Mike Sobczyk writes: "... to remove competition on the internet (Google AdWords). They are sending out frivolous cease and desist orders to those who try to advertise in their market(s) to scare competition away. Shirtaday.com is a newly founded local Austin company that has started advertising through Google's AdWords to gain awareness for its site (www.shirtaday.com). ShirtaDay.com sells custom t-shirts, with a different design everyday. They have employed an innovative pricing twist in that the more shirts that are sold, the more that everyone saves. A refund is issued at the end of the day to all those who have purchased a shirt. As more shirts are purchased, the refund amount grows, and the price in the end to the customer decreases. Additionally, shirtaday.com welcomes individuals to submit their designs for use on t-shirts. If an individual's design is chosen, they receive 1/3 of the profits from that day's sales. Lastly, shirtaday.com is also setup for easy and effective fundraisers for organizations of all types. As part of ShirtaDay.com's advertising campaign they have chosen the keywords "cafepress", "cafe press", and "cafepress.com" as target words. When a user types in these words, amopng many others, ShirtaDay.com's ad will be displayed (assuming their bid amount is sufficient, budget is adequate, etc.) ShirtaDay.com's ads make no reference to being cafepress.com, affiliated with cafepress.com, or even similar to cafepress.com. Cafepress.com is not mentioned anywhere on the site or within the ads. Such advertising is perfectly legal and acceptable. Companies are allowed to target any such keywords they choose, as long as they are not infringing on trademarks by representing to be another company. ShirtaDay.com's website is not similar to cafepress.com, the concept is not the same, the layout is not resembling to cafepress.com, and it makes no attempt to be like cafepress.com. For example, search for Microsoft, or Oracle. Many ads pop up which are not in fact Microsoft, or Microsoft authorized. There are many such instances. If Microsoft could sue these companies they most likely would, but there are no grounds for such suits, as they are not breaking any laws. Cafepress.com's cease and desist, which was sent to us, was merely a scare tactic. There is also legal precedent to support this in the following two cases: J.G. Wentworth S.S.C. Ltd. v. Settlement Funding LLC d/b/a Peachtree Settlement Funding, United States District Court for the Eastern District of Pennsylvania, No. 06-0597, January 4, 2007. Wells Fargo & Co. v. WhenU.com, Inc., 293 F. Supp. 2d 734, 757 (E.D. Mich. 2003). In both cases the court dismissed the suits, pointing out, among other things, that: "At no point are potential consumers `taken by a search engine' to defendant's website due to defendant's use of plaintiff's marks in meta tags. Rather, as in the present case, a link to defendant's website appears on the search results page as one of many choices for the potential consumer to investigate. As stated above, the links to defendant's website always appear as independent and distinct links on the search result pages regardless of whether they are generated through Google's AdWords program or search of the keyword meta tags of defendant's website. Further, plaintiff does not allege that defendant's advertisements and links incorporate plaintiff's marks in any way discernible to Internet users and potential customers." and furthermore: "Due to the separate and distinct nature of the links created on any of the search results pages in question, potential consumers have no opportunity to confuse defendant's services, goods, advertisements, links or websites for those of plaintiff." The court added that: "Likelihood of confusion exists where `consumers viewing the mark would probably assume that the product or service it represents is associated with the course of a different product or service identified by a similar mark." This is not the case with ShirtaDay.com as we use no simliar marks in our ads. In conclusion, in the case referenced, the court "granted defendant's motion to dismiss since defendant carried the burden of establishing that "no reasonable factfinder could find a likelihood of confusion on any set of facts that plaintiff could prove." The Court reasoned that even if "defendant did in fact use plaintiff's marks through Google's AdWords program or in the keyword meta tags for its website-as a matter of law defendant's actions do not result in any actionable likelihood of confusion under the Lanham Act." http://www.lawpublish.com/sample/ACS611A6.PDF Please help us raise awareness of this issue and of the tactics of the larger online websites. Their actions are almost monopolistic and violate freedoms of speech. If this has happened to us, we can only assume it has happened to many others. Thank You, Mike Sobczyk, ShirtaDay.com Founder This is also in our blog, at http://shirtaday.com/wordpress/?p=18"
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