Telemarketing supplier complains to Google of copyright, trademark infringement (5) -- Chilling Effects Clearinghouse

Chilling Effects Clearinghouse > DMCA Safe Harbor > Notices > Telemarketing supplier complains to Google of copyright, trademark infringement (5) (NoticeID 2156, http://chillingeffects.org/N/2156)

Telemarketing supplier complains to Google of copyright, trademark infringement (5)

July 12, 2005

Sender Information:
Database Systems Corp.
Sent by: [Private]
[Private]
Database Plaza
Phoenix, AZ, 85014-271, US

Recipient Information:
User Support, Google DMCA Complaint
Google, Inc.
Mountain View, CA, 94043, USA

Sent via: fax
Re:

User Support:

This is our formal complaint against the website owner whose sites are currently listed in your search engine index. We believe these sites are presenting false and misleading content and is infringing on our copyrighted website information. We request that you review these sites and remove them from the Google search results.

Our Copyrighted material is located here:

http://www.databasesystemscorp.com/ http://www.databasesystemscorp.com/pstelemation.htm

The offending website and pages containing our copyright material are listed below. All of these pages either re-direct users to a different page or are presenting different information to a search engine spider than what is displayed to users (via a 302 re-direct or a script). Thus the content of the pages viewed by the user is not what the Google search engine sees when it spiders these pages. Our content is not maintained on the user viewed pages, only on the spidered pages.
www.best-crm-solutions.com/sitemap.htm
www.best-crm-solutions.com/free-crm.htm
www.qualitv-crm-solutions.com/wipro-and-crm-canada.htm

BACKGROUND
The following documents the copyright infringement and false promotion and misrepresentation by the owner of the above websites.
The 3 identified web pages listed above contain our copyrighted information.
EXAMPLE OF GOOGLE SEARCH
The following is an example of how this website owner is falsely representing itself. PACERTM Predictive Dialer is a registered product of Database Systems Corp. There are no duplicates or conflicting names in the market. When using the Google Search Engine and entering the search term "Pacer" or "Pacer Predictive Dialers" the following results are displayed for the above mentioned websites. (Duplicates were obtained using the Google Site: command). The information displayed in the descriptions of each of these search results is copied directly from our website and contains copyrighted information belonging to Database Systems Corp.
NOTE: All of the text that appears in the snippets with each search results is a verbatim copy from our website.
http://www.databasesystemscorp.com/
"This computer telephony software "opens" our PACER predictive dialers to outside applications."....
http://www.databasesystemscorp.com/pstelemation.htm
"Telemation, combined with our PACER call center phone system, fully supports remote agents. Now your customer care workforce can be significantly expanded with the addition of work at home employees."
Google Search Results 12 July 2005:
[Signature]
If the visitor clicks on any of these search results, they are immediately presented with virtually identical information that does not contain any of the snippet information displayed with the Google search results. It appears this web designer is using a re-direct or script to pull our website information when the Google search spider indexes this site. However, different information is displayed to the search user.

To the searcher, it appears that this company is the provider of the "PACER Predictive Dialer" when in fact they are not.

Trademark and Copyrighted Material

Our corporate trademarks are clearly posted on our website here with effective dates and reference numbers:

http://www.databasesystemscorp.com/trademarks.htm
(3) OUR COMPANY INFORMATION

Database Systems Corp., Arizona Corporation
[private]
Phoenix, AZ 85014
[private]
Founded: 1978
Owners: Paul R. Gillman, Jerry A Pizet
Websites:

http://www.databasesystemscorp.com (Corporate) http://www.easyivr.com (Service Division) http://www.911broadcast.com (Emergency Broadcast Svc)

(4) Our complaint has been lodged against the following organizations:
Registrant:
[private]
[private]
Lower Hutt Gracefield
New Zealand

Registered through: GoDaddy.com
Domain Name: QUALITY-CRM-SOLUTIONS.COM Created on: 28-Mar-05
Expires on: 28-Mar-06
Last Updated on: 28-Mar-05

Administrative Contact:
[private] No email specified
[private]
Lower Hutt Gracefield
New Zealand
[private]

Technical Contact:
[private] No email specified
[private]
Lower Hutt Gracefield
New Zealand
[private]

Domain servers in listed order:
NS308.PAIR.COM
NS0000.NSO.COM
Registrant:
[private]
[private]
Lower Hutt Gracefield
New Zealand

Registered through: GoDaddy.com
Domain Name: BEST-CRM-SOLUTIONS.COM
Created on: 28-Mar-05
Expires on: 28-Mar-06
Last Updated on: 28-Mar-05
Administrative Contact:
[private]No email specified
[private]
Lower Hutt Gracefield
New Zealand
[private]

Technical Contact:
[private] No email specified
[private]
Lower Hutt Gracefield
New Zealand
[private]

Domain servers in listed order:
NS308.PAIR.COM
NS0000.NSO.COM

REPRESENTATIONS

I represent that I am an owner of this company and websites and am fully authorized to pursue this matter.

I have a good faith belief that use of the copyrighted materials described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law

I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

My contact information is the following:

[private]
President, Database Systems Corp.
[private]
[private]@yahoo.com
[private]@databasesystemscorp.com

DESIRED ACTION FROM GOOGLE

Since this company is listed in the Google Search Results and is providing false and misleading information as well as displaying our copyrighted product and company data, we respectfully request that you remove all of the above sites from your search engine. At a minimum, please remove the specific pages to these websites which contain our trademarked information.
Since this website owner is employing search engine spamming techniques (re-directed false pages), we also recommend that these sites be banned from the Google Search Engine.
Thank you again for your attention to this matter.
[private]
President
Database Systems Corp.
[private]

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FAQ: Questions and Answers

[back to notice text]

Question: Why does a search engine get DMCA takedown notices for materials in its search listings?
Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(d), a safe-harbor for providers of "information location tools." These safe harbors give providers immunity from liability for users' possible copyright infringement -- if they "expeditiously" remove material when they get complaints. Whether or not the provider would have been liable for infringement by users' materials it links to, the provider can avoid the possibility of a lawsuit for money damages by following the DMCA's takedown procedure when it gets a complaint. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous.
Question: What does a service provider have to do in order to qualify for safe harbor protection?

Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]
Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].

Question: What are the provisions of 17 U.S.C. Section 512(c)(3) & 512(d)(3)?
Answer: Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right; 2) identification of the copyrighted works claimed to have been infringed; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed; 4) information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address); 5) a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and 6) a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner. Subsection B (17 U.S.C. 512(c)(3)(B)) states that if the complaining party does not substantially comply with these requirements the notice will not serve as actual notice for the purpose of Section 512.
Section 512(d)(3), which applies to "information location tools" such as search engines and directories, incorporates the above requirements; however, instead of the identification of the allegedly infringing material, the notification must identify the reference or link to the material claimed to be infringing.

Question: Does a service provider have to follow the safe harbor procedures?
Answer: No. An ISP may choose not to follow the DMCA takedown process, and do without the safe harbor. If it would not be liable under pre-DMCA copyright law (for example, because it is not contributorily or vicariously liable, or because there is no underlying copyright infringement), it can still raise those same defenses if it is sued.

Question: How do I file a DMCA counter-notice?
Answer: If you believe your material was removed because of mistake or misidentification, you can file a "counter notification" asking the service provider to put it back up. Chilling Effects offers a form to build your own counter-notice.

For more information on the DMCA Safe Harbors, see the FAQs on DMCA Safe Harbor. For more information on Copyright and defenses to copyright infringement, see Copyright.

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