IntelliBiz Response to Larry Goins Infringment Claim
To Whom It May Concern In regard to your "complaint" that IntelliBiz is somehow in violation of any part of the Lanham Act, rest assured we are not, and our attorneys have long since verified it. Please be assured that we respect the intellectual property rights of others and have no desire to infringe on your client's legitimate trademark rights. However, as you are certainly well aware, a trademark is not a right in gross, protectable against any and all use, irrespective of whether such use creates a likelihood of confusion. See EXCLUSIONS in the Lanham Act, which states that commercial use for comparison purposes is acceptable use, as is any story, editorial or review published by a publisher (we are publishers). John Beck, Russ Whitney, Mentoring of America and Russ Dalbey, among others, have all attempted to question our use of their marks, and all failed.
1) Our websites, www.intellibiz.com and real-estate-made-easy.com, specifically state who we are and what we offer. There is no room left for confusion. Nowhere does it claim - or even insinuate - that it is an "independent consumer site", mor is there any possibility of confusion that we are somehow affiliated with or representative of TGG. Furthermore, in full COMPLIANCE of the Lanham Act, any comparisons we make are fully allowed - comparisons are perfectly legal, as long as there is no attempt to confuse consumers into thinking we are someone else. In no way is our website misleading, nor does it "lure by blatant falsehood" - and thereby, you are in violation of libel laws if you are not more careful. Our website and our ads go to great lengths to identify exactly who we are, and who we are not, to ensure NO confusion whatever. See "NOTES" at the end of this response.
2) As for using "Larry Goins" as a meta word, this, too, is perfectly acceptable per the 9th Circuit, as our website does compare the Goins program, and therefore it is permissable to help consumers find comparisons. Since it is for comparison purposes - again, perfectly legal under the Lanham Act - it does not constitute infringement.
3) Paid inclusions in Google etc. under the term "Larry Goins" is also not a violation of the Lanham Act, provided it does not cause "confusion". Our listings specifically state that we are a comparison/review page, and the page the consumer gets specifically states who we are, which avoids all confusion. While it may be a violation of trademark law to "lure by confusion", it is not in violation to simply lure with a comparison that does not confuse. This is exactly why the TD Waterhouse ads are able to use the trademark of Charles Schwaub in their commercials, or Coke uses Pepsi. Please note that when our web page turns up in the list of search hits, it appears in the list as "Compare . . ." or "Comparison of . . ." or "Review" . Thus, it is highly unlikely that a web user perusing the list of many thousands of hits generated by a web search for "Larry Goins" would be deceived, even initially, as to source, sponsorship, or affiliation of our web site by your client. If people searching "Larry Goins" want only to find Larry Goins, our listing, ad and subsequent web page would not divert or confuse them. To insinuate otherwise is absurd.
Summary: We are not obligated to, nor will we, remove all reference to Larry Goins from our website. You may want to brush up on the Lanham Act - the part about comparisons being perfectly acceptable use (see EXCLUSIONS). Nor will we stop listing under the keyword "Larry Goins", as that is also permissable under the comparison section of the Lanham Act.
If you wish to waste your time pursuing this further, let me know and I will refer you to our attorney, Mark Wright, Esq., of McLane, Graf, Raulerson & Middleton PA. Attorney Wright has been lauded as the #1 Intellectual Property Rights Attorney in America and has successfully handled this same complaint made by others who tried to twist the Lanham Act to suit their own needs. I will be forwarding to him a copy of your false accusations along with a copy of my response to you. If you pursue this further, you will be hearing from him. In the meantime, I suggest you refrain from making any further false accusation. As attorneys, you should know better.
1) The 9th US Circuit Court of Appeals, in a case involving whether trademarks can extend to search terms ruled, "people can use trademarks as descriptions if they only use as much of the word as necessary."
2) The Lanham Act (trademark law) specifically states that use of another's trademark for commercial comparison is considered "fair use". Specifically, it states, "The following shall not be actionable under this section: (A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark."
3) From LeBoeufm Lamb, Greene & MacRae LLP (lawfirm specializing in Internet Law)
"The problem arises when Internet search engine companies sell "keyword" ads, by which an advertiser pays to have its ad appear on the page displaying a web surfer's search results based on a competitor's mark.
For example, a sports shoe company may contract to "buy" the search term "cross-trainer" from a search engine, such that every time a web surfer conducts a search for "cross-trainer", the sports shoe company's banner advertisement appears on the screen that displays the search results. One click on that banner ad then transports the potential customer to the advertiser's content, where the web surfer can browse the advertiser's selections and may make purchases online. So long as such practice does not generate consumer confusion, it would seem to be a legitimate one. For instance, in Playboy Enterprises, Inc. v. Netscape Communications Corp., 55 F. Supp.2d 1070 (1999), affirmed by 202 F.3d 278 (9th Cir. 1999), the court denied the plaintiff's motion for preliminary injunction on the ground that the likelihood of confusion does not exist."
UPDATE: In regards to Goins' image, we will remove it as a courtesy, as it is not necessary. In regards to the statements from the Better Business Bureau, those comments were directly from the BBB website at the time our page was published, as the BBB will attest. We will re-check with the BBB tomorrow - if their comments have changed, we will reflect that in our page by the end of the day. No other changes will be made.
UPDATE: The Goins image has been removed as a courtesy - as a publisher of a review/comparison site, we were not obligated to do so. I have re-checked the BBB profile for TGG. They have upgraded his rating from a "C" to a "B", which we now reflect in our page. As for the other comment made - the one about the Goins Group not responding to inquiries - that remains on the BBB site, and so remains in ours. So, it appears your claim that our "other" BBB related comments being false are, themselves, false. The following changes have been made to the page - the image removed, and the BBB rating changed to "B". No further changes will be made at this time. If any of the information changes or becomes out-dated, or if TGG can prove any statements are false, please feel free to provide the proof - leave the self-promoting hype out.