Would you consider this a copyright infridgement?

[jana2676]

I have an online hobby website, 3 Widgets. We (3 stay at home moms) started last summer and have been fairly successful for being 10 months old. We sell monthly kits and have an online community, newsletter, free classes, etc etc. A new club has opened up called 4 Widgets. We have had many comments from current and former customers that mistakenly went to the other site, thinking it was us. We have been featured in many hobby magazines, so our name is getting to be well known in the hobby community.

We registered through Go Daddy. Go Daddy also registered this new kit club, but not directly.

Does this sound like a copyright infridgement? Go Daddy told us it was, but we aren't sure where to look for advice. We are stay at home moms without a ton of money for a lawyer. Our little business is just starting to take off and we have been reinvesting all the profit in advertising, website improvements, etc.

We are good at our hobby and the friendship aspect of an online community, but our website skills are a bit lacking, lol.

Thanks, Jana

[edited by: rogerd at 10:35 am (utc) on June 2, 2005]
[edit reason] No specifics, please. [/edit]

[peewhy]

Welcome to Webmasterworld!

What is the difference between 3 widgets and four widgets?

Did you register 'widgets' as a trademark?

Are they using any of your copy or graphics?

[edited by: rogerd at 10:38 am (utc) on June 2, 2005]
[edit reason] No specifics, please. [/edit]

[rogerd]

This is a trademark, not a copyright, issue. If you registered your business in your state (US), you may have some automatic protection. I'm guessing you didn't apply to register the trademark or put the "TM" (free, no cost to do this) next to your name. That's always a good idea, particularly if your name is fairly distinctive. Put it there now, even though the problem has already begun. Best advice: don't rely on forum people for legal advice about your particulars - talk to a lawyer.

A official sounding cease & desist letter from an attorney might be a fairly cheap way to get the other guys to go away.

[RailMan]

having looked at the sites, IMO, they are infringing on your rights in your name / business model etc. and it's a trademark issue not a copyright issue.

the name you chose is highly unusual. it is highly unlikely that they have chosen a similar name purely by coincidence.

you are well known by your name - you have a reputation in that name. the other people have used a very similar name to appear similar to you in the hope that people will think they are buying from you. in the uk we call this "passing off".

your trading name is your trademark. doesn't matter if it's registered or not - it's still the name you are well known by and have a reputation in - it is your trademark. (we'll come back to registering trademarks in a minute)

you can take action against the other people. a lawyer can send a "cease and desist" type letter. if they fail to cease using the name, you can get an injunction against them (which will force them to stop using that name). you can also seek damages from them for any income they have received whilst "passing off" as you. if you start action, you must be prepared to follow it through to the end.

if you take action, you will need to prove that you were "first" to use the name and that you have a reputation in that name. this is where registering the trademark comes in - it is absolute, undeniable proof that you hold a trademark.

if you haven't registered your trademark, you can still take action. you will need to demonstrate first use of the name and that you also have a reputation in that name. you can use all sorts of evidence like your domain registration, sales or purchase receipts / invoices etc with your letterhead, your TV appearances etc etc.

if you haven't registered the name as a trademark, register it now. also check that the other people haven't applied to register their name as a trademark - if they have, oppose it, object to it etc - if they get the trademark registered in their name, you're in trouble.

go see a lawyer ..........

[peewhy]

Best advice: don't rely on forum people for legal advice about your particulars - talk to a lawyer.

In fairness to forum members who take the time and trouble to offer advice, someone may have experienced a similar situation and are willing to share it with you.

I would however strongly suggest that you don't 'act' upon any advice other than that of a lawyer.

At least you have established that it is not a copyright but a trademark issue and other excellent suggestions may still arise.

Rogerd; I'm not attempting to contradict your advice, but didn't want to frighten a new member from listening to others.

[BigDave]

Hi Jana,

The other's gave you some good advice about registering your trademark, so I won't rehash that.

After that, I highly recommend that you educate yourself about trademarks. There are some good non-legalese sites on the web that will give you some idea about what your rights are.

Personally I think that bitlaw does a very good job in this regard.

[bitlaw.com...]

As for paying an attorney, that really is a cost of running a real business. You have to do it every so often.

You really have to ask yourself if you can afford *not* to get an attorney and pursue this matter. They are already taking business away from you.

[peewhy]

Perhaps someone will take it on a no-win no-fee.

[jana2676]

Thanks to everyone for the input. We are currently looking into legal services. I figured someone else may have had a similiar experience and could share some info.

Thanks! Jana