The mere threat of legal action for most Americans means $$$.
As a college student, probably broke as well. This person probably does not have the legal understanding or access to lawyers to guide him through it.
Much easier to take it down rather than deal with potential legal ramifications.
A half decent lawyer or even the "free" lawyer services at most universities probably would have advised just removing the "trademark" elements as you would.
You ignore the cease and desist, they take you to court (still unlikely because they also incur cost they dont want). You don't need a lawyer to go to a courtroom, they will order you to take it down and then you do. They're very unlikely to sue for damages because the cost of their lawyers far exceed whatever 'damages' are in place here, which I would assume are close to zero.
Please don't fold immediately to this tired legal tactic.
> You don't need a lawyer to go to a courtroom
That...depends on how much you care about the outcome.
> They're very unlikely to sue for damages because the cost of their lawyers far exceed whatever 'damages' are in place here, which I would assume are close to zero.
If they "take you to court" to force a takedown, they are already suing you (for an equitable remedy.) The marginal cost of adding a claim for damages and, on top of that, lawyers fees and costs (which, as you note, may well exceed the actual damages), is very close to $0 once they are already doing that. So, you may choose not to pay for a lawyer for yourself, but that won't stop you from paying for lawyers for the firm suing you.
> that won't stop you from paying for lawyers for the firm suing you.
Note that in the US, the usual rule does not allow for shifting attorney's fees to the loser.
> Note that in the US, the usual rule does not allow for shifting attorney's fees to the loser.
While in the US, the default rules in many kinds of cases don't start with loser pays, as in some other systems, there are conditions applicable to most causes of actions which will allow attorney's fees, and the default rules for some claims do assign costs and fees to a party found liable without requiring any additional factors—notably, in the context of a trademark demand letter from the holder of a registered trademark, this includes violation of any of the rights of a holder of a registered trademark, see 15 U.S.C. § 1117(a).
> You don't need a lawyer to go to a courtroom
You don't need one, but it is incredibly ill-advised and reckless to go into a case like this without a lawyer.
> They're very unlikely to sue for damages
Lawyer's fees are very often moved for in IP infringement cases, so even if they don't sue for damages, you're going to end up paying their lawyers.
> Please don't fold immediately to this tired legal tactic.
If you feel so confident about this, why not put up a replacement site and try this strategy when you get the inevitable C&D? Keep us informed. I'm interested to see how that plays out.
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>You don't need a lawyer to go to a courtroom
You need money and free time to go to a courtroom.
>They're very unlikely to sue for damages because the cost of their lawyers far exceed whatever 'damages' are in place here,
This is a not a smart thing to do without legal console. There are plenty of very large, very wealthy companies that love to play SLAPP.
Your suggestion of FAFO isn't a great idea.
It works because the populace is tired, broke, and minimal time and effort to deal with it.
I don’t know many people that would purposefully drag themselves through the court system out of principle. Maybe those with enough free time on their hands and money to delegate/consult with lawyers.
You are probably right though. If a majority of people rejected the cease and desist orders and actually called their bluff about vague legal action. Then these legal tactics would become useless, and the recovery in whatever damages to their "trademark" would be far less than the cost to hire even junior legal teams at big firms.
Maybe you should test your principles. Recreate this persons website idea, wait for Waffle House corporate lackey to send C&D, then you show us how it’s done. Instead of doing your armchair "should have, would have, could have" analysis.
This is why companies come on strong like this.
The dude made in good humor, a website and pushed it on social media at a time that attracted a bunch of attention. It included graphics close enough to the trademark to be confusing to visitors, and did something that the company didn’t want done for reasonable reasons.
They incurred cost. People handled phone calls, their counsel billed for the response, the web agency had to modify the website. Waffle House sells greasy diner food, every aspect of dealing with this is zero value to them.
Rather than beat around the bush, they said “stop”. He did, and wrote a funny blog about it. But for every 10 situations like this one, there’s probably 1-2 where the counterparty is a prick and wastes everyone’s time.
IAAL (but not a practicing one, so I don't have skin in this game, and this is not legal advice). I also once lost $25k+ in a copyright litigation relating to music piracy before I became a lawyer. It was decidedly not fun.
You ignore a C&D at your peril. The rules are complicated and the fines and penalties for not following the rules are expensive. U.S. IP law is fiercely protective of patent rights, trademark rights, and copyright. It's not something you mess around with, and anyone who tries to defend himself without a lawyer is a god damned fool. The author of the blog post did the right thing by engaging and trying to work something out without coming across like "go pound sand, I do what I want."
Please don't walk around giving bad advice like this. I pray for the poor sap who listens to it.
Thank you and I have been the poor sap in the past, and never, ever again
And if they do sue for damages?
Feeling invincible is nice, but even low probability events can lead to financial ruin if someone chooses to make an example of you.