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Comment by jsprinkles | Hacker News Reader

In general, if you have a trademark and do not defend it, your lack of defending can be used against you later.

That's true. But you don't have to send an extremely nasty letter with the two conditions, "give us all your assets and consult for us" or "be sued for $100,000". That's where my anger comes from. They could have said, "We think your name is similar to ours, and to ensure that we can defend our name in court in the future, we need you to license it from us for $1." But instead, they chose to be shit bags.

(I could be wrong about the details, since the court docs are not loading for me. I will edit the "parts in quotes" about the two options if I am way off base.)

"Hey, Steve. It's John at Cisco. We know you don't like the name iPhone OS since you have iPads now, and we really appreciate the prior settlement with you regarding the mark iPhone.

"I know you want to use the name iOS, and to ensure that we can defend our mark in court in the future, we need you to license the mark IOS from us for $1." Who wouldn't take that? Do you really think a successful business can be run while valuing your marks at a dollar? It's business.

I'm not going to argue specifics with you, as I'm not a trademark lawyer. But I bet that if you have a trademark and are worried about a competitor's similar trademark, things can be worked out in a legally sound way without either of the two conditions that WhosHere came up with. You do not have to threaten nuclear war if you just want your neighbor to return the drill he borrowed yesterday.

Unfortunately, I think you're mistaken. Any dilution of a trademark invites further dilution. IANAL either, but you've made some very strong statements here, and I think they're based on a misunderstanding or lack of understanding of how trademarks work.

I don't agree. It's not dilution if you give permission; the company printing "Kleenex" on kleenex boxes is not diluting the trademark. They have permission to use the trademark in the course of their business relationship.

But just so we're not arguing about the specifics of trademark law: I think you should throw away all your legal rights to a trademark if retaining those rights means you have to be a bad person.

In this case where both names are common English phrases, I think it's especially shady to be so aggressive about enforcement. I doubt either would win against the other, in fact, but I don't think it should come to that either.

> I think you should throw away all your legal rights to a trademark if retaining those rights means you have to be a bad person.

That's noble, but bad for business. When you have to make a tough call like this at the helm of your own company, if you come from the heart (like that attitude), you're going to lose. It's unfortunate that the world has developed the way it has, but it's also just about impossible for a tactical shift at this point: heart has no place in business, and those who can successfully use their heart in business had to be very, very careful in how they did so. And they weren't always the cleanest, either.

I appreciate your honesty and your position here, but "that just isn't the way business works". You'll get taken advantage of, thinking like that, because not everybody has the same heart you do. Sucks, but is.

That's not a good analogy. A better one would be if the Kleenex people reached a deal for a second company to market its tissues as "Cleenecs". My understanding is that that would make it easier for a third company to come along and use "KKleenXXX" -- they could argue that the word was becoming a generic term. (Trademarks can be lost if they wind up being used generically. Examples include "aspirin" and "elevator".)

But fine, let's leave the legal questions aside since neither of us is an expert.

I don't concur with your assessment of the ethicalities of the situation. Who's Here was up first and Hamachek knew about it. He could have picked a clearly different name, but did not.

That's not how it works. The second company would pay Kleenex for a license to use the trademark. This does not dilute the trademark, in fact, it actually strengthens it. The third company, which does not take out a license, would be subject to trademark lawsuits by Kleenex.

Hope that helps.

You're talking about a "license" for which the licensee is paying the trademark holder a royalty for the right to use the trademark. It's quite common, especially in the startup world.

"Hey Steve. It's John at Cisco. We've got a trademark that's just a descriptive combination of two common English words. We've noticed you're using one of those common words in a different three word combination as your trademaek. We demand you give us your domain name, because, ummm, derp…"

Could anyone seriously trust these guys with their social graph data after they've pulled a stunt like this? Like you say "It's business". This behavour seems to be a clear indication of how this "business" will treat _your_ rights when they think their business would be more profitable if they ignore them.

I don't really see how you've come to that jump in logic. They seem justified in this specific case and I see no reason how them doing this means they would sell customer data or anything like that. They have not done it with the amount of users they already have. I'm sure they've been approached at this point by a company looking to get in while they can for cheap. It just seems like you are overreacting a bit.

I guess we disagree then, but I find it a hard enough stretch to think they've got any sort of justifiable trademark claim over "Who's Near Me" just because they've got "Who Here" registered. For them to push past that, and apply their VC backed legal muscle to try and get him to hand over the wnmlive.com domain based on their "Who's Here" trademark seems, from where I sit, to be a pure evil misuse of the legal system.

While their success in getting through to summary judgement seems to indicate they've won this battle, I hope in the longer term that the repercussions for Bryant Harris & Stephen Smith & Synerge Tech Solutions & Lightbank make the outcome of "the war" somewhat less attractive for them. I know those four names have been added to my list of people who've demonstrated a failure to conduct business honorably, and any decisions or advice I make about whether to use or recommend services they're involved with will be informed by their previous behaviour.

"Do you really think a successful business can be run while valuing your marks at a dollar? It's business."

To the degree that the business is selling trademark licenses, a case for extremely vigorous pursuit of questionable infringement is justified. On the other hand, if one's business is software development, it is hard to see the described actions as much more than a distraction.

In the email exchanges Brian comes across as the shit bag to me. Here's a sample that makes me wonder why he has a PayPal donate button on his site and why his original post was a cry for money:

"Please do not confuse someone who would rather not waste their time and money on legal matters with someone who cannot afford a lawyer. 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." (Brian's quote from the 3rd email)

Do you actually believe that he's being honest? Sounds like he's puffing up to try and discourage them. When you're up against people who bring you into the legal ring, it might be a bad idea to show them that you're penniless.

So we should believe what he says in public instead of what he says in private? Lets be honest here. He's lying. It doesn't matter which statement is a lie. That is a massive statement of his character.

I admit, that's a good point.

True! It can't be arbitrary.

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