Can bogus DMCAs be used as weapon?

I have to be very careful with this post, but hoping enough sense can be made to get my question answered.

A certain SL company "well-known" in its industry has, as its name, two words that are frequently used in said industry, by many, many other companies. I did a search this morning and those two words, used in conjunction with each other, have not been filed with the US Patent & Trademark Office as a trademark, nor have they been filed with the US Copyright Office as a copyright.

However, a friend used those two words, which accurately describe their product, in a notecard which was distributed to alert people to a current product.

The "well-known" SL company threatened my friend with a DMCA for using the two words in his ad, stating that it was "their business" and that my friend could not use the two words.

My friend is tempted to fold on this, but my advice has been...contact your lawyer, and have them contact LL's legal department.

Laughingly, this "well-known" SL company is a "subsidiary" of one of their other companies which has, as it's name, the name of a very popular and very well-known RL company...to which they have no affiliation.

So, my question is - can a completely bogus DMCA actually be filed with LL? I know they have the reputation of shooting first and asking questions later, but what is actually asked in a DMCA? Is there anything that can be done PRIOR to a possible DMCA being filed, to alert LL that the DMCA is bogus?

My understanding is that with DMCA's LL's hands are pretty tied. Legally, they have to respond to them, and it is up to the two involved parties to work it out.

One thing to add...please crosspost this question "across the street". There are some folk there who can give pretty good advice who don't read these boards.

I think the short answer is yes...DMCA filings can be abused. No...there is no way to preempt an abusive DMCA.

Of course, if no trademark has been filed....maybe your friend would be interested in taking that route by filing their own, and then defending THEIR trademark against infringement...? Not a low-drama course of action though.

LOL...trust me Jer, nothing about this situation is going to be "low drama".

Thanks.

the other company is full of crap....DCMA's are for content not for names. Also, no one can prevent a company from using two words to describe a product without some really serious tradmarking. And if the two words are very common, chances are they might not get a trademark anyway. SL is really not that important in the grand scheme of the world. Companies usually sue for trademark issues when there is some danger someone else if going to make a WHOLE lot of money from using that trademark. They normally sue for damages etc which means money spent on the side of the complaining company and money to be made from the company they are complaining about.

For instance...Intel will sue is someone is making another product and calling it and Intel product. Same for mcdonalds etc. They have a huge income based on that name to protect. SL is such small potatoes....if some store owner here is dumb enough to want to spend a TON of money to take someone to court over something like this...they have no biz sense whatsoever. Unless it is really going to make them some money in a court settlement or protect a TON of income...these kinds of complaints make no sense for them to pursue.

Trademark violation != Copyright violation. It shouldn't even stick, since it is a trademark issue, not a copyright issue.

I agree with you completely Jojo....I used to work for a P&T lawyer and this was my understanding as well. I think my question is more....if "well-known" company files a DMCA, will LL shoot first and ask questions later? Or will they look at the form and say, "this is a trademark issue, get a lawyer, we can't involve ourselves"?

you can stop recruiting already hey.

tell me the name of the company and I will start one with the same name.. then we will find out

LOL...I appreciate the kind offer...but I must pass.

LL may very well shoot first, and your friend will have to file a counter. This spurious DMCA takedown tactic has been used before to hinder a competitor's business.

That said, your friend is ultimately going to be in the clear, even if LL acts stupidly and precipitously. "Two words" cannot be copyrighted. This is a trademark or service mark issue, and the DMCA does not apply.

if the unnamed company is using a RL company name, it is THEY who should be concerned.

has your friend considered turning the tables?

He's still in shock. I have considered it, however. I think this whole situation is a massive case of bullying.

i want in on the action!!! i'm excellent with bullies.

last time i bloodied a bullys nose i got BANNED

that's why one should use alts for such actions.

Not recruiting. I knew she's already a member. What's wrong with a little advice?

And not being a lawyer...it's the best I could give.

So do I

Sadly, welcome to the world of law in SL.

A DMCA is completely different from a copyright violation. Unfortunately, LL aren't allowed to judge a DMCA before they apply it.

If your content is taken down, you can challenge the DMCA and have the content put back, but then the content maker gains the ability to sue you.

If you are fortunate, their lawyer won't let them do this, arguing that as a DMCA case it's bogus. But if you are unfortunate, they will press ahead anyway with the suit, meaning that you have to defend yourself in court. Your friend will probably win the suit (IANAL), but your friend will likely lose overall because of the stress, hassle, and difficulty involved in defending a legal case.

This essentially means that a "professional" business in SL can use a bogus DMCA to bully or shut down a "hobbyist" business, knowing that in order to defend against it they'd have to up the ante. Apart from lobbying for anti-SLAPP legislation to be extended, or for the charge of barratry to be re-introduced, there isn't a lot that can be done..

I would actually advise your friend to file an AR on the other company for harrassment so that his complaint is documented first. Then if they do file a complaint....it might be compared to the harrassment complaint and seen for what it is.

Unfortunately, DMCAs are completely outside LL's enforcement process. If LL get a DMCA they _have_ to act on it, or else they lose their real Safe Harbor status, no matter what their internal systems say.

I don't believe that. They have to act on it if the complaint is within the area that DMCAs cover, but not otherwise. Or to put it another way, they have to act on it, but the action might be making the decision that the complaint isn't covered by the DMCA law.

There is no "content". There is a notecard with two words on it that this company alleges is their business name, but said name has not be registered with the USPTO.

My friend was given a list of things to do that would resolve the situation, and he has complied with each of them. The situation is not resolved, and is very probably escalating within the industry.

i agree phil...an action can be to dismiss the complaint as bogus. i can file a dcma that my neighbors trees are on my parcel but that doesnt mean sl has to act on it since it doesnt apply to that situation.

the prob with the stupid witch hunt mentality is that people get soooo vigilante about it and then claim rights to things that they dont have. some i think do this because they are ignorant and some do it to exploit the fear factor of DCMA's. i seriously doubt that anyone would take someone to court over a clearly bogus complaint. the court costs are steep and the process is long and if they dont have any possible way of being awarded damages from someone with deep pockets it makes no sense.

i have been privy to a RL trademark infringement case that has been going on now for almost a year. the person making the claim is justified and even so the expense has been very very high. they will not be able to reclaim any damages because the other person has no money, but in this case it actually has concrete proof of lost income due to the confusion over names and she is trying to keep future income from being lost. but unless someone has 10K usd min to throw away at a case like this...it truly is not worth pursuing for a small comapany. even large corporations make decisions about which cases to pursue based on lost income or potential to be awarded damages....if the return is too small, they dont pursue it.

Two words can't be copyrighted, so they must be claiming a trademark... but the DMCA PROCESS DOES NOT APPLY TO TRADEMARKS. Trademark disputes have to be taken in the courts against you.

Linden Labs is under NO obligation to do anything about trademarks under the DMCA, and if you respond to the DMCA complaint with "this is a trademark", LL should then treat it as just a dispute between users.

Sorry to say this but dismissing the claim is not an option.

The point of Safe Harbor is to protect a host against lawsuits under the DMCA. But the price of the protection is that they must be a robot, doing exactly what the law says and nothing else. It has to be that way because if they could make their own decisions, there would have to be a way of holding them responsible, otherwise they could do whatever they liked with no consequences. And in law the way of holding people responsible is with lawsuits.. but that is what they are being protected against.

Lawsuit protection = no responsibility = no free choice.