As a lawyer (who doesn't have anywhere near enough facts to give you anything close to competent advice), my advice is to find a lawyer to represent you. If you can't afford one, try the EFF or similar organizations. If they won't take you, find a legal clinic nearby. If you're in the bay area, you have have two of the best lawschools in the country within bicycling distance of you (UC Hastings isn't half bad either...). They have legal clinics, generally led by highly respected and knowledgeable faculty that are happy to have cases like this.

Unless you really don't want to fight this, go get a lawyer who knows what he's doing. If you don't want to spend a lot of energy, possibly a lot of time, and likely some money, just roll over now. But, don't half-ass it and try to do this yourself. By blowing at least two deadlines, you've already shown you're not up for it.

Think about the myriad of actions you could take here...wouldn't it be wise to have an idea of where the risk lies?

Get a lawyer stat.

But now something off topic...

I noticed that these kind of answers ("get a lawyer") are used also to answer question even when people are just curious or they just want to learn something. It is nearly impossible to learn what needs to be read or investigated in order to evaluate the situation.

For example, I don't need a lawyer for small claims court but where to get some advise?

In other words, even the most common sense questions regarding law, health, taxes, etc are answered with "get a lawyer, see a doctor, get tax advisor, get accountant, etc".

It does seems that market of legal, health, tax, and similar professionals is due to a disruption.

Is there a cheap lawyer service? Something like not visiting doctor but just visiting nurse.

Not to say that lawyers can never give good legal advice to legal questions without researching--but the paradigm that I just described is a big reason why people, including lawyers, answer legal questions with "hire a lawyer."

Because of that, while anecdotes are very helpful in making a person feel better about their situation, they might not be the right information that the person needs.

It's better to consult with experts who should be able to assist with the specific situation.

Edit: even better - do a virtual legal clinic.

Edit: I've made a "Ask PG" to ask for just that: http://news.ycombinator.com/item?id=4055661

Imagine what HN would be like if only state approved programmers were allowed to have an opinion on technical subjects.

You're being down voted because you are lying about what I said and attacking me for the "crime" of trying to suggest areas of investigation for this guy... who's primary problem is that he has been UNABLE to get a lawyer.

So, yeah, shame on me for trying to help him get a lawyer. I won't sleep tonight.

It is elitist and shitty, but also true. It's not because lawyers are smarter than the rest of us. It's because the legal code in the US is ridiculously complicated, vague, and fraught with landmines.

Dealing with these situations does not just involve legal knowledge. It also involves strategy as well as some practical examples of what others have done in the same situation.

Lawyers (with obvious exceptions) tend to be pretty weak on common sense strategies and tend to frame things totally based upon their legal knowledge and training. This can be a trap that prevents them from seeing a very obvious solution to a problem that a non-lawyer can come up with.

OK, one data point is just an anecdote, but I saw a good example of a lawyer using some basic strategy a while back. I had a legal situation of my own, hired a lawyer and went to court with the lawyer. The situation wasn't settled the first day, so my lawyer looked at the court schedule, figured out that if we asked for a continuance we'd come back to court when a different judge was presiding, who he believed - based on his knowledge of the judge's personal life - would be more favorable to our position.

We came back two weeks later, sat in front of the new judge, and the judge came down pretty clearly on our side, and the situation was resolved amicably. Had we tested our luck with a different judge, things might not have turned out so well (then again, maybe they would). But, anyway, is struck me as a fairly subtle, but effective technique.

That said, I understand that - in general - the courts don't like it when lawyers try to "pick their judge" to YMMV.

A layman on the other hand can engage in different types of manipulation that an attorney can't do even if they had the same idea.

But that's not the issue here. The issue here is whether one can suggest possible legal avenues of investigation that could be used to get a lawyer interested in the case.

There is zero risk in reading the law and then talking to a lawyer about what you find there.

Here's how you get a lawyer interested in the case:

1. Find the phone number of a lawyer. Contact the EFF, or the local bar association for a lawyer that's listed as knowledgeable with the part of law that you're dealing with(in this case, copyright and trademark law).

2. Call the lawyer, arrange a meeting. Gather up everything they ask for when you call them.

3. Meet with the lawyer. If it doesn't go well, go back to step 1. Repeat until done.

4. There is no step 4.

This should be the only piece of advice in this thread.

A few days ago there was this post #1 on YC News about a guys whose kid had this super-rare genetic disorder. Now, what, this guy should only listen to the Doctors and forget about turning on his own brain?

I think that a good lawyer will listen to his Client and appreciate the Client who is interested enough in his case to propose solutions based on this readings/understanding of the Law. Or even discuss the stuff he saw here.

Why on Earth everybody such a pain about legal advise and when it comes to much more important thing in life - health, life threatning disease - nobody's complaining when questions are asked and resolutions proposed.

HN as I understand it is to exchange and share information. Not to censor it. Go to Cuba with your attitude dude. Or just relax.

Should they both just shut up and let the big boys handle it? Or should he take another person's input and use his head to determine it's value? People are capable of offering valuable input without expertise and full details.

As PG said, "Don't trust stuff you read on forums." He didn't say ignore it. It might even save his son's life. I'm strongly inclined to believe this can work in law as it can work with extremely rare medical conditions.

[1] http://twitter.com/mattmight/status/207529584999153664

  > The idea that only lawyers can know anything
  > about the law, and therefore nobody else can
  > suggest avenues of investigation is shockingly
  > elitist.

You certainly can share what you know about these things, but advice given to me in the past about similar situations is that by doing so you can be regarded by some as taking some of the responsibility for the advice you think you haven't given.

The law is complicated, and while you may share what you know, doing so can put you personally at serious and considerable risk. Further, it doesn't always make sense to those who have not studied it (and sometimes even to those who have), so while what you have said may seem perfectly sensible, a lawyer may disagreed strongly with several of your suggestions, and following them may put the person you are trying to help in more trouble.

So despite the fact that you are trying to help, and despite the apparent soundness of your advice, you are not a lawyer, and there are very likely to be implications of which you are unaware. I applaud your willingness to take on the personal risk of what you said, but I am concerned that you are not helping, and may be making things worse.

Edited for clarity

That sounds bogus to me, has anyone heard of any lawsuits of that type? That is, someone who is not a lawyer and is not presenting themselves as a lawyer being sued for giving bad legal advice?

(edit: The rules are different if you are an attorney.)

(2nd edit: This debate seems to be about whether one can be held legally accountable if someone acts on your naive legal opinions and whether it's a good idea to share your legal opinions when--admit it--you really have no idea what you're talking about.[2] Then again, is it a good idea to follow free legal advice provided by a non-lawyer?)

[1] http://meta.answers.onstartups.com/questions/113/do-i- need-to-add-a-disclaimer-when-i-answer-a-question-on-this-site

[2]http://www.thisamericanlife.org/radio-archives/episode/293/A...

On the other hand, jsprinkles and I, when we offer comments about our personal experiences, and pass on to nirvana advice that we received from our actual lawyers, we're somehow in the wrong.

Just wanted to be clear. I will now be much more literal about the advice I got from my lawyers and comment no further on these matters.

  > Do not meddle in the affairs of dragons,
  > for you are crunchy, and taste good with
  > ketchup.

Certainly in this case, no, I can't quote cases where this has happened. But, you know, like, I'm not a lawyer. There are things that happen in legal circles that I don't know about, but which I have been given legal advice about.

So feel free to ignore it all and take a chance that you're right, and the advice given to me was misplaced. Heaven forbid that you should think I'm advising you.

Also: I doubt that you can talk about the specifics of the case, but there should be nothing stopping you from quoting the court case so we could look it up ourselves.

Incidentally, it appears that are providing us with legal advise here. The legal advise is that we shouldn't provide legal advise.

That does not mean you cannot be sued; anyone can be sued. But it does mean that you would win any lawsuit against.

I am a lawyer. (In my particular field, the magical disclaimer is the Circular 230 Notice regarding tax advice.)

Thank you for being clear and specific.

However, based on your comment, it sounds more like you are referring to "hedging language" about the reliability of advice offered rather than an explicit disclaimers that the content is not legal advice.

Programming and law are two completely different fields, each with its own sets of requirements, regulations, practice, and repercussions. Please don't try to make them out to be the same.

The fact that each field has its "own set of requirements, regulations, practice, and repercussions" is obvious to everyone.

Perhaps a better way to respond to such an analogy is to explain how the similarities and differences make his analogy valid or invalid. That could be interesting and informative.

"Don't trust stuff you read on forums", as PG said; use your head and maybe you'll find something worth pursuing.

Technical subjects do not carry the risk of legal consequences in the general case, now do they?

If someone sues you for some bogus claim, is it possible to submit a written plain english rebuttal and have the court throw it out before it gets too serious? I mean if I sue some company for something absurd and demand $10 million dollars, are they forced to actually entertain my lawsuit or can it be dismissed readily without a lawyer?

First, you would have to do some basic research on court filing procedures. It's not rocket science, but you can't just pop an envelope in the mail addressed to the judge.

Once you figure out how to file documents for the case, you need to determine what type of documents to file. E.g. a motion to dismiss might be appropriate if you think the claim is utterly bogus.

It can be "plain English," as Smattiso suggested, and indeed, judges always appreciate clarity. Legalese isn't required, but valid legal reasoning is. Contrary to popular belief, "legal reasoning" doesn't have to be arcane. It's pretty much just a matter of using everyday logic to apply legal principles to the facts of the case.

It's a lot like learning to program. There's no magic involved. It's just a matter of reading the relevant documentation, looking at examples, and using your innate reasoning abilities to put something together in accordance with the rules. And yet, as with programming, reasoning and writing about the law take practice to do well. You can hack together a simple CRUD app with zero programming experience and a lot of motivation. But you wouldn't want to bet your entire net worth on it. Likewise for legal writing. You can spend a few evenings of hard work learning the anatomy of a motion to dismiss and the basics of trademark law, and then you can write your motion. But I wouldn't do it if my personal finances were on the line.

In a situation such as the OP describes, there is an additional challenge. According to the OP, the plaintiff is using and perhaps abusing quirks of court procedure to his advantage. (I'm referring to the bit about default judgement and the alleged absence of certain documents.) That, too, could in principal be dealt with by a non-lawyer, but it would be quite difficult. You'd have to learn a great deal about the finer points of court procedure. This is especially difficult because it's not uniform across jurisdictions.

EDIT: You would also need to determine whether this would constitute unlicensed practice of law in your jurisdiction. Generally, you're allowed to represent yourself in court ("pro se.") But the rules about representing your business are a little more complicated. Sometimes it's OK, sometimes it's not.

So, yes, you can sometimes write something up and get a case dismissed without hiring a lawyer, provided you're willing to learn a great deal very quickly. But you'd be taking a tremendous risk. Probably not a good idea.

Just to be clear: I'm not at all recommending that the OP do this. I'm just answering the question posed in the parent comment. The OP really does need a lawyer, especially considering the plaintiff has allegedly shown a willingness to play procedural games.

A lot of what the lawyers do is to prepare the case and documents in order to save work for the judge. If there's a amateur doing it, it can mean a lot more work for the judge and he may not be real thrilled about it.

Be prepared to explain why do you don't have a lawyer doing it. It's hard to know how well the answer "because I didn't want to pay lawyer's rates" is going to go over because the judge and all of his professional peers are lawyers.

In a smaller city it's quite possible that everyone in the room (including the opposing lawyer) will know each other well and lunch together on a regular basis. Except you.

Is there a repository for learning the basics (and maybe more advanced) legal processes? What forms to send to whom, and when, and what to be sure to do, and what to never do?

It's learn-able if there is a resource that teaches it. An online Khan Academy-like resource. Or even maybe an educational game. The only lawyer sim I've seen is Phoenix Wright.

Sure, I'd still prefer an experienced lawyer to do the driving if something comes up, but I'd feel more confident with some solid legal knowledge of my own.

I'm not aware of any single repository of such information other than law school. But if you're willing to consult multiple sources, you can definitely find the information.

For starters, one can always get a copy of the reading lists for various law school classes. You could also look at commercially prepared law school study guides. Pretty much everything you would learn in law school is available in book form, in one place or another. Obviously, law professors and lecturers contribute a great deal of value added in the form of their own experience and idiosyncratic knowledge. But the core material is all written down in various places.

Those types of materials will teach you the basics of American law. The next step is to research the statutes and case law in your jurisdiction. That means federal, state, county, and municipal laws. The statutes can be found by Googling, for example, "Illinois Statutes," or "Chicago Municipal Code." As for case law, assuming you don't have a subscription to a legal database, you can use some Google-fu to find articles that address whatever legal question you're researching. You can also buy a "treatise" on the field of law you're researching; they're packed full of case citations.

As for court procedure--well, first, let me just say that you probably don't want to litigate your own cases unless you're in small claims court. And even then, having a lawyer really, really helps. But if for some reason you want to learn procedure, that'a a bit harder. There are books specific to individual jurisdictions. Also, courts often publish their own procedural rules. All of this can be found through Google.

Again, this won't make you a lawyer, and it won't eliminate the need for one. But I'm a firm believer that anyone can benefit concretely from a solid understanding of the law. There's no better combination than a smart lawyer and a smart client.

As it stands it is way too easy to use as a weapon to sue people into submission. Although I think this is already well known.

But consider this: To be fair to plaintiffs, the bar for "not frivolous" would have to be fairly low. I suspect that a fair pre-vetting system would only weed out a tiny fraction of lawsuits. Probably, even most lawsuits that end with a successful motion to dismiss would make it past the type of preliminary review by the court that you're proposing.

So it's a good idea, but I think something more would be needed to help protect the little gal/guy from legal bullying. (BTW, I'm not saying this particular case is an instance of legal bullying. We only have one party's perspective.)

The legal system would benefit greatly from being framed as a cost/benefit optimization problem instead of as reasoning in a byzantine para-consistent logic.

Your post is now clearly shameful; the fact that you went even further and began accepting donation money only escalates that shamefulness. Did you really think that the details you left out wouldn't come to light?

You've handled this very poorly. Apologize to the community, apologize to WhosHere before you get smacked with a defamation suit, and hire a damned lawyer to deal with your legitimate trademark and breach of contract lawsuit in a court of law instead of wasting time dancing around in the court of public opinion.

From a PDF they have posted regarding emails from you (https://whoshere.zendesk.com/entries/21514943-the-other-side...):

"" I was born wealthy; I have an obscene trust fund. I assure you that if required, I will obtain the best legal representation for corporate litigation in the Silicon Valley. After your last proposal, I will resist this legal action well beyond what makes any financial sense, simply out of principal. ""

Curious? Look into their deal structures.

This is terrible advice. Unless you're a duly licensed attorney in OP's jurisdiction, don't offer legal advice. You're practicing law without a license, which is a crime. Moreover, were OP to rely on that advice to his detriment, you may find yourself named as a defendant in a civil suit.

"[A]s the term is generally understood, the practice of the law is the doing and performing services in a court of justice in any matter depending therein through its various stages and in conformity with the adopted rules of procedure. But in a larger sense it includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court of law." (People v. Merchants Protective Corp. (1922) 189 Cal. 31, 535, quoting Eley v. Miller (1893) 7 Ind. App. 529 [emphasis added]).

Here's some unauthorized legal advice for ya: Posting your opinion on random legal matters on HN has about 0.00000000000000000000000000000000000000000000000000000000000 0000000000000000000000000000000000000000000000000000000000000 0000000000000000000000000000000000000000000000000000000000000 0000000000000000000000000000000000000000000000000000000000000 00000000000000000000000000000000000000000000000000000001%

probability of every resulting in any legal backlash for the commenter. And in a country which is supposed to cherish free speech as a principle, we should absolutely all feel good about giving our opinions, and if the courts have a problem with that, telling the courts to go fuck themselves.

Someone on the Internet explaining how to file for divorce, bankruptcy, or commenting about legal issues related to a startup seems outside of the scope of "unauthorized practice of law".

Does this mean legal advice on the Internet is good advice? No. But I think it's far from illegal unless someone claims to be a lawyer & accepts fees for services.

But now I am probably going to jail thanks to expressing an opinion on how I viewed the law you quoted.

Here's to hoping that someone like Grellas can find time to comment and tell you how to beat these guys.

If that result isn't possible, than I ask you to keep your head up, move on, and keep building.

Do your part to (soberly and safely) reduce the reputation of the founders and VC's behind this.

What if we started a Kickstarter campaign to fund the legal fees to counter-sue this company? The precedence set in a success would be profitable to the builders of the startup community. And I'd sleep better at night.

https://whoshere.zendesk.com/entries/21514943-the-other-side...

Not only are you surprisingly easily manipulated, apparently, don't you have better things to hack on?

Your objections could be worded in a way that is not a personal attack and could be just as informative, or more so.

All that aside, your comment above, reproduced here, is clearly a personal attack:

> Not only are you surprisingly easily manipulated, apparently, don't you have better things to hack on?

Both lower the tone. Both cause unnecessary battles and derail discussions.

Having admitted this in the comment you replied to, I thought it'd be obvious enough that I agree I don't know enough about the situation to be an involved party.

To the insult: You don't think it would be cool to crowd source a legal case in order to upset the typical advantage that money brings into law?

Anyway, I'll let that attack brush off - I do have better things to hack on ;)

EDIT: No worries jsprinkles, thanks for the apology!

Disclaimer: I'm a random HN reader who has done work in the area of location aware computing. I have no connection with either party.

This advice transcends my allegiance, which is to nobody involved in this discussion (and which doesn't matter at all, frankly), and I'm annoyed that you think I'm stupid enough to involve myself in something I'm personally vested in.

There's a difference between giving advice from a position of authority and exploring the subject from a variety of angles. It feels to me as though you're accusing folks doing the latter of engaging in the former. Playing around with an idea and throwing out possibilities--some of them foolish or ill-advised, certainly--is at the core of the hacker culture, and I'd like to discourage you from criticizing people for doing so, while still maintaining your healthy skepticism.

I've often been known to comment on legal matters on HN, but I always steer clear of giving legal advice. (At least I hope I've never slipped up and done so.) And, as you well know, that's the proper course for anyone, regardless of whether they're a lawyer or not.

So just to echo and build on jsprinkles' various comments: It's OK to discuss the law in a general sense. I.e. you can talk about how things work, without giving an opinion as to the case at hand. But it's irresponsible and generally illegal to advise an individual on how s/he should proceed.

Example of a comment that's OK: "Trademark disputes often depend in part on the likelihood of consumers being confused by the respective marks."

Example of a comment that's not OK: "Trademark disputes often depend in part on the likelihood of consumers being confused by the respective marks. Since the OP's mark isn't going to confuse anyone, the plaintiff will probably lose."

I think that it's not as much that you're advocating for common sense, but that you're being really aggressive about it. Everyone can read and understand your point of view. Not everyone has to agree with it. You don't have a moral or ethical obligation to argue with people until they realize that you're right. Reasonable people can disagree, and on the internet, the standard of "reasonable" is often pretty low.

I personally agree with you in that I would never discuss pending legal matters with an online community. It seems too risky.

It also saddens me, as a tech-geek and business-geek and law-geek that we can't have transparent and "hackerly" discussions of these kinds of conflicts and possible ideas (not exactly full-on advice) for addressing and/or preventing them.

Facts matter. Grellas isn't going to offer any opinion without having a chance to review all the documents that have been filed as well as communications and that is going to take time.

But if you do nothing and if they choose to press this, they will go to court to ask the judge to put liens on any assets they can and to garnish your wages.

In any event contact a lawyer to see if I am correct about this.

I'd also suggest you dig up research papers in conferences such as UbiComp and Pervasive. The "who is near me" app has been around for years. Also, check out papers on the cooltown project. I'm not totally sure what a defense to a trademark infringement claim would be. Perhaps if a researcher used the same name in a paper, that might help?

Frankly, I think they like his name better than theirs and are trying to steal that. It's indeed a better name.

Ideas:

-Start tweeting about it & create a hashtag #WhosHereThieves

-Get in touch with the TechCrunch author who wrote about about your app. This story is a big deal

-Reddit post

-Accept donations page

-The VC probably doesn't know anything about this, but they might respond if included in all the negative PR

IANAL, but I think it's a very bad idea. I don't have the faintest idea if it's considered defamation in the court, but I suspect it might be, and thus should be avoided.

It appears this isn't such a clear cut story...

Find a lawyer who will defend you for a part of the money if you win.

Turn it around. They obviously are acting to drag your service (company?) down.

I would love to have someone reliable do this and then I could chose to just not deal with such sites (or decided well yeah I don't like using lawyers to bullying but I am willing to sell out my principle because this site is so cool I can't live without it).

The way to counter the strategy of paying lawyers lots of money to bully your small competitors is to setup a method that forces those companies to suffer the consequences for their decision. I would be happy to help that process, but I can't keep track of who is doing the bullying.

This type of providing better information so I (and others) can make informed decisions not to use sites with practices I find obnoxious is something I would really love to see. Both for this type of obnoxious behavior but really a platform could support all sorts of notices on whatever people object to (probably using lists from whatever they care about World Wildlife Fund, NRA, EFF or whoever).

I don't think the legal system is going to be reasonable. We need a solution that allows the market to enforce an acceptable code of conduct with consequences for being obnoxious (even if the legal system thinks it is fine).

They can't trademark "Who's", surely.. I hope this makes big news, you deserve to win this, which is really obvious in my eyes. Good luck!!!

Unless they could somehow prove you have wilfully be continuing to violate their trademark I don't see how any damages are valid. I would certainly not give in to their threats.

What about the origins/timeline of the name and the trademarks. Who was using it first? What exactly is their trademark?

Subject to answers above, and given that this is a side project to you - I would suggest you simply write back stating you don't feel you are violating their trademarks, but would consider a rebrand in your mutual interests to avoid any potential for customer confusion provided they contributed to the cost of paying an advertising agency to create a new logo and other menu costs and estimate their share of those costs as $5,100 (eg they pay you what they are asking from you)

If that's the case and their app predates Who's Near Me, I have to say that the OP is probably going to lose this. The names and apps certainly do seem confusingly similar.

The trademark is for the concatenation 'whoshere'. Given that both are common words obvious to the topic I would have thought the interpretation would be very narrow and 'who's near me' is suitably different. I certainly don't think you should give in to their somewhat extortionate demands.

"Red" and "Hat" are common words too, but you'd never get away with trying to sell a linux distro named "Red Cap".

Genuinely curious. Do you think they have owners ship of "who" in the context of a social network. Surely using such an obvious descriptive name should count give you less rights to similar names. IE If I have "The Family Teacup Company" I can't complain about "The Swedish Teacup Company."

I'd say that advice across the internet on whether to engage a lawyer, how to engage a lawyer, or what your negotiating strategy might be is fair game, and could be just as good or bad as any other internet advice. Talking about your case in public, for the other side to see, could be disadvantageous, but that's a reasonable risk to take.

For actual legal procedures -- yeah, you absolutely need a lawyer. But the best organized and most affordable one may not give the best strategic advice.

We obviously also only know part of the story, and from his perspective. Still, something here smells really, really bad.

As a media professional, my advice is to take this to the public if you can. That means Tech Crunch, AllThingsD, CNET, the Next Web, etc.

(I'll also include my own employer, Mashable, where I'm the entertainment editor but often end up being the defacto point person for stuff that's developer-centric)

Not knowing the facts around the situation, I'm inclined to say focus on getting public attention as early as possible, especially if you're worried about being able to get a response submitted to the court by the deadline.

On that note, I would ask your lawyer friends what would be involved in requesting an extension, because if you want to fight this, you will need more time.

Finally, even though this is a labor of love and not one of profit, after you get through the eye of the storm, it might be time to shit or get off the pot regarding the service. After all, if you're looking at wanting to invest a lot into the legal defense of this project, it might be time to start looking at how you can transition it from a hobby side-project into more of a real business.

If you aren't interested in making that transition, you need to evaluate the costs -- not just in terms of money, but in terms of time and effort -- in this particular hobby.

- Who needs a lawyer when you can marshall the Internet Pitch Forkers!!!!!

The guy you're willing to BOMB other people for said to them, and I quote, "I was born wealthy; I have an obscene trust fund. I assure you that if required, I will obtain the best legal representation for corporate litigation in the Silicon Valley. After your last proposal, I will resist this legal action well beyond what makes any financial sense, simply out of principal."

Are you really sure you want to BOMB people to support him?

edit: clarity

I'm sympathetic to your cause, but playing with intellectual property issues is serious stuff and the reality of the situation is that better-funded players will not infrequently attempt to bully you into getting what they want, as appears to have occurred here. Obviously hindsight is 20/20, but you should have consulted an attorney immediately on receiving a cease-and-desist letter, even if you thought that their claim was entirely frivolous (which, given the facts presented here, is hard to say). Had this occurred, you almost certainly would either not be in this situation, or saved yourself a ton of trouble.

Given that you did not and this situation has evolved to what it is, your only choice is to retain an attorney if you’d like to continue operate the app and not pay whatever damages they alleged. And, frankly, you're in a poor position because, since the court has already entered a default judgment against you, you will have to show cause as to why the court should set aside this judgment, which will require more time and effort than if you have initially opposed the lawsuit, even if what you say regarding a piece of the document missing is true.

If you do retain an attorney and fight this, realize that, if you lose, the opposing side might be able to recoup the entirety of their attorney's fees (which would be very expensive for you, particularly in the unlikely event you went to trial or the like, and it appears that they have already alleged this right now), and, possibly, your profits (depending on a number of factors). That's very serious stuff.

I wish I could give more direct advice, and I strongly agree with commenters here in other posts lamenting how elitist law is and so on, but you have absolutely no alternative but to retain an attorney. I don't know where you live and where this litigation is taking place, but there are tons of lawyer referral services out there (your local county bar will have such a service, you can find out on their website), and you can speak to various attorneys who might understand your financial situation and be able to work with whatever budget you have. Just because an attorney says that they charged $X does not mean that you can’t find another, competent attorney, who might charge less. If I were in your position, and wanted to fight this, I would spend my time either finding/raising money, or talking to attorneys about how you can structure a fee schedule that would work with your finances (lawyers are open to negotiating: you can say "I can only pay you this or that" or "I can pay you this or that in the future"—see what they say and how flexible they will be). I am skeptical that someone would take your case pro bono.

As a general piece of advice based on personal experience to others: don't ignore intellectual property issues. Getting a trademark is not particularly expensive (and, unlike this situation, something that you can, actually, do without consulting an attorney, or at least for little $ should you need to consult an attorney) and can save you headaches in the future. If you receive a cease and desist-type letter, take it seriously, regardless of how frivolous you think their claim is. If whoever sent you the letter went to the trouble to have their lawyer draft a letter to you--which means that they probably paid the lawyer a non-insignificant fee to do that--they are certainly taking it seriously, and so should you. Even well-funded companies don't throw money away to, of all people, lawyers, unless they think they can get something they want from you, and/or they think they actually have a meritorious claim. Do not attempt to respond to the cease and desist letter, unless you have experience in how to do this. If you want to avoid paying an enormously onerous legal fee, you can try your hand at drafting a response—but absolutely get a lawyer to look at it prior to sending it. This may be more affordable than you think (~1-2 hour of work, or the like, for a lawyer). If you're worrying that you may be infringing someone else's trademark, or someone will try to sue you in the future (as apparently happened here), you can get a declaratory judgment (for a fee) from a court stating that you're not infringing-again, something to talk to a lawyer about.

If they cared about protecting a brand name they should have chosen something more original than 'Who's Here'.

Even if you hire a lawyer, they will attempt to stall the case until you run out of funds.

It maybe hindsight now, but I would of created a corporation and move all your assets under it, (website, apps, etc).

Not sure if you can do that now before the default judgement on the lawsuit. I would still hire a lawyer to do that just in case.

See http://i.imgur.com/BPypw.png

If you can get inexpensive representation, just call their bluff. This is not a big corporation you are dealing with. I'll put money on dropped case or some type of amicable settlement that doesn't cost you anything financially, which is your goal.

Ok so I am stretching this one but it seems to have been around since 2004.

Seeking out $1.25M is not the sort of thing that has any draw for a lot of people, and that's OK.

I sympathize with your situation and I'm sure there are a couple lessons learned here- namely that they used negotiation with email to apparently cause you to forget that there was court case pending. But saying that doesn't help you.

I've been in the situation where lawyers told me I didn't have a case, and it sounds like this is what you're hearing too-- but I think you might be missing something- you may have a case, you just haven't found it yet. The lawyers are looking to hear something that gets them excited-- something that they can really use for their profit. Since you don't have a lot of cash, the bar is higher to get them interested.

At this point, you just haven't figured out what the case is. I suspect you probably have a good one, however, if you've been running your service since 2008 or before 2010, or based on the contract they entered into with you.

If you find a case, you'll likely find a lawyer eager to take your case on contingency because both of you can make out profitably. (though of course they will settle when they realize that you have a case, but that still can be profitable.) Until you find it, though, there's no obvious case on the face of it.

This means you need to do the legwork. Start going thru every communication you have with them and organize your documents as best you can. I would strongly suggest you get a timeline going. Dig up that old agreement where you changed the name-- did they agree that doing so would settle the matter? Even in writing in an email? If that's the case, then you may have them violating a legally binding contract by bringing this case.

Build this timeline going back to the beginning and gather evidence proving each step (Eg: your receipt for registering the domain name, etc.)

Find where they have done you wrong- failing to serve you correctly is one example. You need more.

Find the relevant laws-- the cybersquatting laws give you rights against "reverse cybersquatting" where someone tries to steal a legitimate domain name.

Go to the USPTO.gov website and research their trademark application. Do they actually have one? Does it actually cover the area of what you're doing? For instance, I found a registration number 3885293 for "WHOSHERE" which shows a first use in commerce claim of 2008. Does your service predate them? Can you find evidence of you using the name "Whose near me" or whatever, including registering that domain prior to that date in 2008? How about prior to the date they filed for the trademark in 2010? When looking at their trademark, find the "TARR STATUS" button, click that, then find the "Trademark Document Retrieval" link near the top of the page, go and select all the documents for their trademark and download them as a PDF. You may find that the trademark examiner has done footwork for you, limiting their possible use of the TM, and they may be in violation of that... this will give you even more cause.

Basically, if you have been using your name prior to 2008, and can prove it, then you are in good shape. If you stared your site between 2008-2010, and they cannot prove that they started in 2008 as they claimed then you're probably in good shape. If you started your site after 2010 then you're reduced to claiming that the marks are not confusing. But you also have the fact that you already have agreement with them (and their failure to attempt to enforce their trademark rights after you changed the name of your service per the agreement) to show they've abandoned it.

The stress they are causing you, and any actions they have engaged in that are dishonest or violating the law or agreements give you cause to sue them for damages, I believe.

The odds are pretty good that they know you are young and don't have a lot of resources and they are attempting to abuse the system as a result.... simply doing this research and showing how they don't have a case may be sufficient. Like brining a gun to a gun fight-- they may think you just have a knife, but showing the gun may cause them to back off. Its no risk if they claim to have a gun and you just give up-- which is what they're trying to get you to do.

Plus, if you have a bunch of this kind of stuff, you may get a lawyer that wants to extract money from them on contingency basis-- but even if not, simply a very sternly worded letter might cost you only a couple hundred bucks, or even less.

If you find a case. I am almost certain there is one there... but you need to do your research quickly.

The first thing I would do is find what you need to do to file to request a stay or delay of the judgement and get yourself time to engage in this research.

You can call the clerk of the court where the lawsuit was filed and find out what the procedures are to file a pleading or request a stay or delay. Tell them you were not properly served, or notified about the court dates (if this is the case-- never lie-- but use what ammunition you have here) and ask what the correct filing is. They WILL NOT give out legal advice, but they can tell you the procedures, and you need to get up to speed on those so that you can get yourself some breathing room.

Good luck!

-----

PS-- another avenue to investigate: look for use of the term "Who's near me" or "who's here" in commerce on the web prior to 2008. One reason a trademark might be invalid is that someone else (even if it is not you) was using it in commerce in a similar way-- were there any location based services prior to 2008? did dodgeball have a "who's near me" feature?

PPSS--- Also assuming there were no location based services prior to 2008, find an extensive evidence of the common use of the phrase "whose near me" and "whose here" on the web. If this is a common phrase it may not be trademarkable, just as "thank you" can't be a trademark because it is a common english expression.

Further, if this phrase describes the feature of the service literally (which it sounds like) it is also possibly not trademakrable because it is purely descriptive. Frankly, I think they may not have a legitimate trademark, since the phrase describes the feature literally, not a service or brandable name.

I'm just going to keep adding points because I keep thinking of them.

"Whose near me" is not obviously "Whoshere" and so infringement does not seem to be a slam dunk. Further, since they contacted you previously, and you changed the name at their behest, you may have an affirmative defense because you attempted to remedy the situation. Thus this suit could be a nuisance suit. They need to show you willfully violated their trademark.

Right now, I would change your service and remove the phrase "whose near me" everywhere you can. Document this change with screenshots so you can prove you are attempting to comply with their demands-- even if they are unreasonable.

But it would seem to be hard for them to make a case when they contacted you, you responded by making changes, and then they wait a year and decide suddenly you're infringing again.

IF the company suing you is not "myRETE INC" of Delaware, then how can "WHOSHERE" have the right to the mark? Did they provide you with a license agreement? IT doesn't matter-- myRETE is the owner of the mark according to the USPTO so you can only be sued by them, I believe. (and if none of these names make sense, did they even file a TM with the UPSTO?)

A reading of their specific claims implies that there is not an infringement because finding people near you does not appear to be any of the features they claim to be using the mark for. Their list of uses, by the way was flagged by the examiner and they had to update it to get the mark registered.

Finally, it appears their mark is for "WHOSHERE", e.g. "WHO" + "SHERE" They included no space in their filing, so "whoshere" which is a "name" in the sense that it could be "bobby whoshere" pronounced "wooSHeer" doesn't sound much at all like "who's near me".

These are just ideas for which there might be a case. More digging would be required.

Finally, if you know any law students this might be just the kind of thing that is fun for them to help you research. They may help you build a case for not too much money or no money at all, and the price of beer and pizza.

But on the other hand, I have to agree with nirvana about one thing. A certain amount of work must necessarily fall on the OP to find the right lawyer for the case. As nirvana says, there will be plenty of lawyers who aren't really interested and just say "roll over," while there will be others who would want to aggressively pursue the case. I'm not saying the former type is wrong and the latter right. But it's worth considering that different lawyers will have fundamentally different attitudes about the case and different styles. The OP should be cognizant of that when picking a lawyer.

I can say with certainty, from firsthand experience, that none of these three things is true. I've also seen lawyers replaced because their performance was inadequate.

Given that, how could one possibly avoid having to carefully and deliberately choose a lawyer?

Consider finding a lawyer like dating: if the first date (initial consultation, which is generally free) leaves you with a bad taste in your mouth, move on.

Edit: I'm convinced. Don't give or accept legal advice over the Internet. Establish a relationship with an attorney and only discuss it with them. If you don't like the answers they give you, you can find another attorney.

Federal courts generally aren't courts of equity (with bankruptcy courts being the sole exception); they're courts of law. They have a strictly enforced set of procedural rules the nonobservance of which can result in a claim being dismissed with prejudice or a judgment in your opponent's favor. You could learn anything that a lawyer knows--the material isn't difficult at all. What a lawyer provides, however, is insulation from procedural errors. When a lawyer misses a filing deadline, you might have a cause of action against the lawyer in malpractice. If you, a pro se litigant, miss a filing deadline, you're generally SOL. That's why you shouldn't share what you think you know: the consequences are serious and the nuances are subtle.

You know how in criminal proceedings, they say "anything you say can and will be used against you?" It's the exact same for civil actions like this, which is why Public Relations 101 (which should be of interest to most in this audience who want to do their own startup) says "being sued or otherwise challenged legally? STFU. No comment."

This isn't about credentials, it's about being smart when it comes to threats that can genuinely hose your business, and not listening to a bunch of armchair lawyers on HN who think they have the best course of action without any sort of context.

> In this case, there are legal repercussions and serious consequences to doing most of things on this page. This is stuff to talk about with a lawyer, not the fucking Internet, and the person I replied to is already giving frighteningly bad advice.

There are legal repercussions and serious consequences to many choices we make in life; while this is a particularly tricky terrain to navigate, that doesn't mean he should go in completely blind. If you think that the advice is "frighteningly bad", point out specifics.

> This isn't about credentials, it's about being smart when it comes to threats that can genuinely hose your business, and not listening to a bunch of armchair lawyers on HN who think they have the best course of action without any sort of context.

This isn't a conversation you're engaging in; you're simply shouting down the parent(s). That's not what HN is all about. Please rethink your approach and come back to this from a constructive angle; it sounds like you have valuable knowledge that could come in handy for OP and others, but you can't see past "holy crap, legal advice on the internet!"

When you are a lawyer, it's generally best to just not give legal advice.

It's a strange system, but there are different rules for different people.

Is there any problem with giving legal advice? I thought that anyone can give legal advice, as long as they don't practice law (without authorization).

I guess the real question is, does legal advise always constitute the practice of law? I can go to an accountant, real estate agent, government department, police station, bank, or school and get something which technically constitutes legal advice.

I think it's a gray area, and I think the laws are a little vague (and vary with state law).

I'm pretty sure an offer "Ask me legal questions, even though I'm not a lawyer" would put you in hot water. I doubt you could create a forum specifically for non-lawyers to offer people advice.

I think there is a line somewhere between coincidental legal advice, and practicing law, and while I don't think anyone (even a lawyer) knows where that line is, I've never heard of a poster on an internet forum getting charged.

Also, this is a state-by-state issue, and in Texas, at least, you are quite wrong.

http://www.legis.state.tx.us/tlodocs/76R/billtext/html/HB015...

Nowhere did I give a single bit of legal advice. I merely illuminated a variety of ways that he could do some research that might show that he has more of a case than the lawyers he originally talked to concluded, towards the goal of getting a lawyer interested in the case.

----

Edit to add: The opposition continues to dishonestly claim that I am giving legal advice. I have not. I have merely suggested avenues of the law that could be researched and then discussed with a lawyer.

There is zero risk in someone reading the law and then talking it over with a lawyer. There is zero liability in me suggesting someone get a lawyer and offering suggestions for how they might get one.

I find it astounding that this comment has been down voted by %75 because persistently dishonest people have continued to claim that I'm "giving legal advice" when I am not, and have convinced people to punish me for trying to help this guy.

I mean, I actually went to the USPTO and pulled up the relevant mark and read the examiners comments!

Yet on HN, lying about me and attacking me carries 3 times the weight, apparently.

That's a shame.

"Basically, if you have been using your name prior to 2008, and can prove it, then you are in good shape. If you stared your site between 2008-2010, and they cannot prove that they started in 2008 as they claimed then you're probably in good shape. If you started your site after 2010 then you're reduced to claiming that the marks are not confusing. But you also have the fact that you already have agreement with them (and their failure to attempt to enforce their trademark rights after you changed the name of your service per the agreement) to show they've abandoned it."

In this instance, you're making a lot of conclusions about the OP's case. See for reference:

http://definitions.uslegal.com/l/legal-advice/

You are, as per that definition, using "application of legal principles to facts" in order to "in effect [predict] a specific resolution of a legal issue."

Again, I'm not trying to make you feel bad or anything like that. I respect that you put in a major good faith effort to help the OP by writing your initial comment.

"The following is an example of one state’s definition of legal advice:

"An _attorney-client relationship exists_ and one is deemed to be practicing law whenever 'one undertakes _for compensation_, direct or indirect, to advise another, not his regular employer, in any matter involving the application of legal principles to facts or purposes or desires.'"

I'm unclear at what point nirvana entered into a client-attorney relationship with the OP, and at what point he was compensated for his legal advice.

That's called weasel wording.

> Nowhere did I give a single bit of legal advice.

Uh, your entire comment is how to respond to this legal threat, which is legal advice. The only advice anyone on Hacker News should ever give to someone in legal trouble is "consult an attorney", not how to consult an attorney, research to do ahead of time, bupkis.

You have merely engaged in ad hominem and quite successfully derailed the discussion. Thanks for the down vote brigade, by the way.

I must conclude that actually trying to help people on HN is not tolerated if the person attempting to help has offended someone who feels comfortable in the level of dishonesty you are.

It is not the author's responsibility to build the case. That's what lawyers are for. They're the ones that are supposed to build the case.

> You have merely engaged in ad hominem

That's the second time I've been accused of ad hominem attacks in this thread, and the second time it's been flatly wrong. An ad hominem is me refuting your point by implying that you personally are not qualified to give it. I am not refuting your point, at all, and I have been careful to do so except to generally label some of your advice bad. I am telling you to shut up and stop giving advice on a case you're not personally familiar with. You are aware that there is legal liability for YOU being created as we speak, right?

> and quite successfully derailed the discussion

Good. It needs it. Your comment in particular.

> Thanks for the down vote brigade, by the way.

This is a tall accusation, and I do not have a "down vote brigade". I downvoted your parent post and nothing else. I suggest, since you have been around the block of Hacker News a few times, that you step back and take a few breaths and think about what you're saying.

> I must conclude that actually trying to help people on HN is not tolerated if the person attempting to help has offended someone who feels comfortable in the level of dishonesty you are.

Fuck you. I seriously have no other response to that, and I'm ashamed that I've gone there, but really: fuck you, and everything you stand for, with that little remark.

> I am telling you to shut up and stop giving advice on a case you're not personally familiar with. You are aware that there is legal liability for YOU being created as we speak, right?

Not everyone cares about creating legal liability for themselves if they believe they're doing the right thing. I've built my career (and life, for that matter) on wading neck-deep into the grey areas of the law where I firmly believed that my actions were positive. Whether or not he's creating liability for himself shouldn't be your concern.

Further, like you, I'm quite comfortable with what I've said, and I am supremely confident that no liability has attached to me in this discussion.

The claim that he's trying to protect me from such liability is a rationalization. His real intent is that he's offended that someone is talking about legal issues and he want's to shut it down.

If that weren't his motivation, why lie and claim I was giving legal advice?

Honestly, you guys are talking (screaming) past each other on about a dozen things here. Please, step away from the keyboard. Cool down. Think it through and then if you want to from there, engage in a rational discussion. Both of you are doing a disservice to this thread.

You keep asserting this repeatedly without citation (and are now doing so in a separate HN post you made on the issue). Kindly cite cases where damages have been successfully litigated around someone posting friendly advice in a web forum.

Remember, a liability does not require a law, and there are such things as torts.

I wish you had.

>An ad hominem is me refuting your point by implying that you personally are not qualified to give it.

Your claim that I am not a lawyer and therefore shouldn't be giving legal advice is, by definition "implying that you personally are not qualified to give it."

Now add to that ad hominem the fact that I wasn't giving legal advice, and your repeated insistence that I am, is a dishonest characterization of the argument, akin to claiming I'm not qualified to beat my wife and therefore should stop.

The fact that I'm not actually beating my wife means that your dishonesty about this is an attempt to characterize me in a derogatory fashion. Thus, personal attack as well.

>Good. It needs it. Your comment in particular.

Glad to have you on the record admitting that your intention is to block productive discussion.

>Fuck you. I seriously have no other response to that, and I'm ashamed that I've gone there, but really: fuck you, and everything you stand for, with that little remark.

It is a simple fact that you have been completely dishonest about my remark. You have been characterizing it dishonestly from the beginning, and when I pointed out that I wasn't claiming what you said I was claiming you evade the fact that this proved you to be lying by claiming those were "weasel wordS". Yes, exactly the point of "weasel words" is to emphasize that you don't know all the facts at hand and you're providing possibilities. Which, in fact, shows your claim that I am giving legal advice to be a wholesale fabrication.

You should be ashamed that you are willingly and proudly derailing a conversation whereby a poster to HN might get some advice for how to solve his problem of finding legal council.

Notice that I was attempting to help him get legal council, not giving him legal advise that would render such council unnecessary as you claim.

So, you have lied about what I have said, you have admitted trolling, and you have evaded every counter argument I have made to the point where all you're left with is "fuck you".

I suggest you consider -- just for a second-- the fact that everything I've said is true, that you went off the handle at me for the "crime" of trying to help someone, and that the entire basis for your admitted attempt to derail this thread is false.

I wasn't giving him legal advice, I was trying to help him get enough info to get a lawyer interested.

Shame on you for opposing that!

I can't even begin to attack the amount of stupid in this comment, so I'm cutting my losses, adding your name and company mentally to my personal blacklist for doing business or hiring, and getting out of the thread before this consumes even more of my time.

I think curious is the appropriate word to describe my mental state. HN is populated by people who should be able to think fairly logically-- I would assume more logically than the general population.

I understand why you made the false claim originally, and why you have chosen to characterize me in a derogatory fashion at every turn, including this last missive.

What I cannot fathom is why you feel so compelled to prevent productive discussion that you would impeach your own integrity with a lie? Or why, having never supported that lie, failed to provide even a single quote from my post showing me giving legal advice?

Or why, having had this refuted repeatedly you are sticking to your guns. Surely an understanding of logic must compel you to recognize that you cannot provide any evidence of me giving legal advice, let alone attaching liability to myself.

I think its hilarious that your thesis has that lawyers can say "this is not legal advice" as a disclaimer but non-lawyers cannot. But maybe I'm wrong? If you're right, you should be able to provide evidence. You have never done so, as you have never done so for any of your claims.

Again where you have an opportunity pursuade me by providing evidence you choose not to. Hell, even if I rejected that evidence you could have more confidence in your own position.

Why have you not even meet such a low bar for evidence as that, yet you feel comfortable characterizing me?

I am having to guess that you are not equipped to engage in logical debate. I'm curious as to why this is, and why this seems to not be uncommon on HN. I don't observe this phenomena among people of my age group.

----

Responding to your deleted response:

Here's what you actually said: " you just wrote an essay full of legal advice, including conclusions on how the proceedings will go"

All of which is false. Making your claim that the disclaimer is toothless irrelevant. Further, post hoc ergo proctor hoc.

(I would also like to say that this is in no way legal advice and should only be used as background material in research) I had to :)

I know for a fact that this language is sufficient in the Sixth Circuit. YMMV, but a disclaimer is a very handy way to shield yourself. Jsprinkles may disagree, but I've seen and handled cases in which disclaimers were the only thing saving someone from a ruinous malpractice suit for stuff they posted online (or published).

If you wanted to be on the safe side, you would have said "Generally, [Law X] says" or "Generally, in a situation like this, many people do [Y]."

In your specific case, I would have said, "Prior to hiring to a lawyer, if you do the following research, you'll be well prepared to talk to whatever attorney you select to represent you in this matter." All of your comment is no longer legal advice, it's merely information about how to prepare to knowledgeably talk to a lawyer who will handle the actual representation. (This could be construed as legal advice. IAAL.)

I have heard of a handful of cases (related to immigration law) where persons who offered legal advice were held accountable for providing bad advice online. They did not hold themselves out to be lawyers, but they did hold themselves out to be knowledgeable about immigration law. It's not common for people to be held accountable for this because not many people go so far as to cross the line into "unauthorized practice."

Maybe if one posted enough legal advice on a message board like this one, some kind of pattern could be established, and the person could get into some legal trouble.

Seriously.