Do Lawyers Know Better Than To Send Mindless Cease & Desist Letters?

from the if-only-that-were-true dept

Wed, Apr 29th 2009 9:49am — Mike Masnick

Recently, we posted about how Twitter's open attitude towards third parties and its trademark was probably helping the brand gain acceptance for its sense of openness and fairness. In it, we noted that lawyers were often quick to send cease & desist letters because they can, and not because it makes good business sense. Tom O'Toole takes issue with this claim:

Today, in 2009, all lawyers dealing with online media -- and that includes trademark lawyers -- are well-aware of the challenges of reputation management. They know that any C&D they send could wind up on a hundred Web sites, adorned with ridicule heaped upon their clients. They are able to make nuanced judgments about these things. They are able to balance the pros and cons of enforcing their clients' marks in each situation that may arise. Really, they are.

If only that were true. If it were, we'd have a lot fewer people sending in example after example after example of lawyers being way too quick to pull the trigger on such reputation damaging cease and desist letters. We still get multiple examples of this happening every week. I do agree that a lot more lawyers are familiar with this, but it's certainly not all.

O'Toole also makes an interesting separate argument that Twitter is somehow different than a company like Monster Cable, because Twitter is only involved in "data" whereby Monster Cable makes tangible products, and thus has no network effects. He also suggests that, because of this, Monster hasn't really done much harm to it's business, and that every use of the Monster mark somehow diminishes the value of Monster's trademark. I disagree wholeheartedly. I'm also not sure how this impacts my original claim that aggressive defense of trademarks can harm businesses. Monster Cable has clearly hurt its reputation with its trademark aggressiveness. Just do a basic Google search on monster cable and look at how many of the results near the top are negative, often talking about Monster Cable's aggressive trademark claims. If you don't think that's scaring off plenty of customers, you haven't been paying attention to how customers do research. I'd argue that the value of Monster's brand is diminished a hell of a lot more by everyone trashing the company for being so aggressive than if it had just stayed quiet and focused on building a good product.

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Filed Under: business sense, cease and desist, lawyers

28 Comments

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Ryan, 29 Apr 2009 @ 10:02am

I'd argue that the value of Monster's brand is diminished a hell of a lot more by everyone trashing the company for being so aggressive than if it had just stayed quiet and focused on building a good product.

95% of the criticism I have seen regarding Monster Cable is specifically geared toward their complete lack of providing any kind of apparent value. Obviously, MC is an extreme example and the lesson here is still a good one, but I find it funny that the recommendation is to make a good product when that never seems to have been done in the first place. Perhaps you should suggest they focus more on advertising?
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- Anonymous Coward, 29 Apr 2009 @ 10:31am
  
  Re:
  You might want to check why big sites like Engadget have an embargo on any product news from Monster Cable. It is there because of their trigger happy lawyers. When you have popular sites actively making sure not to mention your products, you have hurt your business.
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  - Ryan, 29 Apr 2009 @ 11:24am
    
    Re: Re:
    http://www.engadget.com/2008/03/03/audiophiles-cant-tell-the-difference-between-monster-cable-and/
    
    Sounds more like a lack of value than overbearing lawyers to me.
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    - Anonymous Coward, 29 Apr 2009 @ 11:37am
      
      Re: Re: Re:
      Ummm, read this link and a bunch of others that Engadget has besides the one you decided to select from a year ago. Most of the posts now are focused on Monster's propensity to sue everything that moves. So not only is the product crap, Engadget had frequent reasons to bring up the company's name in the worst possible context.
      
      http://www.engadget.com/2009/04/09/monster-cable-learns-nothing-sues-monster-transmissio n/
      
      "Wondering why Engadget still has a permanent ban on covering Monster Cable products, even after the company tried to make amends for its frivolous lawsuit and strong-arm settlement offer against Monster Mini Golf? Well, it's because the company hasn't actually changed its ways -- not only did we just catch them trying to peddle their overpriced snakeoil cables using rigged displays for the third time, Noel Lee's lawyers have dusted themselves off and filed a lawsuit against Monster Transmission, a performance auto supplier in Florida."
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      - Ryan, 29 Apr 2009 @ 12:09pm
        
        Re: Re: Re: Re:
        read this link and a bunch of others that Engadget has besides the one you decided to select from a year ago.
        
        The fact that it is from a year ago as opposed to the recent article you cite only reinforces my point that Monster Cable was already notorious for their poor products, not for their lawyers. I'm not disputing that they haven't received additional bad publicity for suing everybody.
        
        Wondering why Engadget still has a permanent ban on covering Monster Cable products, even after the company tried to make amends for its frivolous lawsuit and strong-arm settlement offer against Monster Mini Golf? Well, it's because the company hasn't actually changed its ways -- not only did we just catch them trying to peddle their overpriced snakeoil cables using rigged displays for the third time, Noel Lee's lawyers have dusted themselves off and filed a lawsuit against Monster Transmission, a performance auto supplier in Florida."
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        Anonymous Coward, 29 Apr 2009 @ 2:37pm
        
        Re: Re: Re: Re: Re:
        Just because you bolded what suits you, doesn't change the fact that Engadget stopped posting anything about their new products because of the frivolous lawsuits, which is the point I was making
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        Ryan, 29 Apr 2009 @ 2:42pm
        
        Re: Re: Re: Re: Re: Re:
        And...before they stopped posting about Monster's products due to lawsuits, all they mentioned was how crappy and overpriced they were, and that they would never recommend them to anybody...
        
        Jesus, whatever.
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        Anonymous Coward, 30 Apr 2009 @ 2:47pm
        
        Re: Re: Re: Re: Re: Re:
        Ummm, no, they actually talked about Monster's product, like Dr. Dre's headphones which were marketed by Monster Cables. So your point remains wrong.
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Ima Fish, 29 Apr 2009 @ 10:07am

"and that every use of the Monster mark somehow diminishes the value of Monster's trademark"

This is so fricken absurd.

First, "Monster" is not a mark, it is a word. It's a word used since the 14th century. Now certainly the word Monster is used as a trademark, by numerous companies. But first and foremost it is still a word.

Second, where is this so called harm of the use of the word "monster." Does he have any evidence, any evidence at all, that Monster Cable was harmed because of the movie Monsters versus Aliens? I'd love to see that data!

Third, who gives a rats ass if every use of the word Monster does harm Monster Cable. That's not the point of trademark. Trademarks are intended to protect consumers, so when someone buys a cable, they know they're getting the brand they want. The purpose of trademarks is not to harass mom & pop putt-putt golf facilities.
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- Dj, 29 Apr 2009 @ 11:59am
  
  Re:
  "'Monster' is not a mark, it is a word"
  
  Yes, but I don't believe that any lawyer would be stupid enough to try and get a website to C&D the simple use of the word; rather I think he was talking about the company's mark itself.
  I'm in Hawaii, where our ONLY choice is Oceanic Time Warner (monopoly?), so I'm unfamiliar with MC as a company; so please correct me if I'm wrong about that.
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  - nasch, 29 Apr 2009 @ 12:36pm
    
    Re: Re:
    Monster Cable makes and sells cables, not cable service.
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  - peter, 11 Aug 2009 @ 9:31am
    
    Re: Re:
    "'Monster' is not a mark, it is a word"
    
    "Yes, but I don't believe that any lawyer would be stupid enough to try and get a website to C&D the simple use of the word"
    
    I think that over the years that Monster Lawyers have provided ample proof they are that stupid.....but then again it is not that stupid.
    
    The recipient of a C&D letter has two options
    1. Fold and slink away. Result - Lawyers claim victory and get paid large fees
    2. Stand up to them. Result - Lawyer gets paid large fees.
    Probability that lawyer gets slammed with large fine for sending stupid C&D letter? - zero.
    
    So it may look stupid to anyone with two brain cells, but the Lawyer is the one building up his pension pot!
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J, 29 Apr 2009 @ 10:29am

Could you at least provide some evidence that Monster has suffered beyond its internet reputation being harmed-sales figures in decline, etc? Moreover, aren't they selling an essentially useless luxury product that someone searching online would already know not to purchase?

Also, while I don't entirely agree with Tom, in my limited experience I've found that attorneys are beginning to understand the consequence of rash C&D actions.
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Woadan, 29 Apr 2009 @ 11:17am

Monster Cable is also negatively viewed for the exorbitantly high prices they demand for products that are not demonstrably superior to others with much more reasonable prices. I wouldn't be surprised to find that they are so negatively viewed because of the synergies between their pricing structure AND their over-agressive use of lawsuits any time the word monster appears in any product or service.
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- Andrew, 29 Apr 2009 @ 12:04pm
  
  Re:
  I remember buying a roll of 'monster cable' speaker wire years ago... thinking that "Now my stereo will sound perfect!" but it didn't sound any better (or worse) than it did using the cheapest speaker wire I could buy at Radio Shack.
  
  The same seems to hold true today with HDMI cables. The big box store will sell your a $100 6' HDMI cable while the local computer repair guy sells a similar cable for $15. I can't tell the difference between the picture quality using either cable any better than I could hear the vast improvement in speaker cables 20 years ago.
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A. L. Flanagan, 29 Apr 2009 @ 11:26am

Do Lawyers Know Better, Period?
Based on the accumulated evidence: no.
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- batch, 29 Apr 2009 @ 1:46pm
  
  Re: Do Lawyers Know Better, Period?
  Lawyers are a dime a dozen. Being overpaid and over employed doesn't make them smarter or more important than anyone with common sense. Which is what Tom Tool would have you believe.
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Greg G, 29 Apr 2009 @ 12:07pm

Monster vs Monster
So, has Monster Cable gone after Monster Energy drinks?
I know they went after hundreds of others, like Monster Mini Golf (never heard of them before.)
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- DJ, 29 Apr 2009 @ 12:58pm
  
  Re: Monster vs Monster
  Monster Energy drink
  Monster.com
  Monster Transmission
  Monster Mini Golf
  Monsters vs Aliens (movie)
  Monster Jam (trucks)
  Monster Quest (Discover Channel)
  Monsters (movie)
  "Monster truck" (general-use term)
  Monster. n. 1.
  a. An imaginary or legendary creature, such as a centaur or Harpy, that combines parts from various animal or human forms.
  b. A creature having a strange or frightening appearance.
  2. An animal, a plant, or other organism having structural defects or deformities.
  3. Pathology A fetus or an infant that is grotesquely abnormal and usually not viable.
  4. A very large animal, plant, or object.
  5. One who inspires horror or disgust: a monster of selfishness.
  
  Shall I keep going? I can, you know. BTW ignore my earlier post, I went and got ejamakated.
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  - DJ, 29 Apr 2009 @ 1:10pm
    
    Re: Re: Monster vs Monster
    JOOC I wiki'd this and found the one that takes the cake:
    
    Snow Monsters (a kid's skiing group)
    
    Clearly, the Snow Monsters are threatening the trademark of the electronics manufacturer. I mean when I tell my friends that my son is in the Snow Monsters, they just might think that I've got him in a sweat shop in the mountains making cables....
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DJ, 29 Apr 2009 @ 12:14pm

Common sense(?)
Glenn Beck made a comment last week about the death of Common Sense, and how it took it's biggest blow when an elderly woman failed to realize that a steaming cup of coffee was hot. You know the rest....
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nasch, 29 Apr 2009 @ 12:39pm

Really??!!?
They are able to make nuanced judgments about these things. They are able to balance the pros and cons of enforcing their clients' marks in each situation that may arise. Really, they are.

All this reminds me of is "Really??!!? with Seth Meyers and Amy Pohler".
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bobArlington, 29 Apr 2009 @ 1:13pm

Cease and Desist Your Slander of Attorneys Immediately
Dear Sirs

It has come to our attention that you have slandered attorneys as mindless idiots. We have therefore created a class of harmed attorneys, and are demanding that you cease and desist any further slander of attorneys.

Your allegations that attorneys are all aliens that were snuck onto this planet by Invader Zim to weaken the puny aliens in preparation of an attack by the Tallests cannot be proven and therefore we demand that you remove all references to our minds.

And this would go on for a few more paragraphs if I didnt have to run....
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Lawrence D'Oliveiro, 29 Apr 2009 @ 4:49pm

“example after example after example”
Why do I get the feeling those words should have links to actual examples? Just Mike’s usual style, I guess. :)
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Anonymous Coward, 30 Apr 2009 @ 12:34pm

Monster's Future
They are selling products in an industry where every knowledgeable and competent person HATES them. How can they hope to succeed? It's not like Microsoft, where there is a lock-in or networking effect. Anybody that knows anything about equipment can purchase a $10 cable from a competitor that is no different in any meaningful way from Monster's $50.

They will probably smile when they do so, not just because they saved money, but because they literally despise Monster. You can only prey on ignorance for so long.
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lawgeeknz, 7 May 2009 @ 1:26am

Lawyers do know better
I don't necesarily agree with all of this but as members of the second oldest profession, most lawyers know:

1. There is a chance that the C&D will work (I hate DMCA (s92C here in NZ) but I used it the other day for a flagrant infringer and, guess what, it was enough to get them to pull their web scraping excesses). Good cheap result for client.
2. C&D puts a line in the sand which prevents infringer coming back later and saying "oh you sat on your hands and therefore somehow acquiesced in/consented to my ongoing infringement"
3. Hey, if it does get plastered on the net, both client AND lawyer get exposure. Any news is good news??
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lawyers, 1 Jun 2009 @ 5:19am

Strange
This may not be the case or may not occur often. Still lawyers know much about their work. lawyers
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peter, 11 Aug 2009 @ 9:43am

re: Monster's Future
"How can they hope to succeed?"

Simple economics. There are whole businesses out there who's business is built around selling overpriced products to suckers. It works because for evey ten people who see it for the scam that it is, there will be one person who will not - and the profit from that one person will be more that the profit made by the 9 who bought a reasonably priced item from somewhere else.

Similar princlple behind "50% off" sale merchants. Buy in a product and mark it up 400%. After a couple of months, mark it down as 50% off. Everyone likes a bargin right?
Thing is, all the suckers that bought it at full price gives the company a 300% margin, and all the suckers who bought it at a "50% off sale" will still be buying it at a 100% margin. There are companies who us this as their business model (most high street retailers for a start).
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