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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

#131

Post by dmoy »

hinkley wrote: post #108
Molitor5901 wrote: post #87

Earlier quoted context omitted.

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,…

I think it's like 'needs work' in a pull request. What one person sees as just honest feedback another sees as starting a fight that didn't need to be one. And a lot of tech people have learned to hit back when they think they're being bullied. Because bullies don't stop until they're bleeding in front of witnesses. Let's get this over now instead of dragging it out. You've escalated where threat of escalation should…

From a lawyer perspective though, a cease & desist is a threat of escalation.

A lawsuit is the escalation. A cease and desist is a strongly worded letter that isn't really legally binding or anything.

The issue here is just impedance mismatch on the language. The legal department is used to doing things in legal terms, and probably sends out like a lot of cease and desists. And most of the targets of those also have lawyers who are speaking the same language, so it works. Just when it's a random individual getting the letter, there's a lot more confusion.

Re: Getting a Cease and Desist from Waffle House

#132

Post by superultra »

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…

I think you're missing some nuance in your understanding of trademarks with all due respect.

The core use of trademark protection isn't a commercial use, necessarily. Rather, it's the act of infringing on the trademark holder's commercial use. So, if Waffle House is selling Waffle House t-shirts, and a business next door is giving away free Waffle House t-shirts that they printed - then yes, Waffle House would very likely win a lawsuit against someone giving away waffle house t-shirts.

Basically if someone is giving away or, especially, selling something that causes a confusion against the original trademark, then yes, the trademark "must" be protected.

By "must" I don't mean it's legally required. I just mean you're going to have a harder time in court if you need to pursue legal action against a company or person if there's a precedent you have not actively protected the trademark in other instances.

edit: and in this case, the site was causing confusion, so they sent a C&D. Also as the other commentor mentioned, the logo is trademarked.

Re: Getting a Cease and Desist from Waffle House

#133

Post by jjmarr »

itishappy wrote: post #90
jeron wrote: post #77

Earlier quoted context omitted.

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)

No guarantee that such marketing will be good, however.

"Waffle House is so reliably open that FEMA uses it to measure hurricane devastation" is a great piece of marketing.

If you're tired, hung over, or really hungry, you can always stumble into a Waffle House at any time and get something to eat. If you can't, there are bigger problems in your life (hurricane, zombies, tornadoes).

Re: Getting a Cease and Desist from Waffle House

#134

Post by mindcrime »

HWR_14 wrote: post #130
jeron wrote: post #77

Earlier quoted context omitted.

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.

That's an oversimplification. WH could also reach out and offer to work out a deal with the site owner to license use of their trademark. That would probably entail some compensation (which could be anything from "good will" or a token cash amount, up to millions of dollars) and probably some verbiage on the page reading something along the lines of "Logos and identifiers on this page are the property of Waffle House, Inc and are used under license" or whatever.

Re: Getting a Cease and Desist from Waffle House

#135

Post by hk1337 »

> Honestly, I was more surprised that the silly logo I made (a very great representation, if I do say so myself) was what got me in trouble, and less so the scraping or reverse-engineering part.

I am not all that surprised. Companies have to take trademarks and such VERY seriously and act quickly. They can be royally screwed later if they do not.

I am surprised the creator of the site didn't add a disclaimer that information should not be used in any sort of serious manner.

Re: Getting a Cease and Desist from Waffle House

#136

Post by orra »

HWR_14 wrote: post #130
jeron wrote: post #77

Earlier quoted context omitted.

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.

After the initial legal letter they could have licensed / agreed to the usage, or taken over the running of the website. There are several ways to protect their trademark without being killjoys.

Re: Getting a Cease and Desist from Waffle House

#137

Post by cycomanic »

b112 wrote: post #119
rostigerpudel wrote: post #111

Earlier quoted context omitted.

> 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.

What do you believe is actually covered by trademark law? Maybe, the name of the website, but clearly the location and open status can't be, that would mean Google and many other map providers are violating trademarks on a massive scale. Or another example those websites with maps of petrol stations and their prices?

Re: Getting a Cease and Desist from Waffle House

#138

Post by [deleted] »

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.

[deleted]

Re: Getting a Cease and Desist from Waffle House

#139

Post by cycomanic »

gorkish wrote: post #120
mschuster91 wrote: post #104

Earlier quoted context omitted.

> 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 obligatio…

What exactly is the trademark violation that they are "obliged" to defend? Somebody putting location and opening times of their restaurants on a map?

Re: Getting a Cease and Desist from Waffle House

#140

Post by dragonwriter »

hinkley wrote: post #105
mschuster91 wrote: post #104

Earlier quoted context omitted.

> 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.

You can use a trademark any time you want. How would brand recognition work if people couldn't talk about Mustangs and Corvettes? What you can't do is claim it's yours. Or let people think it's yours.

> You can use a trademark any time you want.

No, you can't. If you could use it whenever yoh want, we wouldnt have the concept of “nominative fair use” as the exceptional case of when and how you are allowed to use someone else’s mark in commerce without permission.

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