On Wednesday, we received a Cease & Desist order from Proflowers, alleging we were in violation of their trademarks and demanding removal of the Proflowers video by 5:00pm May 1. On the advice of counsel, we complied with the order and removed the offending video and accompanying blog post.
Proflowers had two items they considered offensive. One was a link we had on the home page of our website that said simply "proflowers" and linked to the video.
The second was the video itself, where we had used their trade dress (i.e., box) and trade name to disparage their business in order to build our own.
After looking at these through the eyes of a consumer, we'll concede the first point. A reasonable person clicking on a link saying "proflowers" could reasonably assume they were going to the Proflowers site. Had we used the text "frozen roses from proflowers", we probably would have been OK. Other people had this same link, and that's why BOSS, Cheryl and Infinite's messages were posted in the video thread. If you haven't removed the link, you should (there's no video anyway).
The second item started out great, and the initial comments were the exact discussion we had hoped to start. As the shills, trolls and fanboys showed up, comments strayed away from the original topic, and PF probably has a claim here. Had I simply turned off comments from the beginning or deleted all irrelevant comments, we probably would have been OK.
We had three courses of action: ignore the C&D and definately get sued, go back and edit the comments and links and risk a major suit, or comply and be free of the threat of a suit. We chose to comply, learn from the experience and advice, and think about the next Pro Florist campaign (this time, taking care to ensure it is done correctly and are untouchable).
Two important items to note:
1) Businesses DO NOT have the same free speech protections as private citizens. That's never been the case in the US, and there are very strong laws protecting trademarks and intellectual property (that's why the US rocks as far as innovation and content production are concerned). And, since we engage in the floral trade, we cannot be considered private citizens in any public communications (so I cannot simply start another blog and repost it all as myself).
2) Proflowers did not question the content of the video or the blog post, only that we infringed on their trademarks.
The video experiment was awesome, we all learned from it, and I for one am a little disappointed I didn't do a better job of keeping the message clear. But, we all banded together, got their attention and really really pissed them off, and that feels good.
There's no doubt the timing of this was meant to coincide with the beginning of their Mother's Day ad blitz, and to try and bully us into not seeking the advice of counsel. Fortunately, we and people around us move at Internet speed, so we were able to seek, receive and act on solid advice very quickly.
Moving forward, the video will not be making a return appearance except for discussions of the incident, since it's too recognizable. We're going to lay low, since we feel we're being watched very, very closely. In the meantime, other content can, will and should be developed and publicized in the proper manner.
Finally, thanks to everyone for the encouraging PMs, and Cheryl Bakin, CHR, BOSS and Infinite for keeping everyone filled in while we dealt with the situation. Not one of us will ever forget the "thunk, thunk, thunk" of frozen rose heads on our dining room table.
Proflowers had two items they considered offensive. One was a link we had on the home page of our website that said simply "proflowers" and linked to the video.
The second was the video itself, where we had used their trade dress (i.e., box) and trade name to disparage their business in order to build our own.
After looking at these through the eyes of a consumer, we'll concede the first point. A reasonable person clicking on a link saying "proflowers" could reasonably assume they were going to the Proflowers site. Had we used the text "frozen roses from proflowers", we probably would have been OK. Other people had this same link, and that's why BOSS, Cheryl and Infinite's messages were posted in the video thread. If you haven't removed the link, you should (there's no video anyway).
The second item started out great, and the initial comments were the exact discussion we had hoped to start. As the shills, trolls and fanboys showed up, comments strayed away from the original topic, and PF probably has a claim here. Had I simply turned off comments from the beginning or deleted all irrelevant comments, we probably would have been OK.
We had three courses of action: ignore the C&D and definately get sued, go back and edit the comments and links and risk a major suit, or comply and be free of the threat of a suit. We chose to comply, learn from the experience and advice, and think about the next Pro Florist campaign (this time, taking care to ensure it is done correctly and are untouchable).
Two important items to note:
1) Businesses DO NOT have the same free speech protections as private citizens. That's never been the case in the US, and there are very strong laws protecting trademarks and intellectual property (that's why the US rocks as far as innovation and content production are concerned). And, since we engage in the floral trade, we cannot be considered private citizens in any public communications (so I cannot simply start another blog and repost it all as myself).
2) Proflowers did not question the content of the video or the blog post, only that we infringed on their trademarks.
The video experiment was awesome, we all learned from it, and I for one am a little disappointed I didn't do a better job of keeping the message clear. But, we all banded together, got their attention and really really pissed them off, and that feels good.
There's no doubt the timing of this was meant to coincide with the beginning of their Mother's Day ad blitz, and to try and bully us into not seeking the advice of counsel. Fortunately, we and people around us move at Internet speed, so we were able to seek, receive and act on solid advice very quickly.
Moving forward, the video will not be making a return appearance except for discussions of the incident, since it's too recognizable. We're going to lay low, since we feel we're being watched very, very closely. In the meantime, other content can, will and should be developed and publicized in the proper manner.
Finally, thanks to everyone for the encouraging PMs, and Cheryl Bakin, CHR, BOSS and Infinite for keeping everyone filled in while we dealt with the situation. Not one of us will ever forget the "thunk, thunk, thunk" of frozen rose heads on our dining room table.
