rainbow,

Check your Stickymail, I just replied your mail.

Sit back and chill. They are not after the content, they are after the domain. Also, it is a *very generic* term, so they are just trying to scare you.

People cannot tradmark terms like "Rainbow" or "Maid" or "President". And if someone got the term "Rainbow Someting", but still they cannot stop people using the word "Rainbow".

Everyone here will admit American Bar Associaiton is a big legal organization - and their domain is abanet.org and not americanbarassociation.com/net/org becuase probably (maybe/don't know/ *I* think/ or not) when they tried to register it, it was taken and also, that name can used for tons of reason in a appropriate manner by any person/company.

P.S. Now few things about law.

1) Law is not bad, it is very good. Cuz, if it bad, then it is bad for both parties.
2) He has to prove you are wrong, you don't have to prove you are right.
3) I am not a lawyer, but if case goes in court, then they will have to come to your country/state/city, as you did the act and hence case should be held there. (It takes lots of money to travel, live and fight case from USA to Germany)

4) I am not a lawyer and above info is not varified by a lawyer.

cornwall




msg:925021
 10:07 pm on Jan 2, 2003 (gmt 0)

If you believe that there is a dispute over the actual URL being mistaken, then you need to read up on the ICANN rules [icann.org]

In other words if the claim is not about the actual copy on the site, but about the URL and any confusion/passing off in that.

ICANN have a reasonable disputes procedure - the complainant (from memory) puts up $1000 and it costs you nothing unless you want to pay for another arbitrator.

If you look up easyprotest2 it gives you an idea on the way a particular case was handled. Or you can find lots of other exaples on a Search Engine.

cornwall




msg:925022
 10:16 pm on Jan 2, 2003 (gmt 0)

They are not after the content, they are after the domaine

I see that NeedScripts posted this while I was writing my reply above, and is of the view that they are after your URL too.

If that is true, make sure you do not prejudice your case by making any admission that you are cybersitting - in other words do not offer to sell them your URL. That move can imply that you have your site there merely to sell to a more "deserving" company who really needs it.

Read all you can about the cases that have gone to ICANN arbitration. Personally I would avoid lawyers in the first instance, write a firm but polite response rebutting their claim. Unless there are mega bucks involved, they are just putting the frighteners on you.

IMO they are most likely to back off or go to ICANN arbitration

fathom




msg:925023
 10:16 pm on Jan 2, 2003 (gmt 0)

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

Mardi_Gras is certainly correct as far as advice goes. WebmasterWorld members certainly do not have any knowledge of your/their particulars thus any information we provide is completely invalid.

If this was me however, your quoted statement says it all unless they have trademarked the brand of the domain... you should check this out.

Barring that... if this was me I would poilte advise the competitior's lawyer to go ahead and waste their clients money... again if the above statement is true.

I wouldn't say anything else, and let them guess why I am not at all concerned.

My attorney would however be advise as well.

andreasfriedrich




msg:925024
 10:29 pm on Jan 2, 2003 (gmt 0)

thus any information we provide is completely invalid as far as it pertains to your/their particulars otherwise it is perfectly ok ;)

If it were otherwise providing this information would be in violation of §1 Rechtsberatungsgesetz [uni-oldenburg.de].

Interessant dazu: Die Entstehung des Rechtsberatungsgesetzes im NS-System und sein Fortwirken, Kritische Justiz 2000, 600-606

Andreas

nipear




msg:925025
 10:33 pm on Jan 2, 2003 (gmt 0)

I've been threatened so many times it doesn't bother me much any more. The first time I got a letter from a laywer saying blah blah you're going to get sued. I freaked out got a lawyer (Good luck finding a lawyer that even uses the internet). And all in all nothing happened.

From then on I realized no response is a good response. It takes 2 to tango. Unless your competitor has bags of money the odds are nothing is going to happen. Go have a good German liter for me and relax....

rainbow




msg:925026
 10:34 pm on Jan 2, 2003 (gmt 0)

Arrrghh. Andreas - bitte kein Deutsch, auch wenn mein Englisch schlecht ist.

Translated: arrrggghh - please Andreas, no German. Even as my English is very poor.

rainbow




msg:925027
 10:52 pm on Jan 2, 2003 (gmt 0)

I appreciate that with the German liter. Prost.

Nobody has any trademarks registerd even for the keyword in question. I've checked that a couple minutes ago with a lik provided at 4trademarks (or similar).

It's the other way round: I registered my domain with a dot net extension in 1999. The domain was hosted with onepine in New York as I expected lots of US users and wanted to provide fast services. This damned provider went out of service in Sep 2001 without just a 2 minutes notice. It was a hard job to get the domain free to host this domain on a new server (my server). As the services we are providing had been totaly free at that time I didn't spent a second on looking for any competitor.

A coresponding dot com domain was owned and hosted with another German web design co since beginning of 2001. The company I have called the competitor in this thread (a California based LLC) bought this domain name from the German web design company beginning of 2002 while my domain wasn't reachable at all. They are and have provided similar services (niche job database) but only for cash.

Isn't that strange. A free site is not reachable for 3 months and the prof web site catches the corresponding dot com domain putting a 301 on top?

Anyway. We are asking our users for money today as well. We can not afford 40GB traffic cost without having any income.

AND NOW:
They are using this coresponding dot com domain for this:
_____________________________________________________
Please note: www.coresponding-domain.com is in no way affiliated with mydomain.net. This domain is the future home of Great Keyword World. If you are trying to reach Competitor, you can find them here: www.competitor.com

If you would like to bookmark competitor.com,
simply click Bookmark competitor.com
_____________________________________________________

If anyone is interested to see details simply stickymail me and I can provide you with the URL's for your own judgement.

BTW: has anyone heart any good or bad things about Ivan Hoffman Atorney?

Crazy_Fool




msg:925028
 12:14 am on Jan 3, 2003 (gmt 0)

>>The sender must be able to prove that you received the letter

i'm very interested in this - if we believe the threat is genuine and the other company *WILL* take legal action, is it best to simply ignore the other company or is it best to acknowledge receipt of their email / fax / letter etc? does it make a difference (legally) whether their demands are sent by email or fax or letter? and if we believe the threat is false and just a pathetic attempt to obtain a domain name?

Syren_Song




msg:925029
 12:29 am on Jan 3, 2003 (gmt 0)

From NeedScripts:
2) He has to prove you are wrong, you don't have to prove you are right.

Actually, since this would be a civil action, the attorney for the other side only needs to convince a jury that he could be right. Here in the States, juries decide on whether there is a "reasonable doubt" that you are wrong and he is right. There's every chance in the world that they could decide he was right and you (Rainbow) were wrong, since juries here are often fickle and often swayed by emotions rather than facts.

3) I am not a lawyer, but if case goes in court, then they will have to come to your country/state/city, as you did the act and hence case should be held there. (It takes lots of money to travel, live and fight case from USA to Germany)

If a case were actually filed (these sorts of cases are usually settled out of court, cause it's cheaper for all parties), the courts would decide which country was the more appropriate "venue" (place to hold trial or manage the lawsuit). Without knowing the applicable law (particularly since this is an international situation), there's no way any of us can say what the courts would decide was most appropriate. Unless, of course, one of us is a lawyer familiar with international law....?


From nipear:
From then on I realized no response is a good response. It takes 2 to tango. Unless your competitor has bags of money the odds are nothing is going to happen.

Unfortunately, Rainbow, there's no good way of knowing how serious your competitor is about pursing this matter. If you don't respond in some way, there's a good chance he may go ahead and file a lawsuit and request an immediate decision from the courts in his favor. This could potentially pose problems for you, since there are time limits for any counter action you would be able to take to prevent this from happening.


Rainbow -
Again, your best bet is to at least discuss the situation with an attorney. Some attorneys may be willing to discuss potential problems and resolutions with you at no cost.

You mentioned Ivan Hoffman, I know him only from his comments on an IWA-HWG listserv. You may want to at least contact him for a little real, honest-to-goodness legal advice. He is an attorney who may be willing to provide you will a little information at no cost. He has done so on the listserv on several occasions.

There is also a chance you may be able to retain him (or another attorney) to write a letter on your behalf to your competitors for a small fee. Such a letter from an attorney may be enough to dissuade your competitors from pursuing the matter further.

I had a situation several years ago where a letter from an attorney resolved a potential future problem and it only cost $50US to have the letter written. I considered it money very well spent!

Michelle

Syren_Song




msg:925030
 12:40 am on Jan 3, 2003 (gmt 0)

Crazy_Fool:

i'm very interested in this - if we believe the threat is genuine and the other company *WILL* take legal action, is it best to simply ignore the other company or is it best to acknowledge receipt of their email / fax / letter etc? does it make a difference (legally) whether their demands are sent by email or fax or letter? and if we believe the threat is false and just a pathetic attempt to obtain a domain name?

You should respond to the threat especially if you believe the other company will take legal action.

As for your acknowledgement of receipt of the email/fax/letter/etc., depending on the method of delivery here in the States, your acknowledgment may not be necessary. A faxed transmission has a receipt which will generally show the phone number to which the fax was sent. A certified letter will have been signed for. Emails can (depending on your settings) provide an automated response to the attorney confirming that it was received. If you were served by a process server, you don't even have to have necessarily touched the piece of paper.

Confirmation of receipt all varies depending on the court in which an action is filed, as well as the applicable State laws.

This is why it's so important to discuss things like this with an attorney. The fax/email/letter/etc. could contain documents relating to a lawsuit which has already been filed in the courts and you may only have a few days in which to respond to these documents. Failure to respond could cause the courts to decide in your opponent's favor (something called a "Request for Summary Judgement" which all lawyers must file at some point in a civil lawsuit or they risk being sued for malpractice).

I've seen many people lose out because they waited too long to get a lawyer involved. (Not to mention the hassles and long hours when they involved a lawyer at the umpteenth hour before a response had to be filed.) ;)

Seriously, folks, for the time (yes, and sometimes money) it takes to have an initial consultation with an attorney, it can truly be worth it to you in the long run.

This 65 message thread spans 3 pages: 65 ( [1] 2 3 > >
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