|This is the response to the Cease and Desist we received on January 28, 2008. Content has not been altered.|
January 30, 2007
David Rosenblum & Associates, P.C.
RE: TRADEMARK INFRINGEMENT
To Whom It May Concern:
We resent Re-Bath, LLC, the franchiser of the national Re-Bath franchise system, and their Re-Bath franchisee in Colorado Springs. Considering the problems that we have had with Dave Fleming and that franchise, we are not surprised to find the Cease & Desist letter was the response from Re-Bath Corporate.
The term “unauthorized use” of a trademark is derived from the Lanham Act. We direct your attention to §1125 (1)(A) which specifically states:
“Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word,…” (emphasis added)
Please note the “uses in commerce” portion. The marks are not being used in commerce and therefore are not considered infringement under the Lanham Act.
And before you go on the favorite tangent of corporate lawyers, the “likelihood of confusion”, the top of the page located at http://www.tabberone.com/ReBathSucks/ReBathSucks.shtml, has in large red letters (font size 7), “ReBath of Colorado Springs Sucks!” and, at the bottom of this same page is, also in large red letters (font size 7), “ReBath of Colorado Springs Really, Really Sucks!” There is no likelihood anyone viewing these pages would be the slightest bit confused as to the topic or sponsorship of these pages.
The use of the Re-Bath trademark and the Re-Bath trademark with the tub-over-tub logo, which are registered trademarks, on our website does not constitute trademark infringement nor is it unlawful or actionable. It is called the “Freedom Of Speech”, or the First Amendment. They did teach you that in the law school you attended, did they not? Or did you sleep through that class knowing you would become a corporate lawyer and needn't be concerned with such trivial matters as rights. Sorry to inform you but the First Amendment trumps trademark law.
We will not discontinue any and all use of the Re-Bath trademark and tub-over-logo now or in the future. Using their logo in conjunction with what is obviously a gripe-page constitutes “fair and nominative use”.
We're sorry if we gave you the impression that we were reasonable people. We were reasonable until we shelled out over $10k for a shoddy incomplete project. Which your corporate client appears to condone. We never received an email, letter or phone call from corporate about our concerns. Considering the fact Re-Bath Corporate does not care one bit about the shoddy work and repeated lies we received from their franchisee, we consider the other Re-Bath franchisees to be as bad as the Colorado Springs franchise.
We wrote Re-Bath Corporate to find out if they cared about what their franchisees were doing. It appears they do not care. In case you care, we refer you to http://www.tabberone.com/Trademarks/trademarks.html where you may find a wealth of information concerning trademarks and copyright issues. We will be adding your letter and our response to the web page. Enjoy.
The use of the trademarked name and logos is to emphasize the target of the gripe page and provide ready identification for the browser. This non-commercial and informative use of a trademark is called “fair use”. You will find this and other helpful information at the above mentioned link.
Please note the correct spelling of our names should your client feel compelled to come to Colorado or contact us again.