We literally bet our life savings on this and years of zero vacations to bring WhosHere to where it is.
Making a bad business decision and living a shitty life doesn't entitle you to sue people who make a similar app just because their app's name uses some of the same letters as your app's name. (Both companies picked crappy names that are poor brands and poor trademarks. It's like calling your hamburger shop "Hamburger Shop" and then suing anyone who sells hamburgers for trademark infringement. It's not their fault you picked a generic name.)
Would you protect your company and its name?
With the facts I've heard today, absolutely not. Taking a competitor to court is an absolute last resort, done only in the most egregious of cases (serious fraud that people are associating with your business, etc.) While the case has legal merits, it has zero ethical merits. You picked a generic name. The other guy picked a similar generic name. He is not trying to compete and is not negatively affecting your business. You are being jackasses.
Making sacrifices to follow your dream does not give you the right to treat other people badly. You may be proud for the sacrifices you have made and the hard work you have put into your idea, but you deserve nothing for it. You're just another group of people equally good as every other group of people. Act like it.
If you don't take legal action to protect your copyright / trademark, you will lose it. That's part of why big companies are such jerks all the time. If they weren't, they'd be out of luck when it really mattered.
Edit: whoops, should have read the other replies first.
I think that you decided to join the Internet Hate Machine before you knew all the facts, and now you're finding it difficult to admit to yourself that you were taken by a good story.
That's true. But you don't have to send an extremely nasty letter with the two conditions, "give us all your assets and consult for us" or "be sued for $100,000". That's where my anger comes from. They could have said, "We think your name is similar to ours, and to ensure that we can defend our name in court in the future, we need you to license it from us for $1." But instead, they chose to be shit bags.
(I could be wrong about the details, since the court docs are not loading for me. I will edit the "parts in quotes" about the two options if I am way off base.)
In the email exchanges Brian comes across as the shit bag to me. Here's a sample that makes me wonder why he has a PayPal donate button on his site and why his original post was a cry for money:
"Please do not confuse someone who would rather not waste their time and money on legal matters with someone who cannot afford a lawyer. I was born wealthy; I have an obscene trust fund. I assure you that if required, I will obtain the best legal representation for corporate litigation in the Silicon Valley." (Brian's quote from the 3rd email)
Do you actually believe that he's being honest? Sounds like he's puffing up to try and discourage them. When you're up against people who bring you into the legal ring, it might be a bad idea to show them that you're penniless.
So we should believe what he says in public instead of what he says in private? Lets be honest here. He's lying. It doesn't matter which statement is a lie. That is a massive statement of his character.
"Hey, Steve. It's John at Cisco. We know you don't like the name iPhone OS since you have iPads now, and we really appreciate the prior settlement with you regarding the mark iPhone.
"I know you want to use the name iOS, and to ensure that we can defend our mark in court in the future, we need you to license the mark IOS from us for $1." Who wouldn't take that? Do you really think a successful business can be run while valuing your marks at a dollar? It's business.
I'm not going to argue specifics with you, as I'm not a trademark lawyer. But I bet that if you have a trademark and are worried about a competitor's similar trademark, things can be worked out in a legally sound way without either of the two conditions that WhosHere came up with. You do not have to threaten nuclear war if you just want your neighbor to return the drill he borrowed yesterday.
Unfortunately, I think you're mistaken. Any dilution of a trademark invites further dilution. IANAL either, but you've made some very strong statements here, and I think they're based on a misunderstanding or lack of understanding of how trademarks work.
I don't agree. It's not dilution if you give permission; the company printing "Kleenex" on kleenex boxes is not diluting the trademark. They have permission to use the trademark in the course of their business relationship.
But just so we're not arguing about the specifics of trademark law: I think you should throw away all your legal rights to a trademark if retaining those rights means you have to be a bad person.
In this case where both names are common English phrases, I think it's especially shady to be so aggressive about enforcement. I doubt either would win against the other, in fact, but I don't think it should come to that either.
That's not a good analogy. A better one would be if the Kleenex people reached a deal for a second company to market its tissues as "Cleenecs". My understanding is that that would make it easier for a third company to come along and use "KKleenXXX" -- they could argue that the word was becoming a generic term. (Trademarks can be lost if they wind up being used generically. Examples include "aspirin" and "elevator".)
But fine, let's leave the legal questions aside since neither of us is an expert.
I don't concur with your assessment of the ethicalities of the situation. Who's Here was up first and Hamachek knew about it. He could have picked a clearly different name, but did not.
That's not how it works. The second company would pay Kleenex for a license to use the trademark. This does not dilute the trademark, in fact, it actually strengthens it. The third company, which does not take out a license, would be subject to trademark lawsuits by Kleenex.
> I think you should throw away all your legal rights to a trademark if retaining those rights means you have to be a bad person.
That's noble, but bad for business. When you have to make a tough call like this at the helm of your own company, if you come from the heart (like that attitude), you're going to lose. It's unfortunate that the world has developed the way it has, but it's also just about impossible for a tactical shift at this point: heart has no place in business, and those who can successfully use their heart in business had to be very, very careful in how they did so. And they weren't always the cleanest, either.
I appreciate your honesty and your position here, but "that just isn't the way business works". You'll get taken advantage of, thinking like that, because not everybody has the same heart you do. Sucks, but is.
You're talking about a "license" for which the licensee is paying the trademark holder a royalty for the right to use the trademark. It's quite common, especially in the startup world.
"Hey Steve. It's John at Cisco. We've got a trademark that's just a descriptive combination of two common English words. We've noticed you're using one of those common words in a different three word combination as your trademaek. We demand you give us your domain name, because, ummm, derp…"
Could anyone seriously trust these guys with their social graph data after they've pulled a stunt like this? Like you say "It's business". This behavour seems to be a clear indication of how this "business" will treat _your_ rights when they think their business would be more profitable if they ignore them.
I don't really see how you've come to that jump in logic. They seem justified in this specific case and I see no reason how them doing this means they would sell customer data or anything like that. They have not done it with the amount of users they already have. I'm sure they've been approached at this point by a company looking to get in while they can for cheap. It just seems like you are overreacting a bit.
I guess we disagree then, but I find it a hard enough stretch to think they've got any sort of justifiable trademark claim over "Who's Near Me" just because they've got "Who Here" registered. For them to push past that, and apply their VC backed legal muscle to try and get him to hand over the wnmlive.com domain based on their "Who's Here" trademark seems, from where I sit, to be a pure evil misuse of the legal system.
While their success in getting through to summary judgement seems to indicate they've won this battle, I hope in the longer term that the repercussions for Bryant Harris & Stephen Smith & Synerge Tech Solutions & Lightbank make the outcome of "the war" somewhat less attractive for them. I know those four names have been added to my list of people who've demonstrated a failure to conduct business honorably, and any decisions or advice I make about whether to use or recommend services they're involved with will be informed by their previous behaviour.
"Do you really think a successful business can be run while valuing your marks at a dollar? It's business."
To the degree that the business is selling trademark licenses, a case for extremely vigorous pursuit of questionable infringement is justified. On the other hand, if one's business is software development, it is hard to see the described actions as much more than a distraction.
I think saying you'll change your name then not doing it is pretty shitty too.
So is posting a 'help I'm being attacked' article but failing to mention you built your app as a demo for WhosHere hoping they would buy it from you as their windows client seems more than a bit misleading.
It sounds misleading, I agree, but I don't think it's actually misleading. Remember, implementation is more important than ideas.
Nobody involved in this dispute is the first person to think of displaying a list of people that are nearby, and "who's here" and "who's near me" are both equally generic descriptions of this functionality.
Brian's blog posting (now with a donation button):
"... the deadline to file a response to the lawsuit had passed
and that WhosHere had requested a motion for default judgment
(meaning that they would automatically receive everything they
had asked for - which would effectively bankrupt me..."
"The lawyers I have spoken to thus far are asking me for at
least a $10,000 retainer just to get started on the process
and I don't have those kind of resources laying around."
Compare to Brian's response in the email thread:
"I was born wealthy; I have an obscene trust fund. I assure you
that if required, I will obtain the best legal representation
for corporate litigation in the Silicon Valley. After your
last proposal, I will resist this legal action well beyond
what makes any financial sense, simply out of principal."
And, to complement this, a snippet from Judd Weiss' blog [0]:
"Quick tip: When you do engage the other side (or their
lawyer), whatever you do, never say the line “I’m taking this
all the way to trial, I don’t care what this costs me”.
Everyone says that. Everyone. That doesn’t work with someone
like me. I smell blood. “Oh really, you don’t care what this
costs you? Alright then, let’s find out how much you really
don’t care.” People who say they don’t care about the costs
often cave sooner, because they are showing that they’re weak.
They’re showing that they really don’t have much solid to
fight you with except their loudly stated tolerance for pain.
That tolerance is easy to test. And it’s usually very low when
there’s not much else but puffery to back it up. Any modestly
wise person cares about the financial effects of litigation.
Don’t try to pretend you’re stupid, or else you’re going to
look stupid."
Look, both your team and the other fellow involved in your dispute are in the wrong. And by wrong, I mean that you're both shaking your proverbial gender-specific parts around a crowded street, shouting about who's part is bigger, and trying to get the passersby to agree with your side or his.
No. One. Cares.
Put your shit away and handle this like men. Either reconcile or go to war, i.e. court. Just stop acting like you're still in high school and trying to win the who-likes-me-more popularity contest.
They took it to court. That could just as easily be classified as dragging someone through the mud in public.
That said I can't see either side being completely innocent. Now that they've taken it this far, it'd be in the interests of both sides to resolve it as quickly and gracefully as possible, preferably outside the courts.
I don't care how immature Brian is (and boy is he immature) the fact of the matter is there is no basis for the aggression that WhosHere put forth.
Brian is a douche for not sharing the whole story. He is a douche for saying he could make 400 an hour. He is a douche for pretending that he can't fight a suit when he can.
But the fucking fact of the matter is that he is right. WhosHere is not confusing with the stupid ass name Brian choose. Period. I don't like siding with the asshole cousin, but sometimes the asshole is right.
Quite frankly, from what I've read (the blog posts only), this seems like a pissing contest that's got out of hand. Each side should back down, stop trying to use the internet to throw poo at each other and work it out. Merge, settle or ignore each other and deal with it when there's a good reason to. Neither of you will lose money if you just compete.
I agree with jrockway's points, especially on the sub par branding, they're both very standard names and that is literally your only problem. If you're all capable of starting up these companies, I'm sure you're capable of rebranding. Both companies should rebrand in my opinion, it's a matter of originality, which neither brand has and neither party has the moral ground to get litigious over.
It seems to me like this was all being done privately until Mr Hamacheck got a lot of attention and the wrath of HN on his side. I don't see how the other founders had much choice but to explain their side - otherwise they look like a cold, heartless corporation. The original story seemed very much like a guy trying to run a business was blindsided by a huge, funded company. But after the response it seems clear that he had been communicating with them and even proposing business relationships before even launching his product.
My opinion of the situation was definitely changed after this response letter. It kinda goes to show that these kind of arguments make everybody involved look bad, though.
Oh indeed. I think we tend to default to defence of the "little guy", even without enough information to make informed judgements. I certainly made the mistake of jumping to conclusions here. Personally, I have little-to-no time for either party's argument, as it's a rather banal fight anyway.
There are two issues that come to mind when I decide how much sympathy to allocate:
1) Is the trademark sufficiently unique to have merit?
2) Is the infringing trademark similar enough to cause confusion?
I'll give WhosHere a pass on #1. It's a poorly-chosen trademark but I've seen worse. However, nobody can claim with a straight face that customers are confusing WhosNearMe for WhosHere. This is preposterous on its face.
I don't get it. If you are the small bootstrapped ultra-busy startup founder, why continue to concern yourself with this stuff.
He was willing to rebrand his app, even though the trademark registration was apparently not finalized at this point. So at which point did they feel entitled to make the demands they were making?
You made a decision to turn him down. He made a decision to turn you down. That part of it is not really at issue, in my opinion.
You turned him down, he decided to do it on his own, and called it a different name. I don't think I would confuse the two. If he'd wanted to cash in on your TM (as said in the other thread) he wouldda called it simply "Who's Near". Changing the web address to wnmlive was a huge compromise in my opinion.
I'm siding with WhosHere on this one (although it doesn't matter). Here's why.
First, they asked Brian to change the name from "Who's Near Me" to something else, and he apparently agreed to, but his rebranding was to "WNM (Who's Near Me) Live" which is basically the same thing except that "Who's Near Me" is written smaller and acronym-ized in the brand. But it's still the same name.
Second, a lot of people are talking about how the name is generic. That's exactly the point. When you're using your phone and see "Who's Here", you think, this will tell me who's here. If there's another app that's called "Who's Near Me", you think the same thing. So it's more than just them both having the word 'who'. It's more like if one app were called "Shoelaces" that tied your shoelaces for you, and then another app named itself "Tie Your Shoelaces" and did the same thing. It's, people will look at this app and know that this is what they use to tie their shoelaces, a trademark should prevent another app from being able to do that.
Third, "It is also offensive to me that you would think my time was only worth $100/hr, considering I turn down requests offering 4 times that rate regularly". I'm tired of the fake arrogance in C.S. culture. Brian's 26, I don't think he regularly gets offers for $400 an hour, and even if he did there's no reason to put it in that e-mail.
This is impersonal and based on limited information.
I thought the same thing when the opening sentence of his blog post mentioned he had been coded since age 7. I have no reason to believe or not believe that point. But I don't see how that has anything to do with the problem he was about to outline in his blog. Apparently he has a huge trust fund... he could have opened with that.
But I'm still in the "they're generic enough that this shouldn't be a problem" camp.
I'd say the coded since age 7 bit was to try to get people to emotionally connect with him, and thereby get the tide of public opinion on his side. Just one of the many possible tools in the chest when going to a public war.
Weak sauce. It just seems to me a slight trend lately. The age people started coding is creeping lower. Just like the "Check out this app I wrote in random time"... random time seems to be creeping lower too. Maybe I'm wrong. But none the less, what age you started says an entirely different thing about you than what year you started.
I'm slightly more sympathetic having heard their side--there is more to it than just random legal threats out of the blue.
..BUT.. This suit revolves more around "we felt wronged" than "this clearly infringes our trademark." The only similarity in the trademark is the word "who." The law is the law, your feelings are irrelevant.
Besides starting with the same keyword, Hear and Near have the same visual shape and sound almost identical. I think it's very similar, in my opinion, certainly enough to confuse a potential user. If you don't defend your trademark, you lose it.
Not to mention that they can mean the same things in certain contexts.
'Clark Evans is near me, as he is in SoHo.'
'Clark Evans is here in SoHo.'
I mean I have to think a bit harder in recalling who's who in this argument. Even the more popular case of Apple Corps v Apple Computer is more distinguishable.
When you have two products in the same space with very similar names then you have a problem. And it is your obligation as the owner of a trademark to defend it.
Seriously, I read both articles, and you put a gun in my head, and I'd tell you I still can't tell you the names of these 2 apps. Who's where? Who's here? Where's Waldo? Who cares? Such generic names, no branding.
Reading between the lines given the complete lack of similarity between the names, it seems to me you are grasping at straws because your own business model is not viable. If I were an investor, I would really question the sustainability of your startup given you are having to use vc money to shut down competitors as opposed to building constructively a sustainable business. Just my 2 cents.
Since when has number of free downloads in the app store been a measure of business model viability? The fact is they are pursuing destructive means to grow their business, as an investor I would much prefer to have founders who were investing my monies in a constructive way especially given the generic and dissimilar app names. I mean how good a product do they have if they feel that the name of their competitors app is having such a material impact on their business?
apparently according to Brian he has an obscene trust fund, so why didnt he lawyer up. Perhpas the mileage HN could bring + bad press he can bring about to a competitor was more enticing?
These emails are so strange. The tone taken by both parties is just so...unbelievable.
For example, Brian's opening salvo "Neither of these options are remotely acceptable to me. It is also offensive to me that you would think my time was only
worth $100/hr, considering I turn down requests offering 4 times that rate regularly."
Seriously, "regularly" turning down offers for work at a rate of over $400/hr?
And also, "I was born wealthy; I have an obscene trust fund. I assure you
that if required, I will obtain the best legal representation for corporate litigation in the Silicon Valley."
When I read the original blog post, it really tugs on the heart strings and makes Brian seem the underdog.
Now after reading these emails, he comes across as a complete jackass.
I love how he went to them in the beginning to port their app, listed WhosHere in the search keywords for his app and then acts like these guys appeared out of nowhere to blindsided him.
I'm not sure how strong the merits for the trademark case are but I got no sympathy for this guy.
Omitting to mention that he tried to sell them an app, and failing to mention the other party's offer of 100k. Just throws out any sympathy I have for Brian.
Clearly this is just mud-slinging and a good play at eliciting the developer and HN community's tendency to white-knight oppressed "davids" without hearing both sides of the story.
What they mean is not that important. There are many trademarks out there that mean the same thing but relate to competing goods. What is important is whether a customer would confuse them.
In my opinion that is clearly not the case. People aren't that stupid.
I find it interesting that the comments in this thread still largely support Brian Hamacheck even though the response from Who's Here - if accurate - demonstrates that his original blog post is little more than a one sided publicity piece designed to gain sympathy for him and. to villify. Who's Here
Shame on Brian for claiming to be a poor developer about to be crushed by a big company (see quote below). I feel like a fool for up voting him.
Shame on WhosHere for suing Brian. People are not confusing these two apps. Brian did not steal the WhosHere brand or product.
Here's an example of stealing a product, of when it's appropriate to sue:
My Facebook app Quiz Monster was cloned by mike onagai (a man from hong kong). He copy pasted my CSS and JavaScript. His app looked exactly like mine. He then started emailing my users with links to his site, claiming to be me.
Appbank (a vc funded company) almost did the same thing, they definitely stole my design. The only reason I did not sue is because my product was better and more popular. They didn't seem like a threat. Nowadays I think facebook apps are silly. It must seriously suck to be Appbank or Mike Onagai. They have to make Facebook apps, I get to build whatever I feel like.
Also I think stealing fuels innovation. Facebook came from facesmash, a clone of hotornot. So did YouTube. Appbank started as a clone of quiz monster, but they evolved into something better, something original, and innovative. I'm happy for them.
> "I was born wealthy; I have an obscene trust fund. I assure you that if required, I will obtain the best legal representationmfor corporate litigation in the Silicon Valley. After your last proposal, I will resist this legal action well beyondmwhat makes any financial sense, simply out of principal."
Yeah, these emails strike me as the kind of thing you write but don't send. I only learned the "don't send" part after a rather too many decisions to send.
Seriously... they are not the same. When I think "Who's here?" I think who is in the same place I am. Not just near me. If I am home and someone comes to my house... they are here. If I am home and someone goes to the house across the street... they are near me... but not here.
If "Who's Here" and "Who's Near Me" are close enough to cause a problem... someone needs to warn Facebook that their new app Camera is pretty friggin' close to the app that Apple already had. What was that called? Oh right... CAMERA.
Probably because it is too generic (well... a specific but general use word)... kind of like this situation. The real idiots here are the ones that granted this trademark in the first place. Plus it was a bit of a joke.
Well, Yahoo has a trademark on "Yahoo! Buzz", but that doesn't mean someone else couldn't go out and make a product called "Google Buzz", because they did. And "Buzz" seems like far less generic a word than "Who".
Whatever damage or confusion Who's Near Me might have caused to your brand, this lawsuit has done worse. Ever heard of the Streisand effect? Even if you did have a valid claim your demands were way over the top. Thousands of dollars in legal fees? Give up his Facebook page?
For what it is worth I personally want absolutely nothing to do with your app ever, and will tell people about your bad ways if they bring up your app. I hope your business fails because actions like this do not deserve to be rewarded.
The names aren't even that similar. "Who's" is the trademark you are being assholes about? seriously? I can't see how they would stand a chance in court.
You know what seems weird to me? the fact that at first they turned down this (alleged) offer to integrate a windows mobile version of the app into their version and then just a few years later
"Just a few weeks ago, we offered to partner with Mr. Hamachek. We offered to integrate his Windows Mobile work into WhosHere and offered a revenue share deal for $100,000, plus fees, for ongoing development"
yup. i made an iphone app named WhosAround a few years ago and got sued by the WhosHere guys. Just Google "myRete lawsuit" (myRete is their corporate name)
This definitely provides more insight, but this seems really childish and juvenile for two professionally competing products. Dropping the legal documents just seem like a huge dick move to me, especially on the smaller guy who does not have the resources fight back. It would have been nice for WhosHere to just play it out and continuing building a better product (especially if you have confidence in your product). If you want product segregation, then you should have chosen a less generic name. WhosHere ended up, at least, having Brian change his product name, and they are being sore losers for not getting what they expected.
I find it interesting that the in his post, Brian insinuates that he can't afford to fight this legal battle. However, in the emails between him and the WhosHere people he talks about his large trust fund.
It seems like the best outcome here would be if both companies chose better, more accurate names. I was thinking maybe "WhosAnOverLitigiousFounder" and "WhosAHyperAggressiveConcernTroll."
Clearly, no one wins from this ridiculous exchange. All parties involved need to man up, get in a boardroom and bang out a deal.
Prior to that, they should both delete these posts and same themselves further embarrassment.
Agreements are hard to make sometimes, and compromise sucks, but the ramifications of spending time on crap like this instead of building your business is massive.
Best of luck to both parties, here's hoping they can put the egos aside long enough to do some business.
Honestly, I find it rather deplorable that they would post this. Regardless of any bad press they have, if they win in the end, the truth would come out.
The first thing most lawyers would say is "keep your mouth shut". Posting this doesn't do anything but make this pissing match all the more public.
Ah, someone here doesn't like my opinion and thusly is downvoting every comment I've ever made. It's been quite a while since I was around HN, but I'm very disappointed. Is suggesting that perhaps letting a Judge decide these legal matters such a bad idea?
Something is missing here. Did Brian Hamacheck rename his app or not. One of the letters Brian says he will change it, but Who's Near Me is all over his website. Is this a case of he said he would do something then lied about it and is now surprised he's being sued?
And I don't understand how they are stealing his work. They just asked for a name change. Then they offered to buy him out and share revenue.
I was thinking that too, to me it's the big obvious elephant in the room in this HN discussion - he said he'd change the name and then didn't, or that's the impression I've gotten anyway.
Their trademark probably shouldn't have been granted. This company didn't trademark the word "Who", they trademarked "WhosHere" which is quite obviously a different word. This reminds me of McDonald's who go around the world suing every company that has a food product starting with "Mc" (eg. a Scotch distillery founded a hundred years before McDonald's even got sued). Unfortunately the US patent and trademark system is broken and can be easily manipulated by entities with money, and when abused by assholes like this, it just makes our world suck even more.
I hope their actions haunt these individuals for the rest of their hopefully short careers as business founders.
After reading the original, it's obvious that this response is complete bullshit.
"and offered a revenue share deal for $100,000, plus fees, for ongoing development (that is where the license agreement that Mr. Hamacheck references comes into play, but he left this upside out of his blog post). We truly expected a counter offer. But, when he rejected the offer outright, we asked him what he thought was fair. We never received a response."
Meaning:
We offered him a "deal" worth $100,000. It was only after he refused that we put the hit out.
Is it common to use the word "patent troll" to describe any type of legal troll nowadays? Just wondering because as far as I know there are no patents involved here, just a trademark.
I thought that Patent Trolls are the ones that just buy up patents and then go hunting to violators while they themselves do not actually make anything that uses the patents. That is shitty to do. I would imagine that Trademark Trolls and IP Trolls would be the same type of thing. This is not that. They have a Trademark on the product they are actively developing/selling/whatever and are trying to defend it. NOW... they are shit bags for thinking the other dude is violating their mark but that is a whole different thing.
Making a bad business decision and living a shitty life doesn't entitle you to sue people who make a similar app just because their app's name uses some of the same letters as your app's name. (Both companies picked crappy names that are poor brands and poor trademarks. It's like calling your hamburger shop "Hamburger Shop" and then suing anyone who sells hamburgers for trademark infringement. It's not their fault you picked a generic name.)
Would you protect your company and its name?
With the facts I've heard today, absolutely not. Taking a competitor to court is an absolute last resort, done only in the most egregious of cases (serious fraud that people are associating with your business, etc.) While the case has legal merits, it has zero ethical merits. You picked a generic name. The other guy picked a similar generic name. He is not trying to compete and is not negatively affecting your business. You are being jackasses.
Making sacrifices to follow your dream does not give you the right to treat other people badly. You may be proud for the sacrifices you have made and the hard work you have put into your idea, but you deserve nothing for it. You're just another group of people equally good as every other group of people. Act like it.