Blogging, Trademarks, and Why Dumb Lawyers Keep Sending Me Letters

As I’ve mentioned many times, this blog is a reflection of my adventures as a business owner, SEO wannabe, family guy, self improvement nut, and blogging rebel. And no article I’ve written before will be as transparent as the one you’re about to read. So strap it on friends, because this is as real as it gets.

Another Letter

A few days ago I received an email from an attorney of a major swimming pool manufacturer. To make a long story short, their lawyer said they’d sue me if I didn’t remove their trademarked name from the meta tags of my website. Upon reading such claims, I could only shake my head. ‘Geez I thought, when are these guys ever going to learn??’

But before I explain how the rest of this little story unfolded, let me take you back about 2 years ago when I started ‘making waves’ in the swimming pool industry.

Making Waves

In 2007, after having owned (with my two biz partners) a fiberglass pool construction company for about 6 years, I decided to write an eBook teaching consumers about how to buy a swimming pool. Because my industry was so bereft at the time of quality consumer education, and because I am a capitalist who genuinely enjoys helping others to find happiness, I figured such an eBook could have quite a bit of success (I had not yet entered the world of blogging at this time). So over the course of 2 weeks during the Christmas season in 07, I sat down and wrote the first piece of literature in the swimming pool industry with actual ratings of swimming pool manufacturers (Keep in mind, manufacturers of swimming pools sell to pool builders like me. Therefore, when I talk here about pool manufacturers, I am not speaking of my competitors,  who are the pool builders). Having had installed hundreds of pools at this point, as well as having hundreds of contacts throughout the industry, I had quite a few opinions regarding the subject matter. And considering I’m not much of one to filter my honest opinion on a product or company, I made it clear to readers what pool manufacturers I thought were good and which ones I thought were not.

Maybe I was a little naive or maybe I had no idea how many people would actually read the book, but immediately following the eBook’s release on my website the emails started pouring in and my phone started buzzing. Some people (like every consumer that has ever bought the book) thought I had done a great thing. Other people, especially my fellow builders in the industry, thought I was nuts because I had openly challenged the products and quality of multimillion dollar companies. And some manufacturers, simply put, were made as heck.

The Attorney Letters Begin

I found all these results to be quite interesting but I figured that as long as my eBook customers were happy, and as long as I spoke the truth, I shouldn’t care about the rest. This was until I got my first letter from an attorney. The attorney, who represented another fiberglass pool manufacturer, said they were going to sue me if I didn’t remove them, as well as their product rating, from the eBook. After consulting with a family friend/attorney on the matter, I decided the fight wasn’t worth it and I’d just remove the company’s information, which I did.

Viking Pools

I few weeks after this event, I got a letter from another attorney. This time, the attorney was representing Viking Pools, a multimillion dollar company and the largest fiberglass pool manufacturer in the world. Again, the attorneys told me if I didn’t remove their client’s name and rating from my eBook, they’d sue me. Needless to say, I was confused at what to do and felt like I was being bullied around despite the fact that I was speaking words I knew to be true.

But in the case with Viking, I had been installing their pools for years (read the entire story about this here) and had encountered countless flaws and problems with their products, much of which I had documented through video, photos, etc. Also, because the eBook had been out for a few months, consumers and pool builders all over the country had written me to thank me for bringing to light the flaws of this egregious company and their products. All of this gave me the strength to take a stand.

David vs Goliath

So instead of just rolling over and giving in to the bully, I decided it was time to turn the tide. No longer would I back down. In fact, I sent the lawyer an email back and told him I’d happily welcome the lawsuit and that I was ready to expose the truth with countless witnesses, case studies, videos, photos, etc. What’s funny is that I eagerly anticipated a response from Viking’s attorney but one never came. In fact, their only response came in the form of owner of the company writing a scathing review of the eBook on the home page of his website. I found this hilarious as it only drew more attention to the eBook, which meant more sales, which meant many more swimming pool consumers were prevented from making a serious mistake with a $40,000+ investment. Knowing that I had only spoken the truth, and in-turn calling Viking’s bluff, was one of the most fruitful learning experiences of my life.

The Consumer Voice Grows

So let’s fast forward to 2010. Today, after having produced the most educational and honest swimming pool blog on the internet, my whole world, as well as my business, has reached a whole new level (And btw, sales on the eBook have grown every year). I’ve mentioned the crazy things that are now taking place in my life because the blog has become the consumer voice of the industry. But notwithstanding there are still manufacturers living in the stone ages and clueless at what’s going on around them.

Which brings me back to the most recent attorney letter I spoke of at the beginning of this post. Although I’m not going to mention any names here, I’ll simply state what the attorney claimed and my response.

Trademarks and Dumb Attorneys

The manufacturer’s attorney claimed that I had used their trademark (the company name) as a meta tag on my company’s website. They also said if I didn’t remove this information within 10 days they’d sue me. Such action, especially because the company didn’t call me first to discuss their concerns, made me highly agitated and angry. I was also confused because I didn’t recall mentioning them in my site’s meta data.

Well to make a long story short, it turns out that I was right. I had not mentioned the company’s name in my meta tags (which is illegal), but rather I had mentioned them as a category and tag on my blog. In other words, a blogger has the free speech to discuss his or her opinions on any product or company, as long as it is stated as such. Therefore, mentioning the name of a company, and then expressing thoughts about that company, is absolutely legal and in my opinion is a critical element of any blog that acts as a voice for the consumer. In fact, when it comes to trademarks and blogs, the Electronic Frontier Foundation explains the law here:

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

End Results

Once I fully understood what the lawyer was claiming, I sent them this piece and told them, for all intensive purposes, that they didn’t have a clue as to what they were talking about. I also emailed the owner of this company and told him I didn’t appreciate his form of communication and that I’d suggest a more forthright method in the future. Shortly after sending this email, the owner called me and backed down from his previous position. Despite the fact that he and I didn’t see eye to eye, he knew that I had every legal right to do what I was doing.

Lessons Learned

I tell you this story because I’ve made a huge deal in previous articles about the need we have as small business owners and entrepreneurs to maintain a powerful blog in the information age. These blogs, in order to gain any traction, must be honest and frank. They also mustn’t be written in fear as to what someone might do or how someone else might react. As a business owner and educator, our thoughts and intentions need to be based on consumers, not manufacturers and other big businesses that are used to going around and sticking a muzzle in the mouth of any person that may have a negative opinion regarding a specific product. In fact, after taking on big companies and lawyers over these past 2 years, I point out these lessons learned.

• Most lawyers are idiots when it comes to computers and have no clue as to what they are talking about. Heck, most don’t even read blogs, much less know the laws that surround them.

• Most lawyers and big businesses think small companies will just back down with a simple threatening letter.

• Because the internet is the great equalizer, David and Goliath stories exist at every corner. Big businesses (at least ones that have common sense unlike Viking Pools) are starting to realize that it’s not smart to wage a war or words online with popular blogs and bloggers. In fact, smart businesses and companies listen to the bloggers and change their business models to meet the demands of the consumers.

• As long as you blog honestly and express your opinions openly, the truth will always win out.

So that’s my silly little blogging adventure for this week. I hope you have found it, at least in some way, applicable to your life and business. And if you have any comments or questions regarding this article, I’d ask you to share your thoughts below as they are very much appreciated.

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