Trademark Infringment - Heartstoppers Haunted House

[HEARTSTOPPERS]

About a week ago I became aware of the Heartstoppers Haunted House
in CA...I offically opened my business - HEARTSTOPPERS - in CA in 2001
and moved to Utah in 2003...

I have owned Heartstoppers.com since 2000.
I was an IAHA member for 4 years as HEARTSTOPPERS.

I told the haunt owner via email about my business through an informal
cease and desist letter but have been ignored. I had to get their email
from the site developer since they registered privately. My address
Heartstoppers.Com is not privacy protected and would have come up
in a search. I'm consulting an attorney soon...

What else would you / can I do to keep my legal business name?

Heartstoppers

[Bonesaw]

No worries.
Yur domain registration has a date.
Their business registration (dba) has a date.
As long as yur domain registration pre dates their dba you win!
I HIGHLY suggest you hire an attorney to simply write them the letter.
That legal letterhead works wonders.
Plus an attorney will be able to quote the legal penalties for infringement to them and make em wet thier pants!
Also Google the legal forums for free legal advice.
Good luck bro!

[Nightmaretony]

Also, check out their address and see about getting copies of their permits for their haunt, since they WILL have contact information. also, even with the registyration of the website kept pricvate, you may still be able to find out their host and have their website forzen out with a cease and desist for copyright infringement.

[haunter112]

This type of thing can be tricky. It is almost NEVER open & shut.

If the dba name is not EXACTLY the same, you could have a hard time proving infringment.

Infringement is not just about ownership... you have to prove that their use of the name hurt your business.

The fact that you no longer operate your haunt in CA may come into play.

Example: There is a huge restaurant chain known as the WAFFLE HOUSE that operates out of the southeast. There is literally one at every interstate exit. There is also an entirely different much-smaller restaurant chain known as THE WAFFLE HOUSE that operates in the midwest. Both have a valid claim to the name even though the Georgia-based WAFFLE HOUSE predates the other chain by at least a decade.

You need to consult a lawyer.

[Empressnightshade]

Before I say anything, I want to make it clear that I DO NOT want anyone pumping me for information. I will not answer any questions or give out anything other than what I say here.

I know the person who runs the haunt Heartstoppers. In fact, his haunt is just a short drive from my own and he has visited here on ocassion.

I think everyone is getting excited over nothing here since his haunt is a HOME HAUNT. He doesn't charge admission and is not gaining anything financially from it. He presents his haunt to the children in the community out of love for our holiday.

Heartstoppers, I can imagine how you may feel. I would feel the same if I found out there was a local haunt here using the same name or a version of our haunt's name, as well. Heck...there could be! But, you may be spending money needlessly for an attorney when all you're going after is a home haunt.

[Fright Yard]

I agree, is it worth the legal costs, Is you name specific to your business making money? You would also have to prove that the use of that name is hurting your business or its detrimental to it. That is kinda hard since its also in another state. Id review this carefully before you jump and make the investment.

[Bonesaw]

Oh! Itz just a home haunt!!! Drop it bro. Just walk away.

I have seen many cases of infringement but they were all commercial ventures. We had a restaurant here called McDarmas. It was a local health food eatery. McDonalds sued them for infringement! Seems like you can sue now if the name is even CLOSE to yours. But McDonalds has tons of attorneys on retainer & on staff. they also have deep pockets and can win just by being the big dog. Lets face it, in the real world nobody iz gonna confuse a granola place called McDarmas with a burger joint called McDonalds. They looked entirely different too.
Then there was the case of Jimmy Buffet that sued the people that named their restaurants "CheezeBurger in Paradise". Buffett had a song called cheezeburger in paradise so he sued. WHAT???? Now you can own language???? Bullcorn! Now if they made a song called cheezeburger in paradise I could understand. The law says you can't copyright an idea, concept, principal or procedure. A song called cheezeburger isn't even an idea of a restaurant called cheezeburger in paradise. Itz a song about someone wanting a cheezeburger! Thatz it.
Anyway, the restaurants are still called cheezeburger in paradise so I guess Buffett lost hiz case.

[Duke of Darkness]

Free piece of advice: free legal advice over the internet tends to be worth exactly what you pay for it! Be very careful about following the advice of well intentioned people without checking with a licensed attorney in your state. For an initial (30 min) consultation on a matter like this, I charge $35. I am sure there are many in your state that would review your situation for a similar fee, and --in my (not always so) humble opinion-- it is more than worth the cost to get some advice at the beginning and avoid more complex (and expensive) legal complications later.

From what is written here, I suspect that your best course may well be not to pursue the matter, but even that has its risk. If you know that someone is using your name and you don't protect it, it is possible to lose your right to use it exclusively. In other words, you may not be able to stop other people (other than the one that you let slide) from using your name. There are ways around this that may make everyone happy, and they don't have to be difficult or expensive. Please, consult an attorney.

I'll get off my soapbox now.

Dave

[HEARTSTOPPERS]

Thank you all for the advice so far!

The problem is that they plan on charging a specific $5.00 donation, which
I thought was illegal for a home haunt. I may be wrong but didn't Kim's
Krypt get into trouble for that...The name "heartstoppers" could get
dragged through the haunted industry monster mud if it has problems!

They may only be a home haunt now, but in HeartstoppersHauntedHouse
MySpace they say they plan to go pro using the name HHH next year!

On their MySpace : "Also we are looking at going pro next year, so
you can get in early and be able to tell your friends 'I was part of their
crew, back before they paid, back before you ever heard of
Heartstoppers Haunted House!' "

They are in the same industry and are using my exact name of
Heartstoppers with "haunted house." You could just as easily have any
other business name with "haunted house." This will cause confusion in
the industry. From what I could find on the internet they seem to change
names often, of course, they plan to go pro with mine!

I sent them an informal cease and desist letter via email and not only
was ignored, but then more updates were placed on the internet!

Thank you all again for the advice! It IS appreciated...

HEARTSTOPPERS!

[Empressnightshade]

Being a Nonrprofit, a "donation" is different than charging an admission such as we do. With pro haunts, if you don't have the admission price, you will be sitting on the side lines like any other business.

I don't know.....

To pursue this is up to you. But, him adding "Haunted House" on the end makes all the difference to me. There are dozens of "Fright Factorys" in this business and nothing has stopped them from continuing.

I just know that I hope it all comes out peaceful.

Good Luck to you Heartstoppers and Heartstoppers Haunted House.