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Author Topic: prosperreport.com received a letter from prosper's lawyer, re:cybersquatting  (Read 134053 times)

PLP

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http://www.chillingeffects.org/domain/notice.cgi?NoticeID=16017#QID51

According to the Fourth Circuit Court of Appeals, "the Federal Trademark Dilution Act of 1995 ("FTDA") and the Anticybersquatting Consumer Protection Act of 1999 ("ACPA"), Congress left little doubt that it did not intend for trademark laws to impinge the First Amendment rights of critics and commentators. The dilution statute applies to only a 'commercial use in commerce of a mark,' 15 U.S.C. § 1125(c)(1), and explicitly states that the '[n]oncommercial use of a mark' is not actionable. Id. § 1125(c)(4)....Congress directed that in determining whether an individual has engaged in cybersquatting, the courts may consider whether the person’s use of the mark is a 'bona fide noncommercial or fair use.' 15 U.S.C. § 1125(d)(1)(B)(i)(IV)" One should be careful in this area, however.

There you go! I should have read just a little further down that page. I would post that right at the bottom of prosperreport.com if that was my page. 

Epictetus

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http://www.chillingeffects.org/domain/notice.cgi?NoticeID=16017#QID51

According to the Fourth Circuit Court of Appeals, "the Federal Trademark Dilution Act of 1995 ("FTDA") and the Anticybersquatting Consumer Protection Act of 1999 ("ACPA"), Congress left little doubt that it did not intend for trademark laws to impinge the First Amendment rights of critics and commentators. The dilution statute applies to only a 'commercial use in commerce of a mark,' 15 U.S.C. § 1125(c)(1), and explicitly states that the '[n]oncommercial use of a mark' is not actionable. Id. § 1125(c)(4)....Congress directed that in determining whether an individual has engaged in cybersquatting, the courts may consider whether the person’s use of the mark is a 'bona fide noncommercial or fair use.' 15 U.S.C. § 1125(d)(1)(B)(i)(IV)" One should be careful in this area, however.

There you go! I should have read just a little further down that page. I would post that right at the bottom of prosperreport.com if that was my page. 

Understand further that neither prosperreport nor any of the other sites - such as this one - are even using that mark in their names.

Prosper, as a word qua word, cannot be trademarked or copyrighted.

No more than blue, or house, or thrive could.



 
« Last Edit: December 20, 2007, 08:08:41 am by Epictetus »
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PLP

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Understand further that neither prosperreport nor any of the other sites - such as this one - are even using that mark in their names.

Prosper, as a word qua word, cannot be trademarked or copyrighted.

No more than blue, or house, or thrive could.

Here is the part of the FAQ on Chilling Effects that mentions that: http://www.chillingeffects.org/domain/faq.cgi#QID244

The EFF might even be willing to help draft a response or refer a lawyer who would do it cheaply. 

112233

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just to let you know, I have retained representation in this matter and things are rolling.
« Last Edit: December 20, 2007, 09:29:18 am by 112233 »
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leporello

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Let us know how we can help further. I will be delighted to contribute a snickers or two to the 112233 defense fund.
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NewHorizon

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just to let know, I have retained representation in this matter and things are rolling.
Donations from a few of us to whichever groups are helping you (EFF who whoever) might be in order...

And if you yourself want to set up a defense fund...
(Tho' it'd be a pity for people to divert their monies from the Red Gorilla fund.  ;D  )
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leporello

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just to let know, I have retained representation in this matter and things are rolling.
Donations from a few of us to whichever groups are helping you (EFF who whoever) might be in order...

And if you yourself want to set up a defense fund...
(Tho' it'd be a pity for people to divert their monies from the Red Gorilla fund.  ;D  )
If there were a choice, I'd much rather support this effort than the Red Gorilla fund. But I will support both.
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112233

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thanks for the offers. I'll let you know. hopefully, sensible minds will prevail and this thing will behind  me with minimal cost.
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xraider

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I certainly hope so, 112233. 

I wouldn't have dreamed of contributing to the red gorilla effort before this latest round of crap from Prosper.
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SGriff

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I'd suggest a countersuit for abuse of process. They know damned well you're not profiting from that venture, nor are you using their trademarks. Hence, any lawsuit from their direction is frivolous and designed to be harassing.
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ira01

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http://www.chillingeffects.org/domain/notice.cgi?NoticeID=16017#QID51

According to the Fourth Circuit Court of Appeals, "the Federal Trademark Dilution Act of 1995 ("FTDA") and the Anticybersquatting Consumer Protection Act of 1999 ("ACPA"), Congress left little doubt that it did not intend for trademark laws to impinge the First Amendment rights of critics and commentators. The dilution statute applies to only a 'commercial use in commerce of a mark,' 15 U.S.C. § 1125(c)(1), and explicitly states that the '[n]oncommercial use of a mark' is not actionable. Id. § 1125(c)(4)....Congress directed that in determining whether an individual has engaged in cybersquatting, the courts may consider whether the person’s use of the mark is a 'bona fide noncommercial or fair use.' 15 U.S.C. § 1125(d)(1)(B)(i)(IV)" One should be careful in this area, however.

There you go! I should have read just a little further down that page. I would post that right at the bottom of prosperreport.com if that was my page. 

Understand further that neither prosperreport nor any of the other sites - such as this one - are even using that mark in their names.

Prosper, as a word qua word, cannot be trademarked or copyrighted.

No more than blue, or house, or thrive could.

I wouldn't go that far.  After all, unless Prosper or its lawyers photoshopped the registration certificate attached to their letter (which I strongly doubt), Prosper has indeed successfully registered "Prosper" as its service mark (Incidentally, I just noticed that this wasn't until August 2007 -- I wonder when Prosper filed its application -- maybe after Black Friday?).  I think that "Prosper" would probably be seen as a "descriptive," not "generic" mark.  Accordingly, it can receive trademark protection if it has received "secondary meaning" -- an association between the mark and the owner in consumer's minds. 
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ira01

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just to let you know, I have retained representation in this matter and things are rolling.

Excellent news.  Keep us informed as to progress and also expense. 
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NewHorizon

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Accordingly, it can receive trademark protection if it has received "secondary meaning" -- an association between the mark and the owner in consumer's minds. 
I don't think there's a danger of that.
I mean who would think of Prosper when they think prosper?    :P   ;D
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Epictetus

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http://www.chillingeffects.org/domain/notice.cgi?NoticeID=16017#QID51

According to the Fourth Circuit Court of Appeals, "the Federal Trademark Dilution Act of 1995 ("FTDA") and the Anticybersquatting Consumer Protection Act of 1999 ("ACPA"), Congress left little doubt that it did not intend for trademark laws to impinge the First Amendment rights of critics and commentators. The dilution statute applies to only a 'commercial use in commerce of a mark,' 15 U.S.C. § 1125(c)(1), and explicitly states that the '[n]oncommercial use of a mark' is not actionable. Id. § 1125(c)(4)....Congress directed that in determining whether an individual has engaged in cybersquatting, the courts may consider whether the person’s use of the mark is a 'bona fide noncommercial or fair use.' 15 U.S.C. § 1125(d)(1)(B)(i)(IV)" One should be careful in this area, however.


There you go! I should have read just a little further down that page. I would post that right at the bottom of prosperreport.com if that was my page. 

Understand further that neither prosperreport nor any of the other sites - such as this one - are even using that mark in their names.

Prosper, as a word qua word, cannot be trademarked or copyrighted.

No more than blue, or house, or thrive could.

I wouldn't go that far.  After all, unless Prosper or its lawyers photoshopped the registration certificate attached to their letter (which I strongly doubt), Prosper has indeed successfully registered "Prosper" as its service mark (Incidentally, I just noticed that this wasn't until August 2007 -- I wonder when Prosper filed its application -- maybe after Black Friday?).  I think that "Prosper" would probably be seen as a "descriptive," not "generic" mark.  Accordingly, it can receive trademark protection if it has received "secondary meaning" -- an association between the mark and the owner in consumer's minds. 

Not to the degree that PMI can claim to "own" the English word prosper, with its multiple centuries of use, and proscribe its use elsewhere or in other context.

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ira01

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http://www.chillingeffects.org/domain/notice.cgi?NoticeID=16017#QID51

According to the Fourth Circuit Court of Appeals, "the Federal Trademark Dilution Act of 1995 ("FTDA") and the Anticybersquatting Consumer Protection Act of 1999 ("ACPA"), Congress left little doubt that it did not intend for trademark laws to impinge the First Amendment rights of critics and commentators. The dilution statute applies to only a 'commercial use in commerce of a mark,' 15 U.S.C. § 1125(c)(1), and explicitly states that the '[n]oncommercial use of a mark' is not actionable. Id. § 1125(c)(4)....Congress directed that in determining whether an individual has engaged in cybersquatting, the courts may consider whether the person’s use of the mark is a 'bona fide noncommercial or fair use.' 15 U.S.C. § 1125(d)(1)(B)(i)(IV)" One should be careful in this area, however.


There you go! I should have read just a little further down that page. I would post that right at the bottom of prosperreport.com if that was my page. 

Understand further that neither prosperreport nor any of the other sites - such as this one - are even using that mark in their names.

Prosper, as a word qua word, cannot be trademarked or copyrighted.

No more than blue, or house, or thrive could.

I wouldn't go that far.  After all, unless Prosper or its lawyers photoshopped the registration certificate attached to their letter (which I strongly doubt), Prosper has indeed successfully registered "Prosper" as its service mark (Incidentally, I just noticed that this wasn't until August 2007 -- I wonder when Prosper filed its application -- maybe after Black Friday?).  I think that "Prosper" would probably be seen as a "descriptive," not "generic" mark.  Accordingly, it can receive trademark protection if it has received "secondary meaning" -- an association between the mark and the owner in consumer's minds. 

Not to the degree that PMI can claim to "own" the English word prosper, with its multiple centuries of use, and proscribe its use elsewhere or in other context.

Prosper's registration doesn't claim all other contexts.  "Just" for "telecommunications services, namely electronic transmission of data and messages; online interactive bulletin board and chat room for transmission of messages among users concerning financial matters, in class 38 (U.S. Cls. 100, 101 and 104)."
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