The Web can be a treacherous place. There are the quack
health sites, the hate sites, and the porn sites, if you
don't watch where you're going. There are those who want
to hack into your computer and use it to launch attacks
against others, if you don't protect yourself.
And there's the threat of legal problems in putting
up your own Web site, if you're not careful.
I recently experienced the reality of our legal system
after I put up a small educational site about coin collecting,
a hobby of mine. I named the site "Electronic Coin Collector's
Survival Guide," and soon afterward I received a three-page
letter sent via Federal Express demanding that I change
the site's name.
The letter came from a lawyer representing the author
of the book The Coin Collector's Survival Manual.
It seemed that my name was too close to his and a potential
trademark infringement. I quickly changed the name of
my site to "Electronic Coin Collector's Guide," writing
back to the lawyer that a two-sentence e-mail message
would have achieved the same result.
I'm far from alone in receiving cease-and-desist "nastygrams"
such as this. Disney, for instance, is famous for aggressively
protecting its trademarks and copyrights, both online
In one widely publicized case, Disney ordered three
daycare centers in Florida to remove images of Mickey
Mouse and other Disney characters displayed on their
walls or pay licensing fees for them. (A trademark is
typically a word or design that helps a company sell
the product it's associated with, while a copyright
is the legal right to control how writing, artwork,
songs, movies, and so on can be used.)
In fairness, the courts have ruled over the years that
businesses have to vigorously defend their trademarks
or risk losing them to the public domain, which would
prevent them from profiting from the trademarks.
One way they do this is through the cease-and-desist
letter or e-mail message, or nastygram. "A nastygram
is typically just a signal that the trademark holder
wants you to stop using his trademark," says Stuart
Mayer, a partner at Mayer Fortkort & Williams, an intellectual
property law firm with offices in New Jersey, Virginia,
and Texas [http://www.mfwlaw.com].
With trademarks, the key test is whether there could
be any confusion in the mind of a reasonable person
that your name is endorsed or supported by the owner
of a trademarked name, says Mayer. Also important, he
says, is if you've caused the trademark owner lost profits
or if you've earned profits yourself as a result.
It can be difficult deciding how close your name can
be to a trademarked name before you run the risk of
trademark infringement. The more recognizable the trademark,
the more latitude the courts will give the trademark
owner, says Mayer.
National brands receive the most protection. "With
McDonald's, you can have a problem with almost anything
you put 'Mc' in front of, it if it looks like you're
trying to trade on the McDonald's name, trying to take
advantage of it," says Mayer. McDonald's was able to
stop a hotel, for instance, from using the name McBed's,
which implies quick and inexpensive.
But some companies go overboard with trademark, copyright,
defamation, and related intellectual property and free
speech issues, flinging out nastygrams indiscriminately,
which can have a chilling effect on communication. In
response, last year the Electronic Frontier Foundation,
working with legal clinics at Harvard University, Stanford
University, the University of California at Berkeley,
and the University of San Francisco, put up a Web site
called Chilling Effects [http://www.chillingeffects.org].
"The site is intended to serve as a tool for Internet
users to understand their legal rights in the face of
potentially intimidating and confusing cease-and-desist
letters," says spokesperson Donna Wentworth.
Along with providing information about online trademark
and copyright issues, the site offers advice about a
host of related legal topics that affect Internet users,
including e-commerce patents, "John Doe" anonymity,
defamation, piracy, fan fiction, and protest, parody
and criticism sites.
The site also invites Internet users to submit any
nastygrams they may have received. Students at the participating
law school clinics review and annotate them with links
to explain the applicable legal rules.
"The Internet makes it easier for individuals to speak
to a wide audience, but it also makes it easier for
other people and corporations to silence that speech,"
says Wendy Seltzer, who conceived the project. "Chilling
Effects aims to level the field by helping online speakers
to understand their rights in the face of legal threats.
is a syndicated columnist and author of the book Straight
Talk About the Information Superhighway. He can be
reached at email@example.com