It is hard to believe that anyone would start a business venture and not google the name they wanted to use before going into production - guess what the first hit to come up is when you do that for "Home Barista"? Given that Airsource's story seems implausible at best.

Also any argument that a) calls Dan disingenuous and then b) pretends that despite being a software developer he thinks that logs "showing when he first hit the site" would prove he hadn't been on it before that from a different computer or account strikes me as sketchy.

BrainInAJar wrote:Contact Apple. An IP violation is against the Dev kit TOS and a good way to get your app pulled.

The glib response suggests knowingful infringement and unwillingness to resolve amicably.

I agree that it seems like Apple would be quick to reply to such an obvious intellectual property infringement (even if Nick is telling the truth and the plagiarism is accidental).

I am merely a law student and not a lawyer, but my understanding of the law is that it does not matter whether Nick knew of Home-Barista.com's existence. If Home-Barista.com's use predates Nick's use, if the trademarks are used in the same avenues of trade, and if reasonable people could incorrectly think that the IPhone App was created by or for HB.com, then HB.com could register the trademark and then have a valid cause of action.

That said, a cost-benefit analysis of the situation would suggest that filing a claim is unwise, unprofitable and unnecessarily litigious. I just wanted to put my "intro to IP law" class to work. I am sure Marshall can provide better advice.

It would be nice if something like this could be resolved in a mutually beneficial fashion. Getting lawyers involved would make that less likely. (Sorry Marshall )

Dan,
I'm sorry you have to deal with something like this, big corporate bullying. No doubt, they anticipated your objection and already have their legal ducks lined up.

The best of luck to you.

Doug

People do this stuff all the time. Have a look at what this guy did last year to me: http://www.chrisscoffee.com/ he spelled chriscoffee chrisscoffee and got a web address. It is obvious why he did it. There is an old expression, "imitation is the greatest form of flattery." I was pissed at first but I got over it, especially when people emailed me very upset about it. The same as the people on this thread are about this person doing this to Dan. It is not worth losing sleep over or spending a lot of money on legal fees to get an order to cease. Bottom line people looking for Dan's site will find him. People looking for this app will more than likely find Dan too..

Doug, if a 5 employee company is a "big corporation," I shudder to think what a megacorp my ~60 person company is...

Chris, I think you have a great perspective on this... That's probably the ultimate solution to this issue. Quite honestly, the type of people that would confuse H-B with this iPhone app are not HB's target audience. Perhaps this iPhone app is a partial solution to what to do about newbie noise?

shadowfax wrote:Doug, if a 5 employee company is a "big corporation," I shudder to think what a megacorp my ~60 person company is...

Well funded bullying might be a more accurate description. If they are willing to take a bold risk like this, you have to think they have something behind them other than just a pair of big ones.

da gino wrote:It is hard to believe that anyone would start a business venture and not google the name they wanted to use before going into production

Not knowing enough about Nick's situation to comment, but I used to rent gear from a company under one name, and then under another name, and when they chose a third name, for some reason, they chose mine. I can't believe that they didn't get the idea from their invoices with my company name on them (this predates Google by a bit, BTW). They took my name, slapped 'Inc.' on the end of it, and called it different, and claimed innocence. This may be partially why I responded so strongly initially.
Previous to the name piracy, I had probably put three or four grand a year in their coffers. I'm personally responsible for over twenty thousand dollars of lost gross income, at the most conservative estimate, and over a hundred easily, at not nearly the least, for this company. Telling this story, in my small circle of colleagues, most assuredly cost them at least ten times that much in the last decade, especially since I had a glowing referral for anyone that thought it was a cheap shot.

I have suggested cross-promotion to Nick, and also that buying a sponsorship here would be great advertising. This would be mutually beneficial to all parties concerned.

We'll see where his heart, and his motivations are shortly, I'm guessing.

Dan - I'm disappointed that you chose to remove our email correspondence. I have nothing to hide, and frankly I think if both parties are in agreement there is nothing wrong with posting it. This seems to me the right place to do so since you chose to air our discussion on this forum.

With regards to suggestions that my giant team of lawyers is waiting to pounce - errr, no, there's just me, no legal training - taking time away from my morning cup of tea and my kids to try to reassure you about our intentions. We're happy to consider anything mutually beneficial to try to promote our application and this site! We aren't wealthy but we know you were here first and we don't want to be at each other's throats.

As one person has mentioned in this thread - the application is pretty much 100% newbie focused - and if I'm right in thinking that your site is more pro-oriented or "serious amateur"-oriented then there really isn't much conflict.

Dan - yes, you're right, we could have hatched some tricky plot to research your site and *then* look at it from work, cunningly planting a trail of evidence to fool you - but that's not what we did. I've been upfront with you about how this situation arose and I hope you take it in the spirit with which it's intended - wanting to seek out resolution rather than spiralling into conflict. You have my last email. I look forward to hearing a reply.

Best regards,

Nick

da gino wrote:It is hard to believe that anyone would start a business venture and not google the name they wanted to use before going into production - guess what the first hit to come up is when you do that for "Home Barista"? Given that Airsource's story seems implausible at best.

Also any argument that a) calls Dan disingenuous and then b) pretends that despite being a software developer he thinks that logs "showing when he first hit the site" would prove he hadn't been on it before that from a different computer or account strikes me as sketchy.

I just wanted to reply to this directly to make it crystal clear what we are and aren't claiming happened. We absolutely knew that home-barista.com was there prior to launching our application - however we did *not* know about it prior to naming our application and producing the graphics for it. We also did not use anything from the site - colours, fonts or content - in creating the application.

In summarising our discussion as "Nick says he spent a lot of time and money developing the application and has no intention of changing the name" Dan *is* being disingenuous. Unfortunately Dan has removed our email correspondence from my first post so it's difficult for me to show - but we have been upfront in offering to do something mutually beneficial in order to try to establish better relations and that isn't something Dan mentioned. So I'm a bit annoyed about that which is why I felt I had to respond here.

Finally, yes, you're entirely right about us being able to hit the site from somewhere else first, etc. - and if I was really trying to pull the wool over your eyes then of course there are ways of doing it - but we're not. Hard to convince people of that in a forum post but we have logs in SVN, email etc. and although it's clearly not going to be conclusive, it hopefully demonstrates we haven't been malicious in our choice of name.