Thursday, November 06, 2014
Noted: There's quite a bit of people threatening to sue critics, bloggers, book reviewers and others these days. It appears that within the troubled teen troubled industry, Scott Chandler, who owns Tierra Blanca Ranch is suing people: https://www.kob.com/article/stories/s3591656.shtml#.VFr1dPnF98F and Diamond Ranch is also suing people: https://jilliestake.blogspot.com/2014/10/diamond-ranch-academy-vs-schofields.html
and https://jilliestake.blogspot.com/2014/11/diamond-ranch-academy-doubles-down-with.html .
Suing or threatening to sue seems to be a popular notion these days. It is a way of getting people to shut up. That, and telling a critic that files have been forwarded to the F.B.I.
As popehat has indicated with a blog post about being threatened with a defamation suit, this particular post is not legal advice. It is not to be construed or imagined to be legal advice. I am a blogger, not an attorney. Period.
In scouring the Interwebz, I found bunches of sites willing to tell me in simple terms what all the legalese means. First, under defamation of character, I learned that libel refers to written or published material and slander is spoken. I also learned that the material or statement has to be a pack of lies that hurts the plaintiff in some way. If the action concerns alleged defamation of character, standing will also depend upon what states the plaintiff and the defendant live in and whether or not the plaintiff knows people or does business in the state where the defendant lives.
Having a bad opinion about a plaintiff or a plaintiff's alleged actions or behavior and publishing one's bad opinion is not equivalent to defamation of character. The criticism in the form of a book review is actually a valid defense to a defamation of character lawsuit. On the other hand, prefacing any statement with "this is my opinion" may not protect the defendant from legal action, especially if the defendant is lying about the plaintiff on purpose and being a big meanie poop-head in the process. Further, if the plaintiff is famous in some way and exposed to the public eye, that plaintiff must prove actual malice in court. The standard is thus higher for plaintiffs who are public figures than for regular folks.
A demand letter-- so-called because the plaintiff is demanding stuff near as I can figure-- must lay out the facts of the alleged defamation of character, quote relevant laws, state what the plaintiff intends to do and how much money the plaintiff wants. There are sample demand letters to be had on the Interwebz, although one would think that a fancy attorney would do that for his or her plaintifficating client.
The area of the law referring to trademarks versus trade-names requires close reading. What I got from the sites I checked is that trademarks can involve logos and stuff like that but trade-names cannot. (And a trademark or TM refers to goods like sneakers. A service mark or SM refers to services such as coaching).
The swoosh on a sneaker is a trademark, the name of the company involved with said sneakers is a trade-name. I cannot reproduce a trademark because a company does have complete control over their logos, slogans, and symbols. This is as it should be.
A trade-name may be one's legal name or it may be an assumed name. It is the name under which someone is doing business as or d.b.a. One may register a trade-name as limited liability corporation but ought not to use the trade-name in the way that a trademark is used. An application to register a trade-name that is common may very well be rejected. Thus, wanting to register "John Smith" may be tough to pull off. Wanting to register "John Smith Marijuana Brownie Company" may be more in the realm of probability.
People such as singers may actually trade-name their own name but it is best to apply for this on the federal level and not just in the state of primary residence. The trade-name of a performer (for example) represents the brand (his or her performing).
What is most interesting to me about trade-names is that legally the registrant of a trade-name DOES NOT control all appearances of that name. Thus, it is legal for me-- according to how I read the laws regulating trade-names-- to mention someone's name, even if a registered trade-name, on my blog site. The idea that I am violating copyright law by mentioning the name of an author in the course of a book review is a false idea. Period.
Furthermore, there is a search engine that will tell me whether or not a specific word or group of words has been registered as either a trademark or a trade-name.
radical sapphoq says: These days, knowledge is power. Or at the very least it can relieve anxiety. Just saying. So who's being a bully? It ain't me.
https://www.chillingeffects.org/topics/1 [*wonderful site]
http://www.popehat.com/2013/09/26/so-youve-been-threatened-with-a-defamation-suit/ [*personal favorite]
https://www.eff.org/issues/bloggers/legal/liability/defamation [*I love the
defamation of character
examples of authors suing critics page 4
registered trademark trade-name