Use of Competitor's Name

[Steve B]

Most of my competitors have the name of their companies trademarked. At least one of them has a f/t attorney on staff that does nothing but look for violations of their name usage. I understand and support the importance of their name being a valuable asset to their company and respect their right to protect it.

In our industry however, much of the public misuses those names and they often use company names as if they were a generic description of the product.

What should I do if I am given a testimonial letter and the customer has missused these terms? Should I publish the letter with the name incorrectly used?

I'm asking because one of my friends in the industry got a cease and desist letter because of a term used in a testimonial letter. My thinking is that the company can't dictate how the general public misuses their name (or, they would have to go after John Doe, not the company that publishes John Doe's letter).

I hope I've described this well.

[Evan]

Can you avoid using the name of this specific competitor?

So instead of, "Your product is much better than that sold by WalMart" and make it "Your product is much better than that sold by your competitors.

[Steve B]

I don't feel right changing their choice of words in the testimonial. I'm posting their testimonials as a quote, so I really can't change the words.

The situation you are referring to is not the scenario I'm talking about. It's just the generic use of the term for this kind of fencing that I'm questioning - not a direct comparison between companies. Using your example, it would be more like they are saying "let's go to Wal Mart" when they really mean let's go to K-Mart or any other similar store.

[orion_joel]

If the term is a generic term used to describe the type of product, then i do not see how a company could trademark it, unless they trademarked it and then through popular use it became the generic term. However it is a tricky one, if it is a truly generic term then you shouldnt have any problems defeating any cease and desist.

[Steve B]

They created the term - then it became generically used by the public. They have done a good job of preventing the loss of their trademark name by aggresively fighting the generic use of it by other businesses.

[Business Attorney]

Don't do it. While you did not write the testimonial, if you publish it, your action is still violating your competitor's trademark. It's your choice not to just stick it in a drawer.

Companies are very tough on trademark infringement because they have to be. If they allow a trademark to become generic, they can lose all rights to the mark. Some common words like zipper, escalator, aspirin and cellophane were originally trademarks and were lost to "genericide."

Companies with brands like Kleenex, Windex and others must constantly fight to protect their marks or they will lose them.

If you don't feel right editing the words to remove the generic use of the trademark, then you should either contact the customer and ask them to do it (or request their permission for you to do it) or stick it in your drawer.

[Steve B]

Thanks David. That's why I asked -

Is there some kind of editing symbol that I could use to show that I had to make an edit on someone else's document?

[orion_joel]

Probably the easiest way is to contact the customer and just ask straight out for permission, like

Hi Joe, just wanted to get your ok to change one thing in your testimonial, it is changing kneenex to tissue?

Most people will be fine with that, and if not explain, that by leaving the original term it could cause legal issues later on, as the actual term is trademarked by a competitor who enforces the trademark. The rest that questions the change would probably be ok with it now. It may even help you get more word of mouth referrals because some people may find this as some reason why people should use you over a competitor because of the trademark.

[Steve B]

Many people around here really hate my main competitor. They have been charging outrageous prices, give lousy service, and require expensive batteries that you can only get through them. One of the people that wrote a testimonial for me trashed them so badly that I asked them to re-write it to tone it down a bit just so it wouldn't be so harsh. Luckily, in that case, they were using the trademark name correctly (describing my competitors company specifically) so that one can stay unchanged.

[Business Attorney]

Thanks David. That's why I asked -

Is there some kind of editing symbol that I could use to show that I had to make an edit on someone else's document?

Generally the edited words are put in brackets so it would look like:


They have the most dependable and affordable [electric dog] fence system in the Louisville area.

[Steve B]

Perfect. Thanks David.

[huggytree]

when redoing my website i edited the testimonials that i used.

some i shortened
some i did grammer corrections

i think changing a brand name to 'competitor' is no big deal..you are not altering the intent of the testimonial. odds are 99%+ that the person wouldnt even notice it if they saw their own testimonial 6 months later..

anyone who wrote a testimonial for you thinks your work is top notch and wants to help you...do you think they would mind if you changed 1 word in it to make it legal for you? i dont

[mbc]

This is something which I also have also been wrestling with..

I eventually simple placed an asterisk over part of the name of the competitor.

such as: cashfl** manag**, quic*boo**, myo* and ereco**


I have also placed this comment above the top of the testimonials:

"We were forced to asterisk out our competitors names, as some of them got a little upset."


In some cases it would be obvious to tell who the client is talking about, so I do wonder if I should be placing more asterisks and maybe only leaving the first two letters..

what do you think

[KristineS]

If you use the asterisks people will still be able to read the company name. I suppose it's better than nothing, but I'd be more inclined to just say "competitor" or something.

[Steve B]

I agree with Kristine. Maybe a "leading competitor" or a "big name in our industry".

[Evan]

This is something which I also have also been wrestling with..

I eventually simple placed an asterisk over part of the name of the competitor.

such as: cashfl** manag**, quic*boo**, myo* and ereco**

what do you think

I don't like asterisks. It seems like you are "swearing" or there is a reason you are leaving out letters.

Your typical customers, who would probably be looking at accounting software for the first time, are certainly going to be clueless as to what the heck you are talking about.

EL

[mbc]

thanks everyone,

The website is being systematically overhauled by us and this is one of the pages that needs overhauling..

So I came here this morning to seek out information on this and I think you have all made great comment..

Maybe I can leave my small notation that the names have been removed and simply insert the word competitor or something similar in brackets as suggested.. yes the asterisk is swaring (I do that)

thanks