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Any Lawyers in the House? Trademark Infringement? - Page 5

post #61 of 72
6/17/10 at 9:23am
Thread Starter 
Quote:
Originally Posted by Kyoung05 View Post
So your post prompted me to conduct my own search of the USPTO database for any WEBER trademark registrations (to satisfy my own curiosity). Looks like they do own the federal registration for "WEBER," and have done so since 1965 (Reg. #0811229). However, your friend is right - WEBER KETTLE is not a federally registered mark, so with respect to that mark, Ms. Ditz misstated the facts. There are 2 things to bear in mind though - (1) Federal registration is not required to establish rights in a trademark, i.e. common law rights arise from actual use of a mark; and (2) because one cannot register a "generic" or "descriptive" mark with the USPTO, it could be that Weber was not able to register the word "KETTLE" as part of its trademark (in fact, the word "kettle" is used in its description of goods).

In any event, it seems that Ms. Ditz was incorrect to imply that WEBER KETTLE was a "federally registered trademark," but that doesn't mean that the rest of her letter is without merit.

Yeah, the more I see this the more I think she stretched it a little there trying to sound all lawyerly but just because Weber Kettle is not trademarked doesn't mean they don't have rights to it.

The word Weber on the other hand is something else. They registered a pictured logo. The five letters W E B E R strung together is trademarked by an insurance company. I'm thinking if I get rid of the Weber Kettle and replace it with just Kettle that resolves that issue.

But I'm curious about 5 letters strung together in a tag cloud in a different font than what weber trademarked in their picture logo? While they can lay claim to weber kettle because they use it in commerce despite not being federally registered, can they lay claim to something they use in commerce that an insurance company owns because the insurance company used it in commerce first and trademarked it? And since a tag cloud is alphabetical, the two won't be side by side to form weber kettle again...
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post #62 of 72
6/17/10 at 10:10am
Here's a little bit of information you may find useful.

http://www.wipo.int/amc/en/domains/d...2000-0187.html
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post #63 of 72
6/17/10 at 10:42am
Quote:
Originally Posted by GrillinFool View Post
But I'm curious about 5 letters strung together in a tag cloud in a different font than what weber trademarked in their picture logo? While they can lay claim to weber kettle because they use it in commerce despite not being federally registered, can they lay claim to something they use in commerce that an insurance company owns because the insurance company used it in commerce first and trademarked it? And since a tag cloud is alphabetical, the two won't be side by side to form weber kettle again...

It really doesn't matter if it is trademarked or not. You are referring to a weber kettle...you can use somebody's trademark to refer to their products in any way you want. Coke is notorious for protecting their mark but I am free to say "Coke sucks" "Coke is the best" "Coke is worse than Pepsi" "Buy Coke Here" "Use a can of Coke in your sauce for your ribs" etc.

If your tag for weber kettle pointed to a page where you were selling char-broil grills, we might have an issue but if it is pointing to an article that says "This is the best way to do ribs in a weber" then they really have no claim. If you could stop people from listing tags and keywords...boy would google be in trouble.
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post #64 of 72
6/17/10 at 10:50am
Quote:
Originally Posted by otc View Post
It really doesn't matter if it is trademarked or not. You are referring to a weber kettle...you can use somebody's trademark to refer to their products in any way you want. Coke is notorious for protecting their mark but I am free to say "Coke sucks" "Coke is the best" "Coke is worse than Pepsi" "Buy Coke Here" "Use a can of Coke in your sauce for your ribs" etc.

If your tag for weber kettle pointed to a page where you were selling char-broil grills, we might have an issue but if it is pointing to an article that says "This is the best way to do ribs in a weber" then they really have no claim. If you could stop people from listing tags and keywords...boy would google be in trouble.

No you cannot use a TM SM or copyrighted phrase any way you want.
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post #65 of 72
6/17/10 at 12:36pm
Quote:
Originally Posted by otc View Post
It really doesn't matter if it is trademarked or not. You are referring to a weber kettle...you can use somebody's trademark to refer to their products in any way you want. Coke is notorious for protecting their mark but I am free to say "Coke sucks" "Coke is the best" "Coke is worse than Pepsi" "Buy Coke Here" "Use a can of Coke in your sauce for your ribs" etc.
I think what OTC is saying is this is actually "non-use". It's not use of the trade-mark as a trade-mark, that is to distinguish goods and services. That is why on eBay I can claim I am selling an Apple MacBook, although I am using their trade-mark in the course of trade, but not be sued: I am merely describing the product. This would actually be a fairly interesting case. It's definitely not similar to Google AdWords. We are dealing with a tag rather than a link, which are descriptive in nature, allowing you to find the article based on its content. On its face, I would say that it is "non-use". That said, when it comes to a recipe, what it is cooked on it largely irrelevant, so you could say that Weber really doesn't describe the recipe, but it is rather use of the Weber mark to drive traffic to the recipe. I would guess this is "in commerce" because, whether they sell something or not, they are still driving traffic to their website. Of course none of this is legal advice. I'm not a lawyer.
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post #66 of 72
6/17/10 at 12:57pm
Thread Starter 
Quote:
Originally Posted by dagman1 View Post
I think what OTC is saying is this is actually "non-use". It's not use of the trade-mark as a trade-mark, that is to distinguish goods and services. That is why on eBay I can claim I am selling an Apple MacBook, although I am using their trade-mark in the course of trade, but not be sued: I am merely describing the product.

This would actually be a fairly interesting case. It's definitely not similar to Google AdWords.

We are dealing with a tag rather than a link, which are descriptive in nature, allowing you to find the article based on its content. On its face, I would say that it is "non-use". That said, when it comes to a recipe, what it is cooked on it largely irrelevant, so you could say that Weber really doesn't describe the recipe, but it is rather use of the Weber mark to drive traffic to the recipe.

I would guess this is "in commerce" because, whether they sell something or not, they are still driving traffic to their website.

Of course none of this is legal advice. I'm not a lawyer.

This is actually not true. When baking in an oven, 375 degrees in one oven is 375 degrees in another oven. With grills it's a different story. There are things that one grill can do that another can't. Steps to be taken to ensure consistent temp must be taken on Grill A that does not need to be done on Grill B. Smoking something on a horizontal smoker is much different than a vertical smoker. So, the type of grill can have a big impact on the meal prep. Not on every single recipe but on a lot of them

That being said here's what I'm thinking. Do a post where I show my letter of request from them for a grill for a charity BBQ. Then show their response. Then anywhere I mention the word Weber in my site replace it with "Grill Manufacturer that shall not be named" with a link to the post with my query letter and response.

That way I comply with them and mock them at the same time. I'd say that's about the best I can hope for in this situation, right?
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post #67 of 72
6/17/10 at 1:21pm
Thread Starter 
How about this: "My BBQ, which is made by a manufacturer that rhymes with Schleber and bullied us into not using its name." With a link back to the letter from Ms. Misch?
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post #68 of 72
6/17/10 at 4:00pm
I understand that the type and quality of grill matters. When I say, "so you could say" I mean you could argue. And it still doesn't need to necessarily be a Weber.

I think you get the point either way: take the tags down. A lawsuit is not worth the cost or trouble. If you are trying to drive traffic, find another way. I would also not taunt them. They could sue you on grounds (infringement or defamation) if you piss them off, even if they have little merit, to force you into submission.
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post #69 of 72
6/17/10 at 4:20pm
Thread Starter 
Quote:
Originally Posted by dagman1 View Post
I understand that the type and quality of grill matters. When I say, "so you could say" I mean you could argue. And it still doesn't need to necessarily be a Weber.

I think you get the point either way: take the tags down. A lawsuit is not worth the cost or trouble. If you are trying to drive traffic, find another way. I would also not taunt them. They could sue you on grounds (infringement or defamation) if you piss them off, even if they have little merit, to force you into submission.

I'm going to comply with them completely and then explain why in their own words with no commentary on my own. Other than trying to sue me for posting the letter they sent me online they won't have much grounds since I will be doing exactly as they have asked. Already begun actually. Got the first part done today (Weber Kettle is now just Kettle). The rest will take a little time to complete.
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post #70 of 72
6/17/10 at 4:36pm
Quote:
Originally Posted by dagman1 View Post
They could sue you on grounds (infringement or defamation) if you piss them off, even if they have little merit, to force you into submission.
Nothing worse than getting defamed with a letter written by an official representative of yourself EDIT: What I mean to say is that GF would not be found guilty of defamation. It is certainly not libel (its true) and while you might try to say it is a public disclosure of private facts, it certainly wouldn't be found to be "objectionable" (and I would argue that a C&D should not be considered private once it has been sent to the target)
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post #71 of 72
6/17/10 at 4:51pm
Quote:
Originally Posted by dagman1 View Post
I understand that the type and quality of grill matters. When I say, "so you could say" I mean you could argue. And it still doesn't need to necessarily be a Weber.

I think you get the point either way: take the tags down. A lawsuit is not worth the cost or trouble. If you are trying to drive traffic, find another way. I would also not taunt them. They could sue you on grounds (infringement or defamation) if you piss them off, even if they have little merit, to force you into submission.

They are not going to sue over this. Don't give in to these corporate scum.

On a related note, you may want to start search bombing google for "Using a Weber Kettle results in impotence" to see how high up on Google Search Trends you can get it.
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post #72 of 72
6/17/10 at 4:58pm
Thread Starter 
Quote:
Originally Posted by harvey_birdman View Post
They are not going to sue over this. Don't give in to these corporate scum.

On a related note, you may want to start search bombing google for "Using a Weber Kettle results in impotence" to see how high up on Google Search Trends you can get it.

I like the way you think!!!
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