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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

#121

Post by jjmarr »

sdenton4 wrote: post #114
lafond wrote: post #28

Earlier quoted context omitted.

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/

The first sentence on SteamDB is:

> This third-party website gives you better insight into the Steam platform and everything in its database.

It clearly states that it's not affiliated with Steam and is a separate organization. There's also a further disclaimer in the footer of the page.

In contrast, the "Waffle House Index" had the Waffle House logo at the top of the page, with zero explanation or elaboration on who created the website.

Re: Getting a Cease and Desist from Waffle House

#122

Post by [deleted] »

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…

[deleted]

Re: Getting a Cease and Desist from Waffle House

#127

Post by athenot »

kevincox wrote: post #68
dmurray wrote: post #54

Earlier quoted context omitted.

> But he was using a variation of the Waffle House logo that their lawyers would argue would "confuse the average consumer", and he was using the "Waffle House" name in a domain. In something that was actually directly related to the real Waffle House. Unfortunately, their lawyers would have an easy time with that lawsuit For this to be trademark infringement, wouldn't he need to be selling products or services that…

No, there just has to be a risk that consumers think that this is somehow associated with Waffle House. The point of a trademark isn't directly commercial. It isn't about preventing other people from making money from your brand. It is about protecting the integrity of your trademark so that when users see your name and logo they know it comes from you. Basically trademarks are like a signature, they "prove" who you…

> there just has to be a risk that consumers think that this is somehow associated with Waffle House

More than risk; some of the tweets could be actual evidence of that confusion.

I think if the general branding vibe of the site was more about hurricanes and only made a reference to the "Waffle House index" via NOAA, it might have had better chances of surviving. And also a big disclaimer that there is no affiliation with WH would have also helped.

Re: Getting a Cease and Desist from Waffle House

#128

Post by superultra »

skeaker wrote: post #118
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…

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…

I am not a trademark lawyer. I'm guessing you aren't either or you would have said so. But multiple lawyers on multiple projects with multiple brands have mentioned this to me, and we have sent C&Ds to protect trademarks. With at least two of those lawyers, sure, it might just be more billable hours. But two were pretty decent guys and wouldn't have done it if they didn't think it was necessary.

At least within my corner of the business world (and not just "the internet"), it seems this is common knowledge among lawyers.

My guess is that, sure, would a court throw out a trademark? Maybe not, but the law works on a fine line between actuals (precendent) and hypotheticals, and it's just cheaper to issue a C&D than it is to fight a prologned legal battle about predcedent.

Also, it's interesting you mention Frisbee. There's a term for that: "genericide," and it's the term used to describe that exact scenario. Frisbee is one brand that didn't actively protect against trademark erosion and now we call every flying disc a Frisbee. Retrospectively, Frisbee might have wished they'd sent more C&Ds. Nintendo is one brand that has actively protected brand erosion, which is why we don't call it a Sony Nintendo.

Re: Getting a Cease and Desist from Waffle House

#129

Post by Spooky23 »

JohnMakin wrote: post #41
xyst wrote: post #29

Earlier quoted context omitted.

The mere threat of legal action for most Americans means $$$. As a college student, probably broke as well. This person probably does not have the legal understanding or access to lawyers to guide him through it. Much easier to take it down rather than deal with potential legal ramifications. A half decent lawyer or even the "free" lawyer services at most universities probably would have advised just removing the "tr…

You ignore the cease and desist, they take you to court (still unlikely because they also incur cost they dont want). You don't need a lawyer to go to a courtroom, they will order you to take it down and then you do. They're very unlikely to sue for damages because the cost of their lawyers far exceed whatever 'damages' are in place here, which I would assume are close to zero. Please don't fold immediately to this t…

This is why companies come on strong like this.

The dude made in good humor, a website and pushed it on social media at a time that attracted a bunch of attention. It included graphics close enough to the trademark to be confusing to visitors, and did something that the company didn’t want done for reasonable reasons.

They incurred cost. People handled phone calls, their counsel billed for the response, the web agency had to modify the website. Waffle House sells greasy diner food, every aspect of dealing with this is zero value to them.

Rather than beat around the bush, they said “stop”. He did, and wrote a funny blog about it. But for every 10 situations like this one, there’s probably 1-2 where the counterparty is a prick and wastes everyone’s time.

Re: Getting a Cease and Desist from Waffle House

#130

Post by HWR_14 »

jeron wrote: post #77
lafond wrote: post #28

Earlier quoted context omitted.

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 :)

this is a bummer - scraping is one thing but this was free marketing for them. If only they put their marketing department in front of their legal department (assuming they have a marketing department)

Don't blame the legal department. They are legally required to send a C&D in situations like that or they can lose their trademarks.
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