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Doug Nebeker ("Doug")
Today I got a Cease and Desist letter from the lawyer of one of my competitors (not my main product though).
Essentially they claim that the website for my product is mainly the same content than theirs. While we offer basically the same service and therefor some texts and headline are identical I cannot see that this could be a issue. For example:
- They have a "Docs" page, so have I
- They have a "Signup" page, so have I
- And so on... (My page all in all has only 5 different pages)
The only thing that is arguable alike is the name of the service.
Now I'm unsure how common this is in the USA (I'm located in Germany). I know that I should get legal advice, but still has anyone some suggestions?
Tuesday, April 23, 2013
Yes. Get legal advice.
You're asking predominantly US programmers about intricacies of German copyright law. What could possibly go wrong?
Tuesday, April 23, 2013
"The only thing that is arguable alike is the name of the service"
We could use a little more information. Is your competitor situated in Germany as well? Does your competitor use exactly the same identifiable brand name for their service and promote it using that brand name?
Law offices will often provide cease and desist letters for a minimal price. To back up such a letter with a lawsuit is vastly more expensive, especially if your competitor does not have an office in Germany. Even if your competitor is Disney or Apple, don't immediately comply with the letter. Even if your competitor is Howard's Back Yard Trademark Trollers, you shouldn't ignore the letter either. Getting a law office to provide a reply letter that states you will vigorously defend your business interests is only slightly more expensive than getting a single cease and desist letter, and you can be certain your competitor had to pay for several of those. Spend a little now to save a lot later.
Thanks for your answers :-)
No, I'm asking about US law as the competitor in question is located in the US.
The competitor is located in the US. Both service names start with "URL" which, in my opinion is a common word. The competitor is not a big company.
I tried that, but no luck.
Wednesday, April 24, 2013
Keep in mind that *there is no compunction for you to reply*.
I've had such letters from Adobe, and other biggies. I bin them.
Wednesday, April 24, 2013
No, don't ignore it.
Spend the time and (deductible) expense to have a quick chat with a lawyer conversant in these issues.
*If* they do follow up the issue it serves you well to demonstrate that you took it seriously (from a legal perspective).
This may involve a simple rebuttal denying any wrongdoing/violation, demanding explicit 'evidence' and if this is not provided in 'x' days you would consider the issue closed.
Regardless of my (and others opinion) in the end it doesn't matter what we think (is un/just) it only matter what the relevant law says.
Exactly what Marcus said "don't ignore it." Unless you want to argue that you are too dumb to know what to do when you receive a letter from a competitor's lawyer, you are essentially accepting the arguments made in the letter by throwing it away. And if an adjudicator accepts that you are too dumb to know better, then you probably aren't smart enough to know that using trademarks and intellectual property of other companies without their permission is wrong, so the judgment will be that you must cease and desist.
Use the opportunity to learn something about the legal side of your business.
"Both service names start with 'URL'"
The identifiable part of your brand name is "2" instead of 'To" Claiming rights to "URL" is like claiming rights to "LOL." But the letter claims "that the website for my product is mainly the same content than theirs" which is a different issue, and probably just as weak.
So, if you don't already have a lawyer, use this as an excuse to find one, and ask what you should do to protect your own brand names along with getting a nice short letter requesting your competitor to go for a walk.
I don't know anything about the laws in germany. In the US companies can enforce this because you have to pay to defend yourself and they have more money than you.
Recently Games Workshop ordered that Amazon stopped selling a novel that had the words 'Space Marine' in the title. They have a patent for space marine type games or sometihng like that. They claim that they 'consider' the term space marine their intellectual property. Amazon took the book down since its not worth it for them to fight this. This was a very small time author who cannot afford a legal fight.
She loses by default. You can google 'space marine' the term is widely used in SF and you can see references dating to the 1930s for it.
People who have less money tend to lose by default and lawsuits don't have loser pays.
"I've had such letters from Adobe, and other biggies"
Good, that means your marketing has had a measurable effect. Proportionate response is the key, if their letter came from the marketing department, send a response from yours. Same applies if it came from their in-house legal department (although you may have to wear that hat yourself). If it comes from an outside legal office, you need to find your own outside legal office. For the content of your response, less is better and request more information because there are statements in their letter that you don't accept. Don't specify what those statements are. You don't have to convince them of anything, just simply put the ball back in their court. If they ever decide you are worth their while to pursue via more expensive methods, your initial response will make your case much easier to argue.
"they 'consider' the term space marine their intellectual property"
Was the book self-published? The author could use "space marine" in the text, but putting it in the title is using it as a brand name or trademark, and if Games Workshop used "space marine" or something easily confused with "space marine" first, and took steps to protect their trademark, they have the right to force the author to find a title for her book that doesn't include "space marine." An established publisher would/should have had the book title checked for potential legal conflicts. It costs Amazon less to remove a title from their catalogue than it does to do their own title searches, which explains why they listed it in the first place.
Like sci-fi authors, software developers need to know something about the legal aspects concerning their intellectual property, or be prepared to pay someone else to advise them.
I was always a bit upset with Games Workshop for pursuing this case. Sure, if someone wrote a novel involving laser swords and a strange mysterious power pulsating in the centre of the universe it might be expected to raise a few legal eyebrows but to use the term "space marine"? Come on. It could almost be as ubiquitous as "space man".
Wednesday, April 24, 2013
Even if they take it to court, a court decision of a US court basically has the same relevance in Germany as this legal letter from a US lawyer: None. Even when a lot of US citizens think that US law is world law.
That said, it may still be a good idea to consult a german lawyer. International copyright laws may be a minefield for the unwary. Plus, you have a .com domain which is registered in the US. You may ignore this letter, but be prepared to lose the .com domain and switch to a .de domain.
I don't know how far they can go, maybe you may even experience difficulties with your next US travel, or if you are a customer of a US company like Amex. Though you have to do something really BIG to get into such problems, like publishing documents on Wikileaks, or trading with Bitcoins (http://bitfloor.com/)
Trading in bitcoins is not a problem, their problem was acting as an an unlicensed exchange.
Friday, April 26, 2013
Well, did you copy content or "look and feel" from your competitor's site, or not? I see crossbrowsertesting.com has similarities to your site. If they were there first, I can see why they'd be annoyed -- same page title, product made of three words in different colors, little grey sub-title underneath, similar font and links to the right and blog links above. I don't know if there's a legal basis to their complaint, but if I were you, I wouldn't want to look similar to my competitors anyway (intentionally or not) because I would want to stand out as different. Especially if the competitor is larger.
I got a cease & desist once from a company in a completely different industry that had a registered trademark on an acronym I used for my product name. I wrote back and said we're in completely different industries and my customers have never mentioned being confused by anything, but if they've experienced something otherwise, contact me and I'll consider changing. I never heard back from them and nothing happened (that was about 8 years ago).
Then I got one from a competitor who said the name of my new upcoming product was too similar to theirs. Theirs was named something like "PR-Foo" and mine "Probar." I called their owner (we had met before) and asked if he REALLY thought they were that similar, because I didn't think so. He seemed pretty angry and growled "yes!!!". He wasn't threatening to sue or anything, was just perturbed. I said okay, I'll change it. I didn't want any possible confusion either. And why make your competition hate you? You may want one of them to work for you someday, or vice-versa.
There's nothing wrong with talking to your competitors. Especially so they can know you're reasonable and not trying to "cheat." I'd tell them you didn't copy anything from their site, and certainly don't want customers to confuse your two companies either. But if they think some things are too similar, let you know specifically what and you'll see if you can change it. Then consider doing it. I mean, if it's just simple cosmetic stuff, why not?
I have not got a cease and desist letter yet for my ISV.
But from my experience, my customer got it because they are using my software and i got a letter from a big company in The US saying that my software has a possibility to infringe their patent.
You can pretend to ignore it, but you actually cannot. Please see a Trademark attorney and listen to what they say. You may need to spend some fortune to get their advice as they are not cheap at all.
But better to have a peaceful mind rather than pretending to ignore them.
All the best.
Send them a C&D order of your own.
Tuesday, April 30, 2013
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