A form of mental/monetary Judo. Thanks for the example.
AIUI, trademark is not a tool to protect the manufacturer/seller of a product, but a tool to protect the consumer, to help them avoid confusion in believing that a similar-looking product is from the brand "owning" the trademark.
How can a book (especially an ebook!) be confused as a Jack Daniels product? Surely the purchaser has no expectation that they'll be able to drink from the book.
My understanding is that similar names in unrelated industries do not clash over trademark. For example, Gibson Guitars and Gibson performance cat-back exhausts are so vastly different (despite both making sweet sounds) that nobody is going to be confused
But the referenced letter explicitly says it's a trademark issue. I can't see how consumers are potentially confused between a book bearing a particular product on its cover, and that product itself.
He still didn't remove the obvious branding ties all over his website, but at least he did change the physical cover, I'm still not convinced it worked out as well as JD would have liked.
Well, the guy was asking all sorts of questions. I felt very intimidated. I remember clearly a phrase he left me with: "Well, this is just Big Brother checking in and making sure you're acting in good faith." He decided that I was, that I was not on a mission to sully the good city of claremont, and that was the end of it. But it really stuck with me, probably just out of my young age and the authority of a city official grilling me. 17 years later, the troll I have turned into would have loved the chance to bring out the worst in me, so it's probably good this happened when it did.
This article really brought me back to that time. Also, it's terrifying I have web content I published over 50% of my entire life ago. I know some of you have worse percentages, but that middle mark... yikes.
Exposure therapy is the usual treatment.
If "he" sounds right, use "who"; if "him" sounds right, it's "whom".
Or rather, only use it if you intend to go the whole hog and comply with all the pedantic, pseudo-latinate prescriptions of traditional formal English grammar.
"It is I."
"Bad grammar is something up with which I shall not put."
"This is an historic occasion."
And so on....
The who/whom I/me distinction isn't a pseudo-Latinate grammatical prescription - it's the last vestages of overt case marking in English. An + words starting with "h" is a phonological side-effect of h-dropping in some dialects.
The preposition stranding thing, though, is pseudo-Latinate prescriptivism. That and the supposed wrongness of split infinitives are my two biggest annoyances with "proper" grammar.
Some are prescriptivist rules for how grammar ought to be, some are observed facts about how language functions.
What's wrong with this? I cannot think of another way in which to say this?
It's a long story. If you've never had to deal with this quaint piece of British pedantry, count yourself lucky. But you can still sometimes here BBC journalists who say "This is an historic occasion." with both the "n" and the "h" pronounced clearly.
On that note, it reminds me of a company I did some work for recently. They never used "me", only "myself": "Yes, he gave it to myself on Tuesday."
I doubt anyone would argue that "myself" is archaic, but people using it incorrectly is definitely jarring.
Probably better advice. There's a bit of research literature on the death of "whom". I can't remember when exactly, but I want to say around the beginning of the 20th century it pretty much died out from the language. It's a nice progression, English doesn't use thee, thine, thy or thou anymore either.
That's just plain weird.
- the OED remarks "whom is 'no longer current in natural colloquial speech'" and notes multiple cases in Shakespeare, Defoe, Chaucer and the King James Bible where "whom" is used "incorrectly" by modern standards
- Howard Lasnik and Nicholas Sobin describe whom as "It is commonly assumed that the English interrogative/relative pronoun whom is parallel to him and them in manifesting objective pronominal Case...Whom in modern English derives from a set of extra-grammatical rules...[used to generate] products that have a 'prestige' status. Whom differs markedly from intuitions about the use of personal pronouns. http://ling.umd.edu/~lasnik/ and the presentation http://academics.utep.edu/Portals/878/papers/whom_paper_vanc...
- Edward Sapir dedicated significant studies to the obsoletion of whom. In "Language: Intro to Study Speech" he remarks: "It is safe to prophesy that within a couple of hundred years from to-day not even the most learned jurist will be saying "Whom did you see!" By that time the 'whom' will be as delightfully archaic as the Elizabethan 'his' for 'its.' No logical or historical argument will avail to save this hapless 'whom'"
- Thurber provided this example: "A common rule for determining whether 'who' or 'whom' is right is to substitute 'she' for 'who', and 'her' for 'whom', and see which sounds better. Take the sentence, 'He met a woman who they said was an actress'. Now if 'who' is correct then 'she' can be used in its place...'He met a woman she they said was an actress'.
- Chomsky wrote that similar non-grammatical structures that only exist in grammar books are: "...a violation of natural law. In fact, a good deal of what's taught is taught because it's wrong. You don't have to teach people their native language because it grows in their minds, but if you want people to say, "He and I were here" and not "Him and me were here," then you have to teach them because it's probably wrong.
- Mair notes that: "whom is moribund as an element of the core grammar of English, but is very much alive as a style marker whose correct use is acquired in the educational system [, where it is taught]. [The use of whom] is highly restricted, but rather than disappear entirely, the form is likely to remain in use for some time to come because of its over prestige in writing."
I love how serious inquiry into language almost always reveals that the "Rules" are wrong.
Fixed that for you.
"Shmucking" someone can backfire in many cases and cause a bigger problem.
To be spiteful (I mean do we really know the mental state of the attorney writing the c and d?) maybe he would decide pro bono to file some action even knowing it might fail, on his own time, to defend his honor. Which this attorney would then have to defend pro bono.
The other thing with regard to the listed domains is as they always say "don't ask a question you don't know the answer to". They probably don't know whether the others have been approached or not. And it doesn't matter at this stage anyway. So what. Maybe he was the first one.
Lastly Kaplitt isn't known for expertise in either domain names or IP. If he was he would know that very often people with bogus claims are able to wrestle domains from people for bogus reasons.
Oh one last thing. In his letter he states that "ICANN rulings have held that..." (or something like that). ICANN doesn't issue "rulings" like that for this (.com). He is almost certainly referring to the UDRP cases not ICANN.
Personally, in the UK, I would have written: "We refer you to the reply given in the case of Arkell v. Pressdram".
The reply in question was "Fuck off". This is well-known in the UK amongst journalists, lawyers and people who follow media law.
I have no way to evaluate that claim but it sounds like the tone of the response isn't likely to hurt you in front of a judge.
EDIT: oh look, the document is viewable again. I'm guessing someone paid scribd their ransom fee.
And all you need "feed" them is a PDF that's full of garbage text and a few images. Uniquely generated from LibreOffice and wikipedia.
Original source here: http://localforums.org/westorange/forum/index.php?PHPSESSID=...
Images of the pages: (http://www.westorange.info/images/cease-and-desist-letter/Re...), (http://www.westorange.info/images/cease-and-desist-letter/Re...), (http://www.westorange.info/images/cease-and-desist-letter/Re...)
If you want to make something for presentation on the web dont make a pdf.
Except when you want to link to somewhere in the middle of it, or view it on a resource-constrained device, or reflow the text to a window size of your own choosing, or or or...
More here: http://www.nngroup.com/articles/pdf-unfit-for-human-consumpt...
I know that doesn't help with this particular article.
More details: http://web.archive.org/web/20031017004205/http://www.headsur...
In one such case, Monster Cable issued a C&D to a much smaller, Blue Jeans Cable. The founder actually worked in litigation for 19 years and I found this portion of his response informative:
I have seen Monster Cable take untenable IP positions in various different scenarios in the past, and am generally familiar with what seems to be Monster Cable's modus operandi in these matters. I therefore think that it is important that, before closing, I make you aware of a few points.
After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs' practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am "uncompromising" in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.
There are several obvious points to be made here, but there's a subtle one, too. These hit-and-run settlements depend fundamentally on the compliance of isolated companies. If a larger organization asserts control over a smaller one (like the township-->$3.17 website, here, or on a larger scale Monster-->Blue Jeans), it often does make "economic sense" to settle.
It's almost a negative version of the Tragedy of the Commons / Public Goods Dilemma. If every small company stood up and said "no, we will not settle" then there would be far less incentive to pursue bogus infringement claims. On the other hand, it always, locally, makes sense not to challenge claims and let some other small company deal with it.
This brings me to one broader point, and that's the idea of standing for something on principle. I don't mean this in the sense of "be a moral person", but in the sense of larger organizations assuming (often correctly) that the short-term economic sense of individual actors will outweigh any principled objections they hold to the circumstances imposed by the power asymmetry. Cultivation of principles which favor the latter instead of the former course of action might be a good solution to the public goods dilemma outside of a difficult to ensure coordination of action.
It's worth thinking about this in the context of Google and its recent stance against an entity with an enormous amount of legal power.
I would argue in favor of fighting back in most cases, even from a local standpoint. "Millions for defense, but not one cent for tribute." How you behave towards bullies sends a powerful signal to other bullies. Your response can either encourage more bullying, and thus a cycle that ends in your own destruction, or ward them all off.
I very much agree with your comments overall, though.
It is wrong to put temptation in the path of any nation,
For fear they should succumb and go astray;
So when you are requested to pay up or be molested,
You will find it better policy to say: --
"We never pay any-one Dane-geld,
No matter how trifling the cost;
For the end of that game is oppression and shame,
And the nation that pays it is lost!"
I respect Kipling's quote - but history shows YMMV. If in doubt, just ask why you don't hear of the Khwarezmid Empire - who were one of the biggest empires around at the time of the Mongols.
When you start to iterate it, the equation changes. But it can be hard for people to look beyond the immediate lawsuit.
Not only am I unintimidated by litigation; I sometimes rather miss it.
The use here is the first case, and it's incorrect because (as another respondent has pointed out) the first clause is not independent (i.e. cannot stand on its own).
Choosing a stupidly generic word for a trademark seems to mean spending a lot of money on lawyers to protect that mark, especially if you're aggressive as Monster is about it.
(http://online.wsj.com/article/SB123869022704882969.html#arti...) alternate location (http://www.tabberone.com/Trademarks/HallOfShame/MonsterCable...) (The rest of that website is rather unpleasant).
Alternatively, how about the possibility of allowing small companies to demonstrate that they cannot withstand the costs of a trial upfront, in which case the trial would be paid for by the state; if the trial is lost, the owners pay (fair enough...). Otherwise, the state can get its money back from the damages paid by the suing company.
"I would rather spend fifty thousand dollars on defense"
There are other costs, it's not just money. There is time (even if someone else is footing the legal bill), uncertainty, aggravation, stress for a process that can take years. Involvement in legal matters is not trivial. While I think that anyone who has been involved in the psychological aspects of litigation is well aware of the point that I am making I believe that it is felt by some that Microsoft's antitrust problems in the 90's caused them to miss many opportunities on the internet.
You really really need to understand the entire impact of decisions to litigate and it should not be taken lightly.
What is your opinion?
If you're looking for the name of that dynamic, that's a pretty classic Prisoner's Dilemma. :)
I see the benefits from both systems, not sure which I would be a proponent of.
I think it is how it works in many countries. Otherwise, what would prevent a party that is sure that it will win to hire 1000 lawyers in the last day of trial just to inflate the costs of the loosing party?
Suing a small entity would take exactly as much lawyers on both sides as suing a huge entity. If you're fighting Bigcorp and they're somehow justifying $10million of lawyers for the case, and you feel that you're right, then you'll be justified in bringing $10million of lawyers on your side, paid in full by them.
There is always a non-zero risk of losing the suit. BigCorp doesn't have to worry as much existential risk if they lose, since the penalty of paying legal fees may not cripple them.
What was that all about?
Is it generally a good idea to put veiled threats in responses to cease-and-desist letters?
It's unclear if Lowtax just got bored of responding or people stopped sending them.
From the moment you saved your recording of your voice, you were granted copyright protection to that work. The only recordings for which a copyright doesn't exist are those old enough to be in the public domain. Even a recording that infringes someone else's copyright is still protected by its own copyright rights; you can't distribute it without causing damages to the other rights holder, but the author still has exclusive rights to their creation.
Your voice isn't copyrighted, but you might infringe if you were singing a copyrighted song.
Or if your video happens to be one of those which youtube partners don't like. Youtube, apparently, has a deal independent of the DMCA, which allows big media compan(ies) to ban any video on youtube.
There was a discussion earlier today on HN, in which I said I still trust Google. This is one incidence where Google could have tried to follow its motto of "Do not be evil". Youtube exists because of DMCA safe harbour. Even though DMCA has shortcomings, without it youtube would have to face a lawsuit for every infringement. But, Youtube still chose to overturn DMCA, which allows the user to file a counter-claim. And apparently, Youtube made a deal with media companies allowing them to ban any video whatsoever without any repercussions, which is downright evil.
Google may prevail in court if sued for the millions of instances of infringement it hosts, but it'd still have to become the largest US employer of lawyers to handle and fund the dozens of major lawsuits it'd face every year. Is it profitable enough to do that? Does Google want to dedicate so much of its resources to court battles instead of its core competencies? Even with the DMCA, they still get sued.
Without the option of counter-claiming, Youtube is a monarchy. I do expect a public company to have some sort of democracy, especially one who claims to follow "Do not be evil".
Why not? Viacom sued despite the DMCA defense.
Some of the content in there is particularly golden for humor value (search "perfect 10"), but more importantly, it serves as a first step to quantifying how many of these letters get sent and how many of those are legitimate. Chilling Effects doesn't track what happens afterwards, but it's one step above anecdote, anyway.
One wonders why more lawyers aren't humorous. Is it because it causes their clients harm? Or because they are afraid they can't generate fees if they don't look professional?
Here is another great example, between the Cleveland Browns and a fan. I cite Snopes, otherwise I wouldn't believe it to be true. http://www.snopes.com/business/consumer/browns.asp
"Jake swears that was his actual cost. Looking at his website, I believe him." LOL
There is no perfect answer. It beats the old days where people would have to fight to the death to settle disputes, at least.
i'm not a lawyer.. but i found myself wondering, if the Township followed with suit, this wouldn't also qualify as a SLAPP?
edit: New Jersey hasn't enacted any anti-SLAPP legislation.
Pleasant Valley Way, the subject of the tune, is in West Orange. https://en.wikipedia.org/wiki/Pleasant_Valley_Sunday
It should be printed in A0 and glued in Law Colleges.