Best Buy Hands Out Cease & Desist Letters for Christmas 332
arrenlex writes "Improv Everywhere, a NY-based comedy group, was served a Cease & Desist notice by Best Buy for selling 'improv everywhere' shirts modeled after the blue Best Buy uniform. But that's not the interesting part. From the blog post: 'Here's where the story gets interesting. Today, Best Buy sent a C&D to our friend Scott Beale over at laughingsquid.com threatening legal action unless he removes the blog post referencing our shirts! They're threatening to sue someone for just covering the news story of the shirts!'"
Re:Fuck Them (Score:5, Informative)
Re:BestBuySux (Score:5, Informative)
http://web.archive.org/web/20070410022442/www.bestbuysux.org [archive.org]
well for old entries anyway.
Re:Fuck Them (Score:5, Informative)
You host can censor you. While possibly unfair, that is not a breach of the first amendment.
Someone can pay you to remove content. Assuming you consent to the "bribe" that is not a breach of the first amendment.
Someone can *not* sue you for speech, as that uses the courts(a branch of the government) to silence you, and that is prohibited by the first amendment.
-nB
Could This Be a Prank? (Score:2, Informative)
Not saying this is a gag, but it is hard to trust pranksters. Also, this is assuming the news site is in on the gag.
My money is on Best Buy having no sense of humor and this is real.
Best Buy apologies for sending C & D letter (Score:5, Informative)
Best Buy has already apologized... (Score:5, Informative)
http://laughingsquid.com/best-buy-apologies-for-sending-cease-desist-letter/ [laughingsquid.com]
Update (Score:2, Informative)
Best Buy apologizes to laughingsquid.com (Score:5, Informative)
They are still militant against the blue shirts, though. (rolls eyes)
Re:Classic Lawyer Spew (Score:2, Informative)
Re:What is Best Buy thinking? (Score:3, Informative)
What they have to lose is their trademark on the "price tag" logo they've been using for years. If a trademark isn't defended, it can become diluted and unenforceable, like "Aspirin." It's the same as Adobe wanting you to say "modified with Adobe Photoshop software" instead of "photoshopped." It's silly, not unlike most of the legal system.
Now, what they have to lose if someone covers the story on their blog is a different question, so we now return you to the main point of this story.
DMCA (Score:5, Informative)
#####
Subject: Digital Millennium Copyright Act
Dear Sir or Madam:
I represent [OUR ISP]. Attached to this e-mail, or set out below, is a notice [OUR ISP] received alleging that material on your website infringes a copyright. This notice was sent to [OUR ISP] under the Digital Millennium Copyright Act (DMCA). A good summary of the DMCA can be found here: http://en.wikipedia.org/wiki/DMCA#DMCA_Title_II:_Online_Copyright_Infringement_Liability_Limitation_Act
The DMCA has three steps. The notice [OUR ISP] received is the first step.
This notice triggers automatic removal or take down provisions under the DMCA. What this means is that the material identified in the DMCA notice must be removed by you, or taken down by [OUR ISP]. This must be done before you can dispute the claims set out in the notice. [OUR ISP] understands that this "guilty until proven innocent" aspect of the DMCA can be unfair, but its required by law.
If you believe the DMCA notice contains errors, you should immediately contact the person who sent the notice. Please let me know by e-mail if they agree to withdraw the notice. I will then contact them to verify the withdrawal.
After you remove the material, you may present [OUR ISP] with a "counter notice." This is the second step.
The elements of the counter notice are identified below, and in more detail in the wikipedia entry. Please make sure you fully understand the DMCA before presenting [OUR ISP] with a DMCA counter notice. It may be helpful for you to consult with your attorney. Unfortunately [OUR ISP] can not provide you with legal advice on this matter.
It is important that you take action immediately. Please let me know, within 5 days of the date of this e-mail that you have taken down the material. If I do not hear from you within this period of time, the DMCA requires [OUR ISP] to take down the material.
On behalf of the staff at [OUR ISP] I thank you for your prompt attention to this matter.
Sincerely,
[THEIR LAWYER]
Re:BestBuySux (Score:5, Informative)
A nice template for such a notice can be found at http://www.cs.cmu.edu/~dst/Terrorism/form-letter.html [cmu.edu].
Correction (Score:1, Informative)
They apologized. (Score:5, Informative)
Best Buy sent LS.com a letter by both email and next day delivery apologizing for sending the C&D to a news source.
I am impressed.
Check out http://www.laughingsquid.com/ [laughingsquid.com] front page for details.
What was "infringing"? (Score:1, Informative)
IANAL. You should talk to one. If you really haven't infringed upon any of their copyrights, it may be appropriate to file a counter-notice and go after them. This is especially true given that I thought they were after you for *trademarks* and the DMCA doesn't allow Takedown notices for trademark infringement SFAIK. But that's why you get a LAWYER, mind you, because "so far as I know" doesn't cut it in court.
Frankly, I'm betting they're just hoping you don't know and wanting to take down your page. Of course, Wordpress dies the minute two or more people try to use the site at once, so Slashdotting it was far more effective than any takedown or C&D letters.
But talk to someone who is a lawyer and does know. Because I suspect their lawyers are being lazy assholes and hoping you fold without a fight. They may have a case on the trademark bit, though. I don't know. Be sure to mention ALL the facts to the lawyer, because it may be easier to settle even on the parts where they might be wrong just to avoid the parts where they might have a case.
Which is why you listen to their advice, not mine, except for the "get a lawyer" bit
Re:Fuck Them (Score:5, Informative)
> of the government) to silence you, and that is prohibited by the first amendment.
This is incorrect. Someone *can* sue you for speech, or try to at any rate. Whether they'll get anywhere depends on various stuff. For instance, if they can make a coherent argument that your speech might be considered libelous, they'll probably be able to successfully drag you through the courts, and if they can make a _convincing_ argument that your speech _is_ libelous, they can potentially win the case. Libel is not the only kind of speech that they can successfully sue you for, either. Copyright and trademark violations are another example. Fraud is another (and one you can even be prosecuted for criminally, though generally you only will be if you cost the victims something tangible).
When the first amendment says "speech" and "press", it is, in context, clearly talking chiefly about political expression, not absolutely anything that anyone could ever say or write.
C&D to Blog retracted before story hit /. (Score:4, Informative)
Re:Trademark - only applies to similar companies (Score:1, Informative)
1. Consumers assume BB has gone into the produce business, resulting in consumer confusion when they try to return rotting fruit to their local electronics retailer.
2. Consumers aren't confused, but the grocery store has such terrible quality that it "tarnishes" the association such that whenever you see a Best Buy store, you keep walking because those uniforms reminds you too much of the rotting fruit you got stuck with the other day. (Example we got in class was a strip joint called Tiffany. Guy who goes there may have an association whenever he passes Tiffany Jewelery such that his guilty conscience keeps him from buying gifts for his wife b/c it's hard to shop for her w/ a mind full of strippers.)
3. The grocery store has an aisle where they sell headphones and telephone cords and the consumer starts to think, "anywhere I see a blue uniform I know I can buy electronics accessories," and the meaning becomes generic. Think Thermos or Aspirin.
3a. Grocery store may be banking on BB's "good will," banking on the idea that every time the customer sees the uniform they will expect the same service and quality they've come to identify with BB. With BB that sounds goofy, but think about all of the awful white plastic audio accessories called iWhatever. If customers start to think iWhatever is crappy and therefore don't buy the next Apple iGadget, there's a loss there.
Case example for 2 & 3 is MOSLEY, where Victoria's Secret sought to enjoin a porno store called "Victor's Secret" (and then "Victor's Little Secret") which sold mostly adult wares including lingerie. Failed on 3) b/c there was no indication anyone had- or would- get them confused. Court sent it back on the second point to see if there was any evidence to support the argument.
Back to studying for IP final on Friday...
Re:Fuck Them (Score:5, Informative)
It isn't like BB sent it in error though, here is a quote from Laughingsquid's original C&D post:
"One thing I wanted to mention is that before posting this C & D letter, I called the Best Buy attorney who sent it to confirm that they really meant to send it to a blogger who was just reporting on another blog post. They insisted that I was "promoting, not reporting" and that the demand letter was valid."
Devil Store (Score:2, Informative)