The question was asked by the kids at 'This Is Paintball Canada' (thisispaintball.ca) over on the VFTD-FB page--and answered there--but was "hidden" so that it wasn't readily apparent I had responded. (And no, I didn't know how to change that or even if it's possible.) So here it is:
What are your thoughts on the PBNation trademarks being up for sale? Can we assume that this is going to end up in the hands of some ppl who shouldn't have this type of control over the industry or will VFTD just buy it to redirect PBNation.com visitors to your website? Haaa
It is a pig in a poke and I doubt anyone will buy it. As I read the offering it does not convey ownership of the URL (or domain name) only the trademarks--which the Crowdgather/PBN peeps would simply change. (Though I'm kinda surprised it wasn't part of the original sale agreement, but hey.) Trademark is largely about how the words, letters and/or image is designed and any established associations with specific products and/or services. They could go ahead and continue to use PBNation in a different design form in all likelihood and their right (or lack of a right) to do so would have to be litigated if they did. There might also be a case to be made claiming PBNation and the website are indivisibly linked but that seems a long shot and hardly worthwhile--but then I'm not a lawyer.
Regardless, without the website you'd have to sell a lot of T-shirts or jerseys to get your money back and I suspect everybody would continue to use the "real" PBN whatever it ended up being called.
UPDATE: A statement from Sanjay at Crowdgather. More interesting is that the ebay offering appears to have been initiated by Ed Reiker, former owner of PBNation. I asked a PBN rep about that but haven't received a response. Yet?
Friday, July 13, 2012
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11 comments:
There is no PBN trademark sale. It was BS. The PBN folks have already stated as such, anbd they say they have their legal team on top of it. Hoax.
Interesting.
Actually their is a trademark sale. And one party owns the legal rights to the trademark that is registered with the government.
The other party paid a bunch of money, never got the trademark registration ownership changed, and is now claiming there is no sale and they owned it all along.
This is what you call a legal battle, to use a technical term. Another technical term would be to call it "amateur business hacks on one end who specialize in losing lots of investors money and leave open huge loop holes that would cause their investors to lose more money" on one hand with a "greedy, unscrupulous hypocritical old man with an advantage he intends to press" on the other.
The moral of the story is, if you ever must associate with a greedy, unscrupulous, hypocritical old man, don't put yourself in the position of him having an advantage over you.
According to USPTO, the trademark is still owned by Ed. (REGISTRANT) PbNation LLC LIMITED LIABILITY CORPORATION GEORGIA Suite 207 2103 N. Decatur Rd. Decatur GEORGIA 30033
Going o be interesting to see how this progresses.
Having a registered trademark only means you are PRESUMED to be the trademark owner. You still have to actually use it in commerce, continue to use it in commerce, and defend it.
Even if someone were to buy the registration, they would have to sue Crowdgather (pbnation.com the website's new owner) to get a federal injunction telling them to stop using it. And at that point, a federal judge is going to note that the business was sold, the party being sued has been using the mark in commerce for a year, and the party suing them has never used the mark in commerce, and at that point it's just as likely that the registration is invalidated do to lack of use in commerce by the party holding it.
Not a laywer, but I googled one on teh interwebs. In the following questions interject Crowdgather as the domain name holder and Ed Reiker as the trademark owner.
Does the domain name holder have trademark rights in the domain name?
- NO
Is the domain name the legal name of the domain name holder, or some other name that is otherwise commonly used to identify that person?
- Does anyone at Crowdgather identify themselves at PBN? If not, also a "No".
Has the domain name holder made use (prior to the dispute) of the domain name in connection with a bona fide sale of goods or services?
Yes
Is the domain name holder attempting to divert consumers from the trademark owner's web site in a confusing way, either for commercial gain or in an attempt to tarnish or disparage the trademark mark?
No. But if someone buys the trademark name and opens up a site at paintball-nation.com they can make the case that PBN is taking away traffic.
Has the domain name holder offered to sell the domain name to the trademark owner (or anyone else) for financial gain without having any intent to use the mark with the sale of goods or services?
- Hmmm this is backwards... here we have a trademark squatter who is trying to sell the trademark to the domain name holder. Once again proof the Crowd guys' legal team are complete hacks.
Has the domain name holder behaved in a pattern of registering and selling domain names without intending to use them in connection with the sale of goods or services?
- maybe?
Did the domain name holder provide false information when applying for the registration of the domain name (or do so in connection with other domain names)?
- probably not... unless they said they own the trademark?
Has the domain name holder registered domain names of other parties trademarks?
Nope.
How distinctive and famous is the trademark owner's trademark?
- Pretty distinct within the industry.
What's fascinating is all the court cases are from the reverse perspective. Domain name owners who gobble up $9 domains of companies/people who already own the trademarks.
In this case, you've got someone who owns the trademark of a domain.
Almost always the courts side with the trademark in a case of bad intent. But here we have the trademark owner(s) that are the ones with the bad intent.
I'd almost wish some legal firm wishing to make a name for itself would take the case up because it seems to at least set new legal ground.
You're looking at it backwards. The question is, does the owner of the registered mark have a mark that can be enforced?
No, they don't.
Trademarks are not like patents. If you stop using a trademark, you can't keep it. Since Ed sold all of the business associated with the mark, and Ed has no intent of using the mark in trade in the future, he's abandoned the mark.
I don't think anyone is arguing that Ed as a true right to the mark (assuming it's Ed?) or that even it wouldn't eventually end up back in the hands of the Crowdgather people after a lengthy battle.
But all the misses the more important point. Is there anyone who would defend the sale here? Does Ed have anyone in the industry, particularly his former employees, who don't think he is absolutely flaming insane for what he's trying to pull?
It's so out of this world... I always thought the guy was respectable?
Yeah it's a little off. You can only sell something once. Seems like he's trying to double-dip.
Everyone thinks he's insane.
He's probably just upset that all the Crowdgather stock he got in the sale tanked in value before he could sell it.
I would just like to point out that he put the sale up on . . . ebay. There is no way the guy will prevail. Sanjay is gonna probably even be able to recoup lawyer fees if it comes to it.
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