06-02-2017, 10:33 PM
#21
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Are they stating that their client's customers are idiots who can't tell different boxes apart?

It wouldn't surprise me much if this is initiated by the lawyers in order to generate billable hours... which don't make it any easier for you to deal with.

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 06-03-2017, 04:33 AM
#22
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(06-02-2017, 08:29 PM)WetShavingProducts Wrote:
(06-02-2017, 08:22 PM)Blackland Razors Wrote:
(06-02-2017, 08:16 PM)WetShavingProducts Wrote: Don't have a choice. I'm not going to roll over just because they say so. Are you confused?

No, but I'm not sure that matters, unfortunately. I'm rooting for you! I hope you'll keep us updated.

It actually does matter because they need to prove that people are actually confused based on the similarities or that I'm actively trying to leech off their non-existent brand recognition by copying their color scheme and other design elements.

I'm hoping they'll see that this was a stupid use of resources and it backfired and just drop it. Otherwise I suppose I'll have more fun letters to share showing how people they've polled are "confused." And a summons....

I meant that it doesn't matter if I was personally confused. I suspect it will be a judge at some point who makes that decision.

This is obviously just a fear tactic and they expect you to roll over. It doesn't seem to me that they have a case and I think it's awesome that your going to fight it.

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 06-03-2017, 08:47 AM
#23
  • Mr_Smartepants
  • Senior Member
  • Cambridgeshire, UK (CONUS post address)
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If the hole placement is part of the problem, then just rotate the box 90deg so the hole is in the upper-left instead of the upper-right.  The font choice is defensible as long as they don't own the exclusive rights to the font (ie, coca cola script font).

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 06-03-2017, 09:56 AM
#24
  • Entasis
  • Atop the Razor's Edge
  • Southern California
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Personally, I would abandon your packaging and come up with a better solution. I've dealt with OC lawyers and have had the immense pleasure of firing them as counsel. What has happened here is that I will never purchase nor recommend Dr. Squat [sic] products. They brought this upon themselves. I dislike their business model as they believe they invented natural soap for men—LMAO. They had better get to suing countless soap makers on Esty and elsewhere throughout the world.

If this is their first contact with you, it speaks volumes to me. They are the losers here.

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 06-03-2017, 12:01 PM
#25
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Regrettably, this is one area of the law which is often abused.  Many defendants who are not infringing end up changing their packaging and reaching a settlement just to avoid the attorney's fees. 

One thing all of us at TSN can do is contact Dr. Squatch by email and social media and tell them what we think about this cheap shot.  If they get hit hard enough, they may realize that this nonsense has hurt their reputation and actually brought more attention to WSP than the imaginary similarity in packaging.

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 06-03-2017, 12:22 PM
#26
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(06-03-2017, 04:33 AM)Blackland Razors Wrote:
(06-02-2017, 08:29 PM)WetShavingProducts Wrote:
(06-02-2017, 08:22 PM)Blackland Razors Wrote: No, but I'm not sure that matters, unfortunately. I'm rooting for you! I hope you'll keep us updated.

It actually does matter because they need to prove that people are actually confused based on the similarities or that I'm actively trying to leech off their non-existent brand recognition by copying their color scheme and other design elements.

I'm hoping they'll see that this was a stupid use of resources and it backfired and just drop it. Otherwise I suppose I'll have more fun letters to share showing how people they've polled are "confused." And a summons....

I meant that it doesn't matter if I was personally confused. I suspect it will be a judge at some point who makes that decision.

This is obviously just a fear tactic and they expect you to roll over. It doesn't seem to me that they have a case and I think it's awesome that your going to fight it.

After wasting my time looking up the test, this comes down to the confusion test. So, either it is 1) prima facie so similar as to likely cause confusion, or 2) actual consumers have been confused.

So, every reasonable person who says they are absolutely, 100% no way confused as to whose is whose, is evidence in my favor. I highly doubt a judge will do anything other than go "they aren't even the same shape..."

(06-03-2017, 08:47 AM)Mr_Smartepants Wrote: If the hole placement is part of the problem, then just rotate the box 90deg so the hole is in the upper-left instead of the upper-right.  The font choice is defensible as long as they don't own the exclusive rights to the font (ie, coca cola script font).

(06-03-2017, 09:56 AM)Entasis Wrote: Personally, I would abandon your packaging and come up with a better solution. I've dealt with OC lawyers and have had the immense pleasure of firing them as counsel. What has happened here is that I will never purchase nor recommend Dr. Squat [sic] products. They brought this upon themselves. I dislike their business model as they believe they invented natural soap for men—LMAO. They had better get to suing countless soap makers on Esty and elsewhere throughout the world.

If this is their first contact with you, it speaks volumes to me. They are the losers here.

I'm not going to roll over. I'll bleed their legal retainer dry if they want to keep on sending letters and responses. If they actually want to pay for a complaint, then I'll actually have to hire a firm to write a motion to dismiss, but I should be able to collect attorneys fees based on how frivolous their claim is and absolute lack of any evidence of actual confusion.

(06-03-2017, 12:01 PM)TheLegalRazor Wrote: Regrettably, this is one area of the law which is often abused.  Many defendants who are not infringing end up changing their packaging and reaching a settlement just to avoid the attorney's fees. 

One thing all of us at TSN can do is contact Dr. Squatch by email and social media and tell them what we think about this cheap shot.  If they get hit hard enough, they may realize that this nonsense has hurt their reputation and actually brought more attention to WSP than the imaginary similarity in packaging.

Yes, the C&D is a popular scare tactic. It is truly shameful that this company thought this was somehow a good idea.

Mod Edit: Inappropriate language

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 06-03-2017, 12:29 PM
#27
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I'd like to see a color photo of the two packages side by side.  I expect that may highlight the differences better than the black and white photo in the letter.

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 06-03-2017, 01:26 PM
#28
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[Image: owJTZZb.jpg]
You'd have to be pretty dumb to be confused.

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 06-03-2017, 02:18 PM
#29
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They're dead on arrival.  It's not prima facie similar as a matter of law, and I don't see how they could show actual consumers confusing one for the other.

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 06-03-2017, 03:25 PM
#30
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OK, I see no similarity at all. What? You both wrap with printed paper maybe? 

What am I missing?

I also never heard of squat (ch) soap. It sounds like something used in a bidet and not for a facial shave. If someone is confused they are confused everyday about much lesser things.

I wish you luck.

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 06-03-2017, 07:34 PM
#31
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(06-03-2017, 02:18 PM)TheLegalRazor Wrote: They're dead on arrival.  It's not prima facie similar as a matter of law, and I don't see how they could show actual consumers confusing one for the other.

I agree. But as a matter of curiosity, do you happen to know whether the trade dress needs to first establish distinctiveness or otherwise show it is entitled to protection before the likelihood or actual confusion standard even kicks in? My research did not answer that question and I no longer have access to Westlaw, Lexis, or the like.

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 06-03-2017, 07:57 PM
#32
  • Mel S Meles
  • On the edge, ouch
  • 44.4899° south of the North Pole
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(06-02-2017, 09:16 PM)WetShavingProducts Wrote: You sue the defendant in their state. It's the easiest way to ensure jurisdiction. You file a complaint with the court, the court stamps it, then you have a process server serve it on the defendant, and then the defendant answers or files a preliminary response, and then the lawyers have at it. Whole process can take years if it goes to trial.

It appears that several contributors to this forum, like me, have spent a significant potion of their respective careers as intellectual property lawyers, and that cohort may include the recipient of the cease and desist letter.  Yr obdnt srvnt has no attorney-client relationship to the original poster, and anything that I post here may not be regarded as legal advice.  (That was a necessary disclaimer.)  However, informally, were he (or she) my client, it is “very likely,” on the basis of what is before me, that my counsel would be that the best strategy is Benign Neglect of the demands.  

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 06-03-2017, 08:09 PM
#33
  • Mel S Meles
  • On the edge, ouch
  • 44.4899° south of the North Pole
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(06-03-2017, 07:34 PM)WetShavingProducts Wrote: But as a matter of curiosity, do you happen to know whether the trade dress needs to first establish distinctiveness or otherwise show it is entitled to protection before the likelihood or actual confusion standard even kicks in?

Abstractly (in American common law), “likelihood of confusion” is the controlling standard, with proved instances of actual confusion merely an evidentiary indicator to meet the likelihood of confusion standard.  Therefore, distinctiveness per se does not come into play at the adequacy of the pleadings stage prior to the obligation to come forward with evidence, but a pleading lacking ultimate allegation of likelihood of confusion may fail a motion to dismiss.

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 06-03-2017, 08:15 PM
#34
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(06-03-2017, 07:57 PM)Mel S Meles Wrote:
(06-02-2017, 09:16 PM)WetShavingProducts Wrote: You sue the defendant in their state. It's the easiest way to ensure jurisdiction. You file a complaint with the court, the court stamps it, then you have a process server serve it on the defendant, and then the defendant answers or files a preliminary response, and then the lawyers have at it. Whole process can take years if it goes to trial.

It appears that several contributors to this forum, like me, have spent a significant potion of their respective careers as intellectual property lawyers, and that cohort may include the recipient of the cease and desist letter.  Yr obdnt srvnt has no attorney-client relationship to the original poster, and anything that I post here may not be regarded as legal advice.  (That was a necessary disclaimer.)  However, informally, were he (or she) my client, it is “very likely,” on the basis of what is before me, that my counsel would be that the best strategy is Benign Neglect of the demands.  

Lol. I had to learn it out of necessity as part of running WSP. I actually practiced family law during my tenure as a practicing attorney.

(06-03-2017, 08:09 PM)Mel S Meles Wrote: Abstractly (in American common law), “likelihood of confusion” is the controlling standard, with proved instances of actual confusion merely an evidentiary indicator to meet the likelihood of confusion standard.  Therefore, distinctiveness per se does not come into play at the adequacy of the pleadings stage prior to the obligation to come forward with evidence, but a pleading lacking ultimate allegation of likelihood of confusion may fail a motion to dismiss.

That makes sense. The scholarly articles on the subject were not clear on the procedural process. If it ever gets that far unfortunately I'll be forced to pony up for a lawyer to write the motion and possible response.

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 06-04-2017, 05:41 AM
#35
  • Johnny
  • Super Moderator
  • Wausau, Wisconsin, USA
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I'm no lawyer, but if I was on a jury I would say the plaintiff was crazy.  The only two things I can see in common with the above pictures is, both packages are made with cardboard (and it appears two different types at that) and they both have a hole.

The print font is different and especially on the stick on labels.  Just look at the capitol E's.

Does this idiot have some kind of trade mark or patent on his packaging?  I doubt it.

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 06-04-2017, 10:31 AM
#36
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put a sticker "THIS IS NOT DR SQUATCH" ... done =)

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 06-04-2017, 10:56 AM
#37
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(06-04-2017, 10:31 AM)tupacboy Wrote: put a sticker "THIS IS NOT DR SQUATCH" ... done =)

Brilliant.  Even a slew of lawyers could not come up with that.

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 06-04-2017, 11:02 AM
#38
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(06-04-2017, 10:31 AM)tupacboy Wrote: put a sticker "THIS IS NOT DR SQUATCH" ... done =)

Lol. I should just photoshop that on, and then send them a letter asking if that was an acceptable change. If they even bother to respond it should waste even more of their resources. Hell just reading it and talking about a potential response should waste resources.

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 06-04-2017, 01:40 PM
#39
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Hey Dr. Schnott or Snatch or Squatch or whoever you are.

I have never even so much as heard of your company. But thank you so much for introducing me.

I have no confusion whatsoever between these brands. It is very clear to me which is which.

And I can assure you right now, that I will never purchase anything from your brand. I'm not confused in the least and therefore not purchasing from you will be very easy to accomplish.

Your nonsensical legal tactic, just backfired. Besides, you are now the butt of many jokes in this market.

I hope Dr. Schnott terminates their legal counsel forthwith. All they have succeeded in doing is giving themselves a bad name. But then again, as I've always said, everyone serves as an example of one kind or another. Thank you for showing us how to be a very bad example.

Now please take a long walk off a short pier.

Kenrick

Sent from my Nexus 6P using Tapatalk

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 06-04-2017, 01:43 PM
#40
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(06-04-2017, 10:56 AM)TheLegalRazor Wrote:
(06-04-2017, 10:31 AM)tupacboy Wrote: put a sticker "THIS IS NOT DR SQUATCH" ... done =)

Brilliant.  Even a slew of lawyers could not come up with that.
Love it.

Sent from my Nexus 6P using Tapatalk

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