I was working on a project called Scoper, which let you do video streaming. It had done fairly well at SXSW, and we had a decent amount of users. Just before we thought we were gonna be awarded a trademark for the name, we got a not so friendly letter from Twitter's counsel at Fenwick and West, telling us we were infringing on their "Periscope" brand, and listing some pretty clear demands. We never really thought of our app as a competitor to Periscope.
Our lawyer let us know that they had no strong grounds against us, but would drain us in a legal battle we could never afford. We told Twitter we knew they had weak grounds and that the case would just drag on, and we would rather save both sides money, if they would just buy us out.
They gave us a super low amount of money to drop the trademark application, transfer the domain, all brand related stuff, and remove our app from the App Store. It was kinda depressing, but it could have been a worse outcome.
To be fair, this wasn't outrageous like this pear logo case, but it was just a feeling of being bullied and knowing you don't stand a chance.
In Germany, unusually even for Europe, this is solved for civil cases by assigning a fixed fee per case that lawyers and the court itself must adhere to - they can't go below, they can't go above - depending on the claim value, usually around 5-10% of the claim itself in total for all three parties.
This is still nasty for the less advantaged individuals when faced with a claim that could lead to, say, a $10k maximum fee, but for smaller businesses any reasonable claim amount is still affordable and the "drain the other party's legal funds" tactic is practically outlawed.
Except it's not really solved. I've seen the "Streitwert" be inflated to half a million by a well known litigious video game publisher, using moon logic math. No details because the case has been settled.
What about cases that require much more work than $10k could buy? If a case goes on for many months/years then it would be reasonable to expect it to cost more than a quicker case.
Yes, probably. See, for example, the recent battle between McDonald's and a small (relatively) Irish fast food chain called Supermacs, which McDonald's lost.
It is definitely not a perfect system. The problem is society in general accepts this behavior. It is an absurd claim on its face. They should face social pressure for this behavior. The only thing that I think could make our various systems better is to change what we accept; outside of those systems. The media we are sold and consume should reflect what is important to us. If cases like this were blasted across the twitter verse and people actually cared, it would stop once the spending decreases following the exposure. We are seeing that in other arenas.
I remember reading about a culture in east asia or the pacific where farmers did not have written contracts and usually had very little problems. Everyone knew what was expected and fell in line. If a farmer were to break with the norm, I am sure it would have resulted in them being ostracized.
I hope one day we expect more from each other, and expect more from ourselves.
> It is definitely not a perfect system. The problem is society in general accepts this behavior.
The problem is the justice system accept this behaviour. We can not and should not depends on the public opinion in general to determine injustices to happen. That's why we have a justice system after all.
> The problem is the justice system accept this behaviour.
Judges already have the ability to throw out a case of it has no merit. Why are obvious cases like this possible is a question I'd like an answer to.
We already depend on public opinion in general to determine criminal Justice norms. In place of apple put a prosecutor, in place of pear company put suspect. Every single one of us commits infractions every day we exist in the USA. Protectors use prosecutorial discretion. They do not charge us for every single crime that has technically been committed, because the populace would be up in arms and the prosector would lose their job. Each plaintiff is like a prosecutor. They should be beholden to popular opinion, and that opinion should be that behavior like this should be unacceptable.
You cannot expect a fair society that relies on selective justice. Specially with so much social stratification and marginalisation.
Justice cannot behold on popular opinion at all. There is a reason for 'her' to be a blindfolded lady.
If 'every single of you are committing infractions everyday as you exist in USA' and black represents 40% of male prison population while are just 12% of the whole population and while black youth comprise 14% of the national youth population, 43% of boys and 34% of girls in juvenile facilities are Black, we could easily conclude that this system is highly unfair.
Note: while writing this comment it got my attention that in my mother language the words for justice and fairness are the same.
At the core of the problem is that society is not allowed to not accept this behavior. The systems by which Apple et al abuse their positions to harm small businesses and "the little" guy are literally enshrined in our legal and administrative code. Government decisions of the last 30 years, often regardless of party, have resulted in the single largest consolidation of corporate power under six umbrellas (Facebook, Apple, Microsoft, Google, Amazon, Netflix) in Silicon Valley history.
Extraordinarily lax antitrust laws (in both Republican and Democratic administrations, you'd expect the Dems to be tougher on this but follow the money trail and it's simple to see why), a general disdain for shareholder activism, and corporate culture in all of the aforementioned companies prioritizing the needs of advertisers over the needs of the end user.
> The media we are sold and consume should reflect what is important to us. If cases like this were blasted across the twitter verse and people actually cared, it would stop
I would have agreed with you fifteen, maybe ten years ago. The point of no return has been passed. Apple and Amazon alone are worth enough combined for public opinion to matter nil in terms of their actual business practices. They could suffer millions of dollars in bad press and shareholders would continue to invest and consumers would continue to buy product. Look at TSLA as a fantastic example -- Elon consistently sticks his foot in his mouth and makes a mockery of himself but TSLA short sellers continue to lose big time.
The only solution at this point in my view is a fundamental overhaul of antitrust law and safeguards to ensure competition in cutting edge industries, and collectivization of essentials like public internet and public utilities so the profit incentive doesn't get in the way of service. We're already seeing how terrible the outcome is with the Post Office, we don't need any additional privatization in the world of tech.
I am well aware, but the inefficiencies posed by regulatory capture are often used as an excuse to privatize state property, in this case the USPS and the situation with the PMG intentionally hobbling it to make that very case.
Netflix, really? Very little content of their own, and facing increasing competition from established firms. I consider them a little fish in their field compared with Disney.
You make the bills and awards proportional to income. Now large company has very little to gain by suing tiny company, but a lot to lose. And tiny co has a lot to gain, and very little to lose.
This makes big cos more risk averse - not a win, but likely no different in practice to the current US litigation landscape.
But it also makes them consider their relationship with Rest of World more carefully.
This would stifle small companies even more. Think of the reverse scenario where the large company is infringing on patents/trademark. If you sue, you better win because you risk paying double attorney's fees. With judges and juries making poor decisions a very real possibility that's a scary proposition.
A solution for that is for judges to award costs based on the merits of the case and ability of each party to to pay.
Tricky case where both sides have a legitimate reason to believe they are in the right - no costs awarded. Borderline barratry - full costs awarded.
One FAANG sues another - full costs awarded to the winner. Owner of a small corner shop wins against a FAANG - full costs. Other way round, no costs.
Also to set appropriate levels on what costs can be awarded (kinda like the German model). You want to spend 10M on suing a street market stallholder? Knock yourself out, costs awarded = 10k.
So I have to work 9 hour days, come home and cook dinner, do family time, put kids to bed and then go shame random corporations for not following the spirit of the law?
I think that’s unreasonable. Ain’t nobody got time for that, and we have a lot of people who can get paid to do that if we just change the laws.
This is the point though -- society itself is a sick system (in the https://kottke.org/10/06/creating-a-sick-system sense) -- being kept in a perpetual state of crisis makes us unable to fight against the injustices being constantly perpetuated around us. And unlike a job or relationship, even if we fully realize what's happening, we're powerless to leave.
It's could be good enough to take your opinion into account while spending your money, or giving an advise on spending simeone else's money. You also highly probably have some time to occasionally express yourself publicly as you just did :)
> They should face social pressure for this behavior.
Dead simple : don't buy Apple at all and every time you can, explain why you don't and don't spend time explaining "how good Apple is a t anything". That single action wipes anything good they could do.
You don't need to be registered on Twitter to look at a tweet. Not having Twitter account is much easier then most people think. It also saves a lot of time.
I really encourage everyone to read the Theranos book (Bad Blood: Secrets and Lies in a Silicon Valley Startup). The legal system is de facto used to bully everyone around the startup, and people cower in fear when a white-shoe law firm comes knocking.
The bigger problem from a societal perspective is that the “people cowering in fear” often includes the Dept of Justice. Prosecutors are assessed based on win rates, and they know how hard it is to go after a large company with the best lawyers. In some cases, the prosecutors personally know the people at those law firms, and remember them as the best students in their law school class. Would you go after a large firm protected by someone you know is smarter (and better at law) than you? Much easier to focus on the obvious scams and easy wins. This was part of how Goldman got away scot free with extremely questionable behavior like betting against their clients during the Great Recession, or UBS got away with just a fine for laundering cartel money (they sized their teller windows to fit the shoeboxes full of cash that the cartels were bringing in!).
I had a similar case that I helped a relative with. They had a similar word in their business name as a foreign (popular at the time) baking company. My reading in Australia implied they had no real case either, the standards for Trademark infringement are relatively tight and case by case (see https://www.findlaw.com.au/articles/2064/thats-crazy-john.as... for one case where the industry is the same and names are very similar but branding is not). The notice was apparently triggered by an application for a local Trademark which tripped their alarms.
But as with you, it wasn't worth the fight. We got a cheap legal aid person to draft a letter saying we thought they didn't have a case but we'd play along if they covered our fees for renaming the business and updating stationery/website/etc. In the end it worked out OK and the business was renamed. I think she made a slight profit if you don't factor in the stress.
I created a groupware platform Officezilla (have since sold the domain). Almost as soon as I registered the domain the GodZilla trademark holders lawyers sent me a letter. I sent them a letter letting them know I appreciate their concern and to take a hike, never heard from them again.
Toho Company, Ltd. v. Sears, Roebuck & Co., 654 F.2d 788, 790-94 is precedent. Courts have to follow it and lawyers know it. You don't even need a lawyer to send Twitter packing.
Curious what is the worst case outcome if one were to just put minimal effort into the legal process, basically just simply state your case and hope judge thinks other side is crazy?
For example, in breue's case he had enough money for lawyers, but pretend it was the same scenario only breue was an 18yo still living with his parents (who are not wealthy theoretically)
Does the judge just blindly believe everything Twitter says since they have lawyers?
I can give a perspective. I was filing a trademark (US) for an application that I am developing on the side. A gaming market place company opposed the trademark claiming possibility of confusion. They filed the opposition, I was determined to go to discovery with it.
After I filed my response denying all allegations, they blinked and we made a small change to the description of the trademark. (Something that I had offered them from the beginning).
From my perspective the worst that could happen is I would get to the point where I needed a lawyer (actual discovery) and could determine if it was necessary to continue.
Filing an answer to an opposition is not difficult and a little online searching goes a long way to help you avoid making mistakes answering the opposition suit.
This. You have to call a bully's possible bluff when you can do so on a shoestring.
They may seem to have unlimited resources, but a legal dept doesn't actually have a bottomless budget, and it has to demonstrate ROI to the CFO's office.
Many attorneys you might consult won't realize this, because they can't conceive of a scenario where you don't need maximal legal representation. When your only tool is a hammer, every problem looks like... :-)
It’s a little more nuanced than that. Lawyers have ethical obligations to provide sound legal advice and counseling, whether they’re paid for it or not. As in, the legal ethics structure doesn’t really allow for (purposely and knowingly) doing a shoddy job. The lawyer could be on the hook for either doing a bunch of free work or getting disbarred by signing up to do a ‘bare minimum’ job. Maybe there should be a carve out for situations like this.
I thought that's where law student interns come in. Basically law firms hire law students. When stuff like this comes up, the real lawyer can give hints to the law student and the law student goes talk with the client. The law student has no real obligation as far as the Bar goes (because they're just a student). The real lawyer also never made any direct advice to the client so they are also off the hook.
> Maybe there should be a carve out for situations like this.
There already is one, it's called hourly billing. You come up with a reasonable plan, and you decide when to call it quits later if the bill gets too high.
The worst case outcome is that you lose but ALSO become responsible for paying Apple's legal bills.
I think that's incredibly unlikely, (in the US legal system there isn't a lot of cost shifting for trademark suits) but if you assume that the person responding to the lawsuit doesn't know what they're doing, then I can't rule it out.
This is why the people arguing that the loser should have to pay the winner's costs as a deterrent against frivolous lawsuits have it completely backwards.
It works as a rule if it only applies if the loser is the plaintiff who brought the case in the first place. That would indeed discourage the filing of frivolous lawsuits. In some cases, it should work the other way, but that should be up to the judge and be based on the circumstances of the case.
Edit: The downside is that it would also prevent poor plaintiffs from suing richer ones. But that is already generally the case. It's probably best to judge on a case by case basis.
You typically cap this by some metric/tables based on the suit's magnitude ("I'm being sued for $50k") and court events (e.g., adjust hourly for "representation" in court based on how much you're sued for, and then just multiply the table value for that suit-value-range with the hours in court, add bonuses for court stuff that didn't require anyone to personally show up (i.e., mail/fax suffices)).
That's afaik how it's down in Germany.
Alternatively, you could cap the amount the looser pays to what they themselves payed, devising some sort of scheme to prevent exploits around lawyer-on-retainer/permanently-hired-lawyer on a large-entity's side.
I don't remember where I read this, but anecdotally, that is exactly why the United States has the cost structure we do as opposed to the rest of the world.
Same thing happened last month with Amazon. AWS decided to roll out a new product called CodeGuru, that was a well established site on Windows development (codeguru.com). That's the end of the road for them.
The difference with CodeGuru is that, AWS didn't sue them, its Google which decided to bury it in the search results in favour of something relatively new and the context of the article seems to be why AWS named their product like that.
So, this doesn't seem like a good advise to me for that context -
>Major lesson here, if you run a major site in the US and did not deposit the name (maybe it grew organically over the years?), now is a good time to do it.
Can AWS trademark CodeGuru now? I don't think it will be able to do so with basic prior art rules as actual MS CodeGuru has supposedly existed for over 20 years dealing with programming but different core purpose than AWS CodeGuru.
So, I don't think the suggestion to trademark our existing product name in fear of a monolith taking it over seems absurd. Trademark/Patents doesn't automatically provide justice, like any other legal affair it's the 'power' to enforce that TM/Patent via a court that counts and the monolith always has more power[1].
What needs to be done here is changes to trademark/patent laws and justice system which doesn't automatically put those without money at disadvantage like the 5 member meal planner company having pear logo just because I think Apple wants to put in their own meal planner app.
Maybe there needs to be some sort of a collective trademark ownership org small projects and sites could go to, which wouldn't sue somebody proactively for i.e naming their GitHub repo similarly, but would come up when legal at these large companies was running the name of their new product past existing trademarks.
The trademark codeguru is not deposited by anybody, neither CodeGuru nor Amazon did their homework. Anyway the 20 years of usage should have precedence over just depositing a trademark.
My point was that it probably wasn't deposited by codeguru.com because it costs a decent chunk of money to do so and websites don't necessarily have the resources, but if there was a pooling fund, maybe they would.
You'd still run the risk of Amazon just not looking it up or caring, but the legal grounds would be much more on your side, abet I agree that 20 year precedence should be strong enough in itself.
Does it? I registered a trade mark for my small business. Didn’t require a lawyer and the fee wasn’t more than a few hundred dollars per 5 year period as I recall.
> I registered a trade mark for my small business. Didn’t require a lawyer and the fee wasn’t more than a few hundred dollars per 5 year period.
That's fair. However a few hundred dollars could still be quite a lot. Especially for a small website or an open-source project where this could be basically all their donations.
In codeguru.com's case however, I'd grant you that they probably did have a decent enough income to afford a trademark registration, just maybe not when they started and by now it really wasn't on anyone's mind.
I think the part of the answer is that in the US legal system the discovery process is disproportionately expansive and expensive, being adversarial in nature, as opposed to many civil law countries where the judge tells both parties what documents they will have to produce so that the judge can rule. Here you argue with each other why you both need to review 100k or millions of results of keyword searches. Actually an individual or very small company litigant would be at an advantage not having much in the way of records to search.
I don't think it is as simple as civil vs common law differences. The fact that legal professionals charge so much money for glorified word processing and petty arguing is the problem. Especially given the over supply of legal graduates and ever lower quality of judges you will face.
You as an individual or a small company being built off the savings of an individual cannot afford the myriad of legal fees associated with the process the large corporation is putting you through. It's really not hard to understand how a company with billions in the bank can literally just "war of attrition" you into losing any case, even ones they have no standing to win.
Not for civil cases and in truth even if criminally prosecuted you are only sure to have a body you aren't actually in fact guaranteed competent representation in fact but rather only in law. In America if someone with more money than you disagrees with you and has even a trivial cause of action its entirely plausible they can legally destroy your finances and your life.
Having the most money is pretty much the only thing that matters here.
Not for civil cases. But again for something like this I don't see why you would rather drop the issue and capitulate rather than at least try to fight it out without a lawyer.
To "fight it out without a lawyer" runs the risk of the court resolving the case against you and awarding damages, most pathetically via entry of default judgment if you can't even figure out how to properly file an initial response to the complaint.
Not to mention your own time likely being better spent elsewhere.
>The US does not have a 'loser pays' legal system.
Even if it had, you'd still have to manage to stay afloat all the way to the verdict. It wouldn't be hard for powerful entities to let the process drag long enough to sink you in fees, even if you could hope to get it all back eventually.
And that would be a very risky bet too, would you bet a few millions against a, say, 95% chance that you'll get that pear logo or that "scoper" trademark? That's a 5% chance of losing and going bankrupt.
The only solution is for the process itself to be cheaper. The system shouldn't allow big players to bully small ones.
The point is, that Apple/Twitter wouldn't have that incentive to go into a battle with 5% chance of acquiring that trademark and 95% chance of being out a couple million.
Not so sure honestly, because the real equation would be more like "90% chances that the smaller company won't challenge it, 10% that it will even reach a verdict".
After all with the current system if it goes to court Apple/Twitter will probably have to pay a few millions for their own legal fees. Having them reimburse the other party if it goes all the way and they lose will make it even more expensive, but I don't know if it'll be enough to really change their mentality.
Well, in Germany the solution is the standard rate for lawyers. When you loose a court case, you do have to pay the loosers costs. But only the hours they spent in court or drafting actual legal documents related to the case, no the lunch break where the lawyer bought ice cream.
There is also a limit in discovery, so you can't drag court cases on forever as you want.
So even if you, as a small SMB, get sued by Twitter, and you only bring your off-the-street lawyer and Twitter brings their 12-headed star team of lawyers, you won't pay more than double your lawyer's bill if you loose in terms of legal fees.
The UK is far worse than the US when it comes to libel law: if a big company sues, the burden of proof is on the individual sued to document every statement. In the US, the plaintiff has the burden of proving that the statements were false and damaging.
yeah, but is is much harder for plaintiffs to collect in the UK than in the US. Losing a lawsuit in the UK is not nearly as bad as losing one in the US because the Uk has really crappy asset recovery procedures. The US requires losers to disclose everything under the penalty of perjury.
Discovery requests. Quantity of, and postponement of, hearings. Travel expenses. Meetings with your attorney(s) at the cost of several hundred or thousands of dollars per hour. Time and effort required by your staff. Potential injunctions, paralyzing revenue and fundraising while you wait for resolution of the case.
That does not sound like minimal effort. I would say minimal effort means getting the cheapest lawyer you can find and having him comment on quick replies you draft yourself to any requests you get.
Why do I have to pay anything just for getting sued?
The other party should make the case that I infringed on their rights. If I'm sure I'm in the clear, why do I have to move even just my pinky finger? What fees do I have to pay? I don't care about the process, don't want to submit anything. Is there a fee for getting sued?
As far as I understand, the problem in America is that nonaction is often assumed to be an admission of guilt. But "actions" often cost money, or can only be legally performed by lawyers who take insane hourly wages. Crazy system.
Yep! Lawyers basically just look for legal entities with money, and exploit the justice system to take as much of it as they can without bankrupting the source. Constant flow.
They’re like a tax paid by every person or company with a significant sum of money in America. Doesn’t matter if they’re right or wrong, grounds or no grounds, there will still be a team of lawyers on your side taking your money to “defend” you.
Does your lawyer’s $20,000 motion really have any chance of succeeding? Did he really have to pay that company $12,000 to convert all your files to TIFFs? Did he really spend 16 hours on that letter, or does he have 95% of it saved in a template somewhere?
At first you’re happy to have lawyers on your side. But eventually you realize even the ones defending you are in on the same game, and are just there to rob you.
Don’t ever tell anyone you have money or that your company is successful.
This is an extremely bitter take. I'm sorry you apparently have had one or more negative experiences. Speaking as an ex-lawyer who left the profession, there are definitely myriad things wrong with it.
However, your statement is a dangerous one. It's a ludicrous thought to try to run a company of any size/complexity without at least occasional legal support. As expensive as lawyers can be, trying to navigate legal obligations & requirements without counsel can be disastrously more expensive.
As with anything, it comes down to who you hire and for what purpose. With your mention of motions and such it seems you're mostly talking about litigation. Yeah, litigation can be extremely expensive and there are absolutely firms that appear to want to drag out cases to charge more fees. A lot of this is a problem more with our civil legal system here in the US (civil as in civil vs. criminal, not civil vs. common law). Litigation has become nearly pay-to-win -- but a lot of the fault for that can be laid at the feet of megacorps and tort """reform""".
So yes, litigation can be eye-wateringly expensive. But the best way to avoid litigation is to judiciously use the services of legal professionals. This may shock you, but the vast majority of lawyers are in it for nothing more than a 9-5 career and out of the satisfaction of navigating tricky situations, and the vast majority of lawyers in the US make significantly under six figures -- which doesn't go very far when paired with shocking student loan burdens.
So by all means, avoid keeping megafirms on retainer. They certainly have motivations to find work for themselves.
But luckily, there's a fairly good alternative -- in-house counsel. If your lawyer is on your payroll, they have zero incentive to do anything extraneous. Furthermore, you can rely upon them to keep an eye on any additional outside counsel you may need -- to tip you off if they think you're being charged for make-work. If you can't afford the payroll hit of in-house (which does not have to be enormous, we're talking in the 70k - 110k range for a good, experienced counsel), then seek out recs for smaller firms with track records of representing small businesses.
I know this comment has come across as defensive, but trust me, I have nothing to be defensive over. I left the profession for good reasons and have nothing positive to say (and plenty negative) about what we call biglaw. I guess it's just the vestigial shell of a lawyer still living inside of me that cringes whenever I see someone strongly recommending businesses avoid legal representation. It's just asking for disaster.
Just to be clear, none of what I wrote is legal advice and I would never recommend avoiding legal representation. My point wasn’t that you should avoid it, my point was that in America you often don’t have any choice but to retain counsel, even when you know your own counsel are just additional parties to the game of robbing you.
> But luckily, there's a fairly good alternative -- in-house counsel. If your lawyer is on your payroll, they have zero incentive to do anything extraneous.
This sounds like a good way for companies to mitigate the issue of perverse incentives, but how can individuals benefit from this?
Based on the legal TV shows I've seen, you can get drowned by motions. If the other side files a motion, you have to respond to it. If they have a large legal team, they can pull more legal manoeuvres than your side can even read, let alone respond to.
https://breue.com/twitter https://breue.com/86851616.pdf
I was working on a project called Scoper, which let you do video streaming. It had done fairly well at SXSW, and we had a decent amount of users. Just before we thought we were gonna be awarded a trademark for the name, we got a not so friendly letter from Twitter's counsel at Fenwick and West, telling us we were infringing on their "Periscope" brand, and listing some pretty clear demands. We never really thought of our app as a competitor to Periscope.
Our lawyer let us know that they had no strong grounds against us, but would drain us in a legal battle we could never afford. We told Twitter we knew they had weak grounds and that the case would just drag on, and we would rather save both sides money, if they would just buy us out.
They gave us a super low amount of money to drop the trademark application, transfer the domain, all brand related stuff, and remove our app from the App Store. It was kinda depressing, but it could have been a worse outcome.
To be fair, this wasn't outrageous like this pear logo case, but it was just a feeling of being bullied and knowing you don't stand a chance.