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Comment
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Hi Ken,
I have a question regarding Trademark Infringement. Mijac Alarm has applied for a trademark on our name recently (I never really thought i had to previously.... who would advertise for us right? And since we are incorporated under the name, another company couldn't use it right?).
My web marketing team discovered that a piece of crap marketing firm has "bought" our name as an ad-word from google. I probably wouldn't mind too much but they way they are using it really gets under my skin. I would bet that www.HomeSecuritySystems.net has probably bought hundreds of your clients name all across the country and is redirecting google traffic to its site.
The way in which they use it is "Do Not Buy xxx alarm company" and when you click on why, it brings you to his website which is then recommending ADT, FrontPoint and LIfeShield security companies. Maybe they don't know, maybe they don't care how they get their leads, but honestly? If these alarm companies even know a whiff of what this piece of crap marketer is doing on their behalf, their ethical and moral values have really gone down the toilet.
As you know, we value our good name, work hard to protect it and work even harder to protect our customers. Too bad others feel they have to take an underhanded trail of deceit to garner business. I suggest alarm companies type in their own name as i've mentioned above and check their own online reputation.
I would bet that some kind of class action lawsuit is available... want to take the case?
Yours for better security,
Steve Sopkin, President
Mijac Alarm
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Response
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Deceptive marketing is nothing new, even on the Internet. It's actually got a name that escapes me. Trademark infringement is probably an easier lawsuit than trade name infringement, but both may need to be pursued when the deceptive practices begin to affect your bottom line. It's not likely a class action suit since everyone has their own issues of facts.
If you can find out where the offending web site is hosted you may be able to have the hosting company bring it down. Complaining to the search engines may also result in the site being black listed. Starting a lawsuit against the domain owner, hosting site and search engines may catch their attention, but would most likely be very costly to pursue. Another thought is to sue the companies that are benefiting from the deceptive marketing even though these companies are using independent marketing companies. The alarm companies are the beneficiaries and you might be able to hold them accountable for deceptive marketing and business practices. Complaints to state attorney general offices might also get you traction to halt the practice.
I had one of my attorneys do a little research on this, Here is her remarks.
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Ken,
Several different terms are utilized to describe the practice of using a name similar to a trade name to confuse the public. Common ones that come up include “unfair competition,” “deceptive trade practices” and “statutory and/or common law trademark infringement.” The USPTO would not comment but stated that the name would be rejected by their office due to “likelihood of confusion.” If you would like me to look further into this topic, please let me know. Below are a few relevant state statutes.
§ 133. Use of name or address with intent to deceive
No person, firm or corporation shall, with intent to deceive or mislead the public, assume, adopt or use as, or as part of, a corporate, assumed or trade name, for advertising purposes or for the purposes of trade, or for any other purpose, any name, designation or style, or any symbol or simulation thereof, or a part of any name, designation or style, or any symbol or simulation thereof, which may deceive or mislead the public as to the identity of such person, firm or corporation or as to the connection of such person, firm or corporation with any other person, firm or corporation; nor shall any person, firm or corporation, with like intent, adopt or use as, or as part of, a corporate, assumed or trade name, for advertising purposes, or for the purposes of trade, or for any other purpose, any address or designation of location in the community which may deceive or mislead the public as to the true address or location of such person, firm or corporation. A violation of this section shall be a misdemeanor. Whenever there shall be an actual or threatened violation of this section, an application may be made to a court or justice having jurisdiction to issue an injunction, upon notice to the defendant of not less than five days, to enjoin and restrain such actual or threatened violation; and if it shall appear to the satisfaction of the court or justice that the defendant is in fact assuming, adopting or using such name, or is about to assume, adopt or use such name, and that the assumption, adoption or use of such name may deceive or mislead the public, an injunction may be issued by said court or justice, enjoining and restraining such actual or threatened violation without requiring proof that any person has in fact been deceived or misled thereby.
NY CLS Gen Bus § 133
§ 360-k. Infringement
Subject to the provisions of this section, any person who shall:
(a) use, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under this article in connection with the sale, distribution, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source of origin of such goods or services; or
(b) reproduce, counterfeit, copy or colorably imitate any such mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in connection with the sale or other distribution in this state of such goods or services; shall be liable in a civil action by the registrant for any and all of the remedies provided in section three hundred sixty-l of this article, except that under this subdivision the registrant shall not be entitled to recover profits or damages unless the acts have been committed with the intent to cause confusion or mistake or to deceive.
NY CLS Gen Bus § 360-k
§ 360-l. Injury to business reputation; dilution
Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name shall be a ground for injunctive relief in cases of infringement of a mark registered or not registered or in cases of unfair competition, notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.
NY CLS Gen Bus § 360-l
Erica Youngerman, Esq
Kirschenbaum & Kirschenbaum, P.C.
200 Garden City Plaza
Garden City, New York 11530
(516) 747-6700 (tel)
(516) 747-6781 (fax)
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TO SUBMIT QUESTIONS OR COMMENTS REPLY TO THIS EMAIL OR EMAIL Ken@Kirschenbaumesq.com. Most comments and questions get circulated.
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WEBINARS
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Topic: Integrating Quick Books with alarm company management software and credit card processing for RMR. You will learn how to inexpensively automate and streamline your alarm business management using sofrware designed to work with Quick Books. Hands on tutorial will demonstate how easy and useful this software can be.
When: February 13, 2014 at 12 noon to 1 PM EST.
Register here: https://attendee.gotowebinar.com/register/3856781481977174786
Moderator: Ken Kirschenbaum
Panelists: Mitch Reitman www.sicc.us; Scott Taylor www.FI-Soft.com; Thomas Aronica www.skybankfinancial.com
Who are the panelists:
Scott Taylor, with Fi-Soft and manages the firms product development and partner relations activities.. Fi-Soft specializes in QuickBooks accounting software, training, and integrated solutions. As a founding member of the Intuit Reseller Channel, Fi-Soft supports all versions of QuickBooks software and carries the highest level certifications from Intuit.
Mitch Reitman is a tax expert specializing in the alarm industry. Besides accounting and tax work, he is an active and effective business consultant and alarm business broker.
Thomas Aronica with SkyFinancial has a focus on credit card processing for the alarm industry including RMR processing, and integrates and works with Fi-Soft's Quick Books.
Who should attend: alarm company owners, office managers and those involved in alarm company nabagment, accounting and accounting records.
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