After a year of my blogging about Wal-Mart on ALP, Wal-Mart has had enough. WM has sent its attorneys after me -- to stop me from using their slogan "Always Low Prices", and to scoot me off the alwayslowprices.net domain.
Let me be clear at the outset; there is no scandal here. I am not outraged. This is about business and control of property -- not persecution. Unlike GM, WM did NOT send a goon squad. And though I find many of Wal-Mart's claims spurious, I am not a lawyer, and I will have to consult with my own lawyers before proceeding formally. And though they will tell me to not discuss the matter any further, I think transparency is more important than most lawyers do.
I promise to fight to keep the alwayslowprices.net domain and Always Low Prices name. And I want the blogosphere's help and advice on how to proceed.
Here is a cropped PDF copy of a letter sent to me by email and snail mail by Wal-Mart's attorneys regarding my use of their "logo". (I have removed sensitive contact information).
What is the claim?
The claim is that I am in voliation of the Lanham Act -- §1125(a), §1125(d), and §1114. Basically that I pretend to be allied to Wal-Mart, and that I use Google Ads to profit off of Wal-Mart's trademark.
I am sympathetic to Wal-Mart's desire to control its private property, but my use of this domain has in no way taken business away from them. Indeed, as one of Wal-Mart's most ardent defenders, taking this domain away from me is likely to hurt Wal-Mart in the short and long run. Who else regularly faces off against Wal-Mart's opponents, union sympathizers, and the like on the internet?
Why are they after me after a year of blogging?
WM filed for a service mark for "Always Low Prices" (with a few variants) on 2/2/04, for both retail store services and online retail store services. As of today, according to the US Patent and Trademark Office, WM has not had this sloagan registered as a trademark. However, their claim went forward on March 29, 2005, and will likely have little problem under further review (unlike WM's older slogan Always the Lowest Price, which was without a doubt, a bald but understandable lie).
As far as Wal-Mart's specific claims go, I will reply honestly:
I admit that I have their logo prominently displayed. But I think it's a fair intellectual use. Low Prices are the primary consumer aim of Wal-Mart, and should be the core of discussion about Wal-Mart. I don't think anybody has ever been confused ALP and WM, walmart.com, walmartstores.com, or walmartfacts.com. Does anybody actually think that Wal-Mart would stick "The Best and the Worst about Wal-Mart" on top of its own website?
The URL, alwayslowprices.net, is the same as the blog nam -- that's the entire point of name recognition. Anybody who comes to ALP will realize immediately that they have not come to Wal-Mart, but to a site that discusses Wal-Mart. If the URL was so critical to Wal-mart's business, why didn't they buy it 10 years ago, when they starting using their slogan?
Of course, I should have had a disclaimer up on the sidebar the entire time; As Kevin Drum once noted, I did at the beginning, but in one of my reformattings, I must have dropped it by accident. So, a new disclaimer is up.
Wal-Mart claims that I pretend to be a part of Wal-Mart by linking to walmartstores.com under the label "WM News". Does anybody find this an even remotely sensible position?
Wal-Mart claims that my use of advertising for services that "might be of interest to Wal-Mart's partners and vendors" concurrent with use of their trademark and name on the blog is against "U.S. law" and my "domain name agreement."
The entire $95.83 I have collected from advertising has not even been enough to pay for the $11 monthly bandwidth charges. Though I'd rather not have to, I have decided to take down the advertising. I know that free speech isn't free, and I'm willing to pony up.
Posted by Kevin on April, 5 2005 at 03:29 PM
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Scipio wrote:Do not let thy left hand know what thy right hand is doing. And if thine left hand offendeth thee, cut it off.
Sheesh, what are they thinking? You and me are the only people in the world who like Wal-Mart, and you're the only person who blogs favorably about them.
-- April 5, 2005 04:44 PM ∞
justin wrote:I assume you've seen this site?
http://www.taubmansucks.com/-- April 5, 2005 06:01 PM ∞
Scribbler wrote:It seems to me you could keep the domain name if you put a prominent disclaimer at the top of the site stating that you are in no way affiliated with the similar trademark holder (walmart)...
-- April 5, 2005 06:12 PM ∞
thewebguy wrote:amazing, simply amazing. i have never read your blog before, but i hope, for you and the rest of the internet, that you don't have to give up the name.
-- April 5, 2005 06:18 PM ∞
Mat Hall wrote:This may be of some reassurance:
http://www.cnn.com/2005/TECH/internet/04/05/copyright.law.ap/index.html
To summarise, some other guy got taken to court for a similar thing and the judgement was that using a trademark in a URL is fine and dandy. The only issue they took was that he tried to sell the domain name for profit, so I guess the ads would have to go from your site. Other than that, a precedent has been set in your favour.
-- April 5, 2005 06:18 PM ∞
Dennis wrote:what are they talking about? i thought this site was called "alway slow prices".
-- April 5, 2005 06:29 PM ∞
Bob R wrote:Wal-Mart needs to be spanked. They're only coming after you because their stock has tanked, they don't think highly of women, they like to get cheap labor, and they despise the unions. Remember that they're just a bunch of Arkansas hicks that think they're Gods. (I'm from the South so I should know.)
-- April 5, 2005 06:48 PM ∞
Fazookus wrote:You're busted! I think you'll just have to give up the domain, I'd suggest selling it to them at the low, low price of $250,000.
Otherwise tell 'em you'll sell it to a union, heh-heh.
Hang in there,
Faz
-- April 5, 2005 06:53 PM ∞
McGroarty wrote:I once worked for a company called High Voltage Software. HVS had to trademark the company name and the High Voltage logo for specific purposes. The company made games, but because they periodically gave out promotional tee shirts, mugs, mouse pads, etc they had to establish the trademark for those purposes as well.
Later, Sears came out with a High Voltage Kids clothing line. HVS' attorney advised that HVS had to go after Sears in order to protect the brand, or HVS would likely have trouble pursuing legitimate infringements later on.
In the case of Sears, they agreed to some trivial settlement. A buck and a statement that Sears was not contesting High Voltage Software's right to the brand, or something along those lines.
Chances are Wal*Mart is in a similar position. The letter looked to be pretty boilerplate, and directed at the same purpose.
In your shoes, I'd call up and point out the changes you've made after you remove the Google ads from the archive pages as well. Perhaps you can resolve this without changing the domain name.
If you do call, I sure wouldn't acknowledge any wrong doing on your part. You can express that you have accommodated on some points, but that you have ceded on moral grounds.
If they won't budge, I'd sure be tempted to take advantage of the fact that Wal*Mart's having its two day image conference. The press is very hungry for Wal*Mart stories right now!
-- April 5, 2005 07:23 PM ∞
Bob wrote:Woohoo, I'm a part of a crushing of the little guy by big business. I think I'll subscribe to The Nation now and start reading Chomksy.
If I was the old Bob, pre-medication, my thought would be to give them the finger. Alas, I'm much more calm now. Maybe, it was my comment the other day wondering why we weren't invited to shindig this week.
-- April 5, 2005 07:25 PM ∞
Keivn Brancato wrote:Bob,
I'm sure the folks at The Nation are getting a kick out of this.
McGroarty,
The individual entries and archives are now commercial free -- except for comment spam, that is.
Mat Hall,
Great link. Thanks for the support.
The Rest,
I've contacted EFF. I ain't movin', and I ain't sellin'. There's simply no need.
I think a note saying "please take down the ads" and "make it clearer that your not the CEO of WM" would have saved a lot of trouble.
-- April 5, 2005 07:33 PM ∞
Bill wrote:http://www.technudge.com/2005/04/you-can-tell-them-off-online.html
-- April 5, 2005 08:05 PM ∞
Easyfrag wrote:Whatever you do, if they offer to buy the domain do not accept or counter-offer. Many companies have used a person's willingness to settle as evidence of commercial intent and often have succeeded in getting the domain transferred to them.
-- April 5, 2005 09:20 PM ∞
Carl Beckelheimer wrote:I consider myself an average internet user I was not confused in the least that this site is not an official site. There is more than enough legal precedent for you to keep this site and domain.
-- April 5, 2005 09:29 PM ∞
Kevin Brancato wrote:WM's problem is that ALP has always been an academic project, which I can document through emails and posts. This site has never been about making money.
-- April 5, 2005 09:32 PM ∞
kirsten wrote:hmmm. it seems as though you have always had *no* prices for your website and your invaluable service. i love your blog. it would seem that wal*mart would be remiss to not send you a nasty-gram. it's almost part of the corporate culture at this point to go after bloggers or anyone that uses the internet as a forum for free speech. i think you should stick to your guns. it's incredibly important as we are still in the infancy of the internet and establishing this medium as a viable one for speech.
-- April 5, 2005 10:05 PM ∞
timbo wrote:As previously suggested, definitely read (it is somewhere over 130 webpages long) the taubmansucks.com site since there are a lot of similarities.
Check out Public Citizen's website also.
And I'd get moving on registering www.alwayslowpricessucks.com real fast too...
-- April 5, 2005 10:14 PM ∞
Mike Bentley wrote:My understanding of Walmart business practices include their shutting down smaller more local Walmart stores in favor of much larger regional Walmart stores once they've eliminated lots of the local competition. Just this alone doesn't do it; what they then do is keep the empty old stores empty. This keeps their competition from being able to use them. Keep in mind that Walmart is not an organization that will go light once they set their sights on you, and theirs is not a culture of compromise, including with the US government. You could take the initiative and take the domain name to one of ICANN's arbitrars, and see what they say, but that'll cost you $1500.00 US. One thing I'd recommend is for you to not represent yourself if you can avoid it. Find someone who wants to seize the day and knows lawyereze. The reason is that a knowledgeable lawyer may be able to preempt a lot of the grief described in taubmansucks.com. Can I, by the way, recommend the nearest Costco?
-- April 5, 2005 10:45 PM ∞
Kevin Brancato wrote:Mike,
Keeping the old stores empty is not costless for Wal-Mart. I commented on this here.
I happen to think WM will be reasonable in my case...
-- April 5, 2005 10:58 PM ∞
Ma r t i n @ b l o g b a t wrote:Hm, so by Wal-Mart's logic parodies or news outlets which freature a logo representing the object of their focus could also just as well be threatened to cease and desist. Of course this will never happen to major news or entertainment outlets because they have under hire entire legal departments dedicated to defending their right to fair use.
Frankly, if all is as you've stated here, Sam's Club just lost my business. And I just might let them know.
I hope they are reasonable, Kevin, but get a good lawyer ;)
-- April 6, 2005 02:53 AM ∞
Robin wrote:More precedent in your favor...
http://www.usatoday.com/tech/news/techpolicy/2005-04-05-gripe-site-protected_x.htm
-- April 6, 2005 09:33 AM ∞
Matt wrote:Bob R., WM stock has definitely not tanked. It continues to rise.
Whatever you do, do not offer to sell them the domain name. That is evidence of a commercial intent. My opinion is that you are safe (yes, I am an attorney), but a disclaimer that the site is in no way affilliated with Wal-Mart would be helpful.
-- April 6, 2005 09:45 AM ∞
SomeGuy wrote:Wait, I thought this site was affiliated with Wal-Mart! You mean, it isn't? OMGWTFBBQ?! I've been living a LIE!
-- April 6, 2005 10:19 AM ∞
Andy wrote:Disclaimer: This isn't a legal opinion, I'm just a chimp with a typewriter. Consult a professional.
IMHO, Everything you need to know about Wal-Mart's lack of a case against you has already been decided by the ninth circuit. See the case of Bally v. ______ (I forgot the defendants name, but they owned BallySucks.com) and the L.A. Arch Diocses of the Catholic Church vs ThePopeSucks.com. In both cases, (even though they found for the plaintiff in the latter) the ninth circuit found that having banner ads on a web site in order to pay bandwidth and hosting fees to keep up a web site did not consitute "commercial use" of a trademark. The ninth circuit explicitly clarified that free speech means free as in freedom, not as in free of cost. There's an explicit understanding that it costs money to host a site and that those costs are often defrayed (especially with "free" hosting providers) by advertising.
Consider also that the rank stupdity of Wal-Mart's counsel in this case also could be of great benefit to you in terms of free publicity.
Finally, I'm constantly amazed that corporate management exercises so little control over their outside counsel that they'll let them run amok like this, running up billables, at the expense of public goodwill, which costs people like me in terms of my shareholder value.
-- April 6, 2005 12:14 PM ∞
Keivn Brancato wrote:Unfortunately, I live in Virginia, which is in the Fourth circuit. If I understand the legal process correctly, a precedent set by the Ninth is not binding on the Fourth. Sure, it helps, but that just means I might have an even longer, harder slog ahead of me.
Finally, I'm constantly amazed that corporate management exercises so little control over their outside counsel that they'll let them run amok like this, running up billables, at the expense of public goodwill, which costs people like me in terms of my shareholder value.I don't believe Wal-Mart is getting value for it's attorney dollar. The outside counsel emailed me with a subject line containing "alwayslowprices.com" -- which I have never owned.
An understandable error, but still...
-- April 6, 2005 12:25 PM ∞
yi wrote:it seems that in similar cases i've come across, as long as you are not making money off of the site, there is no basis for a case, or the courts are more likely to rule in your favor. so you should specifically address point no. 4. good move on your part to remove advertising. with the other three points, they don't really have a case against you.
perhaps a letter to wal-mart stating you regret putting advertising on your site and have removed it will help you get a favorable ruling should they take you to court.
-- April 6, 2005 01:29 PM ∞
loren wrote:I hate to be the devil's advocate, but they may have case. In cases such as this it is not so much the issue whether or not you are making money on the site, it is whether there your site and usage of "Always low prices" is diminishing the "good name" of this trademark. Courts have given little weight to disclaimers. This is hardly a open and shut case on other side. Good luck!
-- April 6, 2005 06:43 PM ∞
Kevin Brancato wrote:Loren,
All sides are always welcome on ALP.
Interestingly enough, the letter did NOT accuse me of diminishing the good name of the trademark.
That would be a very hard case for Wal-Mart to argue, since 1) WM diminished the good name itself by switching from "Always the Lowest Price" to "Always Low Prices" when challenged to prove the former, and 2) I have repeatedly said that Wal-Mart does always have low prices.
Thanks for your support.
-- April 6, 2005 07:13 PM ∞
Howard Fore wrote:Someone may have already pointed this out, but on April 5, the 9th Circuit decided a similar case in favor of the domain name holder. See http://www.firstamendmentcenter.org/news.aspx?id=15077
-- April 7, 2005 09:30 AM ∞
interested person wrote:You probably cannot afford to fight Wal-Mart on their intellectual property claims. You need competent, yet affordable legal help. I suggest you contact intellectual property professors at law schools and ask for any suggestions they have as to how you might get the legal counsel you need on this matter.
Also, just for curiosity's sake, you might want to check out the US Trademark and Patent office website. Do a trademark search for "Wal-Mart" as owner of the mark. They are seeking to register "Always Low Prices. Always." as a trademark.
According to the USTPO website, the apllications to register "always low prices" and "always low prices. always" are being published for opposition; they are not yet registered trademarks. Again, you should get competent legal advice about the pros, cons and process of opposing any trademark application. Intellectual property law, and particularly involving internet issues, is not a do-it-yourself activity.
-- April 7, 2005 09:55 AM ∞
IP wrote:It might be worth pointing out that Wal-Mart's in a bit of a no-win position here. The way our IP laws are structured, they need to enforce their rights against all lest they lose protection under the federal IP protection scheme.
It sucks for those who wish the company well or for those who might be fans of a particular TV show or movie, but it is what it is.
And no, Wal-Mart can't play favorites with this issue just because Kevin's running a friendly site.
Of course any company like Wal-Mart that is forced into defending its IP rights is going to look like a bully. It's interesting though that I only heard of this site because of the controversy.
-- April 8, 2005 04:55 PM ∞
Tracy Saboe wrote:As a libertarian who’s been convinced of the illegitimacy of qualifying Intellectual Property as “private” I find this discussing. Kevin bought this piece of internet property, and it’s his. Now Wal~Mart is trying to steal it from him. A perfect example of how intellectual propery infringes on real property.
But when I read that Wal~Mart never even trademarked the slogan? That’s ludicrious!
Anyway,
Tracy
-- April 10, 2005 12:45 AM ∞
Tracy Saboe wrote:As a libertarian who’s been convinced of the illegitimacy of qualifying Intellectual Property as “private” I find this discussing. Kevin bought this piece of internet property, and it’s his. Now Wal~Mart is trying to steal it from him. A perfect example of how intellectual propery infringes on real property.
But when I read that Wal~Mart never even trademarked the slogan? That’s ludicrious!
Anyway,
Tracy
-- April 10, 2005 12:46 AM ∞
