
A VC-funded startup called WhosHere is trying to steal my social network - pclark
http://brianhama.com/a-vc-funded-startup-called-whoshere-is-trying
======
liber8
General advice for legal questions: it's fine to ask these sorts of questions,
but please, for the love of god, don't listen to anyone who isn't a lawyer or
who hasn't gone through something very similar to what you're going through.
And, even in those cases, take their advice with a HUGE grain of salt. (If you
disagree, please see below, where OP is variously advised to (1) commit
unlicensed practice of law [serious repercussions], (2) commit fraud, (3)
waste money, and (4) likely destroy his own case.)

As a lawyer (who doesn't have _anywhere near_ enough facts to give you
anything close to competent advice), my advice is to find a lawyer to
represent you. If you can't afford one, try the EFF or similar organizations.
If they won't take you, find a legal clinic nearby. If you're in the bay area,
you have have two of the best lawschools in the country within bicycling
distance of you (UC Hastings isn't half bad either...). They have legal
clinics, generally led by highly respected and knowledgeable faculty that are
happy to have cases like this.

Unless you really don't want to fight this, go get a lawyer who knows what
he's doing. If you don't want to spend a lot of energy, possibly a lot of
time, and likely some money, just roll over now. But, don't half-ass it and
try to do this yourself. By blowing at least two deadlines, you've already
shown you're not up for it.

~~~
tlogan
I agree that it is smart to say "get a lawyer" in this situation. It does seem
very hairy.

But now something off topic...

I noticed that these kind of answers ("get a lawyer") are used also to answer
question even when people are just curious or they just want to learn
something. It is nearly impossible to learn what needs to be read or
investigated in order to evaluate the situation.

For example, I don't need a lawyer for small claims court but where to get
some advise?

In other words, even the most common sense questions regarding law, health,
taxes, etc are answered with "get a lawyer, see a doctor, get tax advisor, get
accountant, etc".

It does seems that market of legal, health, tax, and similar professionals is
due to a disruption.

Is there a cheap lawyer service? Something like not visiting doctor but just
visiting nurse.

~~~
newbusox
The issue with law is that laws are dissimilar from jurisdiction to
jurisdiction, in meaningful enough ways that giving advice based on the laws
for one jurisdiction might be entirely useless in another. Moreover, even I
were to live in that jurisdiction, unless I am intimately familiar with the
aspect of law questioned about (which is highly unlikely, even extremely
experienced attorneys do legal research), I will have to spend time
researching. If I spend time researching, I expect to be paid, generally
because the tools used to research are not, themselves, free, like Westlaw or
LexisNexis. Moreover, I generally get paid to research to begin with so, in
not doing paid research for other clients, I am potentially losing money I
might otherwise be making.

Not to say that lawyers can never give good legal advice to legal questions
without researching--but the paradigm that I just described is a big reason
why people, including lawyers, answer legal questions with "hire a lawyer."

------
smattiso
Somewhat unrelated, but I ask the legal experts here.

If someone sues you for some bogus claim, is it possible to submit a written
plain english rebuttal and have the court throw it out before it gets too
serious? I mean if I sue some company for something absurd and demand $10
million dollars, are they forced to actually entertain my lawsuit or can it be
dismissed readily without a lawyer?

~~~
jarrett
The short answer is this: It's possible, but hard to pull off.

First, you would have to do some basic research on court filing procedures.
It's not rocket science, but you can't just pop an envelope in the mail
addressed to the judge.

Once you figure out how to file documents for the case, you need to determine
what type of documents to file. E.g. a motion to dismiss might be appropriate
if you think the claim is utterly bogus.

It can be "plain English," as Smattiso suggested, and indeed, judges always
appreciate clarity. Legalese isn't required, but valid legal reasoning is.
Contrary to popular belief, "legal reasoning" doesn't have to be arcane. It's
pretty much just a matter of using everyday logic to apply legal principles to
the facts of the case.

It's a lot like learning to program. There's no magic involved. It's just a
matter of reading the relevant documentation, looking at examples, and using
your innate reasoning abilities to put something together in accordance with
the rules. And yet, as with programming, reasoning and writing about the law
take practice to do _well._ You can hack together a simple CRUD app with zero
programming experience and a lot of motivation. But you wouldn't want to bet
your entire net worth on it. Likewise for legal writing. You can spend a few
evenings of hard work learning the anatomy of a motion to dismiss and the
basics of trademark law, and then you can write your motion. But I wouldn't do
it if my personal finances were on the line.

In a situation such as the OP describes, there is an additional challenge.
According to the OP, the plaintiff is using and perhaps abusing quirks of
court procedure to his advantage. (I'm referring to the bit about default
judgement and the alleged absence of certain documents.) That, too, could in
principal be dealt with by a non-lawyer, but it would be quite difficult.
You'd have to learn a great deal about the finer points of court procedure.
This is especially difficult because it's not uniform across jurisdictions.

EDIT: You would also need to determine whether this would constitute
unlicensed practice of law in your jurisdiction. Generally, you're allowed to
represent yourself in court ("pro se.") But the rules about representing your
_business_ are a little more complicated. Sometimes it's OK, sometimes it's
not.

So, yes, you can sometimes write something up and get a case dismissed without
hiring a lawyer, provided you're willing to learn a great deal very quickly.
But you'd be taking a tremendous risk. Probably not a good idea.

Just to be clear: I'm not at all recommending that the OP do this. I'm just
answering the question posed in the parent comment. The OP really does need a
lawyer, especially considering the plaintiff has allegedly shown a willingness
to play procedural games.

~~~
tuxidomasx
This is the kind of information that I would be most interested in. I
understand that the legal system is very complex (like a programming language
with funky syntax), but there IS a process and there ARE standard ways to go
about doing things, even if there are particularities for different locations.
I suppose this is the kind of thing you learn in law school or from experience
in a courtroom, but there is no reason that it can't be taught outside of
those environments.

Is there a repository for learning the basics (and maybe more advanced) legal
processes? What forms to send to whom, and when, and what to be sure to do,
and what to never do?

It's learn-able if there is a resource that teaches it. An online Khan
Academy-like resource. Or even maybe an educational game. The only lawyer sim
I've seen is Phoenix Wright.

Sure, I'd still prefer an experienced lawyer to do the driving if something
comes up, but I'd feel more confident with some solid legal knowledge of my
own.

~~~
jarrett
Ok, so here goes. This is by no means a suggestion that anyone become an
amateur lawyer, practice law without a license, handle a particular case pro
se, or do any other such thing. This is just useful info for anyone who might
want to learn some law. (Nothing wrong with learning as much about the world
as you can.)

I'm not aware of any single repository of such information other than law
school. But if you're willing to consult multiple sources, you can definitely
find the information.

For starters, one can always get a copy of the reading lists for various law
school classes. You could also look at commercially prepared law school study
guides. Pretty much everything you would learn in law school is available in
book form, in one place or another. Obviously, law professors and lecturers
contribute a great deal of value added in the form of their own experience and
idiosyncratic knowledge. But the core material is all written down in various
places.

Those types of materials will teach you the basics of American law. The next
step is to research the statutes and case law in your jurisdiction. That means
federal, state, county, and municipal laws. The statutes can be found by
Googling, for example, "Illinois Statutes," or "Chicago Municipal Code." As
for case law, assuming you don't have a subscription to a legal database, you
can use some Google-fu to find articles that address whatever legal question
you're researching. You can also buy a "treatise" on the field of law you're
researching; they're packed full of case citations.

As for court procedure--well, first, let me just say that you probably don't
want to litigate your own cases unless you're in small claims court. And even
then, having a lawyer really, really helps. But if for some reason you want to
learn procedure, that'a a bit harder. There are books specific to individual
jurisdictions. Also, courts often publish their own procedural rules. All of
this can be found through Google.

Again, this won't make you a lawyer, and it won't eliminate the need for one.
But I'm a firm believer that anyone can benefit concretely from a solid
understanding of the law. There's no better combination than a smart lawyer
and a smart client.

------
nphase
WhosHere's response: [https://whoshere.zendesk.com/entries/21514943-the-other-
side...](https://whoshere.zendesk.com/entries/21514943-the-other-side-of-the-
story)

------
TylerE
Sounds like he made the biggest mistake by caving the first time around. If
he'd stood his ground at first, maybe pointed out if there was any potential
for confusion (a key point in trademark law), it was the other way around, as
he was the one with an established user base and a 10-year history.

~~~
ontoillogical
He says he made the app 2 years ago, where as WhosHere is from 2008. If it is
in fact a trademark issue, sounds to me like they beat him to the name.

~~~
picklefish
This is what bothered me about the whole post. He never once said how old the
other company is. A critical (purposeful?) omission.

~~~
blueben
He also didn't mention that he tried to sell his app to them 2 years ago. Or
that they made him an extremely generous offer this year.

~~~
brianhama
I never tried to sell them the application. I offered to build a Windows
Mobile and Windows Phone 7 application for free. Also, their offer doesn't
seem very generous when you consider the extreme likelihood that if they
obtained my application, it would never be integrated with their network.
Since their offer was a 33% revenue share of that application's revenue, I
would never see a dime. Building this was never really only about money
anyways. WhosHere has no concept of community within their app. I didn't set
out to build an app or a company, I wanted to build a community.

~~~
blueben
Brian, the only damage control you should be doing now is apologizing
profusely to everyone for trying to manipulate _this_ community. You spun a
very sad story and left out incredibly crucial facts that did not serve you.
That is simply unacceptable. This is clearly the act of a very immature person
who is not ready for the world of business.

Your post is now clearly shameful; the fact that you went even further and
began accepting donation money only escalates that shamefulness. Did you
really think that the details you left out wouldn't come to light?

You've handled this very poorly. Apologize to the community, apologize to
WhosHere before you get smacked with a defamation suit, and hire a damned
lawyer to deal with your _legitimate_ trademark and breach of contract lawsuit
in a court of law instead of wasting time dancing around in the court of
public opinion.

------
throwaway999_
I agree that this is certainly in bad practice, but before everyone goes all
crazy hitting the donation pool, are you or aren't you "wealthy"

From a PDF they have posted regarding emails from you
([https://whoshere.zendesk.com/entries/21514943-the-other-
side...](https://whoshere.zendesk.com/entries/21514943-the-other-side-of-the-
story)):

"" I was born wealthy; I have an obscene trust fund. I assure you that if
required, I will obtain the best legal representation for corporate litigation
in the Silicon Valley. After your last proposal, I will resist this legal
action well beyond what makes any financial sense, simply out of principal. ""

~~~
brianhama
It was a failed attempt at a bluff. I regret sending that email. I posted on
my blog in response if you want to hear the full details.

------
lancepantz
He mentions Lightbank is the vc, is it fair to judge them for this behavior?
As an entrepreneur it does really put me off.

~~~
malbiniak
I stopped reading when I came across Lightbank. I've spent time in Chicago,
got to know a few of those guys and companies they've funded, and have since
stayed as far away as possible. Anyone in the area should do the same.

Curious? Look into their deal structures.

~~~
gluegeorge
can you elaborate a bit?

------
dollar
The adage "An attorney who represents himself has a fool for a client" has
some relevance, but in the information society self represeration can have
major advantages. The best way to be a Pro Se is to hire outside counsel to
advise you, but to do all the dirty litigation work yourself. If this company
has hired an outside attorney to litigate, this person could make that a very,
very expensive proposition for them. I think this company's board would grow
very concerned at legal expenses exceeding $100k with no hope of recovering
from the defendant. My advise is hire counsel to advise you, educate yourself
of self representation and court procedures, and rake these fuckers over the
coals.

~~~
law
> My advise is hire counsel to advise you, educate yourself of self
> representation and court procedures, and rake these fuckers over the coals.

This is terrible advice. Unless you're a duly licensed attorney in OP's
jurisdiction, don't offer legal advice. You're practicing law without a
license, which is a crime. Moreover, were OP to rely on that advice to his
detriment, you may find yourself named as a defendant in a civil suit.

~~~
fijal
Can you find some documents under which circumstances this is a crime? I find
that you should not do that _for money_ or _in court_ on wikipedia, but I
somehow fail to find that "giving advice" or even "drafting legal documents"
can be a crime.

~~~
law
<https://www.google.com/search?q=unauthorized+practice+of+law>

"[A]s the term is generally understood, the practice of the law is the doing
and performing services in a court of justice in any matter depending therein
through its various stages and in conformity with the adopted rules of
procedure. _But in a larger sense it includes legal advice and counsel and the
preparation of legal instruments and contracts by which legal rights are
secured although such matter may or may not be depending in a court of law._ "
(People v. Merchants Protective Corp. (1922) 189 Cal. 31, 535, quoting Eley v.
Miller (1893) 7 Ind. App. 529 [emphasis added]).

~~~
mindcrime
And none of that mentions "posting offhand comments on a random Internet
forum."

Here's some unauthorized legal advice for ya: Posting your opinion on random
legal matters on HN has about
0.00000000000000000000000000000000000000000000000000000000000
0000000000000000000000000000000000000000000000000000000000000
0000000000000000000000000000000000000000000000000000000000000
0000000000000000000000000000000000000000000000000000000000000
00000000000000000000000000000000000000000000000000000001%

probability of every resulting in any legal backlash for the commenter. And in
a country which is supposed to cherish free speech as a principle, we should
absolutely all feel good about giving our opinions, and if the courts have a
problem with that, telling the courts to go fuck themselves.

------
kvnn
Ugh, this is crushing.

Here's to hoping that someone like Grellas can find time to comment and tell
you how to beat these guys.

If that result isn't possible, than I ask you to keep your head up, move on,
and keep building.

Do your part to (soberly and safely) reduce the reputation of the founders and
VC's behind this.

~~~
kvnn
In spite of only having one side of the story I'm going to decide to choose my
ground and ask this:

What if we started a Kickstarter campaign to fund the legal fees to counter-
sue this company? The precedence set in a success would be profitable to the
builders of the startup community. And I'd sleep better at night.

~~~
jsprinkles
You want to completely buy in to one side's story without any context or
response from the other side, then start a Kickstarter to fund a legal assault
upon that company? Really?

Not only are you surprisingly easily manipulated, apparently, don't you have
better things to hack on?

~~~
MiguelHudnandez
FYI, personal attacks (a.k.a. ad-hominem arguments) are discouraged here. Here
are the guidelines, for your convenience.
<http://ycombinator.com/newsguidelines.html>

Your objections could be worded in a way that is not a personal attack and
could be just as informative, or more so.

~~~
jsprinkles
FYI, what I wrote is not an ad hominem argument, and "ad-hominem argument" is
not an a.k.a. for "personal attack" (neither of which my comment is, for what
it's worth).

~~~
MiguelHudnandez
Thanks for the clarification on "ad hominem" versus personal attacks. Now I
understand that it's only ad hominem if the basis of the argument relies on
the personal attack.

All that aside, your comment above, reproduced here, is clearly a personal
attack:

> Not only are you surprisingly easily manipulated, apparently, don't you have
> better things to hack on?

~~~
jhuni
Is it "clearly" a personal attack even though there is a question mark there?

~~~
chris_wot
Yes. Try the following: "You are a moron who has no idea what they are talking
about?", or an actual question "Are you a moron who has no idea what they are
talking about?"

Both lower the tone. Both cause unnecessary battles and derail discussions.

------
amosson
I am not a lawyer - so don't take this as legal advice. But if I read your
post correctly, you said you were never properly served. Since it sounds like
you have access to all the court documents, if you search through them some
where in the documents you will probably find a place where the plaintiffs
swear under penalty of perjury, that you were served with notice. If you were
truly never served (make sure to check with a lawyer to see what constitutes
service) and they claimed you were - you may have grounds for a counter suit.
Check into Small Claims Court as well - you can sue for up to $10,000 and
abuse of process is a valid claim there. Forms are available online, your
opponent can't bring a lawyer and there is only one appeal allowed.

But if you do nothing and if they choose to press this, they will go to court
to ask the judge to put liens on any assets they can and to garnish your
wages.

In any event contact a lawyer to see if I am correct about this.

------
logical42
Put up something to accept donations, I'd be happy to kick back a few bucks to
the cause.

~~~
simpleenigma
I know the developer and I just let him know that he is getting attention here
... and to get a donation link up ASAP ... He is a good guy and this has been
an awful experience for him ... I've told him to get an account and start
posting to this thread, so hopefully he'll be here soon ...

~~~
pooriaazimi
Merely a 'Donate' button is not enough. It should show how much has been
donated so far (it gives people more motivation to donate, if they see that
this 'donate' thing actually works and for example, $1900 has been raised so
far).

------
throwaway1979
Wow ... this is shocking! Can someone explain how this is even remotely
trademark infringement?

I'd also suggest you dig up research papers in conferences such as UbiComp and
Pervasive. The "who is near me" app has been around for years. Also, check out
papers on the cooltown project. I'm not totally sure what a defense to a
trademark infringement claim would be. Perhaps if a researcher used the same
name in a paper, that might help?

~~~
rhizome
My sense is that it is _only_ "remotely" infringement.

Frankly, I think they like his name better than theirs and are trying to steal
_that_. It's indeed a better name.

------
user40682
Work the PR front, in addition to all the legal work you need.

Ideas:

-Start tweeting about it & create a hashtag #WhosHereThieves

-Get in touch with the TechCrunch author who wrote about about your app. This story is a big deal

-Reddit post

-Accept donations page

-The VC probably doesn't know anything about this, but they might respond if included in all the negative PR

~~~
pooriaazimi
> _-Start tweeting about it & create a hashtag #WhosHereThieves_

IANAL, but I think it's a very bad idea. I don't have the faintest idea if
it's considered defamation in the court, but I suspect it _might_ be, and thus
should be avoided.

------
sujal
Contact EFF.org and see if they have any pointers. Also, check with the
Cyberlaw Clinics organized by the Berkman Center - they might be able to help:
<http://cyber.law.harvard.edu/teaching/cyberlawclinic>

~~~
josscrowcroft
Yeah I was gonna recommend contacting <https://www.eff.org> too.

------
theunixbeard
Who's Near Me's side of the story:
[https://whoshere.zendesk.com/entries/21514943-the-other-
side...](https://whoshere.zendesk.com/entries/21514943-the-other-side-of-the-
story)

It appears this isn't such a clear cut story...

------
fear91
Fuck those pricks - what do they want from you? You don't infringe anything -
that names are not that similiar.

Find a lawyer who will defend you for a part of the money if you win.

Turn it around. They obviously are acting to drag your service (company?)
down.

------
curiouscats
I would like to see someone create an plugin that would give a warning if you
went to a site that had used obnoxious legal bullying to harras small sites. I
realize policing who gets shown on such a list would be a big job.

I would love to have someone reliable do this and then I could chose to just
not deal with such sites (or decided well yeah I don't like using lawyers to
bullying but I am willing to sell out my principle because this site is so
cool I can't live without it).

The way to counter the strategy of paying lawyers lots of money to bully your
small competitors is to setup a method that forces those companies to suffer
the consequences for their decision. I would be happy to help that process,
but I can't keep track of who is doing the bullying.

This type of providing better information so I (and others) can make informed
decisions not to use sites with practices I find obnoxious is something I
would really love to see. Both for this type of obnoxious behavior but really
a platform could support all sorts of notices on whatever people object to
(probably using lists from whatever they care about World Wildlife Fund, NRA,
EFF or whoever).

I don't think the legal system is going to be reasonable. We need a solution
that allows the market to enforce an acceptable code of conduct with
consequences for being obnoxious (even if the legal system thinks it is fine).

------
ehutch79
I'd kick in a couple of dollars for your legal fees if you get a donation page
up

~~~
philco
Me too. Seriously.

------
dutchbrit
How long has WhosHere been around for? (Okay, I read an update, 5 years and
trademark since 2 years - still, irrelevant) Seriously, this news sickens me,
your app name is a common phrase, a big f you to WhosHere from me to be honest
:)

They can't trademark "Who's", surely.. I hope this makes big news, you deserve
to win this, which is really obvious in my eyes. Good luck!!!

------
adamt
To what extent did they 'agree' to the change of name a year ago? You say you
'agreed' to do it. But did they agree to the new name? Eg did you inform them
about your name or reach any sense of resolution.

Unless they could somehow prove you have wilfully be continuing to violate
their trademark I don't see how any damages are valid. I would certainly not
give in to their threats.

What about the origins/timeline of the name and the trademarks. Who was using
it first? What exactly is their trademark?

Subject to answers above, and given that this is a side project to you - I
would suggest you simply write back stating you don't feel you are violating
their trademarks, but would consider a rebrand in your mutual interests to
avoid any potential for customer confusion provided they contributed to the
cost of paying an advertising agency to create a new logo and other menu costs
and estimate their share of those costs as $5,100 (eg they pay you what they
are asking from you)

------
ajross
Wikipedia says that WhosHere was founded in 2008 and launched their app in
2009: <http://en.wikipedia.org/wiki/WhosHere>

If that's the case and their app predates Who's Near Me, I have to say that
the OP is probably going to lose this. The names and apps certainly do seem
confusingly similar.

~~~
krrose27
The trademark wasn't filled until February 2010.
[http://tess2.uspto.gov/bin/showfield?f=doc&state=4003:5a...](http://tess2.uspto.gov/bin/showfield?f=doc&state=4003:5ar557.2.1)

~~~
adamt
I am not a lawyer but have been involved in various trademark registrations
and disputes.

The trademark is for the concatenation 'whoshere'. Given that both are common
words obvious to the topic I would have thought the interpretation would be
very narrow and 'who's near me' is suitably different. I certainly don't think
you should give in to their somewhat extortionate demands.

~~~
ajross
Even given a very narrow interpretation, "here" and "near me" are basically
synonyms. And as I understand it the apps are very equivalent too, they're
selling the same product under a near-identical name.

"Red" and "Hat" are common words too, but you'd never get away with trying to
sell a linux distro named "Red Cap".

~~~
fla
You'd never get away with trying to sell a linux distro, anyway :)

------
CurtMonash
When I was threatened with libel by Sybase, I jumped on the phone with the
general counsels from Oracle and Computer Associates, and based on their "I'm
not acting as your lawyer" general comments, handling things myself. The big
difference is that "Handling things myself" amounted to sending back a couple
of letters, not dealing with legal paperwork.

I'd say that advice across the internet on whether to engage a lawyer, how to
engage a lawyer, or what your negotiating strategy might be is fair game, and
could be just as good or bad as any other internet advice. Talking about your
case in public, for the other side to see, could be disadvantageous, but
that's a reasonable risk to take.

For actual legal procedures -- yeah, you absolutely need a lawyer. But the
best organized and most affordable one may not give the best strategic advice.

------
schwanksta
Sounds like some dirty business. Hope someone helps.

------
armandososa
I'm clueles, but what if you hired a lawyer for equity, then raise some money
and utterly crushed them? Obviously there's a valuable market and you are good
at what you do. So, is it unrealistic to think that's possible?

------
filmgirlcw
So obviously the guy needs legal advice, and ASAP.

We obviously also only know part of the story, and from his perspective.
Still, something here smells really, really bad.

As a media professional, my advice is to take this to the public if you can.
That means Tech Crunch, AllThingsD, CNET, the Next Web, etc.

(I'll also include my own employer, Mashable, where I'm the entertainment
editor but often end up being the defacto point person for stuff that's
developer-centric)

Not knowing the facts around the situation, I'm inclined to say focus on
getting public attention as early as possible, especially if you're worried
about being able to get a response submitted to the court by the deadline.

On that note, I would ask your lawyer friends what would be involved in
requesting an extension, because if you want to fight this, you will need more
time.

Finally, even though this is a labor of love and not one of profit, after you
get through the eye of the storm, it might be time to shit or get off the pot
regarding the service. After all, if you're looking at wanting to invest a lot
into the legal defense of this project, it might be time to start looking at
how you can transition it from a hobby side-project into more of a real
business.

If you aren't interested in making that transition, you need to evaluate the
costs -- not just in terms of money, but in terms of time and effort -- in
this particular hobby.

------
jusben1369
Am I the only one that reads an article like this and has the following
thought process? "Man I can't believe those guys!" "Wait you agreed to what?"
"I hope you documented that right?" "I'm guessing he didn't document that" "He
still hasn't fully engaged a lawyer?!" "Man those guys suck but for the love
of Mary why didn't he just get in front of this with a good lawyer."

\- Who needs a lawyer when you can marshall the Internet Pitch Forkers!!!!!

~~~
brianhama
My thinking was that lawyers cost money, so why not try and resolve it myself.
But, as a result of all of this I have learned that not having a lawyer costs
more money.

------
kika
I'd put some dollars to bomb these crooks back into obscurity they deserve.

~~~
blueben
Jesus, the Internet Hate Machine is brutal. You haven't heard the other side
of the story and you already want to BOMB them?

The guy you're willing to BOMB other people for said to them, and I quote, "I
was born wealthy; I have an obscene trust fund. I assure you that if required,
I will obtain the best legal representation for corporate litigation in the
Silicon Valley. After your last proposal, I will resist this legal action well
beyond what makes any financial sense, simply out of principal."

Are you really sure you want to BOMB people to support him?

------
ne0codex
It's a dog-eat-dog world out there and I guess the author had to find out the
hard way. He'll have to consider that this might be a lost cause, but remember
that you have the knowledge that they did this to you and can share it with
everyone else, people will be less likely to buy the VC-funded app if this bit
of information was out in the open :)

edit: clarity

------
brianhama
Thank you everyone for all your feedback and suggestions. The response has
been really overwhelming, but I will try and respond to all of your comments.
Also, in response to some of your requesting it, I have added a donation
button to the bottom of the blog post. Thanks again for the really amazing
response!

------
hamax
The Other Side of the Story: "We are not patent trolls, we are entrepreneurs
and developers, and here's what we're struggling with."
[https://whoshere.zendesk.com/entries/21514943-the-other-
side...](https://whoshere.zendesk.com/entries/21514943-the-other-side-of-the-
story)

------
knows_chicago
Their VC firm is Lightbank is run by two sleazy people. They are the same
people behind Groupon. Their founders are notorious for their sleazy tactics,
which are solely aimed at scamming investors out of their money. Never work
for a company or get investment from Lightbank.

------
newbusox
I am a lawyer, and I have, in my own startup, contended with a company
attempting to sue me/my startup for allegedly infringing on their trademark.

I'm sympathetic to your cause, but playing with intellectual property issues
is serious stuff and the reality of the situation is that better-funded
players will not infrequently attempt to bully you into getting what they
want, as appears to have occurred here. Obviously hindsight is 20/20, but you
should have consulted an attorney immediately on receiving a cease-and-desist
letter, even if you thought that their claim was entirely frivolous (which,
given the facts presented here, is hard to say). Had this occurred, you almost
certainly would either not be in this situation, or saved yourself a ton of
trouble.

Given that you did not and this situation has evolved to what it is, your only
choice is to retain an attorney if you’d like to continue operate the app and
not pay whatever damages they alleged. And, frankly, you're in a poor position
because, since the court has already entered a default judgment against you,
you will have to show cause as to why the court should set aside this
judgment, which will require more time and effort than if you have initially
opposed the lawsuit, even if what you say regarding a piece of the document
missing is true.

If you do retain an attorney and fight this, realize that, if you lose, the
opposing side might be able to recoup the entirety of their attorney's fees
(which would be very expensive for you, particularly in the unlikely event you
went to trial or the like, and it appears that they have already alleged this
right now), and, possibly, your profits (depending on a number of factors).
That's very serious stuff.

I wish I could give more direct advice, and I strongly agree with commenters
here in other posts lamenting how elitist law is and so on, but you have
absolutely no alternative but to retain an attorney. I don't know where you
live and where this litigation is taking place, but there are tons of lawyer
referral services out there (your local county bar will have such a service,
you can find out on their website), and you can speak to various attorneys who
might understand your financial situation and be able to work with whatever
budget you have. Just because an attorney says that they charged $X does not
mean that you can’t find another, competent attorney, who might charge less.
If I were in your position, and wanted to fight this, I would spend my time
either finding/raising money, or talking to attorneys about how you can
structure a fee schedule that would work with your finances (lawyers are open
to negotiating: you can say "I can only pay you this or that" or "I can pay
you this or that in the future"—see what they say and how flexible they will
be). I am skeptical that someone would take your case pro bono.

As a general piece of advice based on personal experience to others: don't
ignore intellectual property issues. Getting a trademark is not particularly
expensive (and, unlike this situation, something that you can, actually, do
without consulting an attorney, or at least for little $ should you need to
consult an attorney) and can save you headaches in the future. If you receive
a cease and desist-type letter, take it seriously, regardless of how frivolous
you think their claim is. If whoever sent you the letter went to the trouble
to have their lawyer draft a letter to you--which means that they probably
paid the lawyer a non-insignificant fee to do that--they are certainly taking
it seriously, and so should you. Even well-funded companies don't throw money
away to, of all people, lawyers, unless they think they can get something they
want from you, and/or they think they actually have a meritorious claim. Do
not attempt to respond to the cease and desist letter, unless you have
experience in how to do this. If you want to avoid paying an enormously
onerous legal fee, you can try your hand at drafting a response—but absolutely
get a lawyer to look at it prior to sending it. This may be more affordable
than you think (~1-2 hour of work, or the like, for a lawyer). If you're
worrying that you may be infringing someone else's trademark, or someone will
try to sue you in the future (as apparently happened here), you can get a
declaratory judgment (for a fee) from a court stating that you're not
infringing-again, something to talk to a lawyer about.

~~~
jaems33
Good post though I will say even without the power of hindsight consulting a
lawyer should've been step one. There's enough big trademark cases to go
around in the public eye to know that these things shouldn't be taken lightly.

------
neilkelty
If you're reading this - you need to ensure you read the response from
WhosHere: [https://whoshere.zendesk.com/entries/21514943-the-other-
side...](https://whoshere.zendesk.com/entries/21514943-the-other-side-of-the-
story)

------
smattiso
Also it appears that WhosHere launched in July 2008, so 2 years before your
product appeared? Or is that incorrect? Regardless you should fight these
dudes as I'm sure they would not relent to you in kind.

------
va_coder
Do a search on twitter for whoshere. What a P.R. nightmare.

If they cared about protecting a brand name they should have chosen something
more original than 'Who's Here'.

------
edsouza
Since you do not have the funds to hire a lawyer, it maybe better to look for
a settlement in your favour.

Even if you hire a lawyer, they will attempt to stall the case until you run
out of funds.

It maybe hindsight now, but I would of created a corporation and move all your
assets under it, (website, apps, etc).

Not sure if you can do that now before the default judgement on the lawsuit. I
would still hire a lawyer to do that just in case.

~~~
brianhama
All of the assets are under a corporation I started. Considering the type of
application it is (location based mobile app for meeting strangers near you),
I figured the number of possible liabilities definitely justified creating a
layer of protection for myself.

------
shrikant
Somewhat OT: but is it standard practice for the app developer to review their
own app on the App Store (sort of like how a dev would 'seed' their newly
built social network/forum I guess..)? OP appears to have done so. Or is it
possible to leave reviews under arbitrary names?

See <http://i.imgur.com/BPypw.png>

~~~
brianhama
Ya, I wrote that review myself. I would think it is a pretty common thing
individual developers of free applications do.

------
weixiyen
The opposition only has 1.25m in funding, of which only a fraction is probably
reserved for legal purposes like this.

If you can get inexpensive representation, just call their bluff. This is not
a big corporation you are dealing with. I'll put money on dropped case or some
type of amicable settlement that doesn't cost you anything financially, which
is your goal.

~~~
brianhama
That is actually what I did. They weren't bluffing though.

------
neilkelty
Since we aren't lawyers, is there a possibility that this guy is actually at
fault of infringing upon this startups trademark?

~~~
andrewguenther
He says his application is two years old, but Who's Here has been around since
2008. While I think they are being a bit harsh, it would seem that they have a
case.

------
fakhrazeyev
Open a PayPal account for donations. We, the community, will help you out. Do
not let this LightBank scare you.

------
feralmoan
Not sure where you're situated but I met a founder of upcounsel.com last night
which specialize in affordable outsourcing of startup legals. It seems timely
that I just came across these guys, so may be worth a try?

------
speg
The other side of the story: [http://m.techcrunch.com/2012/06/02/the-other-
side-of-the-sto...](http://m.techcrunch.com/2012/06/02/the-other-side-of-the-
story-whoshere-vs-whos-near-me-live/)

------
hippich
Looks like in USA you have to have at least LLC setup even if you doing
something for fun only. In worst scenario give away or "give away" it to
offshore company and "sue me" to these pricks.

------
krrose27
<http://www.wholivesnearyou.com/>

Ok so I am stretching this one but it seems to have been around since 2004.

------
chuinard
I hate to be negative about this, but it sounds like you've had a successful
product for 2 years. Why are you still working on it if you're sacrificing
time, sleep, and a social life to 'break even'? At some point (and I would
think well before 400,000 users), why didn't you go out, seek $1.25m for
yourself, and win your market over with a better quality product? I do think
what is happening is wrong, but why are you so intent on fighting this if
you've spent 2 years just to be breaking even, even with a half million users?

~~~
MartinCron
Not all projects are blockbuster profit projects, some people do things as a
labor of love for the joy of doing them. Sometimes great things are made that
way.

Seeking out $1.25M is not the sort of thing that has any draw for a lot of
people, and that's OK.

~~~
brianhama
Exactly. I entertained the idea of fundraising briefly, but realized that it
didn't really give me any sort of satisfaction and wasn't something I was very
good at. I like to write code, I like to build things, I like interacting with
my users and turning their suggestions into reality.

------
wrekkuh
Have you, or anyone representing you company/app, ever approached WhosHere to
'merge' businesses as they claim in their rebuttal blog posting?

~~~
brianhama
I initially contacted WhosHere and offered to build them a Windows Mobile and
Windows Phone 7 app for free. They ultimately declined, so I built my own
entire network.

------
davidandgoliath
IANAL, advice: get one. Also: To reiterate everyone else -- we'll happily
contribute to help pay your ass-kicking fees. :)

------
danberger
Everyone should tweet about this and make sure to include their twitter
handles: @WhosHere and @lightbank

------
ypeterholmes
For what it's worth I've started a boycott of WhosHere:
[http://www.boycottspot.com/view_boycott/23-WhosHere.com-
and-...](http://www.boycottspot.com/view_boycott/23-WhosHere.com-and-all-
their-apps)

And I shall tweet them letting em know.

------
waivej
Monetize your social network enough to defend against threats like this.
Otherwise, someone is going to steal your lunch.

------
speg
The other s

------
leoplct
WhosHere exist by about 5 years!

~~~
rhizome
The word "who" and the implication of location is not enough to hang an
infringement.

~~~
dllthomas
It also means the same thing, and almost rhymes. "Who's Here" and "Who's Near"
probably _shouldn't_ both exist doing about the same thing - it _would_ cause
confusion. With "Who's Near Me", I think it's no longer a worry (in terms of
what the law _should_ be doing - I'm not a lawyer, so I can't speak to what it
_is_ doing until we see what happens in court, if it gets there).

------
nirvana
I never went to law school so there's no way I could be a lawyer, I'm just
giving my thoughts on things I would do in this situation. This isn't legal
advice.

I sympathize with your situation and I'm sure there are a couple lessons
learned here- namely that they used negotiation with email to apparently cause
you to forget that there was court case pending. But saying that doesn't help
you.

I've been in the situation where lawyers told me I didn't have a case, and it
sounds like this is what you're hearing too-- but I think you might be missing
something- you may have a case, you just haven't found it yet. The lawyers are
looking to hear something that gets them excited-- something that they can
really use for their profit. Since you don't have a lot of cash, the bar is
higher to get them interested.

At this point, you just haven't figured out what the case is. I suspect you
probably have a good one, however, if you've been running your service since
2008 or before 2010, or based on the contract they entered into with you.

If you find a case, you'll likely find a lawyer eager to take your case on
contingency because both of you can make out profitably. (though of course
they will settle when they realize that you have a case, but that still can be
profitable.) Until you find it, though, there's no obvious case on the face of
it.

This means you need to do the legwork. Start going thru every communication
you have with them and organize your documents as best you can. I would
strongly suggest you get a timeline going. Dig up that old agreement where you
changed the name-- did they agree that doing so would settle the matter? Even
in writing in an email? If that's the case, then you may have them violating a
legally binding contract by bringing this case.

Build this timeline going back to the beginning and gather evidence proving
each step (Eg: your receipt for registering the domain name, etc.)

Find where they have done you wrong- failing to serve you correctly is one
example. You need more.

Find the relevant laws-- the cybersquatting laws give you rights against
"reverse cybersquatting" where someone tries to steal a legitimate domain
name.

Go to the USPTO.gov website and research their trademark application. Do they
actually have one? Does it actually cover the area of what you're doing? For
instance, I found a registration number 3885293 for "WHOSHERE" which shows a
first use in commerce claim of 2008. Does your service predate them? Can you
find evidence of you using the name "Whose near me" or whatever, including
registering that domain prior to that date in 2008? How about prior to the
date they filed for the trademark in 2010? When looking at their trademark,
find the "TARR STATUS" button, click that, then find the "Trademark Document
Retrieval" link near the top of the page, go and select all the documents for
their trademark and download them as a PDF. You may find that the trademark
examiner has done footwork for you, limiting their possible use of the TM, and
they may be in violation of that... this will give you even more cause.

Basically, if you have been using your name prior to 2008, and can prove it,
then you are in good shape. If you stared your site between 2008-2010, and
they cannot prove that they started in 2008 as they claimed then you're
probably in good shape. If you started your site after 2010 then you're
reduced to claiming that the marks are not confusing. But you also have the
fact that you already have agreement with them (and their failure to attempt
to enforce their trademark rights after you changed the name of your service
per the agreement) to show they've abandoned it.

The stress they are causing you, and any actions they have engaged in that are
dishonest or violating the law or agreements give you cause to sue them for
damages, I believe.

The odds are pretty good that they know you are young and don't have a lot of
resources and they are attempting to abuse the system as a result.... simply
doing this research and showing how they don't have a case may be sufficient.
Like brining a gun to a gun fight-- they may think you just have a knife, but
showing the gun may cause them to back off. Its no risk if they claim to have
a gun and you just give up-- which is what they're trying to get you to do.

Plus, if you have a bunch of this kind of stuff, you may get a lawyer that
wants to extract money from them on contingency basis-- but even if not,
simply a very sternly worded letter might cost you only a couple hundred
bucks, or even less.

If you find a case. I am almost certain there is one there... but you need to
do your research quickly.

The first thing I would do is find what you need to do to file to request a
stay or delay of the judgement and get yourself time to engage in this
research.

You can call the clerk of the court where the lawsuit was filed and find out
what the procedures are to file a pleading or request a stay or delay. Tell
them you were not properly served, or notified about the court dates (if this
is the case-- never lie-- but use what ammunition you have here) and ask what
the correct filing is. They WILL NOT give out legal advice, but they can tell
you the procedures, and you need to get up to speed on those so that you can
get yourself some breathing room.

Good luck!

\-----

PS-- another avenue to investigate: look for use of the term "Who's near me"
or "who's here" in commerce on the web prior to 2008. One reason a trademark
might be invalid is that someone else (even if it is not you) was using it in
commerce in a similar way-- were there any location based services prior to
2008? did dodgeball have a "who's near me" feature?

PPSS--- Also assuming there were no location based services prior to 2008,
find an extensive evidence of the common use of the phrase "whose near me" and
"whose here" on the web. If this is a common phrase it may not be
trademarkable, just as "thank you" can't be a trademark because it is a common
english expression.

Further, if this phrase describes the feature of the service literally (which
it sounds like) it is also possibly not trademakrable because it is purely
descriptive. Frankly, I think they may not have a legitimate trademark, since
the phrase describes the feature literally, not a service or brandable name.

I'm just going to keep adding points because I keep thinking of them.

"Whose near me" is not obviously "Whoshere" and so infringement does not seem
to be a slam dunk. Further, since they contacted you previously, and you
changed the name at their behest, you may have an affirmative defense because
you attempted to remedy the situation. Thus this suit could be a nuisance
suit. They need to show you willfully violated their trademark.

Right now, I would change your service and remove the phrase "whose near me"
everywhere you can. Document this change with screenshots so you can prove you
are attempting to comply with their demands-- even if they are unreasonable.

But it would seem to be hard for them to make a case when they contacted you,
you responded by making changes, and then they wait a year and decide suddenly
you're infringing again.

IF the company suing you is not "myRETE INC" of Delaware, then how can
"WHOSHERE" have the right to the mark? Did they provide you with a license
agreement? IT doesn't matter-- myRETE is the owner of the mark according to
the USPTO so you can only be sued by them, I believe. (and if none of these
names make sense, did they even file a TM with the UPSTO?)

A reading of their specific claims implies that there is not an infringement
because finding people near you does not appear to be any of the features they
claim to be using the mark for. Their list of uses, by the way was flagged by
the examiner and they had to update it to get the mark registered.

Finally, it appears their mark is for "WHOSHERE", e.g. "WHO" + "SHERE" They
included no space in their filing, so "whoshere" which is a "name" in the
sense that it could be "bobby whoshere" pronounced "wooSHeer" doesn't sound
much at all like "who's near me".

These are just ideas for which there might be a case. More digging would be
required.

Finally, if you know any law students this might be just the kind of thing
that is fun for them to help you research. They may help you build a case for
not too much money or no money at all, and the price of beer and pizza.

~~~
jsprinkles
I appreciate what you're doing, but you just wrote an essay full of legal
advice, including conclusions on how the proceedings will go -- something you
really shouldn't predict. By putting the words "this isn't legal advice"
before your comment, you aren't magically making it okay to give your opinion
in the guise of advice. Just be aware of that.

~~~
MiguelHudnandez
How messed up is it that someone can't share what they know (or think they
know) because they don't have a credential?

Edit: I'm convinced. Don't give or accept legal advice over the Internet.
Establish a relationship with an attorney and only discuss it with them. If
you don't like the answers they give you, you can find another attorney.

~~~
jsprinkles
In this case, there are legal repercussions and serious consequences to doing
most of things on this page. This is stuff to talk about with a lawyer, not
the fucking Internet, and the person I replied to is already giving
frighteningly bad advice.

You know how in criminal proceedings, they say "anything you say can and will
be used against you?" It's the exact same for civil actions like this, which
is why Public Relations 101 (which should be of interest to most in this
audience who want to do their own startup) says "being sued or otherwise
challenged legally? STFU. No comment."

This isn't about credentials, it's about being smart when it comes to threats
that can genuinely hose your business, and not listening to a bunch of
armchair lawyers on HN who think they have the best course of action without
any sort of context.

~~~
daeken
Let me start by saying: OP should get a lawyer -- like yesterday -- if he
cares about the future of his company. Now, moving on...

> In this case, there are legal repercussions and serious consequences to
> doing most of things on this page. This is stuff to talk about with a
> lawyer, not the fucking Internet, and the person I replied to is already
> giving frighteningly bad advice.

There are legal repercussions and serious consequences to many choices we make
in life; while this is a particularly tricky terrain to navigate, that doesn't
mean he should go in completely blind. If you think that the advice is
"frighteningly bad", point out specifics.

> This isn't about credentials, it's about being smart when it comes to
> threats that can genuinely hose your business, and not listening to a bunch
> of armchair lawyers on HN who think they have the best course of action
> without any sort of context.

This isn't a conversation you're engaging in; you're simply shouting down the
parent(s). That's not what HN is all about. Please rethink your approach and
come back to this from a constructive angle; it sounds like you have valuable
knowledge that could come in handy for OP and others, but you can't see past
"holy crap, legal advice on the internet!"

~~~
jsprinkles
My valuable knowledge is that this discussion shouldn't be happening, because
I've seen firsthand what an Internet comment can do legally, both to plaintiff
and defendant. So yes, I would prefer it be shot down. I am not legally
permitted to discuss the cases in question nor provide specifics of my
knowledge, nor will I create liability for myself by refuting specific legal
advice being given in this thread.

~~~
daeken
In that case, might I suggest you end this thread now? Comments on HN should
be submitted when they add value; if you're not willing to actually
participate in a conversation and attempt to add value, I'd say that the
comments have little to no place on the site. Especially in the other parts of
the thread where you and another commenter got into it and it ended with "Fuck
you."

~~~
dandelany
As mentioned above, jsprinkles _is_ adding value to the discussion by
explaining that this discussion should not happen here. Clearly he has
experience in the matter. You act as if he is being malicious towards the OP
by trying to shout down the advice of non-lawyers. He is, in fact, trying to
_help_ OP by doing the same.

~~~
duck
I would say if he really wanted just to help, he could of stopped after the
first comment he left. That was him helping, the rest I'm not so sure about.

------
XiaoPing
It's spreading like wildfire:
[http://startupjunkies.org/blog/2012/06/01/lightbank-
whoshere...](http://startupjunkies.org/blog/2012/06/01/lightbank-whoshere-
threaten-whosnearme-startup/#more-170)

------
drivebyacct2
I know it shouldn't, and I know the "hacker" or VC communities are huge with
tons of diversity, but it annoys and saddens me to see some people just being
bullies and jerks like this.

------
famousactress
I honestly wonder if leaving the country helps in situations like this.

Seriously.

------
GigabyteCoin
Something tells me you don't have 400,000 users:
<http://www.alexa.com/siteinfo/wnmlive.com>

~~~
dannyr
It's a mobile app.

