Re: Website columnist v. software company -- Am I infringing or not?

Subject: Re: Re: Website columnist v. software company -- Am I infringing or not?

Comments:
: : I'm having a dispute over a trademark and could use advice. : : First of all, I'm a Canadian. That's probably pretty important. I own a website that is based in the US. : : By way of background, in 1996, my activities on Usenet earned me the nickname "Netcop" (as in the long-used newsgroup term for one who "polices the internet"), and as my primary activities on the newsgroup in question was writing review of professional wrestling events, I began calling them "Netcop Rants". As in, "The Netcop Rant for (such and such a show)". My name was commonly known as Scott "Netcop" Keith in the reports. : : I eventually created my own website, Rantsylvania.com, in September of 1999, which currently scores in the neighborhood of 1,000,000 hits per month. Two weeks ago I (and my webmaster) received an e-mailed cease & desist letter from the owner of Netcop Software (an internet security company), informing us that the Netcop name was trademarked in the US in 1995 by himself and all references to it must be removed from our website immediately. His claim was that readers would be confused by use of the name and think that his company was sponsoring my reviews. : : I responded that since our website isn't selling things with the Netcop name on them, I didn't understand where the infringement was. His response was that since we have an online store on the page via the company that handles our banner ads (Flycast), we are technically a business and thus subject to treatment as such. He further claimed that our using of the name was causing financial damage to his company. As a note further to this, I've been using the name in a very public and visible manner for 5 years now without hearing a word from him or even being aware of his existance or the need to check the trademark on my nickname. : : Finally, rather than face a potentially expensive lawsuit for something as silly as a nickname, I had my webmaster change all the "Netcop" references to "Net.Cop", thus giving us a distinguishing name on the site. He quick responded that this was insufficient and he would continue pressing the legal threats until all references and variants were removed from the site. Once again, I capitulated to avoid the expenses of a lawsuit and removed many of the references completely, although total removal would take weeks and I told him so. He agreed to drop the suit in exchange for my agreement to remove them completely, although no legal documents were ever signed stating such. : : Then, earlier today, I discovered an eBay auction, being conducted by him, putting the netcop.com domain and Netcop trademark up for sale, because he was moving onto other things. This only a week after threatening me with legal action to stop using the name that was apparently so important to him. My immediate goal is to get the name off the auction myself and end this fiasco once and for all by becoming the legal owner of the name, but since I'm not using it to sell anything it strikes me as a tremendous waste of my money if I did so, especially since I don't need the domain name. : : So basically... : : - Am I infringing on the trademark by using the Netcop name? : : - Legally speaking, are his claims of "confusing the marketplace" valid? : : - Since the Netcop trademark isn't registered in Canada according to the search engine I checked, does he even have legal recourse against me and/or the website? : : - Is this case so thin that calling his bluff would likely result in a judge throwing it out right out of the gate or would it end up costing me more money than it's worth? Given that the name itself isn't worth anything to me financially, it's more just a matter of personal pride, so anything costing me more than $0 would be "not worth it". : : General thoughts and/or advice on this would be appreciated. : Reality is the issue not the law. Whether you are right or wrong you are caught in the middle of Wild West law that is growing like a mushroom. : Once you do anything more then maneuver and need a lawyer, even a hack lawyer is going to be expensive. : The situtation works both ways so you might need an expert on how to play poker. It might cost less. : M. Arthur Auslander : Auslander & Thomas-Intellectual Property Law Since 1909 : 505 Eighth Avenue, New York, NY 10018 : 212-594-6900, fax 212-244-0028, aus@auslander.com : ELAINE's Workshop (sm) : E arly L egal A dvice I s N ot E xpensive

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