Legal Question in Intellectual Property in Colorado
A friend has published a blog decrying the bad practices toward consumers and employees of a business. This business is trying to get rid of the bad publicity, and has resorted to bullying and threatening to abuse the legal system against her. One of their accusations is that her use of their business name (really, half of it) is "infringing on their common law trademark." (While they have done business under this name, they may or may not even qualify for a common law mark, but that is not the issue here.)
She is not pretending to be this company or affiliated with this company (quite the opposite, actually), nor is she competing with this company; she is warning consumers and potential employees about this company. She is also not making any kind of money doing it (she is not using any part of a mark they may or may not have "in commerce") - she is doing this as a public service. As I understand trademark law (particularly the Lanham Act - are there state statutes to worry about?), she does not seem to be "infringing" on any mark they may or may not have. It seems more like free speech to me. Does she need to worry about this bullying?
2 Answers from Attorneys
If your friend is writing defamatory statements, true or not, paid or not, about a business, then one of the business's causes of action may indeed be trademark infringement. A common-law mark is an unregistered mark in either the federal (under the Lanham Act) or the state system (yes, there are state statutes to consider).
I suspect from your posts (yes, I recognize that you recently posted another question to which I responded) that your friend has received a cease-and-desist letter from the company's attorneys. If this is the case, this is the first step toward litigation; your friend needs to retain an attorney of her own, and all of her friends need to back off; this is a matter that needs to be handled by your friend and her lawyer, not by your friend and her friends. Show her sympathy and support, but let your friend's lawyer give the legal advice; that's what the lawyer is trained to do.
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It sounds as though you have done your homework on the Lanham Act. While only your friend's attorney can, after actually seeing both the letter and the blog post complained of, give proper legal advice, it is not unusual for companies to abuse the process, overstate their claims, and even just use the tactic of getting a lawyer to write a threatening letter in hopes that your friend will cave even thought they don't have a good case. Sadly, they also calculate that the target will weigh the cost of paying for an attorney against the cheaper cost of just folding. Of course, I can't say whether the complainant's case is unfounded or not, but your friend need not assume that she is in the wrong just because a lawyer wrote a letter saying so.
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