What are my Rights as a Webmaster?

[Hawker]

This might not belong here but looked the best category at first. Feel free to suggest me a better cat and I'll move her.

I kind of need to seek some advice about a possible legal matter.

If you own a website. Just what rights do you have as a webmaster?

Strange question? Let's say you are an Internet Marketer / Affiliate Marketer. You have found a great product and a great brand that you want to promote.

So you register a domain name. Get hosting for it and then start building your site that will be selling this great brands product.

You want your site to rank for those terms that are related to that brand/product. And you want to use social media as a way to reach your target market.

So you go about creating and setting up social media profiles on Facebook, Twitter, Instagram etc etc

And on your site, you start talking about it, doing reviews on it, adding content, images etc about it.

You add images to it that you found in a Google search that were in the "Public Domain" as far as you need to be legally concerned.

You then took those images and modified them slightly maybe changing their size before adding them to your site.

Eventually, you start to make sales, and you either act as a registered affiliate for that brand/product and redirect visitors to their site.

Or you just sell their products, take payment and then have to buy the actual product yourself and send it to the buyer. Unless you've already bought it/some.

Obviously, selling the product yourself comes with more benefits like being able to set your own price, charge for shipping too.

Where as being an affiliate, you're only going to get a cut of what they get which could be around only 10%.

Say it was a product that sold for $100. You'd only get $10 as an affiliate but if you sold it for $150, you would get $50.
For bigger ticketed items that go into 1000+ selling the product yourself can be much more worthwhile but at the same time that has its downsides too.
By selling it yourself, you will have to be responsible for handling shipping and delivery, keeping track of orders, files, documents, forms etc.
However, despite these reasons, it can help you to accumulate earnings quicker that you can then use to scale up with.

Anyway, you'd think that if you had done something like that, the brand would be happy you're selling THEIR product and not someone else's like a competitors or even trying to imitate them.
You'd think that most brands would be happy with this and want to work with a site like that as after all, it's all about their product and they are smashing it with sales.

The reason for all this? Well I recently have done something similar and been doing the same thing. Well I wanted to see how friendly and open this one particular brand were. So I emailed them telling them that I own this site and that I wondered if they would kindly do fulfilment shipping for us. I told them my site was about them and sells their product and that we're getting a lot of sales so would they do fulfilment shipping.

You know what fulfilment shipping is right? The buyer buys from my site, pay me, I then buy it from the brands site, and give them the buyers address details and they handle it.

It's not exactly a new concept. Affiliates and big companies have been doing that for years. New starter companies often do it for a boost and for some is how they got as big as they are now.

However, following on I received a response back that wasn't quite what I had in mind. I'll put it here for the sake of this thread.

xxxxxx one of our customer service team has brought you inquiry to my attention. I understand presently you are running xxxxxxxxxx.com a website that is in breach of our trademarks, copyright and IP. We would like you to stop doing this. I believe we have sent you a previous email asking you to do so which will make this time your last chance to cease this blatant breach.
We are generally open to discussing with external parties opportunities that may exist to work together, however in this instance we have no option to refuse.
Considering this is now the second time we have broached this issue we will give you until Monday 29th to remove the site and all social accounts. If this issue still exists beyond Monday we will rigorously pursue legal action and seek damages through our U.K subsidiary and legal representatives.
Regards,

Well I have to say, I had to respond to that. For starters, I had not received any such email asking me to cease or anything like that and to say that I think they are largely mistaken.

And blatant breach? I don't get what they mean by that. They might need to be a bit more specific. I think they've mistaken me as someone thats trying to mimic them, I'm not.

I was a bit miffed at the time so have responded with this.

Dear xxxxxxxx. I haven't received any such email from you. Could you show me it? Or say a date such an email was sent on or where to?
And I'm not doing anything wrong here. I'm not copying you. I'm not giving any false representation and pretending to be you, I'm not breaching any of your trade marks, copyright or IP either.
If anything I'm doing you a favour by brining you customers and sales.
I am perfectly within my rights to have a website and talk about you on that website and sell your products on it (at any price I want too).
Just like it's my right to have a website and talk about any product or brand on that website.
As for any images etc, they were all taken from the "public domain".
And as for any connected social media accounts, none of those breach any copyright laws either.
No damages have been caused so I don't see how you can seek damages.
We haven't beached any copyright laws either. As said, we're not pretending to be you, we're just an online store that happens to sell your products.
So with that, would you not want to work with me then to work something out seeing as this could be good for both of us?
I look forward to your positive response.
Regards.

I haven't heard back from him since then. I think I was a bit too blunt with him and he didn't like my arrogant tone I guess Idk. So next day I sent another saying

Hi xxxxxx, I'm disappointed I haven't heard back from you regarding this yet.
As I said, I'm not trying to "copy" you guys or anything. Please could you tell me how it is I'm in breach of your "trade marks, copyright & IP" ?
If I'm doing something wrong then I apologize and I'm very happy to oblige you by fixing anything that is wrong as it's not my intention to copy you guys or anything like that.
You say it's the second time you've warned me but I have not received any such warning from you so are you sure you've not mistaken me for someone else or something?
I don't understand what the problem is if I'm honest. I'm an honest guy and I was honest with you from the start.
I don't see how and why you would want to seek "damages" though either as no damages have been caused.
But again, I am sorry if you feel that way, that was never my intention but you must understand, I am within my rights and have not breached any trade marks, copyrights or IP.
So with that, could you confirm to me the first and how it is I am in breach of your trade marks, copyright and IP and I'll be happy to fix that.
Thanks!
I look forward to your positive response.
Kind regards.

Obviously I want to be honest and open with him otherwise I wouldn't have emailed them from the start. It seems to me that they have either mistaken me for someone else, or they think that I'm trying to pretend to be them. Because my domain is sort of similar to theirs and the site looks sort of similar to theirs and the product selling at same price (excluding postage). So they think that I'm a copycat business trying to sell their own product that is similar to theirs.

And that would be understandable because in this particular niche, there has sprung up many copycats. But they all sell their own product or a spin off of it. Where as my site, actually sells their product. So in effect, we're promoting them and helping them to grow and making them more sales.

However, like I said, even though most or many startup companies would appreciate the extra sales it could bring in, and be willing to work something out with people who are fans of their product and want them to succeed too.

But apparently that doesn't appear to be the case here with this one particular brand.

Now then I must admit. Most of the main social profiles I created were using their images and product images in their header images etc but I have now remove all of them and made them look like my own brand with my own brand and logo and that on them and not their stuff. So they can't tell me now to remove those social profiles. I know my rights here. I know that I have rights to create social profiles as fan pages of other brands. Hell, Facebook even lets you set the main brand your page is a fanpage of. But regardless, if they don't want to play ball, and they were serious. Which I have no doubt they weren't, then although I'm confident, I'm sort of a bit questionable too.

See, like I said, I know my rights, and if I'm honest, I think I detect some unsureness or insecurity in his message to me like he wasn't quite sure of himself either. Me thinks he has not only gone about it in the wrong way, I mean, whatever happened to a good old fashioned kind request? What's with the threat of legal action right off the bat when I'm clearly not a copycat site?? What's with the hostility you know? Like whoa hold on a minute.

But do they really want to get involved with paying expensive legal fees? My host has even said that they will do all they can to protect me and that I have not breached any trade marks, copyright and IP as far as they can see. Having a brands name and images on your site does not equate to breaching their tm, copyright and IP as that is the whole purpose of the Internet. It would mean they would have to get all the other x million of sites that also have that brands name on it in some form or another, be it through text written in the context of a review, or a screenshot of their website. And then you start interfering with human rights.

I read it and thought, many of my friends right now and forumers would say that you have a strong case here and they have not right to seek damages as no damages have been caused.

Idk if it's just me naivety, but I always thought that in a court of law, to claim damages, the other party must first have damaged something.

What have I damaged? Why don't they like my site?

Am I going to get into trouble? LOL

Grab your microwave popcorn people and get ready for the next episode coming soon!

This should be interesting to say the least.

All in all, I think they are jealous because I have a better domain name than them and I think they know it.

But maybe that's illusion de grandeur.

Time will tell.

What say you about this?

 

[Developer]

For starters, just because you did not receive any such notice, does not mean it wasn't sent. We all know that.
Furthermore, depending on the terms of their affiliate program and the words used within the domain you were
using, you very well could be in breach. I do not know the domain you were using, nor do I know the site you
are referring to, so, with limited info, I can only tell you what I can tell you, lol...

Now, I am NOT saying you ARE in breach and I am NOT saying that they DID send you previous communication,
just laying out possible scenarios.

That all said, in all honesty, I do think you have taken the right approach. It's quite possible that the person
who has contacted you has mistaken you with someone else, which is what it sounds like.

If they have not responded to your messages as of yet, I would not worry about it until they respond again.

However, since you have done a bunch of work to promote them and their product, I would definitely be taking
some time to find an alternative just in case things do not go your way.

If you really want to get things moving along, I would find out whether or not the person who contacted you is
the highest rung on the ladder. If not, I would find out who his/her supervisor is and attempt to contact them.

As for the copyright infringement, taking someone else's imagery and adding, deleting or resizing it does NOT
qualify you to use it as you please. If the core elements of the image are not yours, you do not have the right
to use it within the original owners permission. This includes any images found on their site as well as any other
images found throughout the internet.

As far as damages, well, that is something they would have to prove in court. It could merely be as simple as
any affiliate commissions you earned. If they can prove you did infringe upon their copyright, then any affiliate
commissions you earned could be considered null and void and you would have to reimburse them for such.

Other possible "damages" could be if they can prove that you made attempts to damage their name or reputation
in any ill manner or way. As that is not the case, you do not have anything to worry about.

Many times, larger companies will through out a slew of harsh words in hopes of intimidating you. In all honesty,
it sounds like you just happened to come across someone's desk on the wrong day at the wrong time casting the
wrong color across the wrong shadow. As I said, I would wait until they contact you back, which, if they realize
they did hash out at the wrong person, they may decide not to contact you due to embarrassment, LOL.

Like I said above, please do keep us informed as to how this progresses. Thanks.

 

[Hawker]

Thanks Dev! That's very useful. I suspect that that is the very case here, a case of serious misunderstanding on their behalf.

The reason I started this site in the first place was to be an affiliate of theirs.

So you'd think they would be able to see that and treat me with a little bit more respect.

As opposed to threatening me with legal action when he isn't really sure about it himself anyway. I presume that's why he hasn't replied to me.

I'm still yet to hear back from them/him. I guess the thing to do would be to take it to the top.

Relay everything to someone else in more power and put my case forward so there isn't any misunderstanding and incorrect assumptions being made.

As I said, I could understand if I was trying to imitate their company and using their images and trying to pass myself off as them.

But that's clearly not the case here so I'm really surprised to see they have come to that assumption.

Regarding the "previous email asking you to do so" I definitely did not receive any such email. DEFINITELY NEVER!

The only other email I got from them was when I first emailed them asking them a similar thing.

I sent them one on the >13 Jan saying

Hi there, I'm a blogger that blogs about beauty products etc. I was wondering if you had an affiliate program if not do you sell in bulk at wholesale value at all? Thanks!

They wrote back saying

Hi xxxx.
Thanks for getting in touch. xxxxxx is a little confused. Are you reselling our products?
Let us know how we can help you out.

To which I replied saying yes that I'm a blogger and was wondering if they had an affiliate program.

And they replied to me saying

Hello, xxxx xxxx.
Thanks for getting in touch, I know xxxxxx is extremely flattered. Unfortunately, this is not something we have set up our distribution systems for.
This is definitely something we are looking into though. We would love to keep all of your information on file for the future when we head down this path. All you need to do is email [email protected] with the following information:
Name:
Email:
Phone:
Country:
Products they’re interested in stocking:
Initial order size:
Expected monthly volume:
Thanks again for all your love, and we hope you and xxxx are getting dirty soon.

So the only emails they have sent to me, are telling me that they would love to help me out.

I have definitely, definitely, definitely not received any such email telling me to "stop doing it" or "cease and desist" whatever.

I've even searched my inbox for all emails from them and there is no such email.

So therefore, my only assumption I can make is that he is either lying, or has mistaken me for someone else.

Like you said, companies will often try and use these tactics to intimidate you but that can end up backfiring on them in the end anyway.

I really can't understand why he hasn't replied back to me now though.

This is a mystery but I will get to the bottom of it.

I don't need to look for another supplier as we will soon be selling our own version of it anyway.

And there will be absolutely nothing they can do about it whatsoever.

Once all this is cleared, I'll reveal a little more about the product in question.

But if they was willing to work with me, I'll use the site to continue selling their products.

If they want to be douches about it, I'll sell my own version of their product on a better domain than them.

Whatever happens, this will always work out in my benefit anyway.

They really want to get involved with long, lengthy and expensive legal things over something so trivial that could work in their benefit anyway?

I don't think so.

Talk about shooting yourself in the foot or cutting off your nose to spite your face.

Play ball and win, don't play ball and loose.

Up to them.

Whatever happens here, I come off better at the end of it.

Like I said, I know my rights.

It's just really daft and arrogant on their behalf I think.

Why hasn't he responded to me? How ignorant and arrogant is that?

 

[Developer]

>> So therefore, my only assumption I can make is that he is either lying, or has mistaken me for someone else.

Well, not necessarily. If it got sent to your spam box, it may have been deleted. Most spam is deleted within so many days as not to clutter up your space.

>> Like you said, companies will often try and use these tactics to intimidate you but that can end up backfiring on them in the end anyway.

Yes they can, lol, they can backfire BIG TIME.

>> I really can't understand why he hasn't replied back to me now though.

It really is quite possible that s/he screwed up and s/he knows it and is a bit embarrassed. I would simply move on to the next in line. Even if s/he is embarrassed, s/he should at least come back with an "I sincerely apologize. I dropped the ball and I am tremendously sorry. Can we forget all about that mess?" or SOMETHING, LOL...

>> This is a mystery but I will get to the bottom of it.

Why did my mind automatically start playing the Mission Impossible theme song? LOL...

Regardless of how it turns out, good luck pal. Keep us posted.

 

[Hawker]

Well, not necessarily. If it got sent to your spam box, it may have been deleted. Most spam is deleted within so many days as not to clutter up your space.

Just to confirm. My spambox doesn't delete for much longer than that. But I empty it regularly and have checked there anyway of course. Honestly, I really believe no such email was sent to me, or if one was, it was sent to someone else or about some other site (which would make sense) and that's what he's mistaken me for.

Yes they can, lol, they can backfire BIG TIME.

Yes, there are quite a lot of instances where thats happened in the past and they've seriously regretted their actions later on. Just goes to show you how true it is when they say, keep your friends close, keep your enemies closer.

It really is quite possible that s/he screwed up and s/he knows it and is a bit embarrassed. I would simply move on to the next in line. Even if s/he is embarrassed, s/he should at least come back with an "I sincerely apologize. I dropped the ball and I am tremendously sorry. Can we forget all about that mess?" or SOMETHING, LOL...

That is indeed a likely possibility. Although I don't think this particular one guys business skills and knowledge is all that good anyway if I'm honest, I know these guys backgrounds and they're working class antipodeans who have quickly amassed a lot of money with their product so I can understand their passion and want to defend their brand's name and business but they are quite a young bunch and I don't think he realizes the deep water he could be dragging us both into with his statement. I don't think that he/they want that and will want to avoid it which makes me surprised why he/they haven't responded to me still. Perhaps they still don't understand in their mis-branding of my site with the wrong branding iron.

But by not responding maybe he was serious and has chosen to ignore me following advice from his lawyers? But then if he is, I have a strong case of defense anyway.

As far as I'm concerned, I've not breached their trademark, copyright or IP. Just like all the other 100 million sites that blog about them or review their product haven't too and if they want to sue me and stop me from writing about brands on my site then they will have to sue the whole Internet and stop the whole Internet from writing about other brands which is a reversal of what the Internet is all about and stands and exists for anyway, and why we're all here and able to communicate in the first place.

I mean come on! Who do these guys think they are? Sure they might have a lot of money at their disposal. (This is a company that has accrued over $20 millions dollars in just 2 years in sales which is phenomenal for what it is but most of that has been from social media) But even all the money in the world can't buy your human rights and stop you from expressing your freedom to share information.

Can you imagine if this went to court? The judge would say, to them, so Mr xxxxxx here made a website about YOUR product, promoting and selling YOUR product which has resulted in sales and earnings for you and you want to sue them for damages?

I would just say, your honour, I am willing to put it all behind us if they just let me be their affiliate and continue selling their great product.

That's exactly what this is a case of. Or just a plain old mis-understanding and that person just doesn't want to talk to me any more because he feels like a prat.

I can understand his passion and protecting his interest but I strongly feel he has mis judged me and can't see the woods for the trees.

I mean come on. Where is this law that says you are not allowed to sell someone else's product without a license? Bearing in mind the particular product in question needs no license to sell it.

Why did my mind automatically start playing the Mission Impossible theme song? LOL...

Regardless of how it turns out, good luck pal. Keep us posted.

You've watched a lot of movies haven't you Dev?

Thanks bud I will.


PS. Thinking on. Don't in these cases, I have to be requested first? I have had no official request from them as far as I can see and am reasonably aware of. I'm pretty sure the first step in these things following legal advise is to receive some notice from them in some way, be it through to my contact details on the site, or via my whois information or even via my host who would swiftly tell me that they have received a notice of cease and desists or whatever it might be called and ask me to pull my site down or change things. However, my particular host would probably work with me and support me if I decided that I have a good case and they have no legs to stand on so to speak.

But if that happens, I can tell you now, that will backfire on them big time because I will sell my own version of their product and there will be absolutely nothing they can do about it.

Can Coca Cola sue your local convenience store for selling its version of cola?

Nope.

Not that this is cola but it's a good example.

After it's all done, I'll end up as the Pepsi and they'll be the Coke of the colas.