First takedown notice received.

The site got it's first takedown notice last week. It's a boilerplate C&D and easily proven wrong. The response is on its way to Farmer's lawyers through e-mail. They took another interesting tact, they reported my Whois info as bogus (which it mostly is). To me this indicates that they expect their C&D to go un heeded and are using the TOS of the domain registrar against me. Fair enough. Now all I need is a mailing address that is anonymous and I'll be all set.
Attached (read more link below) is the full C&D letter along with my comments and rebuttal. I am not a lawyer so take this with a grain of salt. Comments are encouraged and welcomed.  If you want to link to this article from another site, forum, or news aggregation site (i.e. Fark.com, slashdot.org, etc.) please feel free, but send me an e-mail as well.
Cheers all,
-Admin

BLACK text is that from the lawyer, RED text is my comment.
Dear Sir or Madam:

We represent Farmers Group, Inc. ("Farmers") with respect to intellectual property matters. As you are no doubt aware, Farmers (via its affiliated companies) has been using its famous trademark and trade name FARMERS®, and other marks and names containing the FARMERS mark, as well as the marks GETS YOU BACK WHERE YOU BELONG and the distinctive SHIELD DESIGN, in connection with its affiliated companies providing insurance services, for many years. For example, Farmers owns United States Trademark Registration Nos. 1899192 for the mark FARMERS®; 1821673 for the mark FARMERS INSURANCE GROUP®; 0953862 for the mark FARMERS INSURANCE GROUP SYMBOL OF SUPERIOR SERVICE® & SHIELD DESIGN, and 2345790 for the mark FARMERS. GETS YOU BACK WHERE YOU BELONG® (all intellectual property hereinafter referred to collectively as "FARMERS® Marks and Logos"). These registrations (copies attached)(no, they are not attached) evidence our client's exclusive nationwide right to use its trademarks. Aside from the registrations that are not attached, none of this is in dispute.

Our client is aware that, using obviously fake identification information in an attempt to conceal your true identity, you have registered the domain name www.FarmersReallySucks.com. This domain name contains our client's mark FARMERS®, and is linked to a website that contains unauthorized, prominent, and improper use of our client's FARMERS® Marks and Logos. Additionally, your website's metatags contain improper repeated use of our client's marks FARMERS® and FARMERS INSURANCE GROUP®, the sole purpose of which can only be to illicitly increase Internet traffic to your site at our client's expense. Finally, we note that you have posted on your website an unauthorized copy of a substantial textual portion of our client's copyrighted site, i.e., the Terms of Use, at www.farmersreallysucks.com/Farmers_TOU.html.(link updated 26JAN07) Again little dispute here. I do dispute the assertion that increasing traffic to the site though use of meta-tags is illegal.

Be advised that your use of the FARMERS® Marks and Logos in this manner constitutes infringement of our client's valuable trademark rights and unfair competition under federal and state law. Mustn't one be a commercial site in order to be unfair competition? US Code Title15, Chapter22, Subchapter III, ss1125, (c)(4)(B) provides provisions that my use as a non-commercial site is not actionable; this applies to both the domain name and use of the graphic. Infringement protected under comment, parody and free speech. Your provision of misleading false contact information when you registered the domain name www.FarmersReallySucks.com, and your intentional failure to maintain accurate contact information, constitutes evidence of the willfulness of your infringement under the federal Lanham Act and evidence of your bad faith intent to profit under the federal Anticybersquatting Consumer Protection Act. The inaccurate information is a simple measure to mitigate the amount of junk mail received. This is a common practice among domain registrants. Per the ACPA bad faith is negated by section 4: Lawful noncommercial or fair use of the mark in a website under the domain name. US Code Title15, Chapter22, Subchapter III, ss1125,(d)(1)(B)(i)(IV). According to the legislative history fair use includes comparative advertising, comment, criticism, or parody even where done for profit. Section 5 applies to confusion of source, and there is not any likelihood that a visitor to the site would be deceived as to the intent of the site. Section 7 alone does not counter the fair use of the site, and was implemented to prevent junk mail. A legitimate e-mail address was provided for contact. Pertaining to section 9 I do not have the requisite experience to judge this. Section 6 and 8 do not apply at all to this case. In addition US Code Title15, Chapter22, Subchapter III, ss1125,(d)(1)(B)(ii) nullifies any arguments under Title15, Chapter22, Subchapter III, ss1125,(d)(1)(A) because of my reasonable belief that my use of the domain name is legal, as evidenced by the number of other "gripe sites" who engage in similar conduct and have had their rights upheld by the courts. Your actions are also deceiving, or are likely to deceive, the public with respect to our client's trademarks and associated services, and dilute the distinctiveness of the famous FARMERS® Marks and Logos. There is no way any reasonable person would be led to believe this site is in any way sponsored by Farmers. Aside from the name being an obvious indication of the sites intent, the disclaimers on both the top and bottom of the main page, in addition to the disclaimer on the bottom of every page, indicate that this site is not sponsored by Farmers in any way. In order to further address your concerns the Farmers graphic has been further modified to remove all doubt of confusion. Additionally, your use of our client's copyrighted works subjects you to liability under the federal Copyright Act. When used for comment, criticism, or parody, relevant sections of copyrighted material(s) are exempted from protection under the auspice of fair use, this includes using any trademarks (Farmers mark(s) mentioned in P1 of this letter) required to identify the group or company being discussed on the site. To the extent that you might claim to have believed that your actions were permitted by the Terms of Use of the Farmers website (which you copied and display on your site), you are wrong and, in any event, you should consider this letter to constitute official notice that any such permission (which, in fact, was nonexistent) is hereby immediately revoked. Understood, the information not directly related to comment and/or criticism (the bulk of the Terms of Use, but not the highlighted passages, their surrounding text (which provides context to the highlighted portions), and the site graphic) will be removed.

You are entitled to criticize Farmers in whatever public forum you choose, including the Internet. You are not, however, entitled to make unauthorized commercial use of our client's valuable trademarks to cause confusion and to improperly channel increased traffic to your website and to Farmers' competitors, nor are you entitled to make unauthorized use of our client's copyrighted material. The site is clearly non-commercial in nature, and all quoted material (excepting the material already mentioned for removal) is clearly covered under previously established fair use in copyright law and trademark law. The domain name and meta tags are also covered under section 4 of the Lanham Act S43(d). Furthermore, addressing your assertion of copyright, US Code Title17, Chapter1, ss107 is crystal clear: "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
In view of the foregoing, we demand that you immediately cease and desist from the illicit and deceptive conduct described above and that you immediately remove our client's Logos and copyrighted materials from your website and any other website you own or operate. We also require the immediate transfer of the domain name www.FarmersReallySucks.com to our client in order to prevent further abuse of Farmers' rights via the use of this domain name. This is simple: no. (the legality of this site has already been established)

Please provide us with your written assurances by no later than March 9, 2005 that you will cease all infringing activity and comply with the conditions above. Although our client's hope is to resolve this matter informally, this letter shall in no way limit the rights and remedies available to our client, which are hereby expressly reserved. You should be aware that the financial remedies available to trademark and copyright owners whose rights are willfully infringed include treble damages and attorneys' fees.
Very truly yours,

Jason J. Mazur
Arent Fox PLLC
1050 Connecticut Avenue, NW
Washington, D.C. 20036-5339
Phone 202-715-8409
Fax 202-857-6395
mazur.jason@arentfox.com

 

FarCry - Mollio