ARMANDO MONTELONGO ATTEMPTS TAKE-DOWN
In 2012 Armando Montelongo attempted a forced take-down of our web page www.real-estate-made-easy.com/armando-montelongo.html by erroneously using DMCA, which is strictly for copyright issues. [Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right;2) identification of the copyrighted works claimed to have been infringed;] Armando Montelongo did not identify ANY copyrighted works being infringed. He only lists TRADEMARKS, which are not covered under DMCA. Armando Montelongo claims:
"I am writing to inform you of trademark and copyright abuse in violation of the DMCA. Please see the information below related to this take-down matter."
RESPONSE: First and foremost, he falsely claims a copyright issue when his complaint is strictly a TRADEMARK issue that does not come within the perview of DMCA. DMCA is limited to COPYRIGHT issues and is part of COPYRIGHT law, separate from TRADEMARK law. There are no copyright issues in the Armando Montelongo complaint. The DMCA states, "The statute also establishes procedures for proper notification, and rules as to its effect. (Section 512(c)(3)). Under the notice and takedown procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider's designated agent". The only claims Armando Montelongo makes are listed for trademarks, not copyrights, and therefore his claim is in violation of DMCA, and therefore not legitimate. The Act also states, "Penalties are provided for knowing material misrepresentations in either a notice or a counter notice. Any person who knowingly materially misrepresents that material is infringing...is liable for any resulting damages (including costs and attorneys' fees) incurred by the alleged infringer". Armando Montelongo and his legal representative must know the difference between a copyright and a trademark, and therefore they knowingly made misrepresentations.
Armando Montelongo claims:
"The goods and services associated with our marks are real estate investment education products and services, including but not limited to seminars, training, manuals, books, videos, and webinars. The services and/or products offered on the infringing website appear to be of a similar, but lesser quality that our goods and services."
RESPONSE: Our program materials are of SUPERIOR quality to his. We include many more methods of investing, we include a free CONTRACT MAKING software app (he includes none), and we provide FREE coaching by actual investors, while his "coaching costs many thousands and is not provided by an actual investor. Furthermore, as additional evidence, our rating at the BBB has been "A+" for decades, while his remains at "F". As a side note, Armando Montelongo did not create his "course" until recently, nor trademark his name until one year ago. Ours has been around for over 20 years, under copyright and trademark protections, and the page he claims "infringes" was first put up prior to any trademark obtained by Montelongo. Furthermore, his statement that our product is of "lesser quality" constitutes libel, whereas he has never seen nor used our materials, and whereas our course is far superior to anything he offers.
Armando Montelongo claims:
"The infringing website has used the marks described above to drive internet traffic to its products and services. The infringing website does so with the intent to sell its real estate products and services. The infringing websites use of License Branding, LLC's marks constitutes an infringement of License Branding, LLC's rights in said marks".
RESPONSE: The marks are not used to directly drive internet traffic to our products/services, but even if that were the case it would not constitute infringement as a) there is no possibility of "confusion", a necessary component of infringement in such cases, and b) the use of the mark is to drive traffic to a legitimate comparison of Armando Montelongo's materials, which is considered "fair use" under the Lanham Act. Any traffic to our product page is a direct result of the reader discovering how poor the Armando Montelongo scam is, and the reader ONLY THEN chooses to check out our offering. The fir use of his mark does not directly divert traffic to any other page or information.
Our page at www.real-estate-made-easy.com/armando-montelongo.html does not infringe any copyright, and therefore does not fall under the jurisdiction of the DMCA. Furthermore, the page does not infringe any trademark, either, whereas under the Lanham Act a publisher (IntelliBiz is a publisher, and published the page in question) may use a registered mark to publish information on a product, and a mark can be used under the "fair use" section of the Lanham Act in any comparative commercial advertising, as long as there is no "confusion" in the use. The page in question is definitely comparative commercial advertising, and there is certainly no possibility of confusion or dilution.