In particular, I'd recommend looking at the full response. While the original article covers the plain-language juicy-sounding excerpts, the full letter to Monster also contains some artful legalese that even I as layman can appreciate:
It starts with several pages worth of requests for information. I'm pretty sure those aren't actually requests for information - they're a threat. If Monster were to actually sue, he'd be entitled to these documents as part of discovery, so he's essentially saying "if you sue me, you'll spend a lot of money on discovery (and be forced to reveal stuff you'd rather not)".
Sprinkled in are some suggestions of ethics violations on the side of Monster's lawyers, a hint at Monster's likely corporate tax evasion scheme (and the requirement to produce the material that proves the tax evasion in discovery), and the threat to break their racket in the last paragraph that kopirgan already pointed out.
All this is even more impressive than the quoted part, and sadly omitted in the original blog post.
For anybody who’s wondering what happened next, this is from the above link:
“Monster's counsel had made a horrible mistake, and probably caused lasting harm to the company, by sending me that ridiculous letter. But he, and Monster, did apparently know the first rule of holes: "If you find yourself in a hole, stop digging." The end, therefore, of the story was a bit anticlimactic. Knowing that I was able to defend myself and knowing that they'd probably be sanctioned for frivolous conduct if they sued me, Monster fell silent. Not a peep was heard again.”
Hadn't seen this before. What a nicely written letter. Explained why they have to do this, outlined a reasonable action step, and even offer to help said action. Moreover, it didn't contain a single threat.
I wish all companies took such an approach. You catch more flies with honey, and all that.
I used to be the webmaster for my parent's HOA[0], and I bought their .com domain name when it became available (a realtor had owned it originally). They eventually hired a firm to run the site, and I pointed the domain at their nameservers, and forgot about it (paying the ~$20/year in renewals, because that's not a lot of money & I have fond memories of living there).
15 years later, I get a registered letter from a law firm – counsel to the HOA – claiming that I was violating their trademark by owning the domain name, demanding that I turn it over to the HOA, etc.
If an actual human had reached out to me, I would have happily transferred the domain. Instead, they paid a lawyer to be a dick about it – so I ignored the letter, they registered the .net, and everyone moved on.
I still keep the domain up, and redirect it to their new URL, because as long as the .com domain works, people will be using it. Which means they will still want it, and I'm not giving it to them. At least not until they ask nicely, and catch me with honey instead of vinegar.
[0]Despite this incident, their HOA is normally perfectly reasonable. It's a few hundred dollars per year to keep up with road repairs, signage, community facilities upkeep, etc.
I totally understand that, but theirs is genuinely not an HOAzilla – they just took a stupid approach to this particular problem. It's honestly the prototypical example of how to run an HOA – low fees (no outside management), providing community features (pool, tennis courts, paved private roads, etc.) basically at-cost, and even hiring folks from the community to help out (teens as lifeguards, retired folks as maintenance, etc.).
Also, my parents still live there, so I didn't want to start any more drama. In fact, they sold their previous home and built a new place in the same community, while it would have been far cheaper to build outside the HOA.
All this to say that, while the internet is full of genuine examples of nightmare HOAs, my parents' HOA is normally run by a few retired folks who mind their own business.
You honestly should have searched to see if they had a trademark. Unlike copyright, trademarks have to exist. I suspect you were probably played. They appeared nice, sure, but they don't appear nice to me. If it were me, I'd have' pointed the domain at a certain picture involving ladies and cups. I've dealt with bullies myself, even in the legal system (IANAL, but do run a few successful small time ventures), and it always blow my mind what people will say.
I recently had a guy from India that claimed I had a security vulnerability, and that I owe him a bounty. I have no bounty and the vulnerability did not exist (I suspect he misunderstood the issue completely...the issue was not an issue at all, it was as designed). When I didn't respond he followed up multiple times, and threatened to sue (I am in the U.S.) He finally gave up. The issue he was referring to was his misunderstanding of modern email standards. It wasn't an actual issue, nor did I ever offer any type of bounty of actual security stuff (I would, but most of my stuff is OOTB, if someone did come to me with an actual issue I'd definitely give them something)
If plaintiffs had to pay the fees for defense prior to settlement or judgement, most of this would disappear. Sadly, nobody has the balls to implement that.
If I cared about HN karma, I'd just post "why not Rust?" on every Go post, and "why not Go?" on every Rust post.
> why wouldn't you just tell the lawyer this or contact the current webmaster
Because the lawyer was trying to scare me with nonsensical legal threats. I'm not interested in helping people who threaten me with legal action.
> your retelling just seems really petty.
It was supposed to – I was replying to someone who wrote, "I wish all companies took such an approach. You catch more flies with honey" – they tried to "catch" me with vinegar, and I don't have a taste for it.
Relatedly, Jack Daniel’s recently won a unanimous Supreme Court decision affirming their right to pursue trademark claims against a dog toy manufacturer.
The toy company claimed their products were parodies, which have heightened protection from such claims, but the Court didn’t buy it.
Weird, when I looked it was showing it as the kindle edition and I could have clicked buy on it. Looking now, if you hit other editions it'll show you the paperback with the old cover but if you click through the editions, eventually it'll only show you the new one for all of them.
This reminds me of the spat between Tekton Design speakers and a Youtube reviewer.
Tekton received such massive and negative feedback, he tried to backpedal the initial threat. But still, the gall. They suffered reputationally not from the [mildly] negative review, but from the fallout from the ill-advised threat of lawsuit.
> My overarching sense is that this whole saga has been largely Mr. Alexander’s fault and it could have been easily avoided.
> Alexander has dropped the Mother Of All Bombs on this situation, displaying disrespect towards the reviewing industry, and regarding reviewers as trivial annoyances that can be easily brushed aside. The outcome of this saga and who will ultimately withstand the fallout remains to be seen, but Mr. Alexander almost certainly looks like an ass at this moment in time, and in my opinion, any negative assessment he receives is largely self-inflicted.
>There’s no doubt in my mind that Eric Alexander of Tekton Design is largely in the right, and in principle, challenging these reviewers was mostly justified.
The next sentence is revealing though:
>The problem, and the reason we’re here now dwelling on it, is how he went about it.
I'm not sure if I understand the first of the quotes, honestly, given the rest of the content. But that seems to be what GP was referencing.
I remember seeing his posts on ASR. Some really fun stuff like how the air coming out of the screw holes for the feet would produce a supersonic boom; in a ported enclosure. Wildly entertaining.
Maybe writing that letter was a bad idea in the first place?
It was good for Blue Jeans and for Monster, as they both avoided expensive litigation, but from a more general perspective, it would have been better if Monster thought Blue Jeans was an easy victim, sued and got its comeuppance.
Is there any way to file a (real) countersuit against someone, just to punish them for having wasted your time and energy with a threat of legal action that never materialized?
The term to search for this is barratry and there are laws against it in some jurisdictions.
Realistically, you will not win a judgment on this to compensate you for your time dealing with a single cease and desist letter. If someone shows a really excessive pattern of it, perhaps a judge or a bar association could be convinced to make an example of them.
I guess that does address my concrete question as given.
But I think I was less imagining a countersuit that literally just "seeks damages for wasted time and effort"... and more imagining a countersuit that can somehow "rope in" the claims in the original suit, so as to force those claims to be evaluated and case law to be created upon that evaluation — whether the original claimant likes it or not.
Imagine, by analogy, outside the domain of IP law:
1. Party A threatens to sue party B for having violated the terms of some contract they have.
2. Party A then drops this threat.
3. Party B then sues party A with the intent of having a judge still evaluate that same question, but now in the other direction: "would party A have had legal standing to sue party B?" — where in the case that party B wins that judgement, this would not only award damages to party B, but also have the same case-law impact as if party A had really sued party B, and lost.
> As for your requests for information, or for action, directed to me: I
> would remind you that it is you, not I, who are making claims; and it
> is you, not I, who must substantiate those claims. You have not done so.
Which party would bear the burden of proof in step 3? Does it get reversed or stay as if the step 1 threat went to court?
So you basically want to give effect to any claim that isn't brought to court of being brought to Court? How does that make anything better? It's going to mean more lawsuits, a waste of judicial resources, and probably moot cases if it's not even adversarial. I understand this is a layman's perspective but it seems incredibly foresighted. You seem to be of the belief that it's never the case that parties, after investigations, etc, reasonably decide not to sue, and that they didn't prior have a reasonable basis for asserting their claims outside of a lawsuit? That's just naive.
This is wonderful. It’s also true! Even when I was running a very small business and not particularly bothered by what people were doing that could be argued as resembling trademark infringement, I was urged to be vigilant about it because if you don’t defend your trademark, you risk losing it. That’s how the law works!
If that really is the reason you’re threatening action against someone, they may just understand if you’re nice about it!
That said, while it may foster more goodwill towards your company, it probably isn’t as surefire a way to generate the swift response you want as being a dick and making the threats
"There have been numerous times, since my exit from the practice of law and entry into the cable business, when I've been glad that I have a legal background, and this certainly was one of those; it meant that the inevitable surge in adrenalin manifested itself through careful legal review rather than through the intended panic."
Blue Jeans Cables was what I switched to towards the end of my serious audiophile days. Before that, I was set up with StraightWire mostly, but I respected Kimber Kables, though I never ended up getting any of their goods.
Now tonearm cables are a whole different animal, and my pair was a mid-priced custom set though one of the high-end dealers — all substance, no flash => aka, not paying for an advertising budget & fancy packaging.
But in the end did monster actually face any penalty at all? They threatened the guy, the guy said no, end of story. The bully moves on to threaten the next guy. The story insinuates lasting damage but it seems kind of subtle...
Most importantly, it was also popularly published. So the critical but tricky to measure metrics now are "how much sales do we loose because we are now firmly labeled as a bully in peoples minds" and "how much potential licensing revenue have we lost because people know they don't need to fold immediately"
It is hard do say, though, because the market for Monster cables is pretty clearly people who came in off the street, read nothing, and picked the fanciest looking cable. By their nature they are immune to bad press, right?
Lol it is not subtle at all - it basically says you will get pennies if you take us on and win, but if we win, you get screwed big time incl damages for anti-trust.
Guess BJC was content with letting them just go away...but once this was generally known, it does reduce the value of those threats.
