Comment by Beijinger
12 hours ago
Never be intimidated by a trademark. Especially, if your domain is older than the trademark. Even if it isn't, there are many trademark classes.
12 hours ago
Never be intimidated by a trademark. Especially, if your domain is older than the trademark. Even if it isn't, there are many trademark classes.
Easier said than done, you don’t get lawyers fees back for winning a frivolous lawsuit, but you are required to pay them if you want to win. It’s entirely feasible for a company to force your hand in this way.
Most lawyers
1. First don't really care, since they get the money from their client
2. Think you will give in if they write a threatening letter.
I am not a lawyer but most lawyers have had a bad experience with me. (I have worked in regulatory and have written patents that were granted. So I am not a total NOOB). Many communications ended with "we don't want to pursue this further..."
> you don’t get lawyers fees back for winning a frivolous lawsuit
Not automatically, but you can attempt to get them back through the court.
It depends on the country.
In the US, you normally don't recover costs even if you win; sometimes you can get an exception, especially if your opponent behaved in a particularly egregious manner.
In most of the rest of the English-speaking world, the normal rule is the loser pays a significant percentage of the winner's costs. I know here in Australia, the default is the loser pays (on average) 50–75% of the winner's costs ("standard costs")–the variation is because the judge sends the case to an auditor who reviews the winner's legal bill against the rule book, and so the exact percentage depends on factors like which tasks the winner's lawyer charged them for, their hourly rate, what the auditor viewed as reasonable given the complexity of the case, etc. Convince the judge the loser behaved egregiously, and then you get indemnity costs, which are closer to 85-100%.
This has pros and cons. For the "little guy", it makes lawsuits much more survivable if you are confident you are going to win; it makes you much more inclined to just fold if you think there is a significant risk you'll lose.
Using California as an example, only case where this typically applies would be if you specifically have bound contract with a provision specifying winner is awarded legal fees. Trademark lawsuits are by and large not contract disputes so it would generally be not applicable.
You might be able to recover court costs via further legal action, but they tend to be minuscule in comparison to lawyer fees, and recovering them will cost you additional lawyers fees.
> Especially, if your domain is older than the trademark.
My understanding is that trademarks are about the term being recognised "in common", while a ® is once you pay money to your govt's department for the fancy paper. Hence, if you registered <cool name>.com and sold said cool named game, you already have a trademark simply because you're the author. (Of course, money for lawyers and proving things in court isn't free, but you have legal grounds to stand on nonetheless.)
You write about creating a precedent by using a trade term in commerce, and in common law this has some meaning, but it is still very different.