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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

#81

Post by dragonwriter »

jcranmer wrote: post #75
dragonwriter wrote: post #55

Earlier quoted context omitted.

> You don't need a lawyer to go to a courtroom That...depends on how much you care about the outcome. > 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. If they "take you to court" to force a takedown, they are already suing you (for an equitable remedy.) The marginal cost of adding a claim for damages a…

> that won't stop you from paying for lawyers for the firm suing you. Note that in the US, the usual rule does not allow for shifting attorney's fees to the loser.

> Note that in the US, the usual rule does not allow for shifting attorney's fees to the loser.

While in the US, the default rules in many kinds of cases don't start with loser pays, as in some other systems, there are conditions applicable to most causes of actions which will allow attorney's fees, and the default rules for some claims do assign costs and fees to a party found liable without requiring any additional factors—notably, in the context of a trademark demand letter from the holder of a registered trademark, this includes violation of any of the rights of a holder of a registered trademark, see 15 U.S.C. § 1117(a).

Re: Getting a Cease and Desist from Waffle House

#83

Post by WorldMaker »

jdonaldson wrote: post #53
iambateman wrote: post #39

There's a world where Waffle House acquires this from him for like $50k and it's an endearing story of corporate humanity. But if I'm running the WH brand, I simply don't want to be the semi-official corporate sponsor of every major natural disaster.

They probably already make a ton of money selling this information to hedge funds.

It's a post facto index. It lags disaster by a few days and is far more interesting as a recovery statistic than a forecast. That's why it was important to certain types of FEMA operations, going in days or weeks later and trying to assess the hardest hit areas and triage them into a priority list. If Waffle House is serving a limited breakfast menu 24-hours a day in a neighborhood you can focus on sending the Red Cross-sponsored food tents to a different neighborhood.

Waffle House has been trying to distance themselves from it as a "Disaster Index" ever since the FEMA Director admitted to using it as an unofficial index. It's part of why FEMA increasingly refers to it as "unofficial" and has started to distance itself from discussions about it, too. I agree with the OP that part of it is definitely Waffle House wants to distance themselves from being "the brand of disasters". When it has been talked about as a "Recovery Index" (and without mentioning FEMA, because FEMA is the "brand of disasters") and the light has been shined to focus on why they've been among the fastest businesses in the country to recover from the worst problems, they've been happy to discuss and market that. It really is cool to see their flowcharts and checklists and graded levels of menus designed for all the scenarios they thought to design disaster recovery for (does the building have electric? does it have gas? when was the last supply truck in? when is the next supply truck expected? what are the road conditions?; it truly is fascinating).

Re: Getting a Cease and Desist from Waffle House

#84

Post by mk_stjames »

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 economic performance of your entire corperation.

Now, this person is using your own data from your own websites to update this map. But, you do not control that person. They are not an employee. What if their scraping scheme breaks? What if their implementation has some bug and shows stores closed that are not closed. What if they get pissy and decide to just randomly start showing locations as closed just to F with you.

If the site got very popular and you had no control over it, you could could be losing customers and have no way to fix it.

It's a seriously irresponsible move to allow people this kind of leeway with your brand and trademarks. Even if it seems they mean well at first.

Re: Getting a Cease and Desist from Waffle House

#85

Post by Molitor5901 »

JohnMakin wrote: post #40

Cease and desists are the equivalent of asking firmly but nicely in the legal world. They don't hold any legal bearing or obligate you to any sort of response. They are usually hoping you get intimidated into doing what they ask. You can always call their bluff and say 'no,' although I see in comments the OP neglected to mention they also patched/fixed the technique used to get this data so it probably was more of th…

I would have handled it better, not with lawyers but with PR people.

Re: Getting a Cease and Desist from Waffle House

#86

Post by WorldMaker »

rtkwe wrote: post #44
mcphage wrote: post #35

On one hand, yes, the author was using Waffle House's own data to populate the site. But on the other, Waffle House has no way of guaranteeing that remains the case, and they don't want their private APIs to be depended upon by a 3rd party site seen by thousands of people. So I guess I'm not surprised by their reaction. Still: it would be fun if it actually was a thing.

It's a trademark thing, brands are really protective of them because the rules around dilution are a bit murky so they err on the side of trying to stamp out any unauthorized use just to make it clear it's in use and protected so there's little chance of losing it because a court takes a different view of a time they let it slide.

Waffle House also has an interesting history with trademark protection and dilution. The company started and expanded when trademark protection involved more per-US State registries than it does today. In Indiana for a couple decades the Waffle Houses there were known as Waffle & Steak, because a home-grown Indiana company was already known as Waffle House there. Sure, Waffle House does serve Steak (though many don't realize and wouldn't think of Waffle House as the first place to go for a Steak), but it wasn't about marketing their non-Breakfast menu items (they have burgers, too!), they wanted to protect their trademarks on the signs and other parts of their branding, even in states like Indiana. Steak has 5 letters like House, that was the important part. The signs looked clearly enough alike from the interstate even if the words were different.

Re: Getting a Cease and Desist from Waffle House

#87

Post by Molitor5901 »

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, engage him, and through that channel let him know "hey, you can't use our trademarks, etc. so you'll need to rebrand, but we love what you're doing and want to help."

Vastly different approach with a much better upswing.

Re: Getting a Cease and Desist from Waffle House

#88

Post by Molitor5901 »

dylan604 wrote: post #59
Molitor5901 wrote: post #7

Terrible response from Waffle House. After all this time they should know better.

After all of the examples of people protecting their brand, you should know better. Of course this is what they are going to do. Every. Single. Time. The least dickish example is probably the Jack Daniels incident, but even their first contact to the offender was a C&D.

After all the examples of brands handling things badly, you should know better. From Bud Light to Peloton, corporate-customer relations is not a new topic. There are different ways to handle this. Waffle House chose a path which now has however many people on Hckrnews making up their minds in both positive, and negative ways. That's not what a company wants.

The least dickish thing to do is to not be a dick.

Re: Getting a Cease and Desist from Waffle House

#89

Post by caycep »

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 wonder if they have the bandwidth/expertise at the company to hire him, or at least ink a marketing contract w/ their PR department

Re: Getting a Cease and Desist from Waffle House

#90

Post by itishappy »

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)

No guarantee that such marketing will be good, however.
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