But put aside whether Spin Master can win this infringement claim on the merits, consider what they asked for in their demand letter, as explained on You Rather’s blog:
1. Stop using “You Rather” and any other phrases that are similar to “Would you rather”. This includes one (yes, really) or more of the words “Would”, “You”, or “Rather”.
2. Hand over our yourather.com domain immediately
3. Tell them how much money You Rather has made (presumably to ask for that too)
4. Pay for their lawyers
“One or more of the words ‘Would,’ ‘You,’ or ‘Rather.’” Presumably this is meant to prevent You Rather from just rearranging words, but this is a demand letter, not a contract. There’s no need to get cute and ask the website to agree to abandon any use of the word “you.” This is why people hate lawyers.
- Taxpayers on hook: “N.J. boy left blind and brain-damaged after being beaten by father awarded $166M by jury” [Newark Star-Ledger]
- “Psychic Love Spell Center stole my money, lawyer alleges in lawsuit” [Houston; ABA Journal]
- “You can’t win these suits… Move on with your life.” Good advice for someone falsely accused of rape? [Roxanne Jones, CNN]
- Critical look at California judge’s lead paint ruling [Daniel Fisher/Forbes, earlier here, here]
- $6 check and apology over “F-word”: “Pub owner’s sarcastic response to Starbucks cease-and-desist letter goes viral” [ABA Journal]
- Suburb doesn’t want to accept public transit, but feds force its hand by use of controversial disparate impact theory [Dayton Daily News]
- Randy Barnett: libertarianism as a vehicle for moderation, toleration and social peace [Chapman Law Review/SSRN; one of my favorite academic papers from last year]
Users have been known to complain that Tumblr, the immensely popular microblogging site, is not always as communicative as it might be about the periodic outages it has suffered. Zach Inglis put up a site called IsTumblrDown.com which gave users a clue whether an inability to connect was just them, or the whole system being down. There was little likelihood that it would be confused with an official site, especially since it took a bit of a mocking tone toward the platform giant (and had no revenue). Lawyers representing Tumblr nonetheless fired off a nastygram demanding the site’s removal.
The story has a rare happy ending, though. Tumblr sent a second letter saying that the cease and desist letter had been sent by mistake [Daily Dot]:
We deeply apologize for our mistake. Our legal department very recently started using a third party vendor to assist us in pursuing trademark infringers and, due to an error in our new process, your domain was mistakenly caught in the cross-fire.
To paraphrase Eric Turkewitz, when you outsource your trademark enforcement, you might just find yourself outsourcing a chunk of your customer goodwill at the same time.
In a menacing letter that included the draft of a complaint, well-known entertainment lawyer Martin Singer informed his target that “I have deliberately left blank spaces in portions of the complaint dealing with your using company resources to arrange sexual liaisons with older men such as ‘Uncle Jerry,’ Judge ——, a/k/a ‘Dad’ (see enclosed photo), and many others. When the complaint is filed with the Los Angeles Superior Court, there will be no blanks in the pleading.” Now California appeals court judge Steven Suzukawa has ruled that the threatened disclosure was appropriately related to the financial dispute at issue and did not constitute extortion as a matter of law. [Hollywood Reporter, earlier]
Texas: “I’d never trust a dentist who reacts to negative online reviews by having his lawyer threaten the reviewer with criminal charges. Would you?” Complete with a vigorously worded letter, explaining why his client is not planning to take down the review, from attorney Leif Olson of the admirably named Olson Firm in Humble, Texas. [Ken at Popehat]
The Underbelly restaurant in Houston offered a “Double Double” burger. When chef Chris Shepherd got a letter from lawyers for the California-based In-N-Out chain, saying it infringed on their similarly named sandwich, he promptly changed the name to “Cease and Desist Burger.” It has sold well, says the restaurant’s marketing manager. [Erica Ho, Time]
The township of West Orange, N.J. sends a cease and desist letter to a local political activist who runs the domain westorange.info and gets the following response from attorney Stephen Kaplitt (via Above the Law):
Dear Mr. Trenk:
I am pro bono counsel to Jake Freivald and write in response to your “cease and desist letter,” dated May 13, 2013, regarding his domain westorange.info. Obviously it was sent in jest, and the world can certainly use more legal satire. Bravo, Mr. Trenk! ….
Oh, and just to play along, had you intended for your letter to be taken seriously, even in some small measure, we would have sent in response something along the following lines: …
[several legal points follow about municipalities’ general lack of a right to exclude others from using their names as part of domains]
If you manage to produce supporting authority that even remotely passes the laugh test, I will donate $100 in your honor to the American Civil Liberties Union — N.J. chapter. I plan to make the donation online, assuming the state of New Jersey has not shut down aclu-nj.org.
- “Robo-litigation”: ethical issues of the mass-foreclosure mess [Dustin Zachs, SSRN, via Legal Ethics Forum]
- Roger Parloff on Chevron counterclaims against Patton Boggs [Fortune] “Judge Grudgingly Lets Donziger’s Lawyers Out Of Chevron Case” [Daniel Fisher; Reuters]
- Should Australia dilute or abolish the “cab rank” rule? [John Flood via LEF]
- “Ethical Limits on Civil Litigation Advocacy: A Historical Perspective” [Carol Andrews (Alabama), SSRN; Legal Ethics Forum]
- “When Is a Demand Letter (Arguably) Extortion?” [John Steele, more, ABA Journal (Martin Singer demand letter threatening to expose target’s sexual indiscretions]
- Fifth Circuit denies Dickie Scruggs’s latest appeal [YallPolitics]
- When crowdfunding meets litigation finance, watch out world [Richard Painter]
- “Judge Orders Prenda Law Group Beamed Out Into Space” [Lowering the Bar, TechDirt]
Ken at Popehat to the rescue, with a pledge to “do everything in my power to find pro bono representation for the Buckleys to (1) prevent you from extorting and retaliating against them through the cost of defense, and (2) empower them to cockroach-stomp you righteously.”