Microsoft to sue Mike Rowe for Copyrights 1009
An anonymous reader was among a host of submittors noting that a 17 year old named Mike Rowe has been sued by Microsoft for copyright infringment of their name.
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Microsoft to sue Mike Rowe for Copyrights
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If you have a procedure with 10 parameters, you probably missed some.
*Trademark* not Copyright (Score:5, Insightful)
overuse of 'copyright infringement' (Score:5, Insightful)
I'd bet a nickel the reporter who wrote the first story and editor never looked up the difference between "copyright infringement" and "trademark infringement," and then the story was duplicated to other news services without anyone bothering to double-check it.
Re:What? (Score:5, Insightful)
The Register? (Score:2, Insightful)
Re:MS the scammer (Score:5, Insightful)
Ah well. Any bad press for Microsoft has to be a good thing.
Re:You're doing the Devil's dirtywork! (Score:1, Insightful)
Re:Yes, that's what I thought (Score:5, Insightful)
Re:If you don't want this to happen to you... (Score:5, Insightful)
The point is that it's not really down to the lawyers to decide, and it's going to have a hell of an uphill struggle trying to explain that 'Mike Rowe' was trying to use his chance grouping of syllables in his own name in 'bad faith', although he might've shot himself in the foot by admitting that he'd already thought about it.
However, now I'm thinking about names to register because a $10 cheque from Microsoft would be worth framing.
I expect M$ to win this (Score:5, Insightful)
He registered the domain in August because he thought it would be cool to have a site that sounded like the famous company to show his Web designing skills.
Well, that's exactly what a trademark is supposed to protect against; someone else using your brand-name for their own purposes. And because the way the trademark law works, Microsoft has to defend their trademarks; writing letters, suing; or else they risk the trademark being generic; free for anyone to use.
Microsoft may be an evil corporation, but I can't blame them for protecting their main trademark.
That the defendants name is Mike Rowe is interesting, but I personally think it is clear that mikerowesoft is intended to look alike and benefit from the name recognition of "microsoft". Mike Rowe can easily invent another domain name that includes his name and build his own brand name without leeching on Microsoft.
Re:MS the scammer (Score:5, Insightful)
It was still dumb to send a counter-offer if one had no intention of selling it. (Though if I thought for a minute that one of my domains was worth that much to someone...)
Looks like he wasn't too smart (Score:2, Insightful)
Instead he asked for 10,000 dollars so he appears to be extoring M$.
Smartest move ever.
Fact Checking? (Score:3, Insightful)
So The Register readily admits that they haven't seen a shred of evidence other than this kid's word that this has taken place?
Re:MS the scammer (Score:5, Insightful)
So he would consider selling the domain if M$ helped him regain that cost. IANAL but this sounds like a slam dunk for Mr Rowe.
Re:*Trademark* not Copyright (Score:4, Insightful)
As far as sending the notice by email, initially he did get informal requests to hand it over by email, but the official notice came in the form of a book and accompanying 25 page letter. I suspect the volume of information is intended to intimidate him and any small-time lawyer thinking of taking his case. The legal system really needs an overhaul to make it easier to throw this sort of garbage back at lawyers, as IBM did with SCO's initial discovery consisting of ALL of the Linux source code without being specific.
Re:Yes, that's what I thought (Score:5, Insightful)
Likewise, if they came and offered me an absurd fee such as $10, it'd be a natural conclusion for me to counter offer something that I *would* be willing to sell it for. I'd say that there are few privately held domain names that there isn't some purchasing price for. Even corporately held domain names would come with a purchase price, though that price might lump in the corporation. Eg, if I offered Adobe $700 billion, I'm guessing I'd come away with a shiny new domain name, and probably a new office building filled with employees to go with it.
My point is that just because the kid *was* willing to sell the domain doesn't make it a bad faith offering. None of mine are bad faith, and I'd easily sell any of them for 10 grand.
Re:I expect M$ to win this (Score:5, Insightful)
I agree that it's regretable that he turned their insulting offer into a respectable one, thereby appearing to be a squatter. I've always been a firm believer in the ability for individuals to register domains based on their name, and this is a good example of that. Hopefully the judge will realize why he made the offer and won't just make him out ot be a squatter based on that alone.
RP
1st rule: SHUT UP AND GET A LAYWER (Score:5, Insightful)
SHUT UP AND GET A LAWYER!
The second most important rule:
UNTIL YOU HAVE A LAYWER, STAY SHUT UP.
Suppose somebody contacts you and says:
"You are in violation of our copyright [sic] on our site - give us the domain or we'll sue!"
The proper response is something like:
"Very interesting - OK, please give me the contact information for your law firm, and I'll have my attourney contact your attourney. I prefer to have all furthur contact through my attourney, so please route everything through your legal group."
If they persist in contacting you directly, inform them firmly that all furthur contact should go through their attourney to yours, and any direct contact is harrassment.
In a case like this one, where you ARE being contacted by the other side's legal department, then you should GET AN ATTOURNEY LICENSED TO PRACTICE IN YOUR AREA. First thing. Then route all contact through him.
Otherwise, shut up - say nothing to the other side. While it may be a civil matter rather than a criminal matter, remind yourself that "Everything I say will be used against me in court."
Only a PR compaign can save this guy (Score:2, Insightful)
poor bastard fell for it... (Score:2, Insightful)
When a company with as dubious a past as Microsoft attempts to take legal action against you, you should IMMEDIATELY consult with a lawyer before even gracing them with a response. It's similiar to being arrested (not that you can ever prove I have been). "Anything you say and do can be used against you." Or whatever the Canadian equivalent might be.
Re:Yes, that's what I thought (Score:5, Insightful)
And seeing as this Mike Rowe has ownership over his name and plans to study computer science and makes no mentions to MS on his site, the case seems pretty clear to me. It usually takes a lot for WIPO to overturn ownership on a website, and I don't see any clear evidence that Mike Rowe was cybersquating. Come on, phonetic spelling in a written medium? And I'd just like to know how MS found his site in the first place. Do they have a phonetical analyzer?
They don't want the content, just the name (Score:5, Insightful)
They don't want the content, he can take that with him.
It's like parking next to a fire hydrant, they are saying move along, take your car.
And all you flamers who don't read very carefully, note that I make no mention of whether M$ is doing the smart thing, the right thing, the correct thing, or anything.
Re:If you don't want this to happen to you... (Score:5, Insightful)
Wow, there are already 3 or more +5 comments regurgitating this crap from the article. I don't buy this for a minute. Everyone has their price, and it shouldn't be an act of "bad faith" to name it.
Take slashdot for example. I doubt I could buy the domain for $10, but I bet valinux would be perfectly happy to sell it to me for 1 billion dollars. That's the reality of the situation. I fail to see how stating that reality is an act of "bad faith".
The only reason arguments like this work is because the other side doesn't have the resouces to fight them. It has basically nothing to do with the validity of the actual claim.
Re:Just Great (Score:3, Insightful)
Re:If you don't want this to happen to you... (Score:5, Insightful)
Where he screwed up (Score:3, Insightful)
What he *should* have done when they offered to reimburse his out-of-pocket expenses (the $10) is ask for $10,000 to cover his costs not only for the domain, but also for the original marketing research he used to choose an effective domain name, the logo development, marketing expenses related to generating traffic to his website, his legal expenses, etc.
Re:They don't want the content, just the name (Score:3, Insightful)
So no, he can't really keep his content because it revolves around his name. At least as far as I can tell; I haven't been able to see the site in its pre-suit form.
D
Re:I expect M$ to win this (Score:4, Insightful)
Besides, the kid is a minor. As far as I see MS had created an entrapment situation for him by offering to sell the domain name.
He already had some content on his website prior to the incident, so the domain was not standing there under construction, doing absolutely nothing.
Re:MS the scammer (Score:5, Insightful)
You also have to recgonize that Microsoft owns the trademark rights to the name "Microsoft" (or things that sound like it or are spelled like it).
Right or wrong, like it or not -- Microsoft has an obligation to their shareholders (you know -- the quarter million or so people who actually own the company) to protect its trademark from dilution. If MSFT loses, legal/management can say "fuck it, at least we can tell our shareholders that we did our best to protect their best interests".
Their offer to buy mikerowesoft.com out (for peanuts) was just a way to sidestep the trememdous costs associated with a lawsuit. Say after a lenghty lawsuit MS buys this kid's domain for $10,000. Is Mike Rowe really going to walk away happy after a half million in legal fees? That leaves him with a loss of $490,000.
BTW -- how is this about Microsoft promoting their power? By power, do you mean their bottom line? And since when have capitalists ever been driven by promoting capitalism itself? I'm a bit boggled by your logic. Capitalists are greedy and self serving...that's the point of capitalism. The system is designed so that society is able to benefit from the profits generated by the businesses (thus harnessing the power of individual/collective greed). Maybe I'm misunderstanding you...perhaps you should elaborate.
Re:Based on the Nissan.com Case ..... (Score:3, Insightful)
it seems pretty obvious... (Score:2, Insightful)
it seems pretty obvious that, since he was actually doing something with the site, was actually using it, that his intent was not merely to turn around and sell the name, he was not just "squatting." every domain squatter i've ever seen buys domain names en masse and puts up a generic page saying, "this domain is for sale;" that's clearly not the case here.
he agrees that he thought the phonetic similarity to "Microsoft," a bit of wordplay, was amusing, but that's a separate issue.
his site didn't look like a Microsoft page, didn't offer the same services or products as a Microsoft page, in short, had nothing in common with Microsoft's website. there's no way that anybody with enough intelligence to recognize that the little plastic mouse moves the cursor on the screen could possibly confuse the two.
summary: he was not squatting, did not act in "bad faith," and is no threat to Microsoft in any way.
shame on you, Microsoft.
Re:Just Great (Score:4, Insightful)
Re:Let's just hope... (Score:1, Insightful)
The way I understand copyright law is that they can't sue for a breach, since he's not using their name, he's using MikeRoweSoft.
They may be able to say that he is deliberately trying to cash in on the similarity of the name, but if his name really is Mike Rowe, then he has every rigth to name his company Mike Rowe Software (some similar) and use the domain MikeRoweSoft.com
Re:I expect M$ to win this (Score:5, Insightful)
Re:I expect M$ to win this (Score:5, Insightful)
There's a pretty substantial body of case law covering people whose names happen to conflict with trademarks that have been established by major corporations. Any individual case still comes down to the particulars of the situation, the quality of the legal representation, the biases of the judge/jury, and the phase of the moon, but there are still some patterns.
A guy named McDonald who wants to use his name on a restaurant would probably be out of luck, but if he were opening an electronics store, he'd be OK (and could probably even defend his ownership of mcdonalds.com... if he'd registered it before Kroc's outfit did).
Mike Rowe is probably going to lose this. Not because his registration was "in bad faith" (he pretty clearly intended to use the domain for himself, and only asked for $10K after Microsoft made him a lesser offer), but because of the underlying trademark conflict; the domain registration is only the tip of the iceberg. He's trying to use the name MikeRoweSoft in one of the same categories of business that Microsoft is using their name. His best defence is that no one would seriously confuse the two companies. The fact that it's his name might score him a point with a sympathetic judge. But unlike copyright law, trademark law doesn't recognise parody or irony, and I think the phonetic similarity of the two will prevail. And if he loses once, there's no way he'll be able to afford an appeal.
Re:Just Great (Score:3, Insightful)
The problem is with companies claiming ownership to everything under the sun even remotely related to their trademarks.
If the domain with micrasoft or something similar I'd say it's a scam. I highly doubt anybody would misstype microsoft as mikerowesoft and end up at the wrong site.
It *IS* copyright! (in Canada) (Score:3, Insightful)
is being sued under, and here's why. Under
Canadian trademark law, a person is allowed to
use his or her own name. Smart & Biggar
are, I am sure, aware of this. That is probably
why they are trying to sue for copyright infringement.
The fact that they are making such a stretch
just shows how weak they feel their case would be
in an action for trademark infringement. So
it could be Mike Rowe stands a good chance after all.
Re:Just Great (Score:3, Insightful)
Clearly the cargo company is playing off of Wells Fargo's reputation for secure transport. I suspect that the only reason they didn't get sued into the ground over violating the financial institution's trademark is that the founder's name is Maynard W. Wells.
I think using your own name in the mark offers you a fairly high degree of protection, for all the common sense reasons posters here are so quick to point out. So from a trademark dispute standpoint he might have a defensible case, although there's a big question mark regarding his ability to finance such a defense against Microsoft's horde of lawyers.
In any case he's almost certainly going to lose his domain name. ICANN has a long and unblemished history of spinelessly caving in to the demands of large corporations.
Re:Yet we all ignore whitehouse.com... (Score:3, Insightful)
You're forgetting something really important here. First of all, the name White House is not trademarked by be the federal government. If you don't believe me -- check!
Secondly, the federal government is not a commercial entity (although it's probably the largest employer in the country and has insanely high revenues). The federal government has no responsibility to its shareholders and it has no trademarks to protect.
Finally, the fact that Mike Rowe is setting up a web design firm to sell consulting services (in an industry directly related to that which Microsoft does business in) rather than a porn site is the crux of the issue. They feel that he's diluting their trademark. What if I sold a soda called Caouk-ah-Coula? Still sounds just like Coke-a-cola, and a vendor at the ball game yells the same thing out loud, regardless of which product he's selling.
Like I said in my earlier post. I don't necessarily agree with what MSFT is doing, but I can certainly understand.
Re:Just Great (Score:4, Insightful)
Allow me to edit #2 for ya there:
2.) put another few letters on the end, thus ensuring that the name sounds like a trademark, then put dot com after it.
Microsoft customers bring class action law suit... (Score:3, Insightful)
So microsoft is implying that their customers are so stupid as to confuse microsoft.com with MikeRowesoft.com? I sheepishly admit that i'm a microsoft customer and seeing that i've admitted it here, my browser admits it at every page and my undisclosed e-mail program admits the fact - microsoft has implied that I, like millions of other microsoft customers are morons.
With these facts brought to light I hereby bring forward a class action lawsuit against microsoft for slander and defamation of charachter.
Seriously, how can i e-mail my resume to a potential employer without their reading my mail header and instantly assuming stupidity due to the use of microsoft products? how many times will my resume, created by an undisclosed microsoft product, be passed over when a potential employer reads the html source code and notices that i'm a microsoft idiot?
I'm appalled offended and I won't stand for this horseshit.
Re:MS the scammer (Score:3, Insightful)
Now, I'm sure that's not what really happened, but I think it would have been better if Rowe had not made an explicit offer. It could potentially be used against him later. Far better to simply do nothing, I think (except of course to call a lawyer, although I know that's somewhat difficult for a 17-year-old to afford).
What we continue to forget about trademarks... (Score:3, Insightful)
- Do the two companies sell similar goods/services and are the names used for those similar goods/services?
- Are the names similar?
- Are the goods/services marketed in the same or similar channels of trade?
- Was there an intentional infringement of the trademark (i.e. to benefit from the credibility or visibility of the established trademark)?
In addition, some other criteria might include:- Is there proof of customers being confused by the names?
- How widely known the names are (federal trademark protection is typically extended to those who engage in interstate commerce).
- Would a reasonable person confuse the two companies?
Where things become dicey for Mike Rowe is if the following is true (from the article):"He registered the domain in August because he thought it would be cool to have a site that sounded like the famous company to show his Web designing skills."
This intention would likely violate the tenet of trying to benefit from the established name's reputation, economic value, marketing, etc (and regardless of your feelings about Microsoft, there's no disputing that the name Microsoft is well recognized with considerable economic value and economic goodwill). If Mike Rowe just had a software company called "Mike Rowe Software", he'd likely be ok (since usually, it's very hard for a company to strip one of their legal name) since most people know how Microsoft is spelled (a consequence of the widely known name)...and new customers would likely be quickly debunked of any confusion...not to mention I think there are any number of spellings tha people would try before getting to MikeRowe. Maybe MikeRow, MikeRoe, MicRow, etc...but Rowe is not really a common spelling of a common word...but more often a last name.
The counter offer is not unreasonable (names are sold all the time if there's no infringing trademark but similar sounding names - yes, that's very possible and happens all the time).
His minor status might give him some leverage PR wise - but it might also invalidate his registration depending on Candian contract laws (since the registration of a domain name is a contract and typically, contracts entered into with minors without a parental/guardian signature are usually unenforceable). On a PR basis, Microsoft can probably absorb this (especially since he's a 17 year old with a business...typically shows sophistication that most people will use to overlook the PR issue).
Anyways, some thoughts...I hope he get's to keep it if he wants it - and if not, at least get reimbursed for the cost of registering a new domain name and alerting all his customers (and perhaps fixing all his marketing). Contrary to popular opinion, reimbursement for the hosting, time to create the website, etc are not likely reimbursable (the only infringement is the name - and there's not evidence the site's design is tied into the name).
Mike's age (Score:2, Insightful)
Fifth kind (Score:1, Insightful)
You don't own the copyright to your face, but you can argue that including you in a game without your permission falsely implies you are endorsing it.
Re:1st rule: SHUT UP AND GET A LAYWER (Score:4, Insightful)
Re:Let's just hope... (Score:2, Insightful)
Off the top of my head, I would have thought Microsoft could say:
1) This is trademark infringement - the name is confusingly similar.
2) They could say the domain registration was made in bad faith (Mike Rowe is aware of the Microsoft name and has registered a domain which he knows is similar to theirs).
3) They could accuse him of passing off (trading off their reputation - not sure if any product is sold at the MikeRoweSoft site).
4) If he provides any services based on microsoft products, he could be accused of reverse passing off (passing Microsoft's products off as his own, hence enhancing his own reputation).
5) They could accuse him of damaging their reputation (although I'm guessing their customers are unlikely to mistake his site for theirs).
There are probably a dozen other things, but you get the idea.
BTW, you're assertion that Mike Rowe can setup a company because it is his name isn't true. How far do you think i'd get setting up a company using my name which had anything to do with motor cars? They'd be lawyers parachuting out of the sky...
Re:MS the scammer (Score:3, Insightful)
Have you read 1984? If youlet them redefine your language you let them control the agenda. The current US government is definitely capitalist, but definitely not pro free market (consider the trade barriers they throw up when asked by their backers, and consider all the extra subsidy Shrub put into agriculture).
classical liberalism is now often called libertarianism in the US.
No, liberatarians are anti-government in a way that liberals aren't. One of the defining causes of liberalism at its height was universal sufferage (the other two legs in the UK were repeal of the corn laws, and home rule for Ireland, I don't know enough US political history to point up parallels).