Discussion in 'General Business Forum' started by wetshavingproducts, Jun 3, 2017.
Yep. I would have totally freak out.
Not me, it would have made me mad.
LOL, this reminds me of our Orange County Attorney that was fantastic. He was have some construction done on his home and the contractor did not finish. Really dumb to think he could win against a very high end OC attorney. Yep Jackson sued him... Went to him with no case against our partner and walked away with over 10 x's what he was trying to buy us out with, this after 2 other attorneys told me to take what was offered and chalk it up to experience.
I was mostly embarrassed that a member of the bar signed his name to it and I'm also a member of the same bar. Then I got righteously indignant that these people have the nerve to even try such a strong arm tactic.
If they had asked nicely, I still would've told them that I'm not going to change anything just because you want me to and that the only thing that's even remotely similar is the use of the wraparound band, but since it is 100% functional, there really isn't much in the way of design that either of us can change to make them look significantly different. The only other element would be the circle hole in the upper right hand corner, but that's both generic and functional and they can shove off as they clearly weren't the first to use it anyway.
Please keep us updated as to how this unfolds!
I am seriously fascinated.....
15 U.S.C. 1125 (Section 43 of the Lanham Act):
(a) "...Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which ... is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person...."
I've read the letter twice now and am struck by how vague the complaint is. There are no specific details about what is causing the confusion or deception. Quite frankly it looks like a fishing expedition to me -- something to get you worried without the other side having to spend a lot of time and money on the effort. It's their responsibility to provide specifics about what bothers them, not for you to have to guess.
If you have access to a lawyer, I would run it past him or her and get some legal perspective. Yes, I understand you may be a lawyer, but your comment, "...Then I got righteously indignant that these people have the nerve to even try such a strong arm tactic...." is a sign that you are thinking about this as a client, not as a lawyer. Even lawyers can benefit from impartial counsel from their peers.
Agreed on all points. I am a hot head, and you would not like to see the letter I would have replied with. But even I would have run it by someone that could be objective.
I'm not a lawyer, but I'm married to one, the step-mom to another, and friends to several more. You'd be surprised how many people avoid getting legal advice from an attorney for whatever reason and that often ends up being a very expensive mistake. Lawyers are often inclined to think they can represent themselves in legal matters, but they have the same problems as everyone else about keeping cool and objective when they're the ones sitting in the hot seat.
Until it becomes a complaint, it really is a fishing expedition. C&D letters are a dime a dozen. Especially if there is no specificity to the issue at hand. Now if they had cited a registered trademark and pointed out exactly how their trademark rights are being violated, I'd actually be worried. But instead, it's just a vague "We're butt hurt and want you to stop" letter.
The legal standard is actual confusion (requires witness testimony) or prima facie confusion (judged by a judge) (which the lawyer is wise enough to not allege).
"...if they had cited ... exactly how their ... rights are being violated, I'd actually be worried. But instead, it's just a vague "We're butt hurt and want you to stop" letter...."
Yep, that's how I see it too. The other party might be willing to escalate, but they might not. At this point, however, their complaint is "all hat, but no cattle."
If anything, I imagine they will send a second letter to my reply with actual witness testimony or some other actual evidence; or a vague allegation that upon information and belief it is prima facie confusingly similar.
I am 99.99% certain that both the following are true: 1) they aren't willing to pay for an actual complaint to be filed & served, and 2) the law firm in question is not willing to stake their bar numbers on filing such a frivolous lawsuit without actual and credible witness testimony.
I have never heard the expression "all hat, but no cattle" before. It is delightful. Can you please use it in some sentences so I can use it correctly? I am thinking it means, all show, no substance?
You nailed it!
A person who wears fancy cowboy boots and expensive cowboy hats and likes to boast and brag, but doesn't have a clue about being a real cowboy, rancher, or farmer.
"That fella over there is all hat and no cattle."
About an hour before DeeAnna posted it, I read about the phrase on a list of "extinct insults we need to start using" (or something similarly clickbatey)
They get me all the time when they say things like that!
Yes, please keep us posted. I'm no lawyer, but I've used my Legal Shield membership a few times. Money well spent! I was going to suggest it till you mentioned you're a lawyer!
Note: There is a local band here named All Hat No Cattle!
I’ve done graphic design for some time. People don’t search for products by packaging, they search by name. Wet Shaving Products sounds nothing like Dr. Squatch. This sounds like someone is have a hissy fit. There is a lot more to trademarks and copyrights than mere slight resemblances. He does not own the rights to the fonts, this I can tell you, nor any of the dividing border dingbats either. Put his image into google image search and see how many images pop up. This may be how they found your packaging and everyone else there got a letter as well. It only picks up slight similarities such as fonts or placement. This is how people search to find out if someone has profiles on other social sites or if others are using any logos resembling their trademarked designs. If you put your own photo in there, you can find out if anyone is using your photos as well! Always a good thing to check for.
I suggest that you pay a fee and consult an attorney. They can communicate with authority to the people who sent you the letter. One letter from your attorney should be all it takes to set them right.
Separate names with a comma.