Website threatened with legal action

But what about the thousands of affiliate sites out there that use images of the products?

They are also complaining about my use of whois privacy which came with the domain name, although they still managed to get my name, address and email anyway so why my use of whois privacy is an issue I don´t know.

So the main thing I can think of that could be a genuine problem is the issue with the domain name which is similar to the actual product name, which I don´t want to post here for obvious reasons.

But I don´t see why I should just hand over my traffic and the domain name.

So can I buy a generic domain name and redirect my traffic to that instead? And put a notice at the top saying I am not connected to them.

Surely that is enough?

I don´t want to get into an argument with them but don´t want to be bullied either.

Thanks

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SunilTanna

11 years ago

It's easy to talk tough, or think you can solve the problem yourself - but you don't want to be on the losing end of a court case if they sue.

You need to talk to a lawyer before deciding whether you really want to stand-up to them (and preferably even if you are going to give in, so you don't give in a way that exposes you to more liability or risk)

The fact they got your private whois details, shows they are at least somewhat serious.

That said, their claims may or may not be solid. Sometimes companies enforce legitimate rights to protect their brand. Sometimes other companies over-reach in order to pressure little guys. And sometimes companies are somewhere in between.

How solid their claims are will depend a lot on the specific facts of the case, none of which are in your post. What is the name? Does your domain name contain their trademarks? Where did you get those images - are they copyright infringements, etc.? etc. etc.

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boojoo

11 years ago

Thank you.

I didn´t want to post the name in public in case it got me into more trouble.

My domain name contains a name very similar to their product name but I don´t know if it´s a trademark.

I can´t even find their website for the product so I took the images from Google images - other blogs that are advertising the same product.

If I have infringed on trademark then ok, this was my first niche site and a learning experience.

I will take it down if it comes to that.

BUT, I don´t see why I should send them my traffic and give them my domain.

Can I create a generic domain name and redirect my traffic to that?

Thanks
2 replies

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CH Yeo 11 years ago

Hi,

I assume you have not hurt the aggrieved party's reputation via your website. If the reputation of the aggrieved party is not harmed, normally, an aggrieved party would still be gracious to give a few days grace for you to react. By giving just 1 day, it may mean the 2nd thought you have had.

Have you asked the aggrieved party for some extension of time?

In the end, it is better to comply and move off.
- [ 1 ] Thanks
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DeborahDera

11 years ago

You'll want to take advantage of those who think they can help, but it sounds like you started off on the wrong foot. A lot of affiliate programs still ask you to NOT use the name of the product in the domain name, etc - especially if it's a trademarked name. That, to me, sticks out like a sore thumb in terms of your issues (or their issues with you).

Also, you can't just take other images from Google Images - those aren't royalty free or "free for use" in any way - unless you did a search for images that are considered free for commercial use - but it doesn't sound like you did.

I think your best bet would be to remove the pages and start over.

Originally Posted by boojoo

Thank you.

I didn´t want to post the name in public in case it got me into more trouble.

My domain name contains a name very similar to their product name but I don´t know if it´s a trademark.

I can´t even find their website for the product so I took the images from Google images - other blogs that are advertising the same product.

If I have infringed on trademark then ok, this was my first niche site and a learning experience.

I will take it down if it comes to that.

BUT, I don´t see why I should send them my traffic and give them my domain.

Can I create a generic domain name and redirect my traffic to that?

Thanks

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wisdomoto

11 years ago

I would agree that it's important to get legal advice with such things but what gets me is why do they want you to still send all your traffic to them?

It seems like a scare tactic to me. They want the traffic but they don't want you. Seems like they just want to cut out the middleman.

Are you in the same country as them? It would be very hard and expensive to make a case against someone in another country over a measly affiliate website

My gut feeling tells me you shouldn't worry too much about the deadline, it's bs scare tactics. Companies play games like this with each other all the time. I've seen this with my very own eyes with my friend's business which has turnover well in the hundreds of thousands. I think it's just anti-competitive behavior

I would take my time and get advice from someone in the know and offer to sell them your domain at a premium :-p

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1 reply

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boojoo 11 years ago

Hi wisdomoto,

That is what is getting me too. No, I am in Europe and they are in the US.
- Thanks
- 1 reply
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- h4wts 11 years ago
  
  Originally Posted by boojoo
  
  Hi wisdomoto,
  
  That is what is getting me too. No, I am in Europe and they are in the US.
  
  It's going to take a concerted effort to take legal action then. You're a long way from the states, different laws etc. Tricky one but I'd get some legal advice if you can't live without the site.
  
  Thanks
  
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Greg guitar

11 years ago

If it were me, I'd move on, let the domain name go, and let the traffic go. I realize that might be painful to the degree that you have invested time and/or money, but what else is there to do? It seems like fighting them would mean a best case scenario of you forcing them to let you promote their product.

Why would you want to force someone who is openly hostile to your efforts, to let you promote them? I definitely wouldn't be redirecting any traffic their way for free; that part of their demand seems ridiculous, without knowing more than you have said.

Thanks

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troy23

11 years ago

I would take it down if I were you.
Why take the risk of a lawsuit?
If they run an affiliate program then get in on that and do it things the correct way.

[ 1 ] Thanks

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boojoo

11 years ago

OK, look, I´ll just put the website out there.

It´s zoomerrobotdog.com

The toy is called Zoomer.

The company is spinmaster.com.

I think they are marketing it as Zoomer robopup or robodog, BUT I can´t find their website for the toy.

So, as said, I CAN see the domain name might be an issue.

But as for anything else..........

Thanks
2 replies

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SunilTanna

11 years ago

You're using what is likely their trademark.

Any you've probably infringed the copyrights of their photos

Be careful about offering to sell the domain, as it could make you look like a cyber squatter and put you in a worse position.

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boojoo

11 years ago

I didn´t get the photos from them though, they were from random blogs that already advertise the dog. I can´t even see that they have a website for the toy yet.

Confused about the images now, how do you promote products if you can´t put any images on.

Thanks
1 reply

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GrowTutor

11 years ago

Originally Posted by boojoo

I didn´t get the photos from them though, they were from random blogs that already advertise the dog. I can´t even see that they have a website for the toy yet.

Confused about the images now, how do you promote products if you can´t put any images on.

That's like saying that you didn't pirate a movie you just downloaded it from somebody else...

If you didn't make the images or get a license from a place you bought the images then you probably have nothing to stand on using somebody else's images.

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1 reply

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boojoo

11 years ago

Originally Posted by GrowTutor

That's like saying that you didn't pirate a movie you just downloaded it from somebody else...

If you didn't make the images or get a license from a place you bought the images then you probably have nothing to stand on using somebody else's images.

I understand that.

I´m new to this, this was my first affiliate website.

So, in the future, if you promote products through affiliate links...how do you go about putting images of the products on your site legally? If it´s a site that promotes hundreds of products, I don´t know, like.....baby blankets or something! You can´t just use the photos from Amazon or in advertising material?

Thanks
1 reply

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GrowTutor

11 years ago

Originally Posted by boojoo

I understand that.

I´m new to this, this was my first affiliate website.

So, in the future, if you promote products through affiliate links...how do you go about putting images of the products on your site legally? If it´s a site that promotes hundreds of products, I don´t know, like.....baby blankets or something! You can´t just use the photos from Amazon or in advertising material?

Normally the people selling on Amazon are either the manufacturer or an authorized distributor/reseller and they have permission to allow affiliates to resell and use certain images. That's why I suggested that you contact the manufacturer and see if the store you're affiliated with is authorized to sell their products. It could just be a big misunderstanding or it could be that the Amazon store doesn't have the rights to do what they're doing. If the Amazon store doesn't have the rights then that won't be an excuse for you either.

Either way the domain is another story since it's their branded product. I once had the domain microsoft.com.mx but I would have lost in court if they wanted it so I just let it expire and never renewed it.

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1 reply

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bluewaveseo

11 years ago

Originally Posted by GrowTutor

Normally the people selling on Amazon are either the manufacturer or an authorized distributor/reseller and they have permission to allow affiliates to resell and use certain images. That's why I suggested that you contact the manufacturer and see if the store you're affiliated with is authorized to sell their products. It could just be a big misunderstanding or it could be that the Amazon store doesn't have the rights to do what they're doing. If the Amazon store doesn't have the rights then that won't be an excuse for you either.

Either way the domain is another story since it's their branded product. I once had the domain microsoft.com.mx but I would have lost in court if they wanted it so I just let it expire and never renewed it.

good advice, you should listen to it.

Thanks
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EllenMoore 11 years ago

Seems like a good solution to the problem. Nobody wants to get sued and, probably you had lost anyway. It's good to have the producer's accept before you start such a business. Keep the written accept from them so you have a proof in case they trouble you again.
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RobinInTexas

11 years ago

Originally Posted by boojoo

OK, look, I´ll just put the website out there.

It´s zoomerrobotdog.com

The toy is called Zoomer.

The company is spinmaster.com.

I think they are marketing it as Zoomer robopup or robodog, BUT I can´t find their website for the toy.

So, as said, I CAN see the domain name might be an issue.

But as for anything else..........

The domain is registered at enom, in the US
Your hosting is in the US

The site's only monetary potential is from marketing their product and they don't like how you are doing it, what's their affiliate agreement say?

If you fight you might lose your facebook account.

Give it up

Thanks

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GrowTutor

11 years ago

Perhaps the Amazon store doesn't have the rights to sell it but they're coming after you for the domain name. I'd take it down (you can always put it back up if it gets resolved), put up an under construction page and contact them with the Amazon info and tell them you're a legal Amazon affiliate. See where that gets you...

Thanks

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onqdirector

11 years ago

Bottom Line is they cant do ANYTHING in a day... Were you properly served with papers? What did they send a Cease and Desist? They're alleging that you're breaking the law, but that doesn't mean you are. How did they inform you of this? Email? The cost of taking you to court is probably greater than the value of your traffic to them, they'll likely send you a few C&D's before going any further, at some point they should state what law they think you are violating. Go read that law and decide if you are in fact breaking it. It will take them a while to do anything to get it shut down. I would just keep putting them off, tell them you're going on vacation and you'll do it when you get back, then next time they contact you tell them you're not back yet.. lol

Don't worry about attorney's just do whatever the next few posters say and you'll be fine.

Thanks
1 reply

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Greg guitar 11 years ago

Originally Posted by onqdirector

Don't worry about attorney's just do whatever the next few posters say and you'll be fine.

LOL!!!! This has to be the funniest legal advice I've ever seen! We should all save a bundle on attorney's fees now that we know the secret!
- [ 1 ] Thanks
- 1 reply
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- hometutor 11 years ago
  
  Originally Posted by Greg guitar
  
  LOL!!!! This has to be the funniest legal advice I've ever seen! We should all save a bundle on attorney's fees now that we know the secret!
  
  No no I have a better one. In Yahoo Answers a guy asked if a radiating pain down his arm was a sign of a heart attack.
  
  Rick
  
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  Greg guitar 11 years ago
  
  Originally Posted by hometutor
  
  No no I have a better one. In Yahoo Answers a guy asked if a radiating pain down his arm was a sign of a heart attack.
  
  Rick
  
  That definitely wins the prize for funniest medical question, but I still think the earlier post holds the record for funniest legal advice. Thanks for posting (I know the reply is a bit late).
  
  Thanks
  
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SandyDuPlessis

11 years ago

It might be worth double checking that the legal letter actually came from the correct people and not from a scammer trying to frighten you into giving them your traffic.

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GrowTutor

11 years ago

Originally Posted by SandyDuPlessis

It might be worth double checking that the legal letter actually came from the correct people and not from a scammer trying to frighten you into giving them your traffic.

I agree with that too...

Thanks
1 reply

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flipfire 11 years ago

Originally Posted by GrowTutor

I agree with that too...

Checked it out. it's defo not a scammer trying their luck. it's a legit takedown notice.

Regards,

Lee
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yukon

Banned 11 years ago

Originally Posted by boojoo

2. They say I am using their images but how else do you promote a product? And the images are on numerous blogs also.

Looks like you've already lost.

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boojoo

11 years ago

OK, thanks everyone for the advice, especially Lee.

I think I am going to do this:

1. Buy a generic domain name and 301 redirect my traffic. Then let the domain naturally expire.

2. Only use the images that are on the Amazon store.

3. I have emailed Spin Master and asked about the legitimacy of the Amazon store. Assuming they are authorised then I can carry on using those images. If I have understood correctly.

Is this all ok?

Meant to say:

I was going to leave my FB page alone even though it´s pretty insignificant. They wanted me to take that down too. The URL for it doesn´t have Zoomer in it and I will apply the same image rules to it. Yes?

[ 1 ] Thanks
1 reply

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GrowTutor

11 years ago

Originally Posted by boojoo

OK, thanks everyone for the advice, especially Lee.

I think I am going to do this:

1. Buy a generic domain name and 301 redirect my traffic. Then let the domain naturally expire.

2. Only use the images that are on the Amazon store.

3. I have emailed Spin Master and asked about the legitimacy of the Amazon store. Assuming they are authorised then I can carry on using those images. If I have understood correctly.

Is this all ok?

Meant to say:

I was going to leave my FB page alone even though it´s pretty insignificant. They wanted me to take that down too. The URL for it doesn´t have Zoomer in it and I will apply the same image rules to it. Yes?

I wouldn't use ANY zoomer images or anything else zoomer related until you get everything cleared up with the manufacturer.

If the store has the right to allow affiliates, then they should tell you that the images on Amazon are ok to use. Make sure you ask. You might offer the manufacturer the domain as a peace offering, if it goes 301 and is redirected elsewhere without zoomer info then I'd imagine that the ranking and backlinks are going to die quickly anyway.

Why do they want the FB page down if it has no zoomer stuff on it?

Thanks

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ratracegrad

11 years ago

I think the root problem is that you are using some part of their trademarked name in your url. As a result they are tacking on all the information about product images and whatever else they are claiming. What they want is for you not to use the url that has part of a trademarked name.

Their claim that people can confuse you being associated with the company is valid if you have part of the trademarked name in your url.

I ran into the same issue last year when promoting a product. I got the same notice. I did exactly what you outlined and that is registered a new website url. Did a 301 redirect.

You can email them and tell them you are changing the url and you apologize for any infringement on their trademark. Once you get it changed over email them again to let them know you have changed it over.

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Jill Carpenter

11 years ago

Originally Posted by onqdirector

just do whatever the next few posters say and you'll be fine.

LOL

1. I am not a lawyer
2. Taking random advice from a forum for your business legal issues is not advised.

Ok, just because other sites have images does not grant access to just anyone to use those images.

If your name gives the impression you may be affiliated with the company, that company has every right to be concerned.

It is a misconception that the whois privacy is completely private. Anyone can pay money to get this information unlocked if you know where to go.

Personally I'd contact the company and let them know how I'm helping to promote them and see if some arrangement could be made. If that's not possible, I'd remove all reference to that company, change the domain and move on. If you think you have a valid case and the domain is that important to you then you need to talk to a lawyer.

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Chris Silvey

11 years ago

Now hold on here a second. One thing I am well versed in online retail. Manufacturers and Distributors provide retailers with product images, skus, long and short descriptions.

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MissTerraK

11 years ago

Note: I am not an attorney and never even played one on T.V.

Personally, I would take down the site and regroup. As for the traffic, I would not redirect that unless of course it was a court order.

As for the images, I wouldn't use those either. Have you considered taking your own photograph of the product? You could either purchase one, find someone you know who has one already or even go to the store and take a couple shots there, maybe.

Just some thoughts.

Terra

[ 1 ] Thanks
1 reply

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boojoo

11 years ago

Originally Posted by MissTerraK

Note: I am not an attorney and never even played one on T.V.

Personally, I would take down the site and regroup. As for the traffic, I would not redirect that unless of course it was a court order.

As for the images, I wouldn't use those either. Have you considered taking your own photograph of the product? You could either purchase one, find someone you know who has one already or even go to the store and take a couple shots there, maybe.

Just some thoughts.

Terra

Do you mean not redirect to them? But I can redirect to my generic domain?

And that photo idea is great! Too bad the product isn't even released yet....but when it is....nice idea, thank you!

Thanks
2 replies

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Chris Silvey

11 years ago

If spinmaster is making a claim on the images, it has no case. This is considered fair use as they have put up the images to be distributed to the public.

Spin Master's Hottest Toys for Spring 2013! pr is public relations.

The Product Name is Zoomer, Zoomer Family Pet, Zoomer the Ultimate Family Pet, not Zoomer the robot dog.

Basically they want your domain name and traffic. If it was me I would tell them to eat crow, or make them pay through the nose.

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boojoo

11 years ago

Originally Posted by Chris Silvey

If spinmaster is making a claim on the images, it has no case. This is considered fair use as they have put up the images to be distributed to the public.

Spin Master's Hottest Toys for Spring 2013! pr is public relations.

Thanks Chris, that is handy to know. And you've just reminded me with that link - that's where I got some of the images from.

Thanks
1 reply

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Chris Silvey

11 years ago

Originally Posted by boojoo

Thanks Chris, that is handy to know. And you've just reminded me with that link - that's where I got some of the images from.

No Problem - You need to get all your ducks in a row.

Here is their Trademark info - ZOOMER Trademark - By: Spin Master Ltd.

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MissTerraK

11 years ago

Chris, I just wanted to say that I think what you did here for boojoo is amazing!

It's people like you that make this place the best! I just call 'em like I see 'em.

Terra

Thanks
1 reply

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Chris Silvey

11 years ago

Originally Posted by MissTerraK

Chris, I just wanted to say that I think what you did here for boojoo is amazing!

It's people like you that make this place the best! I just call 'em like I see 'em.

Terra

Thanks Terra. The most important thing is to know the facts and organizing them. Set a legal foundation to stand on that is suited for presentation to lawyers and judges.

Lawyers are quick to make a determination and often ignorant in some areas of the law.

Thanks

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galitsyn 11 years ago

I don't think using someone's intellectual property for profit is a "fair use".

I guess the copyright law is on their side.

I would comply.

But look, there is a bright side. They maybe took you for a serious competitor.
I wish you good luck with your next projects. But make sure you have learned this lesson.
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kindsvater

11 years ago

Originally Posted by Chris Silvey

If spinmaster is making a claim on the images, it has no case. This is considered fair use as they have put up the images to be distributed to the public.

Spin Master's Hottest Toys for Spring 2013! pr is public relations.

The Product Name is Zoomer, Zoomer Family Pet, Zoomer the Ultimate Family Pet, not Zoomer the robot dog.

Basically they want your domain name and traffic. If it was me I would tell them to eat crow, or make them pay through the nose.

You're confusing issues and potentially putting the webmaster at risk of an expensive trademark / cybersquatting lawsuit.

The primary issue seems to be the Zoomer trademark and domain potentially creating confusion as to who owns the site.

I agree the images issue seems to be weak. The image copyright issue was apparently tossed in for additional leverage, although the webmaster has admitted there is or was a problem by using Google images instead of product images an authorized affiliate would be permitted to use.

Even assuming a license to use product pictures from Amazon because one is an Amazon affiliate, that is irrelevant to the trademark and domain issue.

Key point: just because you can win one legal issue doesn't mean much if there is a second, bigger legal issue you lose.

Maybe a solution is for you to buy the domain and then profit by making Spin Master pay through the nose. The webmaster makes some money and being more risk adverse, may eliminate liability concerns. You, being more aggressive, can try to cash in. You would probably want to read the actual demand letter to evaluate it yourself.

Another issue, not yet mentioned, is the Facebook page. Based on other Warriors' dealings with Facebook for trademark issues you also need to factor whether a possible Facebook ban is worth promoting the product.

.

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Chris Silvey

11 years ago

Originally Posted by kindsvater

You're confusing issues and potentially putting the webmaster at risk of an expensive trademark / cybersquatting lawsuit.

The primary issue seems to be the Zoomer trademark and domain potentially creating confusion as to who owns the site.

I agree the images issue seems to be weak. The image copyright issue was apparently tossed in for additional leverage, although the webmaster has admitted there is or was a problem by using Google images instead of product images an authorized affiliate would be permitted to use.

Even assuming a license to use product pictures from Amazon because one is an Amazon affiliate, that is irrelevant to the trademark and domain issue.

Key point: just because you can win one legal issue doesn't mean much if there is a second, bigger legal issue you lose.

Maybe a solution is for you to buy the domain and then profit by making Spin Master pay through the nose. The webmaster makes some money and being more risk adverse, may eliminate liability concerns. You, being more aggressive, can try to cash in. You would probably want to read the actual demand letter to evaluate it yourself.

Another issue, not yet mentioned, is the Facebook page. Based on other Warriors' dealings with Facebook for trademark issues you also need to factor whether a possible Facebook ban is worth promoting the product.

.

Like I said, A lot of Lawyers make presumptions. The trademark is Zoomer. How many domains have Zoomer in them?, why do they not persue Zoomer.com?

Zoomerrobotdog is not a trademark. It is a description. A long tail domain name.

As for confusion. There is none from reviewing the site. It is a review and statements of non associated are very bolded. There is no confusion from what can be gathered from comments found on the site. They would have to prove there is confusion which is pretty absurd on a longtail keyword phrase.

Another issue is the Facebook page - robotdogtoy. This is like McDonalds going after a page named Hamburgers. It holds no legal weight.

If the content was copyrighted, yes there maybe some legal claims, but when it comes to freely given marketing material. That is really thin ice that holds no weight.

The advice I more or less gave was to prepare a legal foundation. Nothing more, however many posts here have been is to cow tow and pull the site down. People need to know their legal rights and stand their ground.

Thanks
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Justin Says 11 years ago

Originally Posted by Chris Silvey

Zoomerrobotdog is not a trademark. It is a description. A long tail domain name.

If it's about one of the products (or related to their business model) and links to their products then they have a say in whether it's right or not.

It's just like if someone created a website called "GoogleRobot.com" and tried to sell a robot.

I'm not saying I'm right on this, but it just makes sense for them to be able to send in a DMCA or take down.
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kindsvater

11 years ago

Originally Posted by Chris Silvey

Like I said, A lot of Lawyers make presumptions. The trademark is Zoomer. How many domains have Zoomer in them?, why do they not persue Zoomer.com?

Zoomerrobotdog is not a trademark. It is a description. A long tail domain name.

As for confusion. There is none from reviewing the site. It is a review and statements of non associated are very bolded. There is no confusion from what can be gathered from comments found on the site. They would have to prove there is confusion which is pretty absurd on a longtail keyword phrase.

Even more people presume they know the law without actually reading it. Who cares if they are also pursuing another domain? It isn't relevant to the webmaster facing an immediate demand letter.

The problem with arguing there is no confusion "from reviewing the site" is this is generally not the standard for domain analysis. You need to consider the domain name before reviewing the site.

The reasoning essentially is if someone is tricked into visiting a domain based on the domain name, and only discovers this after viewing the content, then the visitor has been harmed and so has the trademark holder whose site was intended to be visited.

There was a post earlier that Zoomer is a trademark. Adding generic words to the end of a trademark does not avoid the infringement issue. There are thousands of UDRP decisions holding this and it isn't worth discussing. The words do not suggest an independent site, like zoomersucks.com, or as you suggest a review site: zoomerreviews.com.

A better question is whether there is a good faith use of the mark based on what is on the website. Since the site has apparently been changed after the demand letter was sent we can only speculate. Issues about affiliate sites have not been legally developed. Don't get me wrong. I have never said the webmaster faces certain liability and I had a client, a retailer, prevail on a similar issue. I have also read plenty of opinions going the way favoring the trademark holder.

Here, we have a new site not making any money, from someone obviously concerned, and a trademark holder being aggressive enough to pay an attorney, hunt down the owner with private domain registration, and serve a takedown demand on Facebook.

Some battles are worth fighting. Others are not. I'm not advising the webmaster, merely pointing out your analysis is incomplete and a strident approach to make them pay could be the wrong approach.

.

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Greg guitar

11 years ago

Originally Posted by Chris Silvey

Another issue is the Facebook page - robotdogtoy. This is like McDonalds going after a page named Hamburgers. It holds no legal weight.

If the content was copyrighted, yes there maybe some legal claims, but when it comes to freely given marketing material. That is really thin ice that holds no weight.

The advice I more or less gave was to prepare a legal foundation. Nothing more, however many posts here have been is to cow tow and pull the site down. People need to know their legal rights and stand their ground.

Are you an attorney? Your opinion about what legally holds weight could be hazardous to the op if you are not. Personally, I claim no expertise, but your advice seems to me to be based on "the school of someone said so".

My non-legal-expert opinion is the op should ignore you, and either just comply, or if foolish enough to get into the legal war which apparently awaits, at least get advice from a real attorney, who will probably be the only winner, but might at least help limit the fallout from such a silly choice, if s/he fails to talk the op into complying.

As for people needing to know their legal rights, I agree as much as possible, but there are many areas of law, and it would be difficult for a layman to know their rights in every possible realm of it, such as the details of the specialty; trademark and copyright law.

As for people needing to stand their ground; I agree, when it comes to serious moral/legal challenges such as being told you can't join a club because your skin is the wrong color.

But as an approach to marketing as an affiliate; the cliche "pick your battles" seems appropriate here. Much better advice would be pick companies to promote that actually are delighted to have you do so, and do it in a way that doesn't get you sued, thereby not adding legal battles to your list of marketing tasks (which would probably be harder than all the other marketing tasks combined).

It is a horrible approach to marketing to attempt to force people to let you promote their products in a way they find so objectionable that they are willing to take legal action to stop you. Marketing is enough work even if you promote for people who love what you're doing for them. Why make it ten times harder by fighting legal battles for your "right" to promote companies against their will?

Ask yourself what would Jay Abraham do? In reams of written words, and many hours of listening to him speak, I have heard him suggest a million ideas on brilliant win/win JV opportunities, and not one involves legal action or fighting your partners for the right to promote them. It's just a very self defeating approach.

Another question to ask yourself: in all the business success stories you have ever experienced, heard, or read about, is there even a single one which started off with fending off legal action on the part of the company being promoted? People sometimes need to stand their ground, but far more often, they need to learn to let go and move on.

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cbpayne

11 years ago

Originally Posted by Chris Silvey

If spinmaster is making a claim on the images, it has no case. This is considered fair use as they have put up the images to be distributed to the public.

Spin Master's Hottest Toys for Spring 2013! pr is public relations.

The Product Name is Zoomer, Zoomer Family Pet, Zoomer the Ultimate Family Pet, not Zoomer the robot dog.

Basically they want your domain name and traffic. If it was me I would tell them to eat crow, or make them pay through the nose.

Remind me never to take legal advice from you. You are wrong on every point. Its NOT fair use. And it is a breach of trademark what that OP is doing with the domain name.

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MissTerraK

11 years ago

Originally Posted by boojoo

Do you mean not redirect to them? But I can redirect to my generic domain?

And that photo idea is great! Too bad the product isn't even released yet....but when it is....nice idea, thank you!

Yes, I meant I would not redirect my traffic to them unless it was a court order and I highly doubt that a court would even order it. And if the court hasn't ordered it, I would redirect it to my generic domain.

Well crud to it hasn't been released yet, lol!

You're welcome for the photo idea. Whenever I need an image, I never pay for one, I either have my son who is a graphic design student or my son-in-law who is a marketing and media specialist take some shots for me.

Terra

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Kay King 11 years ago

I think what they are demanding is simple - stop trying to siphon off their sales! Your traffic is generated by using a name you shouldn't be using and images you have no right to an linking to their site as well....

I would NOT try to redirect the traffic - that's part of this demand. You have deliberately used a domain name that "sounds like" and you did it in order to get some of the traffic looking for that product.

You took images you had no right to use - and you are arguing about other sites and 'fair use' (which doesn't apply). You have no idea what rights other sites requested or paid for.....you simply took what you wanted and that's wrong.

You didn't bother to check trademark registration or understand what it means. You claim your site is "not related" but you link to their site on your index page?

My suggestion is to take down the site and FB page now and forget about a redirect. Read the fine print on your affiliate agreement - learn to research trademark registration and what the laws are about trademark use ('fair use'...not) - and use of images, etc.

What you've done is not unusual. Often marketers think it's a great idea to "sound like" the product name - use images they find, etc. The goal is to insert their little site in between the buyer looking for the product and the approved seller's site...get some sales...earn commission. It's not a good idea - and this is the result.

Unless you have the resources to fight a seller backed by Amazon, you need to get out now and be grateful you didn't receive a bill for image use instead of a warning.
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dakar

11 years ago

Originally Posted by Jill Carpenter

LOL

1. I am not a lawyer
2. Taking random advice from a forum for your business legal issues is not advised.

Ok, just because other sites have images does not grant access to just anyone to use those images.

If your name gives the impression you may be affiliated with the company, that company has every right to be concerned.

It is a misconception that the whois privacy is completely private. Anyone can pay money to get this information unlocked if you know where to go.

Personally I'd contact the company and let them know how I'm helping to promote them and see if some arrangement could be made. If that's not possible, I'd remove all reference to that company, change the domain and move on. If you think you have a valid case and the domain is that important to you then you need to talk to a lawyer.

I didn't know that you could pay and get this info. Is this something that is easy to do?

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RobinInTexas

11 years ago

Originally Posted by dakar

I didn't know that you could pay and get this info. Is this something that is easy to do?

It's very easy if you are willing and able to serve proper legal papers on the registrar.

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kindsvater

11 years ago

It is a misconception that the whois privacy is completely private. Anyone can pay money to get this information unlocked if you know where to go.

Don't hold us in suspense. The place to go is?

It is still a crapshoot on how useful this can be and depends on how savvy the domain owner is. Often, getting the private registration taken down reveals a second "privacy" layer as there is a bogus, but difficult to prove it is bogus, unconfirmable address in some tiny town in an obscure third world country.

.

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Jill Carpenter

11 years ago

Originally Posted by kindsvater

Don't hold us in suspense. The place to go is?

It is still a crapshoot on how useful this can be and depends on how savvy the domain owner is. Often, getting the private registration taken down reveals a second "privacy" layer as there is a bogus, but difficult to prove it is bogus, unconfirmable address in some tiny town in an obscure third world country.

.

Oh, I'm a bit loaded at the moment - but I'm not lying. I think you are familiar with my past (might be wrong about that) but we found a site where if one could determine an IP you could pull up the rest of the whois info on other domains that person had. I have to get back to you on the exact site we found.

This is one of those times I wish I had that permanent memory skill.

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dakar

11 years ago

Originally Posted by kindsvater

Don't hold us in suspense. The place to go is?

It is still a crapshoot on how useful this can be and depends on how savvy the domain owner is. Often, getting the private registration taken down reveals a second "privacy" layer as there is a bogus, but difficult to prove it is bogus, unconfirmable address in some tiny town in an obscure third world country.

.

Very true. It would be wise to assume that if someone really wants to hide their ID, the actual private information would also be bogus.

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munstersg01

11 years ago

Hi

I have been in this situation before. If it is a lawyer's letter speak to their legal team to inform them that you are the website owner and you were unaware that you were infringing on their trademark etc.

Let them know that you are a marketer and though the website is small it means alot to you.

Work something out like
1) selling your domain or website to them
2) ask for permission to promote them
3) allow u some time to make arrangements to take the website down

What I would recommend is to take the website down keep the domain for awhile. You could use the domain as a redirect for traffic or linkjuice if your domain has some pr.

Danny

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boojoo

11 years ago

Well that's nice. Instead of giving me time to reply they have had my Facebook page taken down. My page ID was "robotdogtoy"....so now I have lost the choice to use that when it has nothing to do with Zoomer? Wow!

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Sue Calhoun 11 years ago

Can't you dispute that with FB? probably the images got it taken down, but they have no right to "robotdogtoy".
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- Chris Silvey 11 years ago
  
  Originally Posted by bzzyb
  
  Can't you dispute that with FB? probably the images got it taken down, but they have no right to "robotdogtoy".
  
  The OP will need to send in a appeal to facebook and prove no TOS and Infringement took place.
  
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  Iqball 11 years ago
  
  It has happened to someone i know selling beauty enhancements.
  His branding name was very similar almost equal to a well-known
  cosmetics brand and he got 'nice' letter from their lawyers out of the blue.
  
  But I smell some unnerving and uncovering re-emergence of a trend possibly
  of unsavoury practice of bullying smaller marketers into getting all their traffic.
  redirected to their own sites to make quick buck, as others have mentioned here.
  This tactic not surprising with rising ad-sense rates and Google's Penguin
  (btw created in Petri dish like co-founders) causing such recent havoc.
  
  And i would even go in so far to opine that this could be a new fraud tactic judging
  by the scamster emails we are all familiarise with whereby anyone is sent a
  engineered legal demand to steal their traffic. Similar to the recent trend of fake FBI or
  Russian Intelligence email subpoena notifications for indecent pics of minors being 'allegedly'
  found on potential victims PCs, thereby notifying
  them despicably to part with their credit card details
  to pay a fine to avoid prosecution. Using fear to steal ids.
  
  Don't panic my friend, just get the legal advice to cover your
  back and play ignorant as much as you can!
  
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  arojilla 11 years ago
  
  Take the site's content down (well, I'd just hide it under a white div, so the content is still there for search engines to try to keep traffic steady). Tell them you'll transfer your domain (you are not going to use it from now on as it seems) but that it will take a few days, and then quickly pick a new domain to promote a product from their closest competitor and redirect the traffic to the new site at least for those days.
  
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  hometutor 11 years ago
  
  You're probably not the only one getting that letter. Before I became an in home computer tutor and virus removal specialist here in Honolulu Hawaii I worked in the hearing aid industry. We also sold TV ears. We once got an email from TV ears telling us to take down the site, when I called to verify this was a mass mailing they told me I was correct and the website was fine. Don't forget, this same scare tactic is used by scammers trying to make you act quickly without giving you time to think.
  
  Rick
  
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  agmccall 11 years ago
  
  Are you sure the contact came from the manufacturer and not a competitor that wants your traffic. Have you reviewed their TOS to make sure you comply. Have you contacted them directly or only through the email sent to you?
  
  I would redirect my traffic to another site with a different but similar product. (I am not giving advice, I am just saying what I would do)
  
  al
  
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Meharis

11 years ago

Originally Posted by boojoo

Well that's nice. Instead of giving me time to reply they have had my Facebook page taken down. My page ID was "robotdogtoy"....so now I have lost the choice to use that when it has nothing to do with Zoomer? Wow!

Personally, I believe you can be sued badly.
You may end up losing up to your dog's leash...

Q. What's the worst that could happen to you..?
A. You can be sued badly.

Q. Can you put up with it..?
A. Yes? Go ahead and fight. No? Start over without repeating your mistake.

Meharis

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Justin Says

11 years ago

Originally Posted by boojoo

Sorry, not sure where to put this:

Hi,

Just a quickie.

I run a small niche site that promotes a new product and has affiliate links on it.

I have just received a legal letter from the manufacturer telling me to shut it down and redirect all traffic to them.

I only received it today but my deadline to respond is tomorrow.

I won´t go into much detail here but if anyone can help please message me.

I have a few issues with things they are claiming, to be brief:

1. They say I am using the trade name, but it´s a bit different.

2. They say I am using their images but how else do you promote a product? And the images are on numerous blogs also.

3. They say that people might think I am affiliated with them, but I don´t say that and in fact I link to them on the first page.

4. They want me to send all my traffic to them and shut down my Facebook page.

Not sure what to do - trying not to panic but with a deadline of 1 day it is hard!

Any advice would be great thank you!!!!!!

My advice.

Take it down if it's the official manufacturer and you're 100% sure.

And here's my advice on the 4 notes.

1. If someone owned "Gogle.com" and was using it for ad revenue, talking about Google, etc. then that's likely against the law (I'm not a lawyer and don't take anything I say as legal advice). It's just like if you have a website about Starbucks coffee and call is Starbux, it might be a bit different but if they don't like it you're screwed.

2. Just because everyone else is doing it, doesn't mean you can. There are thousands of sites/idiots out there trying to cheat their way to the top.

3. The #1 thing I do on all affiliate based sites when talking about a product is strictly state near the top "blahblah.com is not affiliated with COMPANY." etc.

4. This depends on the name of the page and what you're doing with it. If it's something along the lines of "PRODUCT NAME" or "PRODUCT NAME FANS" and they say to do it.. you best listen or change the name.

Good luck.

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Martin Quinlan

11 years ago

The name is easy if it is not identical to theirs you are ok. If it is the same and it is already registered you are in trouble. The images you use must not be copyrighted or you could end up in court, even if other people are using them.
You just cannot use images from anywhere willy nilly, they must be royalth free.

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website design

11 years ago

They are serious about defending their trademark as any big company would. If they let it slide then it can be used against them in future trademark cases. You can not win because your domain is a classic trademark case.

Suggestions:
1) Buy new generic domain and put new site up with only Amazon images - do not scrape images from anywhere else. Read Amazon terms of service for affiliates before you get banned.
2) Do not 301 redirect old traffic from domain - just let this domain die or offer to give the domain to the company in good faith BUT do not admin doing anything wrong, do not say anything... you have the right to remain silent - seriously do not say anything that can be used against you.
3) Facebook - if you had it registered under a 'fan' page then lodge an appeal. If you opened the page under a 'company' then just forget about it and move on.
4) Double check all your content and text to make sure nothing is copied from their sites.
5) After you are done making sure you have a generic affiliate site then reply to the company saying: "I will give you the domain, please give me your account info and I'll pass it over to you."

That's all they want is to protect their trademark. Give them the domain and stop using their content.

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hustlinsmoke

11 years ago

I can tell you under the law an adequate tiime frame must be given and one day is not it. Most courts accept 30 days.

Are you using things from them and not giving credit where credit is due and the images is what will really get you into trouble. How hard is it to snap a pic of there product, I mean I don't know it might be easy or very difficult to obtain that product.

In all honesty I would not even attempt to give them your traffic. They sound like a bully organisation and I would love to be able to afford to mess with them, maybe some day.

I do think after everything you said that you are in violation but to give your traffic to them is nonsense and to give you one day is nonsense.

And taking down your facebook page was easy for them, all they had to do was yell copyright infringement, they probably didn't even provide proof.

I really don't like bullies. I do have enough for an attorney if I need one.

So do me a favor and send me copies of everything with there ip address and such and let me have a little fun.

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kindsvater

11 years ago

Originally Posted by hustlinsmoke

I can tell you under the law an adequate tiime frame must be given and one day is not it. Most courts accept 30 days.

I can't think of any law requiring any notice or opportunity for corrective action for a situation like this. But judges do want everyone to be reasonable before something is foisted on their desk.

This doesn't appear to be earth shattering for Spin Master, but I have seen cases where there is no advance warning like the webmaster received. Instead, there is the knock on the door and they get served with not only a lawsuit, but notice there is a court hearing in less than 24 hours for a TRO to shut them down. The paperwork is inches thick and there is never enough time to hire an attorney - which of course is the idea.

The 30 days you may be thinking of is the court evaluating the situation, deciding it is not an emergency justifying a TRO, and telling everyone to come back in a few weeks for a ruling.

Compare: if you're posting Google's secret SEO algorithm you're not going to get 30 days to ruin a billion dollar business.

.

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Meharis

11 years ago

Originally Posted by kindsvater

I can't think of any law requiring any notice or opportunity for corrective action for a situation like this. But judges do want everyone to be reasonable before something is foisted on their desk.

This doesn't appear to be earth shattering for Spin Master, but I have seen cases where there is no advance warning like the webmaster received. Instead, there is the knock on the door and they get served with not only a lawsuit, but notice there is a court hearing in less than 24 hours for a TRO to shut them down. The paperwork is inches thick and there is never enough time to hire an attorney - which of course is the idea.

The 30 days you may be thinking of is the court evaluating the situation, deciding it is not an emergency justifying a TRO, and telling everyone to come back in a few weeks for a ruling.

Compare: if you're posting Google's secret SEO algorithm you're not going to get 30 days to ruin a billion dollar business.

.

I really can get it...

People arguing and not paying attention to a Free Lawyer advice.
On top of that, this person used a Trademark and kept insisting to be right.

Meharis

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boojoo

11 years ago

Originally Posted by Meharis

I really can get it...

People arguing and not paying attention to a Free Lawyer advice.
On top of that, this person used a Trademark and kept insisting to be right.

Meharis

I didn't use a trademark intentionally and I haven't once insisted that it is right since this topic came up.

I have said from the start I will take it down.

What I am objecting to is having to hand them the domain.

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boojoo

11 years ago

I'm going to go through the rest of the replies tomorrow, but thank you to all.

I have told them I will make a new generic domain and take the other website down. I said I will only use images that are authorised. They pretty much ignored what I said and they've told me that's not enough and they want me to transfer the domain to them in the next few days.

Don't want to argue with them but don't like being bullied.

I think taking the domain down should be enough, no?

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Greg guitar

11 years ago

Originally Posted by boojoo

I'm going to go through the rest of the replies tomorrow, but thank you to all.

I have told them I will make a new generic domain and take the other website down. I said I will only use images that are authorised. They pretty much ignored what I said and they've told me that's not enough and they want me to transfer the domain to them in the next few days.

Don't want to argue with them but don't like being bullied.

I think taking the domain down should be enough, no?

You are making this far too personal. Your actions should be guided by one thing: what is best for you; not any abstract concept of "standing up to a bully". If you really think they are bullies, why do you want to make them money, when there are millions of other things just as hot or hotter to promote?

Another thing: you're still asking for legal advice in the wrong place; "that should be enough, no?", presumes expertise that shouldn't be presumed given the venue.

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davezan 11 years ago

Originally Posted by boojoo

Don't want to argue with them but don't like being bullied.

I think taking the domain down should be enough, no?

And apparently, the other party doesn't want somebody to commercially exploit
their hard work as well. I don't know how many even remotely appreciate that.

While you realistically don't have to give them the domain name, they can file
an administrative action to take it from you. It may cost them money, but they
can eventually recoup that expense.

You're lucky that the other party notified you to begin with. Kindsvater and a
few experienced domain lawyers I know, unfortunately, are correct that there's
no requirement to send a notice to try resolving this specific dispute before filing
some legal action.

(And yup, life is often unfair. That's why you make the most of it, although it's
up to you how to do so.)
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hustlinsmoke

11 years ago

Lmao, they don't have much to mess with do they. Not a good marketing plan on there part, I would think they would want all the sales they could get.
That is whacked man.

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hustlinsmoke

11 years ago

It is. I got in a fight with some paralegal that called himself an attorney that wanted me to transfer ownership of ebaystudyguide.com to him. I didn't do it. Bought a month of prepaid legal talked to an attorney and he said as long as I wasn't using the trademark ebay nothing could be done by them, which I wasn't the site was empty and they had no proof what my ebay stood for.

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Geri Richmond

11 years ago

Hi,
Sorry for your situation.

When you went to Google images, did you turn on the filter to see if the images were available to use?
Go to the cog wheel in the upper right corner and click on it. Go to Advanced settings.

A window will pop up. Go down to the bottom of the page and click on usage rights arrow,

then click on free to use, share or modify. Click on Advanced Search.

If the image is not there, then it is copyrighted and you can't use it. Good luck!!
Geri Richmond

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boojoo 11 years ago

Originally Posted by Geri Richmond

Hi,
Sorry for your situation.
When you went to Google images, did you turn on the filter to see if the images were available to use?

Geri Richmond

Hi,

No, I didn't even know about that but I do now, thank you

As for the images, they are all on the PR section of Spin Master's website, or the newer ones are on the Amazon store.
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CH Yeo

11 years ago

Originally Posted by Geri Richmond

Hi,
Sorry for your situation.

When you went to Google images, did you turn on the filter to see if the images were available to use?
Go to the cog wheel in the upper right corner and click on it. Go to Advanced settings.

A window will pop up. Go down to the bottom of the page and click on usage rights arrow,

then click on free to use, share or modify. Click on Advanced Search.

If the image is not there, then it is copyrighted and you can't use it. Good luck!!
Geri Richmond

Hi,

A very good piece of advice ... .

Thanks

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boojoo

11 years ago

I'm going to take the site down today or tomorrow but I'm not redirecting traffic to them.

I will put up a notice saying the site is down, then when I have a new domain I can either 301 redirect as people have mentioned, or I might just put a notice up saying if people want to go to the new (generic, non affiliated etc etc) site then they can.

I'd put a link on to Spin Master but no idea if that would be perceived to be good or bad.

Thanks

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CyberAlien

11 years ago

Originally Posted by boojoo

1. They say I am using the trade name, but it´s a bit different.

You shouldn't be using anything even close to their registered trademark - it can cause confusion and can easily be grounds for a lawsuit.

Originally Posted by boojoo

2. They say I am using their images but how else do you promote a product? And the images are on numerous blogs also.

Other people doing it doesn't make it legal - images are copyrighted so if you're copying theirs without permission, it's a clear violation.

Originally Posted by boojoo

3. They say that people might think I am affiliated with them, but I don´t say that and in fact I link to them on the first page.

Well if you're earning money promoting these products as an affiliate, you should be clearly stating that you have an affiliate relationship and are profiting from sales.

Originally Posted by boojoo

4. They want me to send all my traffic to them and shut down my Facebook page.

It's better than a lawsuit...

[ 2 ] Thanks

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HumbleGuy

11 years ago

Better to speak to a lawyer I'd say.

Thanks
1 reply

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Kay King 11 years ago

He's already had expert legal advice in this thread and he appears to be ignoring it.

Unfortunately, people often believe advice that tells them what they want to hear. The OP seems to think he is in a position to negotiate and I think he may be wrong about that - but it's a risk he seems willing to take.

Truth is - if this ends up in court, the only person showing up to defend the OP will be the lawyer he has to hire. Those advising him to fight and defend and demand - don't have anything to lose. He does.
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- boojoo 11 years ago
  
  Originally Posted by Kay King
  
  He's already had expert legal advice in this thread and he appears to be ignoring it.
  
  Hi,
  
  Thanks - actually I'm not ignoring anything, and I have no idea why you think that. If I keep asking questions it's because a) I am trying to be 100% clear in my head and b) I still don't think it's fair to send them my traffic.
  
  FWIW I took the site down about 8 hours ago.
  
  Currently working on a new one that has no trademarks in the domain at all.
  
  Just contemplating what to do about the traffic to the old site.
  
  THAT and that alone is what I am stumped on at the moment.
  
  [ 1 ] Thanks
  
  1 reply
  
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  sbucciarel Banned 11 years ago
  
  Originally Posted by boojoo
  
  If I keep asking questions it's because a) I am trying to be 100% clear in my head and b) I still don't think it's fair to send them my traffic.
  
  If they decide to file a UDRP, they can take your domain name from you, since it is a domain name based on their trademark. If I were not going to fight this, I would transfer the domain name to them and avoid the UDRP.
  
  Thanks
  
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Sitestomp

11 years ago

Are you even sure it's legit? It could be a competitor messing with you.

Call the company and find out what's going on.

Thanks

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emelef

11 years ago

Call them. It sounds like you are unclear of what the actual issue is. A personal phone conversation goes a long way in clarifying what is going on. Be honest with them. And don't take advice about legal matters from a forum. After your phone conversation you can get yourself proper legal advice.

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seonutshell

11 years ago

Just say OK but also tell them that instead of sending them the traffic, you are going to send it to their competitors, because you hate ungrateful sons of bitches who dont want free promotion.

Thanks

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network39

11 years ago

I would just close the site and move on, why would you even continue to promote their product?
I assume that the product sales do go to them?

Thanks
1 reply

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RobinInTexas 11 years ago

Originally Posted by network39

I would just close the site and move on, why would you even continue to promote their product?
I assume that the product sales do go to them?

Exactly. Just remove the domain from your cpanel, and use the registrars default nameservers and let is resolve to the enom parking site. And just plain fuggedabout it. Move on and create a weight loss or dating site. :p

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