A VC-funded startup called WhosHere is trying to steal my social network

As a lawyer (who doesn't have anywhere near enough facts to give you anything close to competent advice), my advice is to find a lawyer to represent you. If you can't afford one, try the EFF or similar organizations. If they won't take you, find a legal clinic nearby. If you're in the bay area, you have have two of the best lawschools in the country within bicycling distance of you (UC Hastings isn't half bad either...). They have legal clinics, generally led by highly respected and knowledgeable faculty that are happy to have cases like this.

Unless you really don't want to fight this, go get a lawyer who knows what he's doing. If you don't want to spend a lot of energy, possibly a lot of time, and likely some money, just roll over now. But, don't half-ass it and try to do this yourself. By blowing at least two deadlines, you've already shown you're not up for it.

If someone sues you for some bogus claim, is it possible to submit a written plain english rebuttal and have the court throw it out before it gets too serious? I mean if I sue some company for something absurd and demand $10 million dollars, are they forced to actually entertain my lawsuit or can it be dismissed readily without a lawyer?

From a PDF they have posted regarding emails from you (https://whoshere.zendesk.com/entries/21514943-the-other-side...):

"" I was born wealthy; I have an obscene trust fund. I assure you that if required, I will obtain the best legal representation for corporate litigation in the Silicon Valley. After your last proposal, I will resist this legal action well beyond what makes any financial sense, simply out of principal. ""

Here's to hoping that someone like Grellas can find time to comment and tell you how to beat these guys.

If that result isn't possible, than I ask you to keep your head up, move on, and keep building.

Do your part to (soberly and safely) reduce the reputation of the founders and VC's behind this.

But if you do nothing and if they choose to press this, they will go to court to ask the judge to put liens on any assets they can and to garnish your wages.

In any event contact a lawyer to see if I am correct about this.

I'd also suggest you dig up research papers in conferences such as UbiComp and Pervasive. The "who is near me" app has been around for years. Also, check out papers on the cooltown project. I'm not totally sure what a defense to a trademark infringement claim would be. Perhaps if a researcher used the same name in a paper, that might help?

Ideas:

-Start tweeting about it & create a hashtag #WhosHereThieves

-Get in touch with the TechCrunch author who wrote about about your app. This story is a big deal

-Reddit post

-Accept donations page

-The VC probably doesn't know anything about this, but they might respond if included in all the negative PR

It appears this isn't such a clear cut story...

Find a lawyer who will defend you for a part of the money if you win.

Turn it around. They obviously are acting to drag your service (company?) down.

I would love to have someone reliable do this and then I could chose to just not deal with such sites (or decided well yeah I don't like using lawyers to bullying but I am willing to sell out my principle because this site is so cool I can't live without it).

The way to counter the strategy of paying lawyers lots of money to bully your small competitors is to setup a method that forces those companies to suffer the consequences for their decision. I would be happy to help that process, but I can't keep track of who is doing the bullying.

This type of providing better information so I (and others) can make informed decisions not to use sites with practices I find obnoxious is something I would really love to see. Both for this type of obnoxious behavior but really a platform could support all sorts of notices on whatever people object to (probably using lists from whatever they care about World Wildlife Fund, NRA, EFF or whoever).

I don't think the legal system is going to be reasonable. We need a solution that allows the market to enforce an acceptable code of conduct with consequences for being obnoxious (even if the legal system thinks it is fine).

They can't trademark "Who's", surely.. I hope this makes big news, you deserve to win this, which is really obvious in my eyes. Good luck!!!

Unless they could somehow prove you have wilfully be continuing to violate their trademark I don't see how any damages are valid. I would certainly not give in to their threats.

What about the origins/timeline of the name and the trademarks. Who was using it first? What exactly is their trademark?

Subject to answers above, and given that this is a side project to you - I would suggest you simply write back stating you don't feel you are violating their trademarks, but would consider a rebrand in your mutual interests to avoid any potential for customer confusion provided they contributed to the cost of paying an advertising agency to create a new logo and other menu costs and estimate their share of those costs as $5,100 (eg they pay you what they are asking from you)

If that's the case and their app predates Who's Near Me, I have to say that the OP is probably going to lose this. The names and apps certainly do seem confusingly similar.

I'd say that advice across the internet on whether to engage a lawyer, how to engage a lawyer, or what your negotiating strategy might be is fair game, and could be just as good or bad as any other internet advice. Talking about your case in public, for the other side to see, could be disadvantageous, but that's a reasonable risk to take.

For actual legal procedures -- yeah, you absolutely need a lawyer. But the best organized and most affordable one may not give the best strategic advice.

We obviously also only know part of the story, and from his perspective. Still, something here smells really, really bad.

As a media professional, my advice is to take this to the public if you can. That means Tech Crunch, AllThingsD, CNET, the Next Web, etc.

(I'll also include my own employer, Mashable, where I'm the entertainment editor but often end up being the defacto point person for stuff that's developer-centric)

Not knowing the facts around the situation, I'm inclined to say focus on getting public attention as early as possible, especially if you're worried about being able to get a response submitted to the court by the deadline.

On that note, I would ask your lawyer friends what would be involved in requesting an extension, because if you want to fight this, you will need more time.

Finally, even though this is a labor of love and not one of profit, after you get through the eye of the storm, it might be time to shit or get off the pot regarding the service. After all, if you're looking at wanting to invest a lot into the legal defense of this project, it might be time to start looking at how you can transition it from a hobby side-project into more of a real business.

If you aren't interested in making that transition, you need to evaluate the costs -- not just in terms of money, but in terms of time and effort -- in this particular hobby.

- Who needs a lawyer when you can marshall the Internet Pitch Forkers!!!!!

edit: clarity

I'm sympathetic to your cause, but playing with intellectual property issues is serious stuff and the reality of the situation is that better-funded players will not infrequently attempt to bully you into getting what they want, as appears to have occurred here. Obviously hindsight is 20/20, but you should have consulted an attorney immediately on receiving a cease-and-desist letter, even if you thought that their claim was entirely frivolous (which, given the facts presented here, is hard to say). Had this occurred, you almost certainly would either not be in this situation, or saved yourself a ton of trouble.

Given that you did not and this situation has evolved to what it is, your only choice is to retain an attorney if you’d like to continue operate the app and not pay whatever damages they alleged. And, frankly, you're in a poor position because, since the court has already entered a default judgment against you, you will have to show cause as to why the court should set aside this judgment, which will require more time and effort than if you have initially opposed the lawsuit, even if what you say regarding a piece of the document missing is true.

If you do retain an attorney and fight this, realize that, if you lose, the opposing side might be able to recoup the entirety of their attorney's fees (which would be very expensive for you, particularly in the unlikely event you went to trial or the like, and it appears that they have already alleged this right now), and, possibly, your profits (depending on a number of factors). That's very serious stuff.

I wish I could give more direct advice, and I strongly agree with commenters here in other posts lamenting how elitist law is and so on, but you have absolutely no alternative but to retain an attorney. I don't know where you live and where this litigation is taking place, but there are tons of lawyer referral services out there (your local county bar will have such a service, you can find out on their website), and you can speak to various attorneys who might understand your financial situation and be able to work with whatever budget you have. Just because an attorney says that they charged $X does not mean that you can’t find another, competent attorney, who might charge less. If I were in your position, and wanted to fight this, I would spend my time either finding/raising money, or talking to attorneys about how you can structure a fee schedule that would work with your finances (lawyers are open to negotiating: you can say "I can only pay you this or that" or "I can pay you this or that in the future"—see what they say and how flexible they will be). I am skeptical that someone would take your case pro bono.

As a general piece of advice based on personal experience to others: don't ignore intellectual property issues. Getting a trademark is not particularly expensive (and, unlike this situation, something that you can, actually, do without consulting an attorney, or at least for little $ should you need to consult an attorney) and can save you headaches in the future. If you receive a cease and desist-type letter, take it seriously, regardless of how frivolous you think their claim is. If whoever sent you the letter went to the trouble to have their lawyer draft a letter to you--which means that they probably paid the lawyer a non-insignificant fee to do that--they are certainly taking it seriously, and so should you. Even well-funded companies don't throw money away to, of all people, lawyers, unless they think they can get something they want from you, and/or they think they actually have a meritorious claim. Do not attempt to respond to the cease and desist letter, unless you have experience in how to do this. If you want to avoid paying an enormously onerous legal fee, you can try your hand at drafting a response—but absolutely get a lawyer to look at it prior to sending it. This may be more affordable than you think (~1-2 hour of work, or the like, for a lawyer). If you're worrying that you may be infringing someone else's trademark, or someone will try to sue you in the future (as apparently happened here), you can get a declaratory judgment (for a fee) from a court stating that you're not infringing-again, something to talk to a lawyer about.

If they cared about protecting a brand name they should have chosen something more original than 'Who's Here'.

Even if you hire a lawyer, they will attempt to stall the case until you run out of funds.

It maybe hindsight now, but I would of created a corporation and move all your assets under it, (website, apps, etc).

Not sure if you can do that now before the default judgement on the lawsuit. I would still hire a lawyer to do that just in case.

See http://i.imgur.com/BPypw.png

If you can get inexpensive representation, just call their bluff. This is not a big corporation you are dealing with. I'll put money on dropped case or some type of amicable settlement that doesn't cost you anything financially, which is your goal.

Ok so I am stretching this one but it seems to have been around since 2004.

And I shall tweet them letting em know.

I sympathize with your situation and I'm sure there are a couple lessons learned here- namely that they used negotiation with email to apparently cause you to forget that there was court case pending. But saying that doesn't help you.

I've been in the situation where lawyers told me I didn't have a case, and it sounds like this is what you're hearing too-- but I think you might be missing something- you may have a case, you just haven't found it yet. The lawyers are looking to hear something that gets them excited-- something that they can really use for their profit. Since you don't have a lot of cash, the bar is higher to get them interested.

At this point, you just haven't figured out what the case is. I suspect you probably have a good one, however, if you've been running your service since 2008 or before 2010, or based on the contract they entered into with you.

If you find a case, you'll likely find a lawyer eager to take your case on contingency because both of you can make out profitably. (though of course they will settle when they realize that you have a case, but that still can be profitable.) Until you find it, though, there's no obvious case on the face of it.

This means you need to do the legwork. Start going thru every communication you have with them and organize your documents as best you can. I would strongly suggest you get a timeline going. Dig up that old agreement where you changed the name-- did they agree that doing so would settle the matter? Even in writing in an email? If that's the case, then you may have them violating a legally binding contract by bringing this case.

Build this timeline going back to the beginning and gather evidence proving each step (Eg: your receipt for registering the domain name, etc.)

Find where they have done you wrong- failing to serve you correctly is one example. You need more.

Find the relevant laws-- the cybersquatting laws give you rights against "reverse cybersquatting" where someone tries to steal a legitimate domain name.

Go to the USPTO.gov website and research their trademark application. Do they actually have one? Does it actually cover the area of what you're doing? For instance, I found a registration number 3885293 for "WHOSHERE" which shows a first use in commerce claim of 2008. Does your service predate them? Can you find evidence of you using the name "Whose near me" or whatever, including registering that domain prior to that date in 2008? How about prior to the date they filed for the trademark in 2010? When looking at their trademark, find the "TARR STATUS" button, click that, then find the "Trademark Document Retrieval" link near the top of the page, go and select all the documents for their trademark and download them as a PDF. You may find that the trademark examiner has done footwork for you, limiting their possible use of the TM, and they may be in violation of that... this will give you even more cause.

Basically, if you have been using your name prior to 2008, and can prove it, then you are in good shape. If you stared your site between 2008-2010, and they cannot prove that they started in 2008 as they claimed then you're probably in good shape. If you started your site after 2010 then you're reduced to claiming that the marks are not confusing. But you also have the fact that you already have agreement with them (and their failure to attempt to enforce their trademark rights after you changed the name of your service per the agreement) to show they've abandoned it.

The stress they are causing you, and any actions they have engaged in that are dishonest or violating the law or agreements give you cause to sue them for damages, I believe.

The odds are pretty good that they know you are young and don't have a lot of resources and they are attempting to abuse the system as a result.... simply doing this research and showing how they don't have a case may be sufficient. Like brining a gun to a gun fight-- they may think you just have a knife, but showing the gun may cause them to back off. Its no risk if they claim to have a gun and you just give up-- which is what they're trying to get you to do.

Plus, if you have a bunch of this kind of stuff, you may get a lawyer that wants to extract money from them on contingency basis-- but even if not, simply a very sternly worded letter might cost you only a couple hundred bucks, or even less.

If you find a case. I am almost certain there is one there... but you need to do your research quickly.

The first thing I would do is find what you need to do to file to request a stay or delay of the judgement and get yourself time to engage in this research.

You can call the clerk of the court where the lawsuit was filed and find out what the procedures are to file a pleading or request a stay or delay. Tell them you were not properly served, or notified about the court dates (if this is the case-- never lie-- but use what ammunition you have here) and ask what the correct filing is. They WILL NOT give out legal advice, but they can tell you the procedures, and you need to get up to speed on those so that you can get yourself some breathing room.

Good luck!

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PS-- another avenue to investigate: look for use of the term "Who's near me" or "who's here" in commerce on the web prior to 2008. One reason a trademark might be invalid is that someone else (even if it is not you) was using it in commerce in a similar way-- were there any location based services prior to 2008? did dodgeball have a "who's near me" feature?

PPSS--- Also assuming there were no location based services prior to 2008, find an extensive evidence of the common use of the phrase "whose near me" and "whose here" on the web. If this is a common phrase it may not be trademarkable, just as "thank you" can't be a trademark because it is a common english expression.

Further, if this phrase describes the feature of the service literally (which it sounds like) it is also possibly not trademakrable because it is purely descriptive. Frankly, I think they may not have a legitimate trademark, since the phrase describes the feature literally, not a service or brandable name.

I'm just going to keep adding points because I keep thinking of them.

"Whose near me" is not obviously "Whoshere" and so infringement does not seem to be a slam dunk. Further, since they contacted you previously, and you changed the name at their behest, you may have an affirmative defense because you attempted to remedy the situation. Thus this suit could be a nuisance suit. They need to show you willfully violated their trademark.

Right now, I would change your service and remove the phrase "whose near me" everywhere you can. Document this change with screenshots so you can prove you are attempting to comply with their demands-- even if they are unreasonable.

But it would seem to be hard for them to make a case when they contacted you, you responded by making changes, and then they wait a year and decide suddenly you're infringing again.

IF the company suing you is not "myRETE INC" of Delaware, then how can "WHOSHERE" have the right to the mark? Did they provide you with a license agreement? IT doesn't matter-- myRETE is the owner of the mark according to the USPTO so you can only be sued by them, I believe. (and if none of these names make sense, did they even file a TM with the UPSTO?)

A reading of their specific claims implies that there is not an infringement because finding people near you does not appear to be any of the features they claim to be using the mark for. Their list of uses, by the way was flagged by the examiner and they had to update it to get the mark registered.

Finally, it appears their mark is for "WHOSHERE", e.g. "WHO" + "SHERE" They included no space in their filing, so "whoshere" which is a "name" in the sense that it could be "bobby whoshere" pronounced "wooSHeer" doesn't sound much at all like "who's near me".

These are just ideas for which there might be a case. More digging would be required.

Finally, if you know any law students this might be just the kind of thing that is fun for them to help you research. They may help you build a case for not too much money or no money at all, and the price of beer and pizza.

Seriously.