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Cease and Desist - scam reviews?



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Cease and Desist - scam reviews?

Can anyone advise? As most of you know I have done a good number of scam reviews on my one website. I did a review of SmashFund a while back and they have now sent me a cease and desist legal letter. I have been instructed to remove all content from my website, from Youtube and from all my social networks.

My personal feeling is that they are just being threatening, what you think? If you check them out on Google Trends they are on the way down and fast.

I suppose to be on the safe side I should just remove everything right? What a bummer!

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Webguy2024

Don't be so quick to follow these demands! Is this a free speech issue?

Did the letter come from an actual law office? Smashfund is a Delaware Corp but arbitration is in Oregon so, they are USA company. What are they claiming that you did that requires a takedown of the information? If you are just reporting on a company and giving a review you have every right to say whatever you want as long as you don't slander a person. Reviews are protected speech and even use of their logo's in the review are considered fair use.




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Lynne

Yes that is what I thought but these companies can have a lot of clout and make things difficult for me. I don't know if it is worth the effort of fighting them about it.

I think they are just being threatening and trying to intimidate me.

I said what I think of their so called opportunity, it certainly wasn't a very good review, but I don't believe what I did was slander or done in any way maliciously. I just believe it is a shoddy opportunity that will make people lose money.




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Webguy2024

Don't worry about Trademark infringement unless you are engaged in the same business and using their trademark or trade name to earn revenue.


http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/
http://fairuse.stanford.edu/overview/fair-use/four-factors/

"What Is Fair Use?

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.

So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.

Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody.

Commentary and Criticism

If you are commenting upon or critiquing a copyrighted work — for instance, writing a book review — fair use principles allow you to reproduce some of the work to achieve your purposes. Some examples of commentary and criticism include:

quoting a few lines from a Bob Dylan song in a music review
summarizing and quoting from a medical article on prostate cancer in a news report
copying a few paragraphs from a news article for use by a teacher or student in a lesson, or
copying a portion of a Sports Illustrated magazine article for use in a related court case.

The underlying rationale of this rule is that the public reaps benefits from your review, which is enhanced by including some of the copyrighted material. Additional examples of commentary or criticism are provided in the examples of fair use cases.

Parody

A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that, by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to “conjure up” the original."




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Lynne

Thank you Webguy2024 this has been most helpful! I will have a think about this Cease and Desist - scam reviews?




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idealmike

Hi Lynne. I've been reading about your case. I once had a similar case myself. Except it was slightly different. The thing is, if their name is copyrighted and trademark protected, they have every right to ask you to cease and desist from using it on your site. However, you also have every right to defend the right to do so providing you're not profiteering from it in anyway. Also, you are entitled to talk about any name, brand, copyright or trademark in the "context of a review".

And if that is what you have done then they will have a tough time actually enforcing the cease and desist notice. What they can do though is still take you to court over it if you don't oblige and do what they ask and that can end up costing you a lot of money in court fees. Even if you win or they don't win their case (due to your own rights). It could still end up costing you a lot of money.

And if this company has a lot of money behind them, it's nothing for them to throw $10k at it or something to go about paying lawyer fees, court costs etc. But the thing is, they have to judge whether it's worth them doing that or not. Whether or not your site is really damaging their reputation and causing them to run at a loss. If it is, or they feel it is, they (as a company) have every right to send you a cease and desist notice.

Even if they're not a legitimate company. But again, you also have every right as a human being, to write about their site or service or business or company in the "context of a review". Which it sounds like you have done.

So if this does go to court, they have to prove to the Judge and Jury that your site and your review has caused them to run at a loss and has caused hardship for their business as well as has created an unfair bad name for them too.

However, if you feel what you have said is true and accurate. And that you can prove that they are a dodgy company and have scammed/conned or duped people out of money in the past and you can prove that to the court. They won't have a leg to stand on and they wont even want it to go to court in the first place as it could end up backfiring on them.

So you have some ammo you can use here. You can first contact the lawyers that sent you the cease and desist notice and tell them that it's all wrong and that you are not trying to trade as them or trying to profit as them or using their name to profit from. And that you are within your legal rights to write/blog about their business in the "context of a review". And that you also have verifiable proof that their business/service is a scam and can show proof of people who have been scammed/conned/duped out of money using them.

But you have to absolutely have verifiable and infallible proof of that. If you can show that to the lawyers first and tell them this. Then the chances are they wont do nothing about it because they wouldn't want that to come to light in court. Obviously.

But, if you can't actually prove that, and it went to court. Chances are that even though you have the right to write about any company, business, brand name, copyright or trademark on your site in the "context of a review". The Judge would probably side with the company over the small person. But that said, as said, you do have some rights, and you can stand up for yourself and defend those rights.

I believe, this is a bit of gray area. And the courts aren't fully clued up on yet. Although it has happened a lot more these days and it's not so much gray as it is black and white and there are laws for both protecting a business or companies trademark, copyrights or good name.

But there are also laws that protect you as a person. Another thing to take into consideration is that if their business is a U.S located business, and your site is not, then the law in the U.S is not applicable for those in another country. However I'm not entirely sure about that as I think they can still get around it. Also if your site is using a U.S webhost that might still mean it's eligible for the C&D notice.

As said I had a similar thing happen to me in the past for a site I had/started that had a very similar name to the original predecessor. They sent me a C&D notice which I could have defended but in the end I sold the site and never had to worry about it after that.

But as said these are just some things to think about.

Let us know what you decide to do. Cease and Desist - scam reviews?

Mike.




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Lynne

Thanks Mike, yeah that is basically what I thought. It really does come down to whether they will bother with taking it further and I doubt they will. However I would think that if they do take it further it would land up being costly for everyone involved and that really is a waste isn't it?

Thank you for your input.




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Corzhens

What exactly was the cease and desist order for? If not for copyright infringement then I guess you are on the safe side and the company is just bluffing. However, if your review is not factual then I guess you have a case on your hand. I don't know that site but if you say it is scam and it happens to be not a scam site then they have a right to sue you. But to be on the safe side, what you did is right in removing all contents pertaining to that site. Let it be a neat lesson to all of us in being careful with reviews of supposed to be scam sites.




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