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FIB - Scams 101 - Ye Olde Archives
Posted By: Bill Carton - the Roadie <wcarton@flash.net> In Response To: Trademark Infringement - TOTAL befuddlemitification.... (MaaMaw)
Wednesday, 6 September 2006, at 3:55 p.m.
> The letter says this page infringes in these ways:
> 1. "...not allowed to use (S M C etc.) or any wording that might lead
> people to believe that your site is endorsed by or representative of S M
> C.
> (I don't see how it does that.)
> 2. "Your meta/title tags may not contain (S M C etc.)..."
> (Sorry, I forgot about it. I knew that.)
> 3. "The wording, appearance and design of your advertisements and
> website must not create the impresion of such an endorsement. You must not
> use our registered trademark... to market and/or advertise your
> business."
> (Is that what I'm doing? I was trying to tell people I thought it was a
> legitimate opportunity.)
> They specifically cited the paragraphs saying "contact Mike
> Warner" if you want to test the waters as a subdealer.
> It's the ending that confuses me (and worries me with regard to other
> sites and other pages):
> "I need to ask you to address these issues and remove these and all
> references to S M C from your site as soon as possible."
> ALL references?
> EX-SQUEEZE ME?
> I thought it was only if I gave the appearance of being endorsed by, or
> representative of, their company -- which I don't believe I do even on the
> page I'm going to toast.
> There are "reviews" of S M C all over the net.
> Is there a difference I'm missing?
http://chillingeffects.org/trademark/faq.cgi
# Non-commercial Use
If no income is solicited or earned by using someone else's mark, this use is not normally infringement. Trademark rights protect consumers from purchasing inferior goods because of false labeling. If no goods or services are being offered, or the goods would not be confused with those of the mark owner, or if the term is being used in a literary sense, but not to label or otherwise identify the origin of other goods or services, then the term is not being used commercially.
# Product Comparison and News Reporting
Even in a commercial use, you can refer to someone else’s goods by their trademarked name when comparing them to other products. News reporting is also exempt.
"Question: I want to complain about a company. Can I use their name and logo?
Answer: Yes. While trademark law prevents you from using someone else's trademark to sell your competing products (you can't make and sell your own "Rolex" watches or name your blog "Newsweek"), it doesn't stop you from using the trademark to refer to the trademark owner or its products (offering repair services for Rolex watches or criticizing Newsweek's editorial decisions). That kind of use, known as "nominative fair use," is permitted if using the trademark is necessary to identify the products, services, or company you're talking about, and you don't use the mark to suggest the company endorses you. In general, this means you can use the company name in your review so people know which company or product you're complaining about. You can even use the trademark in a domain name (like walmartsucks.com), so long as it's clear that you're not claiming to be or speak for the company.
Since trademark law is designed to protect against consumer confusion, non-commercial uses are even more likely to be fair. Be aware that advertising may give a "commercial" character to your site, and some courts have even gone so far as to say that links to commercial sites makes a site commercial. "
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| PLEASE READ THIS LEGAL NOTICE CAREFULLY BEFORE YOU FILE A LAWSUIT OR EVEN WASTE TIME THINKING ABOUT IT. It has been done before, but never successfully. In fact, the last dodobird who tried it ended up being ordered to pay more than $77,000 in attorney fees ($65,000+ to my attorneys and $12,000+ to my co-defendant's legal advisor).
If your attorney is worth his salt, he's going to tell you that the expense of filing a lawsuit you can't win is a whole lot worse than any "damages" resulting from messages posted on this insignificant little chunk of cyberspace. NEWS FLASH: I didn't just climb down off that ol' turnip truck yesterday. I'm well aware that expressing a negative opinion, relating one's personal experience, and restating provable facts are all legal in this country and do not constitute libel, slander, or defamation -- so you don't want to play games with me, and you sure don't want to start something you aren't prepared to finish. I don't take threats lightly, and I don't accept bribes (or did you call it a "mutually-beneficial arrangement"?). I'll turn you in faster than you can yell, "ARREST ME, I'M SCUM!!" Do yourself a favor and turn your legal team loose in greener pastures. Although we may, from time to time, monitor or review discussions, postings and the like on the Friends In Business (Scams 101) Message Board, we are under no obligation to do so. We are not responsible or liable for any claim arising from the content of any such discussions or postings or for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information contained within such locations on the Site. You are prohibited from posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane materials or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. You are likewise prohibited from posting any false claims against any company or individual. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any such information or materials. By posting messages and/or content on the Friends In Business (Scams 101) Message Board, you give permission for Lesley Fountain/Friends In Business/Shoestring Success Publications to display, distribute and use the posting and content for publication, advertising, promotion, excerption or example. You grant Lesley Fountain/Friends In Business/Shoestring Success Publications complete, perpetual, but non-exclusive rights to use, archive, reproduce, adapt, modify, distribute, sub-license, repurpose, rework, compile, or offer for sale or resale the messages, postings or content appearing on this site in whole or in part, throughout the world and universe, on a royalty-free basis without remuneration. If you cannot accept or agree with the terms of service for this website and discussion board, you are advised not to post on this board. In closing, I would like to remind you once again that it is still legal, in this great country of ours, to express a PERSONAL OPINION, as long as it is presented as opinion and not as fact. And finally, all you scammers out there will do well to remember that TRUTH IS AN ABSOLUTE DEFENSE against charges of libel, defamation, and slander... so if you're operating just a hop, skip, and jump ahead of the law, you might want to think twice before doing anything stupid... (AND SHAME ON YOU!!). |