Chilling Effects
Home Weather Reports Report Receiving a Cease and Desist Notice Search the Database Topics
Topic HomeFAQsMonitoring the legal climate for Internet activity
USF Law School - IIP Justice Project
 Chilling Effects Clearinghouse > Protest, Parody and Criticism Sites > Notices > Pacesetter complains of "sucks" site (NoticeID 652, Printer-friendly version

Pacesetter complains of "sucks" site

April 25, 2003


Sender Information:
Pacesetter Corp.
Sent by: [Private]
Omaha, Nebraska, 68127, US

Recipient Information:
Redding, CA, 96002, USA

Sent via: certified mail

Dear Mr. & Mrs. [Private],

Your internet hosting service has requested that The Pacesetter Corporation provide to you an official written demand to immediately cease and desist from operating the web site identified above. Please consider this letter as such demand. As you know, we have made previous oral requests to you for removal of the web site, but those requests have been ignored. Likewise, you have rejected our offers to meet with you personally in an attempt to resolve any of your own individual complaints about our company.

This will advise you that the above named web site violates the trademarks and trade name held by The Pacesetter Corporation. Furthermore, thie site contains untrue, defamatory information submitted by unnamed individuals which has clearly been published with malicious intent to damage our company.

We regret that your own personal experience with Pacesetter was unsatisfactory. No business sets out to create unhappy customers. And it should be apparent that Pacesetter could not have become one of the largest home improvement companies in the nation and recipient of the Better Business Bureau's Business Integrity Award if a significant number of our customers shared your view of our company. Your web site ignores the fact that Pacesetter has literally hundreds of thousands of satisfied customers who are very pleased with our products and services. Many of those are repeat customers who have chosen to make multiple purchases from Pacesetter over several years.

Be advised that many of the hearsay statements contained on your web site are false, and obviously they present only one side of the story. Unquestionably, those statements are disparaging of our company, its officers and employees, and we therefore demand that you to discontinue the above web site.

Sincerly yours

General Counsel

cc: Prime Exalia Technologies

FAQ: Questions and Answers

[back to notice text]

Question: What is a trademark and why does it get special protection?

Answer: A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.

Consumers reap the benefit when trademarks are protected. By preventing anyone but the actual mark owner from labeling goods with the mark, it helps prevent consumers getting cheated by shoddy knock-off imitators. It encourages mark owners to maintain quality goods so that customers will reward them by looking for their label as an indication of excellence. Consumers as well as mark owners benefit from trademark laws.

Trademark owners spend a lot of time, money, and effort to protect the distinctiveness of their trademark. Once trademarks have become diluted to the point where the general public no longer recognizes them as distinctly applying to a particular manufacturer, they lose their value to the trademark owner because they no longer attract customers to his particular goods. For example, ?aspirin? used to be the trademark of one particular manufacturer of synthesized acetylsalicylic acid, but is now used to generically describe that product regardless of who produces it. Trademarks owners must be vigilant to make sure that their trademarks rights are not being infringed and that their trademarks are not becoming diluted or generic.

The birth of the Internet and the use of character strings (domain names) to represent Internet addresses has presented trademark owners with a whole new set of problems. It is often too expensive to register every variation of a trademark in every top level domain. Therefore, trademark owners must make sure that the people who register domain names that are either the same as or confusingly similar to a trademark are not using the domain name in a way that infringes on the trademark. One way to ensure that the trademark owner will not lose its rights in the mark is to file a UDRP complaint so that the Panel can decide whether the domain was registered in order to take unfair advantage of the mark owner. The Panel may decide that the trademark owner was wrong and had nothing to worry about, but unless the trademark owner is vigilant and files the complaint, it may never know for sure whether its rights were being abused.

[back to notice text]

Question: What is defamation?

Answer: Generally, defamation is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.

[back to notice text]

Question: What is Malice or "Actual Malice"?

Answer: Malice is often defined as, "the intent, without justification or excuse, to commit a wrongful act." It is the conscious, intentional wrongdoing with the intent of doing harm to do the victim. In many civil cases, a finding that a defendant acted with malice will often open the door to liability or increased damages, such as punitive damages. "Actual malice" is a legal term of art that is mainly relevant to defamaton claims. "Actual Malice" is found to be present when a false statement is published with either a) actual knowledge of its falsity or b) reckless disregard for its falsity-- a "should have known" standard. One cannot be held liable for publishing untrue statements about public figures (or companies) without being found to have acted with "actual malice".

[back to notice text]

Question: What is disparagement?

Answer: As defined in Black's Law Dictionary (7th ed. 1999), disparagement is "A false and injurious statement that discredits or detracts from the reputation of another's property, product, or business. To recover in tort for disparagement, the plaintiff must prove that the statement caused a third party to take some action resulting in specific pecuniary loss to the plaintiff."

Topic maintained by USF Law School - IIP Justice Project

Topic Frequently Asked Questions (and Answers)
Chilling Effects Clearinghouse -
disclaimer / privacy / about us & contacts