Infringement Notice from HOA?? Legit?

[Jetacle]

What is the name of your state (only U.S. law)? - California

I have recently launched an online community website for the residents in my community to discuss and share information. The website allows the residents to post things they would like to sell, business/service reviews, general discussions, and much more. I sent an e-mail to my neighborhood's Home Owner's Association asking if they would like to partner up and help promote the website, and in exchange they would be able to be listed as an sponsor and put a lot of their information on the website. (At this time I do not plan on making any monetary gain from this website, as it was built purely as a resource to the community.)

The HOA responded with a sort of "cease and desist" and said that my website's name was infringing on their copyright. For the purpose of confidentiality, my neighborhood is "called" "5 Star Community." The domain name of my website is "5starconnect.com." They said that I would need to take down the website immediately as "5 Star" is under their copyright... Is this a legitimate claim? I personally feel that the HOA is just trying to shut me down because the website I created is a lot more user friendly and popular than their "discussion board" (they have no users...)

In the case that their copyright infringement claim is sound, I plan on just changing my website name to "(insertmyzipcodenumber)connect.com" Can a zip code be copyrighted? At this point I just want to get the website running and not have any of the residents experience down time.

I don't see why this is such a huge issue...I'm just a resident trying to create something that would benefit all the residents...I'm even donating all the surplus donations (the left over money after I pay for hosting) to local schools and the library...

Thanks so much for the help guys.

 

[justalayman]

How much of an argument do you want to put into this? How much money are you or they willing to throw at this?


they do not have a claim of copyright on 5 Star Community. Even if they could (not did but could), your name is not infringing on their rights as theirs would be the complete title. They cannot claim copyrights on 5 or star individually or even 5 star together. You cannot copyright protect individual words, short phrases, names, or titles.

http://www.copyright.gov/circs/circ34.pdf



If anything they may have a trademark claim but since they are not attempting to make such a claim, I surely would not put that bug in their ear.

Your claims of no profit and donations are meaningless to your argument other than to show you are philanthropic. It gives you no benefits in the legal sense.

 

[coolmaltese]

This sounds familiar to something I remember several years ago. Someone wanted to put up a website pertaining to events and happenings in a large new development here in Northeast Florida. A C&D letter was sent. They decided the best thing to do was not continue with the website and also not move to that development. Why would they want to support this new development if the developers treated people this way? Maybe the developers were afraid of a user forum and people posting negative things or reviews about the development. They are afraid of what they can't control.

What made this really interesting is that the actual name of the development was "taken" from an actual official city in another part of southwest Florida established over 100 years ago if memory serves me correctly. The developers didn't mind lifting the name from an established real city, but they did mind someone else using "their" name.

Some of these developers and HOAs are shortsighted. Even though they possibly don't have a legitimate case, either way it will cost time and money to fight it, and the question comes down to: is it worth it?

 

[Jetacle]

I'm changing the name...

I honestly do not have the time or resources to fight this case, nor do I want to. Its just something I thought the community would enjoy. I will continue with the site and just change the name. Do you guys think that if I just changed to the name to (myzipcode)marketplace.com would that be fine? Surely no one can copyright a zip code correct? (There's a local magazine called (myzipcode)magazine.com but I don't think that will be an issue?). Forgive me if I have become paranoid of getting sued..haha

 

[quincy]

I honestly do not have the time or resources to fight this case, nor do I want to. Its just something I thought the community would enjoy. I will continue with the site and just change the name. Do you guys think that if I just changed to the name to (myzipcode)marketplace.com would that be fine? Surely no one can copyright a zip code correct? (There's a local magazine called (myzipcode)magazine.com but I don't think that will be an issue?). Forgive me if I have become paranoid of getting sued..haha

As justalayman stated earlier, this is not a copyright issue, as names and short phrases are not copyrightable. This would be a dispute over the rights in a trademark.

A trademark is a business, product or service identifier. Trademark law centers on consumer confusion.

If a consumer can mistake your site as a site connected with or endorsed by or sponsored by a trademarked 5Star Community, then it could be possible (maybe not probable) that 5Star Community could prevent your use of their trademark in your domain name or as your website name. If traffic to your site, in other words, consists primarily of consumers looking for the community's official site (if they have one), there could potentially be problems.

What your situation basically boils down to is whether you want to have your use challenged in court, should 5Star Community decide to pursue the matter. Any legal action they take may have no merit, but that does not stop a suit from being filed against you and it can get costly trying to defend your rights to use the name for your site.

If you want to have the facts personally reviewed to see what sort of legal ground you stand on, you can consult with an attorney in your area. Certainly the least expensive route to take is to find a domain name and a website name that is unique to you alone - but if your site is devoted to this one community, I can understand your reluctance to take that route.

Good luck.

 

[Mass_Shyster]

Certainly the least expensive route to take is to find a domain name and a website name that is unique to you alone - but if your site is devoted to this one community, I can understand your reluctance to take that route.

Something like fiveflaminggasbags.com would work.

 

[Jetacle]

Thanks All!

Thank you everyone for the help. It was very helpful. I have decided to respond to the C&E. I no longer will use 5starmarketplace.com. I have registered a new domain 98001marketplace.com . (You cannot trademark a zip code right?)

Thanks all, hopefully I have no more issues.

 

[quincy]

Thank you everyone for the help. It was very helpful. I have decided to respond to the C&E. I no longer will use 5starmarketplace.com. I have registered a new domain 98001marketplace.com . (You cannot trademark a zip code right?)

Thanks all, hopefully I have no more issues.

Well. . . . it actually is possible to use a zip code as a trademark. Pretty much anything can be used to identify a business, a product or a service. The rights to the trademark then will arise through the use of it in commerce. Your business or your product or service, in other words, becomes connected with and known to the public by whatever identifier/name is chosen.

I think you were probably smart to avoid any challenge by 5Star by changing your name at these early stages of developing your online community. Hopefully this new name of yours is not being used by anyone already.

Good luck.

 

[Jetacle]

Issues again...

So apparently there is magazine that has used the name 98001 Markeplace in there magazines...got another letter telling me to change the name...This stuff just never ends. The letter did not mention anything about trademark or copyright though, they just want me to remove it...thoughts guys?

 

[Mass_Shyster]

So apparently there is magazine that has used the name 98001 Markeplace in there magazines...got another letter telling me to change the name...This stuff just never ends. The letter did not mention anything about trademark or copyright though, they just want me to remove it...thoughts guys?

See post 6

 

[tranquility]

I like Stevef's idea. But, a star is a stellar too.
fivestellarcommunity.com
5stellarcommunity.com
Seem available.

 

[54321]

So apparently there is magazine that has used the name 98001 Markeplace in there magazines...got another letter telling me to change the name...This stuff just never ends. The letter did not mention anything about trademark or copyright though, they just want me to remove it...thoughts guys?

I checked the registration of your site "5starconnect.com" (public search) to see if I can help. Don't worry, only your name is listed that I think is personal. I was looking at the registration date and notice it was registered since 2009, July 29. This lead to some conclusions. You registered it since that time or you got the name through backorder or auction. I believed you likely got it since 2009.

Domain names, like yours, can be auction for high price if there are buyers waiting. It's also possible that someone want your domain name and trying to scare you off for another 2 years so they could buy it or backorder it for themselves.

About the infringement notice, I think who ever send you that notice was just trying to bully you, assuming you own it since 2009. If they were to send you that notice, why just recently? The copyright owner still can get their notice to you, through your registrar (GoDaddy), even if your website was not in use then.

You said that they have the copyright to "5 star" but do they have the copyright to "5starconnect." There are lots of businesses and individuals with the name 5 star and I highly doubt they "legally" own that name. "5 star connect" is a different copyright of its own.

Words alone doesn't mean anything if there isn't any paperwork to back it up. DON'T GIVE UP your domain name or park it to generate GoDaddy free revenue. It's a possible goldmine for some people who know they can take it for themselves and sell it for profits.

You are planning a website that deal with the entire community. There will be issues/problems coming your way and you have to fight through it. If you already given up on the domain name you already got, I don't know long your website will last even if you got a name without complaints. You will still have to deal with issues/problems, but with your users/members this time.

This is my opinion. I don't like to quit not knowing if I'll win or lose.
My suggestion for domain name extension for community site would be best if it's .org instead of .com. Dot com is usually for business or individual. I would buy both and redirect the .com to .org so if a user make a mistake in the extension it will still land on .org. Just a thought.

Best of luck on your community site. =]

 

[quincy]

I checked the registration of your site "5starconnect.com" (public search) to see if I can help. Don't worry, only your name is listed that I think is personal. I was looking at the registration date and notice it was registered since 2009, July 29. This lead to some conclusions. You registered it since that time or you got the name through backorder or auction. I believed you likely got it since 2009.

Domain names, like yours, can be auction for high price if there are buyers waiting. It's also possible that someone want your domain name and trying to scare you off for another 2 years so they could buy it or backorder it for themselves.

About the infringement notice, I think who ever send you that notice was just trying to bully you, assuming you own it since 2009. If they were to send you that notice, why just recently? The copyright owner still can get their notice to you, through your registrar (GoDaddy), even if your website was not in use then.

You said that they have the copyright to "5 star" but do they have the copyright to "5starconnect." There are lots of businesses and individuals with the name 5 star and I highly doubt they "legally" own that name. "5 star connect" is a different copyright of its own.

Words alone doesn't mean anything if there isn't any paperwork to back it up. DON'T GIVE UP your domain name or park it to generate GoDaddy free revenue. It's a possible goldmine for some people who know they can take it for themselves and sell it for profits.

You are planning a website that deal with the entire community. There will be issues/problems coming your way and you have to fight through it. If you already given up on the domain name you already got, I don't know long your website will last even if you got a name without complaints. You will still have to deal with issues/problems, but with your users/members this time.

This is my opinion. I don't like to quit not knowing if I'll win or lose.
My suggestion for domain name extension for community site would be best if it's .org instead of .com. Dot com is usually for business or individual. I would buy both and redirect the .com to .org so if a user make a mistake in the extension it will still land on .org. Just a thought.

Best of luck on your community site. =]

It is nice that you "don't like to quit not knowing if [you'll] win or lose," 54321. I am sure others share that philosophy. The problem with responding to an infringement notice that way is that "not quitting," and then "losing," can be awfully costly.

And, once again, this is a trademark issue and not a copyright issue. Copyrights do not cover names or short phrases. Copyright law protects original and creative expression (art, literature, music, photography, videos, graphics. . . .).

Trademarks, on the other hand, are identifiers of a business, product or service. Trademarks work to identify for the benefit of consumers the different businesses or products or services. Trademark law centers on consumer confusion and, when two trademarks are the same or similar, it is more likely that consumers will become confused - possibly leading to a lawsuit.

Under U.S. trademark law, a trademark does not need to be registered at all to gain trademark rights. In the U.S., it will (often and generally) be the first to use the mark in commerce who will be judged the owner of the mark. With ownership can come some legal protection. In addition, if a trademark holder does not vigorously defend their rights in a mark, they can lose the mark entirely.

Of course, trademark ownership does depend on all sorts of facts and factors BUT, if you receive a notice from a trademark holder that the trademark you are using or plan to use is already being used, or if you KNOW in advance that the trademark you plan to use is already being used, the smartest course of action can be to find yourself your own unique name (and I am rather fond of the one Stevef suggested ). There are several plusses to starting a business this way, and there are very few negatives.

Jetacle can always speak with an IP attorney in his area to review his options and the legal risks inherent with each, if his heart is set on using a 5Star mark or a zip code mark for his web identity.

 

[Jetacle]

Thanks all!

I would like to clarify that I do not own 5starmarketplace.com or any name in association with "5Star." I made up the name, as it is very close to my real name. I was not comfortable sharing the actual name on the internet. Thanks all! But my website name is worth like 10 dollars haha.

 

[quincy]

I would like to clarify that I do not own 5starmarketplace.com or any name in association with "5Star." I made up the name, as it is very close to my real name. I was not comfortable sharing the actual name on the internet. Thanks all! But my website name is worth like 10 dollars haha.

That is good to know. There are far better names available for a website*. Inventing your own name is often the safest route - and can set your website apart from all others.

And you are smart not to share too much on an internet forum.

Good luck.





*see post 6