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  1. #1
    SitePoint Member Glass-Giant's Avatar
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    Cease and desist from Wendy's

    This afternoon I received a cease and desist from Wendy's. I immediately called my lawyer, but, being Friday afternoon, suspect he's gone for the weekend. And I'm not sure he does this kind of law. So I'm looking for some advice.

    BACKGROUND
    This refers to a feature of my site where you can input some text and get a JPG of a Wendy's sign with the text on it. I took the original picture myself, and watermark the JPG with my site address. "Wendy's" is also mentioned in a pull-down list of restaurants. I won't put the link here, because I'm not sure it's allowed.

    The letter states I've been infringing on Wendy's name, design and logo. It says the name and logo are registered trademarks with the USPTO. Legal actions to be taken if I don't cease and desist.

    I don't know the law at all, but doesn't this kind of thing fall under satire or fair use or something? Or am I wrong?

    I eagerly await your responses...

  2. #2
    SQL Consultant gold trophysilver trophybronze trophy
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    are you going to fight them?

    you'd better have really really really really deep pockets
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  3. #3
    King of Paralysis by Analysis bronze trophy
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    Does this feature bring in enough money to pay a lawyer for a potentially long costly legal fight?

    If not, then remove it.

  4. #4
    SitePoint Member Glass-Giant's Avatar
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    Haven't decided what to do yet. If I'm legally in the wrong, I'll remove it, or change it, if possible, to make it right. I'm assuming they send letters like this to anyone who is doing something they don't like. So I don't know if they have a point or they're just fishing. If I can't get answers today, I'll remove it temporarily, until I get it cleared up.

  5. #5
    SitePoint Wizard silver trophy
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    Fair use is a defense, not a right.

    Sure you could fight it, but I'm pretty sure Wendy's has more money than you and if you can't afford the legal battle, it's not worth going bankrupt over, is it?

    In the end, you may lose anyway. The court systems aren't perfect, or always fair. I think it would be a blurry line as to whether it's fair use or not.

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    SitePoint Wizard silver trophy
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    Oh, but IANAL, so call your lawyer back on Monday and get his advice

  7. #7
    SitePoint Member Glass-Giant's Avatar
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    Apparently, lawyers cease to exist at noon on Fridays... I've been calling all over. But I just took the page down for now...

  8. #8
    SitePoint Wizard silver trophy
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    Yeah, doctors too - that's when all the golfing happens

  9. #9
    Non-Member demosfen's Avatar
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    Quote Originally Posted by Glass-Giant
    Apparently, lawyers cease to exist at noon on Fridays... I've been calling all over. But I just took the page down for now...
    Your taking it down could be interpreted as admission of guilt. If I were you I wouldn't do anything until you figure out what's the right thing to do.

    P.S. Could it be that they send these notices on Fridays to give you enough time to do something stupid?

  10. #10
    Word Painter silver trophy Shyflower's Avatar
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    I am not an attorney, but I am quite familiar with copyright law. Fair use is not an attribute of trademarks but of copyrights. Trademarks like logos are not covered by copyright law. You are using Wendy's trademark for you own personal gain, whether monetary or to get hits on your web site. Take the JPG down as requested and let them know you did in an apology. That's what I would do but you should really see an attorney to be sure you are on the right track and perhaps to advise you on copyright law so you don't make a similar mistake again.
    Linda Jenkinson
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  11. #11
    SitePoint Wizard silver trophy Bleys's Avatar
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    Quote Originally Posted by Shyflower
    I am not an attorney, but I am quite familiar with copyright law. Fair use is not an attribute of trademarks but of copyrights. Trademarks like logos are not covered by copyright law.
    But certain forms of parody may be protected.

    Beley gives good advice though: Talk to a lawyer and if you decide to fight it be prepare to remortgage the house a few hundred times.

    Wendy's is a very big company.
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  12. #12
    SitePoint Member Glass-Giant's Avatar
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    It's been taken down for now. I imagine if it comes down to a day in court (I doubt it'll come to that), that any judge would understand that I was just being prudent until I could contact a lawyer. It seems to be the safest course of action.

    Thanks for your thoughts, everyone. I'll update this post to let you know what happens...

  13. #13
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    intent

    INAL but I wonder if intent is a factor. If you are marketing with their stuff as being yours, don't. If you are degrading their financial potential, don't. But if it's clearly a satire meant in the spirit of fun, with no possibilty of economic gain for you at their expense, you may be able to get away with it.

  14. #14
    SitePoint Guru hifigrafix's Avatar
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    I wouldn't necessarily consider this a big frightening "money" issue. Talk to your attourney. These big corporations have 20 lawyers sitting in an office sending out c&d letters all day long - many people abiding by them simply for the fear of "I dont have much money to fight this".

    There is a parody here - one thing that I question is that this is a photograph and not simply a "copy" of the logo.

    If I took a picture of my family dressed in clown outfits in front of the McDonalds sign would it be right for them to make me remove the picture? NO. It's a public landscape.

    Taken from the Copyright Office website: "Copyright law protects the original photograph, not the subject of the photograph. "

    Talk to your lawyer and give those tools some hell...

  15. #15
    SitePoint Member Glass-Giant's Avatar
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    hifi (re: clown outfits)
    You've put into words what I was thinking, but unable to express. Thanks.

  16. #16
    SitePoint Wizard dreamscape's Avatar
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    Realistically, only a very very small percentage of I.P. cases ever make it to a court trial. Even large companies with really deep pockets don't want to go to trial; the cost is enormous and not just monetary. By far and large, most cases settle out of court before it comes to trial.

    So, one thing to consider, regardless of if you're right or wrong, unless you've got enough to go to trial -- or someone backing you who does -- realistically, if you peruse fighting them, the end result is most likely to be you agreeing to pay them, probably a handsome sum of money, in an out of court settlement.

    Sometimes people will risk everything they have to go to trial on principle to challenge unjust laws or for a greater good, but man, this is not one of those times.

  17. #17
    Not now, I'm kinda busy. pdxi's Avatar
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    Hmm... I didn't know that Wendy's sold a "Biggie Size" helping of intimidation

    I've seen these kinds of pages before; one had a church sign that you could add text to. My suggestion would be to either make up a "new" fast food restaurant to decorate with text, or to find a sign that doesn't involve any copyrighted work or trademarked names.

    It's been over 100F here for the past couple of days, and now I really want a Frosty. Hmm.
    Jeffrey Hunt, freelance PHP & MySQL developer
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  18. #18
    SitePoint Member Glass-Giant's Avatar
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    Those are basically my backup plans. A Frosty sounds pretty good right now...

  19. #19
    Life is short. Be happy today! silver trophybronze trophy Sagewing's Avatar
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    I don't see how it could possibly be seen as fair use, parody, or anything like that. If you are reproducing their logo (and presumably making affiliate income from it) they will probably give you a haircut in court, and clean you out. I'd take it down and forget it unless you have some legit reason to be reproducing and distributing their logo.
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  20. #20
    A Smarter Way to Web! zivo's Avatar
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    Post Cease and decists and lawyers

    Cease and desists are, and most attorneys would agree, a first step in a discussion. However, it is always good to consult with an attorney before you make a move, even taking down the offensive (to them) item.

    Having an attorney, proactively, is always a good thing, especially in this world.

    mp/m

  21. #21
    SitePoint Wizard silver trophy Bleys's Avatar
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    Quote Originally Posted by Sagewing
    I don't see how it could possibly be seen as fair use, parody, or anything like that.
    I could see how it might be parody. Though it's impossible to draw any conclusions without seeing the site. For example, I have seen t-shirts that are a perfect recreation of the Starbucks logo except that the 'b' has been changed to an 's' ... and I would guess that those would be protected as parody, even though everything else about the logo is identical and the creator is making money.

    Here's a pretty good primer on parody and fair use: http://www.publaw.com/parody.html

    But the best advice, of course, is to consult a lawyer if he wants to pursue it.
    Josh is a ghost
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  22. #22
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    Bleys' link deals with parody and copyright.

    Glass-Giant's case might involve trademarks rather than copyright. If so, here's a consideration of parody in trademark issues http://www.patentfla.com/articles/trademark_parody.htm

  23. #23
    Word Painter silver trophy Shyflower's Avatar
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    Quote Originally Posted by szn
    Bleys' link deals with parody and copyright.

    Glass-Giant's case might involve trademarks rather than copyright. If so, here's a consideration of parody in trademark issues http://www.patentfla.com/articles/trademark_parody.htm
    Excellent link -- Looks those lawyers know a thing or two about a thing or two!
    Linda Jenkinson
    "Say what you mean. Mean what you say. But don't say it mean." ~Unknown

  24. #24
    SitePoint Wizard silver trophy Bleys's Avatar
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    Yes, that is rather a better link than the one I posted. Thanks.
    Josh is a ghost
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