Legal Marketing with a Big Upside for Startups:

November 19th, 2008

This is not my marketing concept, though I wish I had thought of it.  Trademark lawyer and Red Sox diehard Erik J. Heels has a new initiative to help startups understand and protect their trademark rights. Free Trademarks For Startups » @ErikJHeels

If your company is a bona fide startup, Erik will help you file a trademark application for free.  He is up front about the fact that he is doing this to get your future paying business as well, which sounds entirely reasonable to me. 

If you have a startup and need help evaluating your preferred trademarks and filing an application, go check Erik out.

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Trademark Law as a Weapon to Stop Online Forum Discussions

March 3rd, 2008

Prof. Eric Goldman of Santa Clara University is a reliable source of updates on "Internet law".  This is a good summary of a tough situation:

Technology & Marketing Law Blog: Lifestyle Lift Tries to Use TM Law to Shut Down User Discussions; Website Countersues for Shilling–Lifestyle Lift v. RealSelf

LifeStyle finds itself being maligned in RealSelf’s online forums.  Established law says that RealSelf can not be held liable for statements made by third parties, so what’s an aggrieved business to do?

Lifestyle Lift goes after the forum owner for misuse of its trademarks.  The argument is mostly a dog- one can use another’s trademark to identify the business it relates to, but not profit from the mark.  The expense of litigation, however, usually makes people decide that removing the allegedly-infringing content is a better course of action.

RealSelf doesn’t do that though.  It gets made and countersues for . . . violating its terms of use.  The claim is that Lifestyle Lift posted "shill" reviews of its own product (the horror) in violation of RealSelf’s terms.

RealSelf may well win on the merits of the infringement claim, but it’ll still be out a bunch of cash on the defense, and the breach-of-terms-of-use counterclaim isn’t going to bring a whole lot of that back.

I don’t know any of the underlying facts of this case (were the critiques accurate?) so I won’t take sides.  As a UGC junkie, I am strongly in the camp that people should be free to post their opinions of products, including negative ones. There are limits, though.  Businesses also need ways to protect their reputations against untruthfulness and outright slander.

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