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Getting a Cease and Desist from Waffle House

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Re: Getting a Cease and Desist from Waffle House

#111

Post by rostigerpudel »

superultra wrote: post #97
mk_stjames wrote: post #84

I'm surprised at some of the comments here that don't see Waffle House's side of this. You're a company, and some third party makes a website that very much looks like it could be official, using your name and logo in part, and this website is purporting to know the open/close status of your stores. Literally an indicator if people should bother going out to spend money at your business or not. An actual signal to ec…

To add to that - if a company is not actively protecting the trademark, even in well intentioned cases, then someone can use the trademark and point to a precedent of the brand not defending its trademark, especially if it’s probable that the company was aware of the usage. Waffle House (or any other brand) must and 100% always will send out a C&D for trademark misusage, otherwise they lose legal protection for that…

> Waffle House (or any other brand) must and 100% always will send out a C&D for trademark misusage, otherwise they lose legal protection for that trademark.

Actually, I'm pretty sure their request has no trademark law legs to stand on. Trademark infringement first and foremost requires two things: a) commercial use and b) for the goods and services the trademark is registered for.

Now I just checked and Waffle House has registered its trademark for "waffles", for "mugs", for "keychains" and other trinkets and for "restaurant services", but has zero registrations for "providing information online" or similar. So they really had nothing to defend with regard to a website that sells nothing.

Basically, had he just changed the website to use the name in text, they would have had a hard time to even forbid the nominative use of the trademark to refer to the actual waffle house (referring to the actual owner of a trademark in a nominative/descriptive manner is generally allowed).

There may be other areas of law that are more pertinent, but this is no case of good faith trademark defense. There was no "must" here. Looks like BSing someone who does not know better so he backs off. Also looks like using the archaic und expensive US legal system as a tool for coercion. Even if you're right, you need to be able to afford being right...

Re: Getting a Cease and Desist from Waffle House

#112

Post by cloudpushers »

Molitor5901 wrote: post #87
mk_stjames wrote: post #84

I'm surprised at some of the comments here that don't see Waffle House's side of this. You're a company, and some third party makes a website that very much looks like it could be official, using your name and logo in part, and this website is purporting to know the open/close status of your stores. Literally an indicator if people should bother going out to spend money at your business or not. An actual signal to ec…

I think we all see Waffle House's side of this, but there is a best, better, and worst way to engage a customer. A cease and desist is the worst, it's taking something which could have been handled by PR, to a legal threat. Regardless of Waffle House's legal rights, which they do have, from a public perception and way to run a company it was not the right approach. They should have embraced this guy and his website,…

We run a search and chat company and felt particularly compelled to send a demo to a customer using a competitor's API. The search was so poor and slow, we saw it as an easy lay up.

Our mistake was posting it all over X and LinkedIn. We got hit with a cease and desist so fast.

Marked as wrong timing in the CRM and moved on!

Re: Getting a Cease and Desist from Waffle House

#114

Post by sdenton4 »

lafond wrote: post #28
nice_scott wrote: post #25

if the issue was just using the trademark and likeness, why not just remove those issues of contention, and keep the site up and running under a different domain? it wasn't mentioned that they had an issue with the data scraping.

Author here! After receiving the C&D, the method with which I was getting the data was removed/patched (which I'm now noticing was not mentioned in the blog post...) I did ask them if there was any thing I could to keep it up and never received a response, and rather than playing a cat & mouse game of "now you don't have our branding, but you are scraping are data so here's another C&D" I just took it down :)

I believe scraping is generally ok - there's actual trademark law about trademarks, which is why you got a c+d about trademark usage, instead of a general 'stop what you're doing we don't like it' c+d.

A good point of comparison is steam db (and other similar sites), which uses Steam public info to triangulate market info that isn't immediately apparent.

https://steamdb.info/

Re: Getting a Cease and Desist from Waffle House

#116

Post by dfxm12 »

Molitor5901 wrote: post #87
mk_stjames wrote: post #84

I'm surprised at some of the comments here that don't see Waffle House's side of this. You're a company, and some third party makes a website that very much looks like it could be official, using your name and logo in part, and this website is purporting to know the open/close status of your stores. Literally an indicator if people should bother going out to spend money at your business or not. An actual signal to ec…

I think we all see Waffle House's side of this, but there is a best, better, and worst way to engage a customer. A cease and desist is the worst, it's taking something which could have been handled by PR, to a legal threat. Regardless of Waffle House's legal rights, which they do have, from a public perception and way to run a company it was not the right approach. They should have embraced this guy and his website,…

How can you assert what is the right approach in this situation? What if they don't love what he's doing?

If this is about PR, as one data point, I don't think any differently of anyone involved. I wouldn't if Waffle House engaged him either.

Re: Getting a Cease and Desist from Waffle House

#118

Post by skeaker »

superultra wrote: post #97
mk_stjames wrote: post #84

I'm surprised at some of the comments here that don't see Waffle House's side of this. You're a company, and some third party makes a website that very much looks like it could be official, using your name and logo in part, and this website is purporting to know the open/close status of your stores. Literally an indicator if people should bother going out to spend money at your business or not. An actual signal to ec…

To add to that - if a company is not actively protecting the trademark, even in well intentioned cases, then someone can use the trademark and point to a precedent of the brand not defending its trademark, especially if it’s probable that the company was aware of the usage. Waffle House (or any other brand) must and 100% always will send out a C&D for trademark misusage, otherwise they lose legal protection for that…

This is often brought up and almost never true. No reasonable court would dump their trademark over this. It needs to be overwhelmingly out of their hands and in the public conscious. "Frisbee" for example still holds their trademark over the word Frisbee despite the fact that the vast majority of people don't even realize that it's a trademarked term. Businesses have de facto no obligation to defend their trademark to the extent that the internet often thinks they do.

Re: Getting a Cease and Desist from Waffle House

#119

Post by b112 »

rostigerpudel wrote: post #111
superultra wrote: post #97

Earlier quoted context omitted.

To add to that - if a company is not actively protecting the trademark, even in well intentioned cases, then someone can use the trademark and point to a precedent of the brand not defending its trademark, especially if it’s probable that the company was aware of the usage. Waffle House (or any other brand) must and 100% always will send out a C&D for trademark misusage, otherwise they lose legal protection for that…

> Waffle House (or any other brand) must and 100% always will send out a C&D for trademark misusage, otherwise they lose legal protection for that trademark. Actually, I'm pretty sure their request has no trademark law legs to stand on. Trademark infringement first and foremost requires two things: a) commercial use and b) for the goods and services the trademark is registered for. Now I just checked and Waffle House…

You don't trademark for your advertising, commercials, menus, signs, or your website. You trademark for contents.

Re: Getting a Cease and Desist from Waffle House

#120

Post by gorkish »

mschuster91 wrote: post #104
superultra wrote: post #97

Earlier quoted context omitted.

To add to that - if a company is not actively protecting the trademark, even in well intentioned cases, then someone can use the trademark and point to a precedent of the brand not defending its trademark, especially if it’s probable that the company was aware of the usage. Waffle House (or any other brand) must and 100% always will send out a C&D for trademark misusage, otherwise they lose legal protection for that…

> Waffle House (or any other brand) must and 100% always will send out a C&D for trademark misusage, otherwise they lose legal protection for that trademark. Time to change that braindead law then. Copyright has a "fair use" provision, and trademark law could be adapted similarly.

To me this whole situation seems to be a pretty good example of what not to do if faced with a copyright claim. It's tempting to see outfits like The Onion or Cards Against Humanity doing this kind of thing and feel like you are bulletproof and can do it too. But it's pretty easy to tell when these 'open letter' responses have not received legal review.

Waffle House had a legitimate claim and acted on their obligation to their trademark.

There is a pretty good argument that Waffle House continues to have a claim.

They probably wont do anything because its, frankly, a waste of time.

This could probably have been avoided entirely if copyrights were correctly respected from the beginning.

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