

Ma.gnolia back for a week already being forced to change name - abraham
http://ma.gnolia.com/blog/2009/09/29/by-any-other-name

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patio11
The lawyers that I used to work with would advise merely putting the letter in
a filing cabinet and taking no action on it ("Even if they have no case,
having you flapping your lips in print just makes my job potentially more
difficult later").

That said, I'd be inclined to write him something like this:

Dear CEO:

I received your letter regarding your belief that ma.gnolia.com is in
violation of your trademark for "Magnolia" in the United States.

In the future, you may find that when sending a cease and desist letter, it is
helpful to include pertinent details of your trademark registration such as
reference numbers, a detailed sample of the registered mark, and what
classification you are registered under. Your legal representation can explain
the significance of these to you. Without them it is impossible for me to
conclusively evaluate whether ma.gnolia could possibly infringe on your
registered trademark.

As a matter of US law, your trademark is likely not to the word "Magnolia" in
all senses, but probably scoped to its use in CMS software. As ma.gnolia does
not sell CMS software, there is no possibility of market confusion with
regards to the purchase of CMS software. We both have presences on the
Internet, but frankly, trademark law is not a guarantee that you will be the
only mention of the word Magnolia on the Internet.

You claim that "[ma.gnolia's] graphic appearance can be totally related to our
CD". It is unclear to me that you are making a claim here based in trademark
law. If you are, I would need a copy of your registered specimen to compare it
to our logo to determine whether the claim is valid. That being said, a
cursory inspection of the logo present on your website shows the word
Magnolia. A cursory inspection of our logo shows the word Ma.gnolia with a
giant flower on it. Your claim that these are confusingly similar is baseless
as a matter of law.

Your lawyers are welcome to contact my lawyers if they have any other
questions.

Cordially yours,

~~~
patio11
Oh, I found their registration:

[http://tess2.uspto.gov/bin/showfield?f=doc&state=4004:ri...](http://tess2.uspto.gov/bin/showfield?f=doc&state=4004:riq7f.2.2)

Their trademark is for [Magnolia] is scoped to "in the field of content
management".

~~~
ErrantX
The search session expires :) But (for everyone else) if you run a search for
Magnolia on that site it is the first (or second) one on the list.

I cant find the supposed Europe one.

------
Quarrelsome
Lol, "within 5 days". Some people are so very unreasonable... nor does it
massively sound like they know what they're talking about. 5 days appears to
be a little too short imo, wouldn't most of these kind of things be measured
by the week/month or is this just scare tactics.

Can I send a cease and desist that says minus 10 seconds? (meaning they've
already failed to comply with it :D )

~~~
ajg1977
Frankly I thought the tone of "hey, we need to ask you to stop" was a
refreshing and reasonable change from the usual threats and bluster to be
found in most C&D letters.

Whether they have a valid claim or not would be for a lawyer to decide, but if
they do have a registered trademark for Magnolia that relates to
computer/internet services they're in pretty good shape.

~~~
sdrinf
Is this the case, where they're forced to send out C&Ds, or risk having their
trademark lost? (such as happened with Google:
[http://209.85.135.132/search?q=cache:UCKy7KCtdhQJ:xooglers.b...](http://209.85.135.132/search?q=cache:UCKy7KCtdhQJ:xooglers.blogspot.com/2006_07_01_archive.html+site:xooglers.blogspot.com/&cd=1&hl=en&ct=clnk&gl=uk)
)

~~~
ajg1977
Yes. If you do not defend a trademark you run the risk of having it deemed
abandoned, after which people can use it freely or even re-register it for
themselves.

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compay
Perhaps a name change wouldn't be such a bad thing for him, to make a clean
break with his previous site which died spectacularly with no backups.

~~~
callahad
From what I recall, the old Ma.gnolia did have backups. They just weren't
tested, and thus, it turned out that they weren't functional. It was a failure
of method, rather than an outright failure to try.

------
wavesplash
The Magnolia trademark hasn't been issued to Magnolia Systems yet. It's only
been published for opposition. Which means if the gnolia.com crew have been
using the mark in commerce before March, 2006, they can file an opposition
claim.

The whole cease and desist letter is bogus until the trademark has been
approved. However, if gnolia.com doesn't oppose the trademark claim now,
before it's approved, then it's an uphill battle if the other company decides
to sue.

Note Magnolia Systems is filing under multiple subsections - the only one you
care about is the online commerce section. They can have all the others.

------
blasdel
_Big surprise_ : Ma.gnolia guy continues to be an idiot.

At least this time around he's blogging about the uninformed idiocy he's about
to do before he does it...

~~~
caffeine
Would you care to expand? You mean that changing Magnolia's name is idiotic?
Or keeping it intact is?

I think he should be able to get away with renaming the site Ma.gnolia (with a
dot).

~~~
ErrantX
I suspect he is referring to the fact that Magnolia lost all their data a
little while back due to a poor backup policy (I forget the exact details).

~~~
idlewords
The details are worth remembering. They had an enormous database (half a
terabyte or so) due to their decision to store cached content in database
tables. Their backup strategy was to try to sync their live DB files to
another machine over firewire. When the master database eventually got
corrupted, they dutifully rsynced the corrupt files over to the "backup".

Once the database finally rolled over and died, they claimed to be unable to
recover any user data at all from the hard drives. But it seems they never
bothered to go to a vendor specializing in MySQL recovery. Offers of help from
Percona went unanswered, at least in public.

Full disclosure - I run a competing site (pinboard.in). Magnolia's stunning
negligence in securing user data, and Larry Halff's attempts to cast himself
as a victim of internet trolls when confronted by his angry users, are pretty
much what motivated me to start the project.

~~~
jrockway
This is a much better reply than someone else's a few levels up. You analyzed
the mistakes and you decided to learn from them and create a competing
product.

That is much more enjoyable to read about than "that guy is an idiot". I wish
I could upmod twice.

