FAQ: Questions and Answers

[back to notice text] Question: I have an unsettling feeling in the pit of my stomach about the tone of the C&D I received. Does the tone of the c & d mean I am going to lose this dispute? Answer: "Gorilla Chest Thumping" refers to the tone of most C&Ds: it?s nasty. The first thing to do is take a deep breath. The second thing to do is to acknowledge that the tone of the letter is a function of the letter writer?s perception that aggression is the best defense: do not take it personally. The third thing to do is ignore the tone and focus on the facts. You may eventually choose to respond aggressively yourself, but do not do so because your opponent has egged you into a useless game of whose gorilla is bigger. Take a tip from Ani Di Franco: "If you play their game, girl, you?re never gonna win." Face Up and Sing, Out of Range, Righteous Babe Records (1994). [back to notice text] Question: What is unfair competition? Answer: "Unfair competition" covers a wide range of kinds of unjust business behavior---so many kinds, in fact, that it is impossible to give one simple general definition. In essence, unfair competition means trademark infringement or false advertising to confuse the public. In most states, only commercial competitors can be engaged in "unfair competition." [back to notice text] Question: What is trade libel? Answer: Trade libel is defamation against the goods or services of a company or business. For example, saying that you found a severed finger in a particular company's chili (if it isn't true). Along with the ordinary elements of a defamation claim, (see What are the elements of a defamation claim?) the person suing must prove money damages. Defenses include 1) that the statement was true; 2) that the statement was opinion, not fact; and 3) that the plaintiff did not suffer monetary damage. [back to notice text] Question: What is "interference with contract" or "interference with prospective business relations"? Answer: One can be held liable for intentionally or negligently interfering with the existing or prospective economic relationships of another. (e.g. contractual/business relationships) The 2d restatement of the law which contain general defintions of the law taken from the laws of many states, defines the tort of Intentional Interference with Prospective Contractual Relations as follows: "One who intentionally and improperly interferes with another's prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of (a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or (b) preventing the other from acquiring or continuing the prospective relation." Rest 2d (Torts) section 766B. Usually, damages are dependent on proof that "but for" the allegedly interfering behavior, an economic relationship, the contract, would have been entered into. Most jurisdictions and the restatement have slightly different wording for the seperate tort of interference with an already existing contractual relationship.(e.g. when a 3rd party's behavior prevents the performance of or induces the breach of a pre-existing contract) [back to notice text] Question: What civil and criminal liabilities may be imposed for trademark infringement? Answer: Under federal law (Lanham Act Section 32), an infringer shall be liable in a civil action by the registrant for certain remedies provided in the Act. One such remedy is an injunction, where a court orders a person who was found to violate the Act to stop its infringing activities. A trademark owner/registrant may also be able to obtain lost profits or damages against a defendant in a civil action only if the acts were committed with knowledge that such imitation was intended to be used to cause confusion, mistake, or to deceive. The trademark owner can recover (1) the domain holder's profits from use of the mark, (2) the trademark owner's damages resulting from harm to the value of mark, and (3) court costs as "actual damages." In determining the award to be paid, the court can choose to award up to three times the amount of actual damages. Instead of having to prove the amount of "actual" damages suffered as above, the mark owner can instead request payment of "statutory damages" from $1000 and $100,000 per domain name. Attorney fees may be awarded in exceptional circumstances, such as when there was a willful and malicious violation. The court can order the cancellation or transfer of a domain registration. In the case of a willful violation of Lanham Act section 43, a court may order that all labels, signs, prints, packages, wrappers, receptacles, and advertisements in the possession of a defendant bearing the registered trademark shall be delivered up and destroyed. [back to notice text] Question: What is an injunction? Answer: An injunction is an order issued by a court directing someone to do something or prohibiting some act after a court hearing. [back to notice text] Question: What are "actual" and "punitive" damages? Answer: Actual damages are damages awarded to a winning party to compensate them for a proven injury or loss; damages that repay actual losses. Punitive damages are damages awarded in addition to actual damages when the defendant acted with recklessness, malice, or deceit. Punitive damages are intended to punish and thereby deter blameworthy conduct. (Black's Law Dictionary)

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