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Any Lawyers in the House? Trademark Infringement?

post #1 of 72
Thread Starter 
We're hosting a BBQ competition in October and I sent an email to Weber asking for a donation for the grand prize since it's for charity. Not only did they deny me a grill but I got slapped with a cease and desist. How you like this shit?

Quote:
Dear Mr. Thomas:

Your recent email inquiry has been forwarded to my attention for response. First, I would like to thank you for taking the time to contact us with respect to the history surrounding GrillinFools.com. Clearly, you and your partners have a true passion for grilling and a gift for sharing that passion with others.

However, with respect to your website we have a few concerns. First, your use of our trademarks, namely "Weber" and "Weber Kettle" in your "key words" banner on the left side of your home page is misleading. Clicking on these trademarks takes one to a random recipe that you are promoting, rather than anything "Weber" or "Weber Kettle." Not only is this an unauthorized use of our federally registered trademarks, it is very confusing to any visitor to your site who clicks on these key words to gain information on Weber. Please remove our trademarks from your site, and confirm that you have done so.

Lastly, with respect to your request for a donation, you are correct that we receive "thousands of these." In addition, Weber has established business relationships with third parties, which prevent us from associating with certain organizations and products. Even when we are able to clear any conflicts, a simple grill donation has often turned into false marketing claims, which results in Weber being promoted, without our knowledge, as being a sponsor, associated with or endorsing a particular contest. It is for all of these reasons that we also choose to make our donations and charitable partnerships quietly without any advertising.

We truly appreciate your loyalty to our brand and to our Company. However, as stated above, we need to caution you against how our trademarks are used. Weber is not just the name of our Company, it is a federally registered trademark for a huge variety of goods and services. As such, we regulate and protect its use at all costs.

We thank you for respecting our rights and wish you and your partners the best of luck with your internet and barbecue ventures.

Respectfully,

Nancy Misch
Vice President of Business & Legal Affairs
Weber-Stephen Products Co.

Clicking on the word Weber in the word cloud takes one to this page

Each and every one of those links involves a recipe done on a weber product. Am I missing something here? How is that infringing on anything? How is this violating the bolded above? Is any mention of Weber in electronic media supposed to have a link back to Weber.com?

So I was a huge fan of Weber and now I'm, well, not.
post #2 of 72
Actually, I'd have to find you at fault here. Links to recipes done on a Weber? Big deal- they could have been grilled on any other brand, right? But by using "Weber" and then not going to a Weber product page etc it's confusing at the least.

I've had a similar experience with one of my own company products. I thought Weber's response was kind and fair, to be honest.
post #3 of 72
Nancy needs to learn how the internet works.
post #4 of 72
You're fine. Those recipes were done on a Weber grill, that's a statement of fact, not an endorsement or a confusion of business. This is an attorney who doesn't understand the internet and is trying to justify her monthly billings. Whether you want to continue to associate with Weber, however, is another question. I say tell them to go screw and ask Char-Broil for an endorsement.
post #5 of 72
^^ In more ways than one. Reminds me of the saying about picking a fight with people who buy ink by the barrel...
post #6 of 72
I have a lot of experience with using the Olympic Logo and Mark and unfortunately the way the letter describes your webpage, it is misleading (even if it is unintentional). As Cary Grant pointed out if the recipe had "Weber" in the title and you said that it could be used with any other grill you'd probably be fine. However, you're using their name for an unrelated purpose. If you haven't responded yet could you ask them what your options are? *This is not legal advice and I'm not a lawyer. edit - Whoops...looked at the webpage. Nevermind it's keyword search. You're fine.
post #7 of 72
Quote:
Originally Posted by robin View Post
Nancy needs to learn how the internet works.

+1. Good luck to Nancy going after every blogger who uses "Weber" as a tag. What a moran.
post #8 of 72
Thread Starter 
Quote:
Originally Posted by harvey_birdman View Post
You're fine. Those recipes were done on a Weber grill, that's a statement of fact, not an endorsement or a confusion of business. This is an attorney who doesn't understand the internet and is trying to justify her monthly billings.

Whether you want to continue to associate with Weber, however, is another question. I say tell them to go screw and ask Char-Broil for an endorsement.

Actually, Charbroil sent us two grills to review. One is excellent. The other is a huge piece of shit. I've told them I can't review the POS but that I will give a great review to the other one as it is really well done.

Oh, and on advice of my lawyer I now have a disclaimer muddying up my already crappy website.
post #9 of 72
Quote:
Originally Posted by GrillinFool View Post
Actually, Charbroil sent us two grills to review. One is excellent. The other is a huge piece of shit. I've told them I can't review the POS but that I will give a great review to the other one as it is really well done.

Why wouldn't you review both? Charbroil might appreciate the feedback on the design of the grill, and your readers will definitely appreciate the honest review.
post #10 of 72
***DISCLAIMER: Nothing in this post/reply constitutes legal advice, and no attorney-client relationship has been formed as a result of this post/reply.***


I think they have a point (kind of). The standard for trademark infringement is "likelihood of confusion." In order to prevail in a trademark infringement action, the plaintiff must show that defendant's use of the mark is likely to cause confusion as to the affiliation, connection or association of defendant with plaintiff, or as to the origin, sponsorship, or approval of defendant's goods, services or commercial activities by plaintiff. 1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir. 2005).

I think it's pretty clear that your use of the WEBER mark on your website is "unauthorized." However, it's unclear whether your website's use of the WEBER mark is "in commerce." Further, I see that you have a disclaimer stating that "Grillin Fools often refers to various makers of grilling equipment and accessories. By referencing these products and manufacturers, Grillin Fools does not mean to suggest that there is any relationship between this website and those products. There is no such relationship. Opinions and information are not sponsored by any manufacturer." That disclaimer might mitigate and sort of confusion, although, it does seem pretty small relative to the "key words."

Ultimately, I think it's kind of a close call. If you're really worried about it, just change the WEBER keywords to something else. I mean, look at all of your other keywords - none of them are brand names/trademarks - just generic descriptors, i.e. "marinade," "wine," or "potatoes." Would it really detract from your website to change WEBER to "Grill"? Up to you though.

***DISCLAIMER: Nothing in this post/reply constitutes legal advice, and no attorney-client relationship has been formed as a result of this post/reply.***
post #11 of 72
Quote:
Originally Posted by DNW View Post
Why wouldn't you review both? Charbroil might appreciate the feedback on the design of the grill, and your readers will definitely appreciate the honest review.

+1 I work for SaaS social media monitoring tool and we work with brands, some much larger than weber, on a daily basis. As much as they like seeing and hearing what they are doing well, the negative posts are always the items that seem to get the lions share of attention.
post #12 of 72
Thread Starter 
Quote:
Originally Posted by Kyoung05 View Post
***DISCLAIMER: Nothing in this post/reply constitutes legal advice, and no attorney-client relationship has been formed as a result of this post/reply.***


I think they have a point (kind of). The standard for trademark infringement is "likelihood of confusion." In order to prevail in a trademark infringement action, the plaintiff must show that defendant's use of the mark is likely to cause confusion as to the affiliation, connection or association of defendant with plaintiff, or as to the origin, sponsorship, or approval of defendant's goods, services or commercial activities by plaintiff. 1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir. 2005).

I think it's pretty clear that your use of the WEBER mark on your website is "unauthorized." However, it's unclear whether your website's use of the WEBER mark is "in commerce." Further, I see that you have a disclaimer stating that "Grillin Fools often refers to various makers of grilling equipment and accessories. By referencing these products and manufacturers, Grillin Fools does not mean to suggest that there is any relationship between this website and those products. There is no such relationship. Opinions and information are not sponsored by any manufacturer." That disclaimer might mitigate and sort of confusion, although, it does seem pretty small relative to the "key words."

Ultimately, I think it's kind of a close call. If you're really worried about it, just change the WEBER keywords to something else. I mean, look at all of your other keywords - none of them are brand names/trademarks - just generic descriptors, i.e. "marinade," "wine," or "potatoes." Would it really detract from your website to change WEBER to "Grill"? Up to you though.

***DISCLAIMER: Nothing in this post/reply constitutes legal advice, and no attorney-client relationship has been formed as a result of this post/reply.***

I added the disclaimer in the last 20 minutes on advice of my lawyer.

The reason for the specific use of the name is people do searches for, "ribs smoked on a weber kettle," because a recipe for ribs done on a gas grill may not apply to what they have in the back yard. To reach the most people, using brand names will help. But for them to claim that I am not referring to weber at all in those links is absurd. In every one of them there is at least one picture of the grill being used. They can't get better advertising than that. They shouldn't slap me with a C&D they should offer to make me their spokesman!?!?
post #13 of 72
Thread Starter 
Quote:
Originally Posted by coopster View Post
+1 I work for SaaS social media monitoring tool and we work with brands, some much larger than weber, on a daily basis. As much as they like seeing and hearing what they are doing well, the negative posts are always the items that seem to get the lions share of attention.

I'm looking at this sort of, "if you don't have anything nice to say, don't say it."

I don't want to sever my relationship with them. Particularly now that I need to hit them up for a grill for my Charity BBQ Bash...
post #14 of 72
No, its not a close call and the lawyer has zero point

If this were to actually go to court, it would be laughed out (though doubful that it ever would since putting together a legal team and doing research would eventually find you some paralegal who has seen the concept of "tagging" before). EFF would probably step up in the defense of anybody who actually got sued.

What you should do is take this C&D letter to consumerist or somebody else and get weber publicly laughed at until they decide to think twice before letting some clueless old woman send out letters to people on the newfangled internet.
post #15 of 72
Thread Starter 
Quote:
Originally Posted by otc View Post
No, its not a close call and the lawyer has zero point

If this were to actually go to court, it would be laughed out (though doubful that it ever would since putting together a legal team and doing research would eventually find you some paralegal who has seen the concept of "tagging" before). EFF would probably step up in the defense of anybody who actually got sued.

What you should do is take this C&D letter to consumerist or somebody else and get weber publicly laughed at until they decide to think twice before letting some clueless old woman send out letters to people on the newfangled internet.

Tell me more about this consumerist, please. I'm all for some public shaming at this point!!
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