Can’t Touch Me on Defamation Either

Just so there is no question, well there has been, if I could be accused of defamation, not even close. Would you day lawyers please do your own homework!

Questions of Trademark vs. BlogMedia

Questions About Trademark

I want to complain about a company. Can I use their name and logo?

Yes. While trademark law prevents you from using someone else’s trademark to sell your competing products (you can’t make and sell your own “Rolex” watches or name your blog “Newsweek”), it doesn’t stop you from using the trademark to refer to the trademark owner or its products (offering repair services for Rolex watches or criticizing Newsweek’s editorial decisions). That kind of use, known as “nominative fair use,” is permitted if using the trademark is necessary to identify the products, services, or company you’re talking about, and you don’t use the mark to suggest the company endorses you. In general, this means you can use the company name in your review so people know which company or product you’re complaining about. You can even use the trademark in a domain name (like walmartsucks.com), so long as it’s clear that you’re not claiming to be or speak for the company.

Since trademark law is designed to protect against consumer confusion, non-commercial uses are even more likely to be fair. Be aware that advertising may give a “commercial” character to your site, and some courts have even gone so far as to say that links to commercial sites makes a site commercial. (See PETA v. Doughney)

Can I use a trademark in my blog’s name or in the title of a blog post?

Yes, if it is relevant to the subject of your discussion and does not confuse people into thinking the trademark holder endorses your content. Courts have found that non-misleading use of trademarks in URLs and domain names of critical websites is fair. (Bally Total Fitness Holding Corp. v. Faber, URL http://www.compupix.com/ballysucks; Bosley Medical Institute v. Kremer, domain name www.bosleymedical.com). Companies can get particularly annoyed about these uses because they may make your post appear in search results relating to the company, but that doesn’t give them a right to stop you.

Sometimes, you might use a trademark without even knowing someone claims it as a trademark. That is permitted as long as you’re not making commercial use in the same category of goods or services for which the trademark applies. Anyone can sell diesel fuel even though one company has trademarked DIESEL for jeans. Only holders of “famous” trademarks, like CocaCola, can stop use in all categories, but even they can’t block non-commercial uses of their marks.

More information on trademark:http://www.chillingeffects.org/trademark/faq

I would like everyone to be aware this information can be found at the eff.org. This way no one else will be intimidated by hollow threats from the Big Bad Bullies and their so called Counsel.

Apology to e.webscapes

e.webscapes is a very reputable company. I DO NOT believe e.webscapes stole the design of BNW’s new site. I never intended for anyone to think so. I only intended to draw attention to the circumstances like…

“hey look, krug is going to write for BNW now and what a coincidence their new design looks like b5’s because they are always criticizing them, yet their site looks like it belongs to them.”

To Lisa and e.webscapes I am very sorry for them getting dragged into it. It was careless of me and I should have seen the possiblity of it happening.

I am sorry.

I emailed Lisa before I posted this public apology.

To whom it may concern:
I would like to apologize to your staff and you. I never intended my remarks to have offended anyone at your firm. One of your customers has twisted my opinion to sound as though I was accusing your firm of stealing a design. I in fact do not believe that to be true. I didn’t accuse your customer of theft either. My opinion states the similarities of the design compared to another site.

I have designed homes for 15 years. During that time I never know when the direction of a client may bring me close to the same type of accusations. In following posts I may have, in bad judgement drawn on that experience.

I know, it sounds childish, and my comments may have been petty, but I never meant to discredit you.

Please accept my humble apologies.

Adam Marquart

Lisa gave me permission to post her response

Adam -

I do appreciate your explanation and thank you for sending that along. In the 8 years I’ve been providing web development services, this is the one and only time anyone has ever, publicly or otherwise, made any type of accusation that my company has participated in theft of design for any site project we’ve been involved with. While it’s generally not my policy to get involved, or even comment on such things because I feel it creates needless drama between bloggers, I left my comment on BlogNetworkWatch regarding this because, unfortunately, search engines being what they are – these things get cached and misunderstood by any potential clients doing research on E.Webscapes in the future. You can, of course, understand my concern regarding your post. As you are probably aware, these things tend to blow out of context rather quickly.

The design for BlogNetworkWatch is not a unique concept, by far. We get quite a few requests for similar set ups, quite honestly – and have done several similar sites in the past, per our client specifications. I noticed an increase in the “three column – posts on the left, sidebars on the right” requests in our orders ever since Webblogsinc.com became the exciting thing, well over a year or so ago. As for the colored border across the top of the site? It’s a style I’ve used in quite a few site designs over the years – a quick check of my portfolio will show just that.

I do appreciate your candor, Adam. Although, I regret that the accusation was made, noted and cached on your site, and now other sites who have linked in. I’m not, of course, pursing legal action. I just want to be clear on that. And while there is nothing I can do undo any damage that may have been done, now or in the future, – I would like to request some sort of clarification statement within your post about the design theft. Not required, of course – it would just be wholeheartedly appreciated from my end.Take care, Adam -

links for 2006-01-16

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