I often find myself writing about lawyers getting in the way. This case is a great example of just that!
According to an article on CBS Sacramento, “[t]here is a David and Goliath battle going on in Nevada County where two entrepreneurial teens are under attack from a nationally known department store.” Indeed there is. The question is . . . should there be. I’ll go out on a limb here and say the answer is both yes and no.
You see, last summer 13 year old twins James and Andrew Schnitzius started a lawn care business to earn the money they need to buy the iPod touch’s they want. So far, so good. An uncle helped them come up with the name Weed Whackers R US, for which he made the website shown above, presently found at <weed-whackers-r-us.com (though with a note stating that the site will be taken down on 01/27/2012). See where this is going?
I see two things wrong with this picture: 1. Use of WEED WHACKERS as a service mark for a lawn care business when Sears owns a federally registered, well known trademark for WEEDWACKER for weed and grass trimmers (machines, not people); and 2. Use of “R Us” when there is a highly litigious giraffe out there who won’t knowingly let anyone use “R US” for anything. I think Sears has a point, while I’m not so sure that Geoffrey, Inc. would, which doesn’t matter since only Sears sent a C&D letter to the domain name registrant (a gentleman named Brandon Bagley from Gilbert, Arizona, whom I presume to be the boy’s uncle). That said, how the point is made is just as important as whether there’s a point to be made in the first place.
Sears’ C&D letter states in not-so-friendly terms:[framed_box]
Your unauthorized use of Sears’ WEEDWACKER mark in association with the Infringing Domain and Infringing Website constitutes a violation of Sears’ rights under the Federal Lanham Act (Trademark Act), 15 U.S.C. §1051 et. seq. , the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. §1125(d), and applicable state laws prohibiting trademark infringement and unfair competition, and potentially subjects you to a variety of remedies of damages and/or profits resulting from the unauthorized trademark use, and an award of statutory damages and attorney’s fees due to your willful acts of infringement and cybersquatting.[/framed_box]
As if that incredibly long sentence wasn’t threatening enough, the letter continues . . .[framed_box]
Under 15 U.S.C. §1117(d), Sears is entitled to recover up to $100,000 in statutory damages per violation plus attorney’s fees as a result of your registration and use of the Infringing Domain.[/framed_box]
Yikes! That’s the best Sears could do with this set of facts?!? While Sears certainly has the right to prevent trademark infringement and cybersquatting, including these kids and their uncle running a lawn care business using the WEEDWACKER or WEED WHACKERS mark, I wonder if a heavy handed C&D letter was the best way to ask them to stop.
How you say something is just as important as what you say. Was a formal C&D letter the right way to commence negotiations with two teenage boys supplementing their allowance? What do you think?