CafePress.com is attempting to use scare and bullying tactics to remove competition on the internet. They are sending out frivolous cease and desist orders to those who try to advertise in their market(s) to scare competition away.
As part of ShirtaDay.com’s advertising campaign we have chosen the keywords “cafepress”, “cafe press”, and “cafepress.com” as target words. When a user types in these words, among many other target words, ShirtaDay.com’s ad will be displayed (assuming our bid amount is sufficient, budget is adequate, etc.) We would like to make claer that ShirtaDay.com’s ads make no reference to being cafepress.com, affiliated with cafepress.com, or even similar to cafepress.com. Cafepress.com is not mentioned anywhere on our site or within the ads. Such advertising is perfectly legal and acceptable btw. Companies are allowed to target any such keywords they choose, as long as they are not infringing on trademarks by representing to actually BE another company. ShirtaDay.com’s website is not similar to cafepress.com, the concept is not the same, the layout is not resembling to cafepress.com, and we makes no attempt to be like cafepress.com.
For example, search for Microsoft. Many ads pop up which are not in fact Microsoft, or Microsoft authorized. There are many such instances. If Microsoft could sue these companies they most likely would, but there are no grounds for such suits, as they are not breaking any laws. Cafepress.com’s cease and desist, which was sent to us, was merely a scare tactic.
There is also legal precedent to support this in the following two cases:
J.G. Wentworth S.S.C. Ltd. v. Settlement Funding LLC d/b/a Peachtree
Settlement Funding, United States District Court for the Eastern District of
Pennsylvania, No. 06-0597, January 4, 2007.
Wells Fargo & Co. v. WhenU.com, Inc., 293 F. Supp. 2d 734, 757 (E.D.
Mich. 2003).
In both cases the court dismissed the suits, pointing out, among other things, that:
“At no point are potential consumers ‘taken by a search engine’ to
defendant’s website due to defendant’s use of plaintiff’s marks in meta
tags. Rather, as in the present case, a link to defendant’s website
appears on the search results page as one of many choices for the
potential consumer to investigate. As stated above, the links to
defendant’s website always appear as independent and distinct links
on the search result pages regardless of whether they are generated
through Google’s AdWords program or search of the keyword meta
tags of defendant’s website. Further, plaintiff does not allege that
defendant’s advertisements and links incorporate plaintiff’s marks in
any way discernible to Internet users and potential customers.”
and furthermore:
“Due to the separate and distinct nature of the links created on any of
the search results pages in question, potential consumers have no
opportunity to confuse defendant’s services, goods, advertisements,
links or websites for those of plaintiff.”
The court added that:
“Likelihood of confusion exists where `consumers viewing the mark
would probably assume that the product or service it represents is
associated with the course of a different product or service identified
by a similar mark.”
This is not the case with ShirtaDay.com as we use no similar marks in our ads.
In conclusion, in the case referenced, the court “granted defendant’s motion to dismiss since defendant
carried the burden of establishing that “no reasonable factfinder could find a
likelihood of confusion on any set of facts that plaintiff could prove.” The
Court reasoned that even if “defendant did in fact use plaintiff’s marks through
Google’s AdWords program or in the keyword meta tags for its website–as
matter of law defendant’s actions do not result in any actionable likelihood of
confusion under the Lanham Act.”
For more information, please visit: http://www.lawpublish.com/sample/ACS611A6.PDF
Please help us raise awareness of this issue and of the tactics of the larger online websites. Their actions are almost monopolistic and violate freedoms of speech. If this has happened to us, we can only assume it has happened to many others.
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