Legal Question in Intellectual Property in New York

Re: Trademark infringement? Proactiv Solution vs. Propassiv Solution

Your registrar can very easily say you violated Section 10 of your registrar's Registration Agreement, which is found by going to the legal link at the bottom of their homepage and it is the first agreement, under "Domains and Hosting," of numerous agreements on the page. However, your registrar does not have to terminate your domain for many reasons, including the fact that your site is not illegal and registrars enjoy immunity from civil liability as long as they do not themselves own the domain name at issue. You or an attorney should write a letter to your registrar explaining the situation and showing them that you are aware of the law and know that you are not violating any laws. Guthy-Renker is simply trying to limit your First Amendment right to free speech and they probably know it. I see and prepare these types of letters very often representing my clients. There are also other inexpensive avenues you can pursue to keep your site up and make sure Guthy-Renker knows they won't be able to intimidate you into silence.

Re: Trademark infringement? Proactiv Solution vs. Propassiv Solution

While I would need more information to see if your personal injury claim could be sustained (and it's quite possible that it could be) - it is absolutely certain that you have a right to comment publicly, whether on a website or in some other forum, on your experiences with the product, and in doing so, you may use its name, whether or not that name is trademarked.

However, the right to use the name and/or images of the product are not unlimited. One would have to carefully review your use(s) of the trademark on your website to see if each falls within a permitted use.

After such a review, a response should be generated to the Guthy-Renker lawyers, who presumably sent a letter known as a cease and desist letter or a DMCA violation letter to your domain registrar.

Re: Trademark infringement? Proactiv Solution vs. Propassiv Solution

I visited yur website and it very well may seem that yu would have a good defense against any trademark infringement claims... Also,if your injury has caused permanent scarring you may have a good personal injury claim as well.

My office handles both Intellectual property and personal injury matters.

You can visit our website at www.cgonzalzlawfirm.com or email us directly at the email address provided below r you may contact us directly by calling 2127098303

Re: Trademark infringement? Proactiv Solution vs. Propassiv Solution

I'm very sorry for your experience with Proactiv and hope our profession can assist you. Your facts are a bit thin but here's my take having reviewed your website:

1. Your experience and opinions are, the last time I looked, protected by the First Amendment.

2. It's unlikely you would be liable for product disparagement if what you express are facts and opinion.

3. The terms of service of the ISP would determine whether they would be justified in removing your site as against the threat of a lawsuit but I don't believe Proactiv would have a legitimate claim or that an ISP could act adversely to your interests in the face of such a frivolous claim. What Proactiv appears to be doing is intimidate the ISP and/or you into removing your site.

4. If Proactiv is barking up the DMCA tree they have the wrong species. DMCA does not apply to trademark except in a wide end run, through a distant back door under extremely narrow conditions that are too lengthy to expain here and do not apply in your case.

5. You are not violating any trademark laws of which I'm aware but then I'm not an expert in Tanna Tuvan trademark law (i.e., you shouldn't worry about anyone's legitimate trademark laws).

6. You may very well have a personal injury claim. You might want to post your question in the Personal Injury Q & A on this board and I'm sure you'd get prompt responses. Be aware that Proactiv would defend by stating it was your own condition that created the lesions. You also might want to check and see what kind of warning was included in the product as this will invariably be used by the company to defend themselves should you sue. Before you contact an attorney, you should write a detailed chronology including names, if you have them, dates, nature of communication, etc., doctors' appintments, treatments, expenses, etc. Good luck.