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Facebook Threatened Me With $100,000 Suit

35 points by hawkharris 13y ago

sejje 13y ago
>The cease and desist order has affirmed my decision and crystallized my dislike of Facebook as a company. The cease and desist order should have nothing to do with affirmation of your decision to quit wasting time, nor your view of Facebook. They're required to pursue trademark violations if they wish to retain it. Change the name, sir.
debt 13y ago
If you want to avoid lawsuits then don't use the very trademarked "Facebook" in the name of your app.
anigbrowl 13y ago
I don’t know enough about intellectual property law to determine if a judge would agree that my small side project is a fair-use parody. Well, at least he's honest. Fair use is not a defense to trademark infringement. You can't use other firms' trademarks as part of yours, and firms are obliged to respond to such infringement because if they don't, they won't be able to sustain claims against more malicious infringers. The solution is simply to pick a non-infringing name for the app and spend a little effort on marketing it. Letting the domain die isn't exactly a big financial sacrifice, since registering it probably cost no more than $20; I'm not sure how the author thinks he's entitled to sell it. I also don't have much sympathy for his tone argument, since the letter is pretty gentle and provides a clear explanation of the legal basis of his claim, while acknowledging that his infringement was probably unintentional.
- rhythmvs 13y ago
  So, ICANN or its subsidiaries take money for registering domain names without due diligence on ® — fair enough. Next, another branch of the State accepts lawsuits against people for having paid for something that couldn’t legally be sold/leased? When a private person would do that, he’s probably liable of fraud or fencing. No doubt the Pharisees in the justice department can explain such legal BS — it still is a rip-off by the State.
  - anigbrowl 13y ago
    ICANN is not a government agency. It's a California-based nonprofit corporation. http://www.icann.org/en/about/governance/articles http://www.icann.org/en/about/governance/articles
- panarky 13y ago
  This is not accurate. It's not how fair use works. Facebook can't automatically stop me from using the term "Facebook" to criticize or ridicule them, even if I say it on the internet or use it in a domain name. Naturally, it's complicated. If a site is easily confused for the real thing, or if it's commercial in nature, your fair-use claim gets much more difficult. There's a lot more detail here: http://www.chillingeffects.org/protest/faq.cgi http://www.chillingeffects.org/protest/faq.cgi
  - anigbrowl 13y ago
    It's entirely accurate. I never claimed Facebook had an automatic right to stop you using its name. Also, your source doesn't even mention 'fair use.' That's because it's a defense to copyright infringement, not to trademark infringement.
    - panarky 13y ago
      Your original statement is not accurate. You said "The solution is simply to pick a non-infringing name for the app ..." You imply that using "Facebook" in the name infringes their trademark. According to Chilling Effects, the plaintiff in a trademark infringement case generally must prove: 1) it possesses a valid mark 2) that the defendant used the mark 3) that the defendant used the mark in commerce 4) that the defendant used the mark in a manner likely to confuse consumers Use of a trademark is not sufficient to prove infringement. It's possible to use a company's name for non-commercial parody or criticism without getting shut down by intellectual property claims.
      - anigbrowl 13y ago
        Those 4 tests are easily met in this case. I don't feel like digging up a whole bunch of specific citations, but courts take a reasonably broad view of what might confuse consumers, and in this case the argument would be trivially easy to make because the 'facebook' in question is Facebook, if you see what I mean. If you don't think Facebook has a colorable case here then you're deluding yourself, and a close reading of the material at Chilling Effects will back that up. Picking a non-infringing name most certainly is the solution, because that will cost the guy little to no money and his economic losses from abandoning breakmyfacebook.com are trivial, most likely less than the cost of even filing a small claims court case to recover his economic loss. Facebook does not appear to have anything against his app per se, so there's no need to abandon his investment in that - he could just set up another domain called something like 'breakmysocialnetwork.com' and carry on where he left off.
bonemachine 13y ago
Not defending (or critiquing) FB's action here. But the original posting presents a very muddled telling of what FB actually did: Today Facebook ordered me to dismantle a not-for-proft webapp that I created several weeks ago. The firm’s legal counsel sent me a cease and desist email this afternoon, insinuating that Facebook could fine me $100,000. If you take a minute to actually read the letter that was sent by FB's counsel, it's pretty clear that: (1) they aren't telling him to "dismantle" his webapp. They're just saying he can't use "Facebook" in the domain name he chose for that app. This is something very different. (2) they also aren't threatening that they (FB) will directly "fine" him for anything. What they're doing is pointing out that under certain applicable laws, he can (in their view) be subject to certain penalties (payable to the state, presumably -- not too Facebook). Again, something very, very different.
- ddebernardy 13y ago
  Was about to post the same remark. OP is whining that he received a C&D for using `facebook` in his domain name. Well... Duh. Cry. Me. A. River. Had he called it breakyourfbfeed.com, he'd have never gotten that letter. Perhaps FB would have gotten in touch for violating their AUP or something -- and gotten a shitstorm for doing so. But not for trademark.
racl101 13y ago
I don't get what this problem is that people have with Facebook (privacy issues aside). Just discipline yourself to check it once or twice a day and not during work. You don't need to put it in a pedestal and make it this giant issue or demon that controls your life. A little self discipline, like with anything else, goes a long way. Now if you hate FB because of their privacy issues, well that's another thing altogether but don't mix your addiction to it, which, is probably a different problem by the way, with your issues about privacy.
scott_karana 13y ago
He could easily take over a user's Facebook account if he so choose, considering that "breaking" the account is using a random string that you're supposed to forget, which he then returns to you in plain text... That alone would probably warrant a close look at the site, notwithstanding the name issues.
x0054 13y ago
He should not have to drop his domain. Trademark law states that you can not use someone else's trademark if it would cause consumers to confuse your business for the trademark holder's business. I doubt FB would be able to prove in court that any consumer would go to breakmyfaceboom.com and think that it's the real FB page operated by FB. It's probably not worth fighting over, but if I were google, I would offer to indemnify this guy and pay for an attorney, just to fuck with FB.
- notalawyertm 13y ago
  yep....people don't understand TM law......if I was him i'd start by searching "Federal court (9th circuit) - Toyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171 (9th Cir. 2010)" ...and send a reply letter saying "I don't think people are going to confuse us but just in case in rder to settle this suit i'm now placing a message at the base of each page saying "This page/app is not endorsed by or owned by Facebook inc" Will buy you time....as well us run up their legal bills as they will float your response up a level before deciding the next move.
Jugurtha 13y ago
It's not companies that "fine". Second, you can change your website to something like "unplug.me" or something. Furthermore, the word "Facebook" has been added to the Oxford Dictionary which may play in your favor. It's been added as a verb. I'm not a lawyer, but I think you can use it that way too. Something like "unfacebook.me" .. But I'm just keyboard jockeying.
intslack 13y ago
Make it a Gripe site and tell them to fuck off http://en.wikipedia.org/wiki/Gripe_site http://en.wikipedia.org/wiki/Gripe_site

35 points by hawkharris 13y ago

sejje 13y ago

>The cease and desist order has affirmed my decision and crystallized my dislike of Facebook as a company. The cease and desist order should have nothing to do with affirmation of your decision to quit wasting time, nor your view of Facebook. They're required to pursue trademark violations if they wish to retain it. Change the name, sir.

debt 13y ago

If you want to avoid lawsuits then don't use the very trademarked "Facebook" in the name of your app.

anigbrowl 13y ago

I don’t know enough about intellectual property law to determine if a judge would agree that my small side project is a fair-use parody. Well, at least he's honest. Fair use is not a defense to trademark infringement. You can't use other firms' trademarks as part of yours, and firms are obliged to respond to such infringement because if they don't, they won't be able to sustain claims against more malicious infringers. The solution is simply to pick a non-infringing name for the app and spend a little effort on marketing it. Letting the domain die isn't exactly a big financial sacrifice, since registering it probably cost no more than $20; I'm not sure how the author thinks he's entitled to sell it. I also don't have much sympathy for his tone argument, since the letter is pretty gentle and provides a clear explanation of the legal basis of his claim, while acknowledging that his infringement was probably unintentional.

rhythmvs 13y ago
So, ICANN or its subsidiaries take money for registering domain names without due diligence on ® — fair enough. Next, another branch of the State accepts lawsuits against people for having paid for something that couldn’t legally be sold/leased? When a private person would do that, he’s probably liable of fraud or fencing. No doubt the Pharisees in the justice department can explain such legal BS — it still is a rip-off by the State.
- anigbrowl 13y ago
  ICANN is not a government agency. It's a California-based nonprofit corporation. http://www.icann.org/en/about/governance/articles http://www.icann.org/en/about/governance/articles
panarky 13y ago
This is not accurate. It's not how fair use works. Facebook can't automatically stop me from using the term "Facebook" to criticize or ridicule them, even if I say it on the internet or use it in a domain name. Naturally, it's complicated. If a site is easily confused for the real thing, or if it's commercial in nature, your fair-use claim gets much more difficult. There's a lot more detail here: http://www.chillingeffects.org/protest/faq.cgi http://www.chillingeffects.org/protest/faq.cgi
- anigbrowl 13y ago
  It's entirely accurate. I never claimed Facebook had an automatic right to stop you using its name. Also, your source doesn't even mention 'fair use.' That's because it's a defense to copyright infringement, not to trademark infringement.
  - panarky 13y ago
    Your original statement is not accurate. You said "The solution is simply to pick a non-infringing name for the app ..." You imply that using "Facebook" in the name infringes their trademark. According to Chilling Effects, the plaintiff in a trademark infringement case generally must prove: 1) it possesses a valid mark 2) that the defendant used the mark 3) that the defendant used the mark in commerce 4) that the defendant used the mark in a manner likely to confuse consumers Use of a trademark is not sufficient to prove infringement. It's possible to use a company's name for non-commercial parody or criticism without getting shut down by intellectual property claims.
    - anigbrowl 13y ago
      Those 4 tests are easily met in this case. I don't feel like digging up a whole bunch of specific citations, but courts take a reasonably broad view of what might confuse consumers, and in this case the argument would be trivially easy to make because the 'facebook' in question is Facebook, if you see what I mean. If you don't think Facebook has a colorable case here then you're deluding yourself, and a close reading of the material at Chilling Effects will back that up. Picking a non-infringing name most certainly is the solution, because that will cost the guy little to no money and his economic losses from abandoning breakmyfacebook.com are trivial, most likely less than the cost of even filing a small claims court case to recover his economic loss. Facebook does not appear to have anything against his app per se, so there's no need to abandon his investment in that - he could just set up another domain called something like 'breakmysocialnetwork.com' and carry on where he left off.

bonemachine 13y ago

Not defending (or critiquing) FB's action here. But the original posting presents a very muddled telling of what FB actually did: Today Facebook ordered me to dismantle a not-for-proft webapp that I created several weeks ago. The firm’s legal counsel sent me a cease and desist email this afternoon, insinuating that Facebook could fine me $100,000. If you take a minute to actually read the letter that was sent by FB's counsel, it's pretty clear that: (1) they aren't telling him to "dismantle" his webapp. They're just saying he can't use "Facebook" in the domain name he chose for that app. This is something very different. (2) they also aren't threatening that they (FB) will directly "fine" him for anything. What they're doing is pointing out that under certain applicable laws, he can (in their view) be subject to certain penalties (payable to the state, presumably -- not too Facebook). Again, something very, very different.

ddebernardy 13y ago
Was about to post the same remark. OP is whining that he received a C&D for using `facebook` in his domain name. Well... Duh. Cry. Me. A. River. Had he called it breakyourfbfeed.com, he'd have never gotten that letter. Perhaps FB would have gotten in touch for violating their AUP or something -- and gotten a shitstorm for doing so. But not for trademark.

racl101 13y ago

I don't get what this problem is that people have with Facebook (privacy issues aside). Just discipline yourself to check it once or twice a day and not during work. You don't need to put it in a pedestal and make it this giant issue or demon that controls your life. A little self discipline, like with anything else, goes a long way. Now if you hate FB because of their privacy issues, well that's another thing altogether but don't mix your addiction to it, which, is probably a different problem by the way, with your issues about privacy.

scott_karana 13y ago

He could easily take over a user's Facebook account if he so choose, considering that "breaking" the account is using a random string that you're supposed to forget, which he then returns to you in plain text... That alone would probably warrant a close look at the site, notwithstanding the name issues.

x0054 13y ago

He should not have to drop his domain. Trademark law states that you can not use someone else's trademark if it would cause consumers to confuse your business for the trademark holder's business. I doubt FB would be able to prove in court that any consumer would go to breakmyfaceboom.com and think that it's the real FB page operated by FB. It's probably not worth fighting over, but if I were google, I would offer to indemnify this guy and pay for an attorney, just to fuck with FB.

notalawyertm 13y ago
yep....people don't understand TM law......if I was him i'd start by searching "Federal court (9th circuit) - Toyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171 (9th Cir. 2010)" ...and send a reply letter saying "I don't think people are going to confuse us but just in case in rder to settle this suit i'm now placing a message at the base of each page saying "This page/app is not endorsed by or owned by Facebook inc" Will buy you time....as well us run up their legal bills as they will float your response up a level before deciding the next move.

Jugurtha 13y ago

It's not companies that "fine". Second, you can change your website to something like "unplug.me" or something. Furthermore, the word "Facebook" has been added to the Oxford Dictionary which may play in your favor. It's been added as a verb. I'm not a lawyer, but I think you can use it that way too. Something like "unfacebook.me" .. But I'm just keyboard jockeying.

intslack 13y ago

Make it a Gripe site and tell them to fuck off http://en.wikipedia.org/wiki/Gripe_site http://en.wikipedia.org/wiki/Gripe_site