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  1. #1
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    Just received the following. This could put a lot of us out of business. Could some trademark lawyer please chime in and help us clarify this (especially the title / description section)?

    ---->

    Dear Affiliates (this is being sent to all affiliates):

    This is to inform/notify all of you on the subject of trademark infringement. Due to the competitive nature of certain products we've found that more and more people are moving towards capitalizing traffic generated by other sites for themselves.

    We need to make this clear to all of our affiliates that we do not authorize any type of search engine placements (paid or non-paid) or banners that involves/uses other trademark business names that are not owned by our company.

    This is a very serious matter that we would like to educate and inform al of you to avoid any future inconvenience and any possible lawsuits to you.

    For example, the following link would be considered as a trademark infringement regardless of the landing page unless you receive a written approval from the company. This is the most common form of trademark infringement.

    http://www.abcd.com/statefarm.html

    Another common example would be when you seemingly use a url that does not contain other trademarked names but you use their name in your subject/title or description. Unless you do have a relationship with the company whom you are using the name, this is not permissible.

    In summary, whenever you are using someone else's name without any permission, you've voilated the trademark rule. If you are using this technique to generate traffic hence revenue, please make sure that you delete or stop using these methods immediately. If we are contacted with this issue, we will either immediately terminate our affiliate relationship with your company and/or send your contact information to their attorney so they could resolve this issue with you directly.

    This note should not be treated as a threat but as a notice and education that we've taken time to do so for all of you so we all could work together harmoniously. Thanks in advance for your cooperation.

    Shad and Adrian
    ZipSearch LLC

    Apollo

  2. #2
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    Why would it put anyone out of business?

    State Farm own the name, and you cannot use it anywhere on your site without prior written permission. What is wrong with that?

    www.cjshoppingnetwork.com

  3. #3
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    "Shad and Adrian
    ZipSearch LLC"

    Who are those people?

    I work in lounge pants

  4. #4
    Full Member ellen-s4y's Avatar
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Unless you do have a relationship with the company whom you are using the name, this is not permissible.<HR></BLOCKQUOTE>

    If we're an affiliate, we have a relationship.

    Individual companies have there own rules on what is an isn't permissible - as long as we follow those, I don't see how there is a problem.

  5. #5
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    I think they are refering to if you use a name that is a trademark of a company that you are not affiliated with to promote a company that you are affiliated with.

    For example, if you use State Farm to attract those who search for State Farm, but in fact you send them to an insurance company other than State Farm

    www.cjshoppingnetwork.com

  6. #6
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    How about if you use StateFarm in the Title and description tags of your affiliate page promoting State Farm products. Is this an acceptable use?

    This is what I'm confused about. According to the letter, it is not permitted. (But then again, these guys are probably not trademark lawyers.)

    Apollo

  7. #7
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    They are the AM's for InsuranceTracker.

    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Originally posted by TrustNo1®:
    "Shad and Adrian
    ZipSearch LLC"

    Who are those people?

    I work in lounge pants <HR></BLOCKQUOTE>

    Apollo

  8. #8
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    State Farm do not have an affiliate program do they?

    www.cjshoppingnetwork.com

  9. #9
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    I think if you're affiliated with a merchant you can promote anything that merchant has, unless they tell you otherwise. Some merchants have even gotten notice to remove certain TM's from their site. Worst case scenario is you get a cease and desist and just remove any objectionable/trademarked material. What CJ said above, if you're using someone's TM to get traffic to your site and then sending that traffice elsewhere/competitor then you can get in some trouble, which is them basically telling you to stop and remove.

    I work in lounge pants

  10. #10
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    I have found out that some companies are pretty quick at sending out cease and desist letters. You just have to be careful with what you include. There are so many trademarks that it is sometimes hard to avoid infringing upon one of them

    www.cjshoppingnetwork.com

  11. #11
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    Lump it all under one liability term... trademark deception. Any keyword that you purposely bidded upon to deceive a shopper/searcher is subject to copywrite/trademark litigation.

    Mike & Charlie ...

    If they won't adopt and feed a bird ..flip them one! BBQ some Gator and remember to flush WhenU..

  12. #12
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    There isn't anything new in this letter.

    I don't know Shad and Adrian, but they don't seem to have "Esq" after their name and they make some questionable blanket statements. Trademark laws do protect the use of a name in commerce but fair use laws and First Amendment rights protect your use of it in criticism sites for example. For example, according to their letter, you would need XYZ Corp's permission to use their name in the title & link to your site XYZCorpSucks.com. This clearly is not the case.

    I'm not too concerned about their letter and am not going to lose any sleep over it. Unless your business relies on trademark infringement, you shouldn't either. We'll all still be in business tomorrow.

    Wayne

    Not a Trademark Lawyer. I only play one on the internet.

    ~The local burglar's 'exclusion list' does little to fight crime~

  13. #13
    ABW Ambassador buy_online's Avatar
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    Can you say "CYA"?, I knew ya could.

    We have a local law firm (here in Richmond), that basically threatens all bad drivers. They say (paraphrasing) "If you're a bad driver, we're putting you on notice that we're going to sue you on behalf of our clients if you goof up." It's disgusting.

    I think these guys are going beyond what they are capable of (in terms of enforcement - my opinion folks). Whether they are right or wrong (sadly), may not prevent them from filing suit against someone.

    HUMBUG!

    Fred

    You might just be a Redneck if - Birds are attracted to your beard...

  14. #14
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    i never use any ones company name in my urls, title tags or description tags! its just not done!!
    I will not pretend i am the actual shop, its a pointless episode!
    I would say its a trademark violation if these names have been patented, if not then its not a trademark violation!

    *** And people say I'm just a housewife!!! ha ha ***

  15. #15
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    Trademarks were originally devised to protect CONSUMERS from buying stuff that turned out to be fake and of inferior quality.

    TM owners have managed to twist the concept around to the current situation where they have MORE RIGHTS to the language than individual citizens.

    Going down this road - where will it all end. If I form a thought in my brain than comprises of someone's TM, will someone burst in my door and shoot me?

    Don't laugh - that's where it's all heading.

    ****************************
    Jimmy James Inc. fan club membership # 3312

    "But Jimmy had fancy plans, and pants to match"

  16. #16
    ABW Veteran Mr. Sal's Avatar
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>""""""""""For example, the following link would be considered as a trademark infringement regardless of the landing page unless you receive a written approval from the company. This is the most common form of trademark infringement.

    http://www.abcd.com/statefarm.html

    For example, the following link would be considered as a trademark infringement regardless of the landing page unless you receive a written approval from the company. This is the most common form of trademark infringement.

    http://www.abcd.com/statefarm.html

    Another common example would be when you seemingly use a url that does not contain other trademarked names but you use their name in your subject/title or description. Unless you do have a relationship with the company whom you are using the name, this is not permissible.

    In summary, whenever you are using someone else's name without any permission, you've voilated the trademark rule. If you are using this technique to generate traffic hence revenue, please make sure that you delete or stop using these methods immediately. If we are contacted with this issue, we will either immediately terminate our affiliate relationship with your company and/or send your contact information to their attorney so they could resolve this issue with you directly.

    This note should not be treated as a threat but as a notice and education that we've taken time to do so for all of you so we all could work together harmoniously. Thanks in advance for your cooperation. """""""""""""'<HR></BLOCKQUOTE>

    ------------------------------------
    I'm sorry, but I have to agree with that letter, why?.....

    Because if you look at it this way, it will make sense....
    Suppose you are a regular joe and you want to search for the statefarm website to file a complain about a case pending, but then when you go to google and type "statefarm" you may get over 100 sites with that name that shows up first and are not related to the statefarm website, how will you feel then??????.

    It is like the only email that I received only once in the las 3 years of AF marketing that say this:

    [b]This is to inform/notify you on the subject of trademark infringement:
    (This was for the essayedge.com and they tell me to change (Harvard Editors) to (Harvard Educated Editors), so I dit it.<b/>

    As of today, I tink the only trademark that I have all over my site is the one from (wonderfulbuys.com) and that is only because of the free website they offer, so I feel safe on that name they give me to sell, sell,sell......

  17. #17
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    Situation:-
    An Electronics advertiser sells Sharp products. I use the name Sharp in the url and/or decription to bring it to "shop by brand" link and hence the landing page of that advertiser.
    Although I do not have the permission to use Sharp from the trademark owners, but I have the permission to sell for that advertiser, who has listed Sharp products(presumably he has the permission to use that name).

    Will that be considered as Trademark Infringement?? on my part?

    Asif

    Asif
    http://www.plaza101.com

  18. #18
    ABW Veteran Mr. Sal's Avatar
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Originally posted by Asif:
    Situation:-
    An Electronics advertiser sells Sharp products. I use the name Sharp in the url and/or decription to bring it to "shop by brand" link and hence the landing page of that advertiser.
    Although I do not have the permission to use Sharp from the trademark owners, but I have the permission to sell for that advertiser, who has listed Sharp products(presumably he has the permission to use that name).

    Will that be considered as Trademark Infringement?? on my part?

    Asif

    Asif
    http://www.plaza101.com<HR></BLOCKQUOTE>


    Legally, by law if the "Sharp" people want to say that you do not have the permission to use Sharp name from the trademark owners, then you will have to remove it from your website.

    Look, I'm not a lawyer, but I saw one on TV. talking about that issue...

  19. #19
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR> We need to make this clear to all of our affiliates that we do not authorize any type of search engine placements (paid or non-paid) or banners that involves/uses other trademark business names that are not owned by our company. <HR></BLOCKQUOTE>

    They're overstepping their bounds with this part. That section could be used to pull BS if, for instance, you promote any other affiliate program besides theirs! Especially if you promote a competing program as well as theirs. They could say, "you didn't have our permission to use OtherGuy's name, so screw you..."


    They seem to clarify here:
    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR> In summary, whenever you are using someone else's name without any permission, you've voilated the trademark rule. <HR></BLOCKQUOTE>

    But still--this email makes no exceptions for things like comparison sites or criticism, unlike the actual law.

    Call it a gut reaction but when I see things like this I run like h*ll. People who make up laws in their own minds (which are stricter than the real law) have an agenda and when it comes to affiliate programs, IMO, that agenda is 99% sure to be To Not Pay Up.

    I could list a dozen things that set my alarm bells SCREAMING but it boils down to the above, and this post is long enough already.

    I must make note of one other inconsistency before I hit "post now," though:

    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR> This note should not be treated as a threat <HR></BLOCKQUOTE>
    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR> will either immediately terminate our affiliate relationship with your company and/or <HR></BLOCKQUOTE>

    Uhm...

    It's the most wonderful time of the year!~Old Christmas Song

  20. #20
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR> you may get over 100 sites with that name that shows up first and are not related to the statefarm website, how will you feel then? <HR></BLOCKQUOTE>
    Actually Jan72, how I feel about 100 results that doesn't go to the the tradmark owner's site has nothing to do with the law. 100 results using the State Farm name to divert commercial traffic to other websites (which seems to actually be the case) is clearly trademark infringement. 100 results of sites describing past race & sex descrimination lawsuits against the company is fair use and can use use the trademarked name.

    Wayne

    ~The local burglar's 'exclusion list' does little to fight crime~

  21. #21
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    Think of the thousands of affiliate trademark and brand link farm pages out there as Google and cookie setting fodder. I've landed on these while searching or trying to close down popup & under affiliate hell holes. Favorite tactic of couponers is to attach a coupon offer to every brand name and copywrite/trademark in the consumer products arena. No big deal as it's all just designed to hijack traffic to set a cookie.

    Many branded merchants demand and require their reseller/dealer/distributors to adhere to strict brand/trademark agreements before any Ads can be run. The WWW is full of spoofers acting to all as if their were legit fulfillment merchants, when reality is they are just marketing middlemen. Let's take the above move as a slap on the wrist of the trademark traffic hijackers.

    Now lets see where the handcuffs and criminal prosecutions come into play for the Mr. Niceguy AM's out there innocently enabling the cybercriminals out there.

    No ABW merchant or non-ABW merchant, who passes out a datafeed to affiliates, can prevent them from completely spoofing their site from a IE browser address or mouse over status bar.... page by page throughout the ecatalog. This goes from the link code in Google, MSN, Yahoo or Overture to the landing page. Me or anyone can instantly become Overstock.com, EssentialApparel.com, SurplusComputers.com where even the AM and companies management can't tell they aren't on their own domain while shopping. I can also be BankofAmerica.com or Paypal.com or eBay.com for all Adwords or Google listings for the purpose of collecting idenity theft -credit card and account information. Nothing can stop this complete domain/company browser spoofing short of Microsoft forcing security patch changes in all their IE installations.

    The plan of cybercriminals is to spoof merchant sites and financial institutions using the AM furnished SE spam food and Trademark listing to steal CC's and identities to rape those very same merchants with phoney credit card sales. If the CC holder doesn't know their card has been stolen the cybercriminals have 20 days of blissful shopping online and in stores using counterfeited cards. Identity theft buyers pay even more as they have a longer get-a-way period or seek safe harbor under assumed identities.

    Mike & Charlie ...

    If they won't adopt and feed a bird ..flip them one! BBQ some Gator and remember to flush WhenU..

    [This message was edited by EcomCity.com on December 11, 2003 at 08:39 PM.]

  22. #22
    ABW Ambassador Abigail's Avatar
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    I may be simpleminded but - if the merchant gives you banners and text links with the "trademark manufacturers name" in them and you identify yourself as an affiliate of the merchant on your site - how can this be construed as trademark infringement??

    Abigail

  23. #23
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    I usually dedicate a complete page to one particular merchant, while I don't use their name in the title or keywords (that I can accept as reasonable), I do sometimes use it in the description (since thats what a description is supposed to do, describe what the page is about) and I name the file whatever the merchants name is. This helps me to recognize which file belongs to which merchant to simplify banner updating and link removal when the merchant is deactivated or lowers the commission, return days or limits the occurences to the point they become worthless.

    Any merchant that has a problem with this will have to find someone elses life to torment because I don't have time to get silly with non intentional, fine line, trademark infringement issues. I don't bid on search engine ads and if you can't mention their name while your trying to advertise for them then what good are they?

    What are we supposed to say? I know this great merchant but I can't mention their name (it's a secret but they're really not criminals and have nothing to hide, trust me!) or (they're so paranoid and goofy that they will punish me if I tell you who they are!). How about buy brand x's stuff cause it's good stuff! Would you buy brand x when you could by a name brand?

    Some of these people are so fine print and rule crazy that all logic is lost in their quest to feel powerful. I run as fast as I can from people like that and never look back. No matter what kind of deal they have to offer, the misery involved is not worth it.

    min 10% com, 30 day cookie and unlimited occurences!

  24. #24
    ABW Veteran Mr. Sal's Avatar
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Originally posted by NorthernStudio:
    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR> you may get over 100 sites with that name that shows up first and are not related to the statefarm website, how will you feel then? <HR></BLOCKQUOTE>
    Actually Jan72, how I feel about 100 results that doesn't go to the the tradmark owner's site has nothing to do with the law. 100 results using the State Farm name to divert commercial traffic to other websites (which seems to actually be the case) is clearly trademark infringement. 100 results of sites describing past race & sex descrimination lawsuits against the company is fair use and can use use the trademarked name.

    Wayne

    ~The local burglar's 'exclusion list' does little to fight crime~<HR></BLOCKQUOTE>

    Man, you are right on this "100 results of sites describing past race & sex descrimination lawsuits against the company is fair use and can use use the trademarked name."

    That is a good point that I just miss, I think that you are right on that example, but I was thinking of these <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR> This is to inform/notify all of you on the subject of trademark infringement. Due to the competitive nature of certain products we've found that more and more people are moving towards capitalizing traffic generated by other sites for themselves. <HR></BLOCKQUOTE>

    But again, I'm just still a Newbie here...

  25. #25
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    You're right about the sites that grab traffic using trademarked names, Jan72. I'm not surprised that companies are taking action. There is the danger of overstepping the bounds as in the letter starting this thread, warning of ANY unauthorized use. They simply are not completely accurate in their presentation of the law.

    Wayne

    ~The local burglar's 'exclusion list' does little to fight crime~

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