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Trademark Infringment - Heartstoppers Haunted House

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  • Trademark Infringment - Heartstoppers Haunted House

    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

  • #2
    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!

    Comment


    • #3
      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.
      The word for the day is NPD. Check it out.

      Comment


      • #4
        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.
        Guerilla Haunter

        Comment


        • #5
          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.

          Comment


          • #6
            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.
            Its not who you are or what you do that makes you important, its what you do for others that does.

            Comment


            • #7
              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.

              Comment


              • #8
                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
                Lords of Chaos, LLC
                House of Chaos Haunted Attraction

                Comment


                • #9
                  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!

                  Comment


                  • #10
                    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.

                    Comment


                    • #11
                      I just remembered why the name HEARTSTOPPERS seemed so familar...

                      That's the name of a "gentlemen's club" here in SC.

                      I drive past it every day on the way home from work.
                      Guerilla Haunter

                      Comment


                      • #12
                        HeartStoppers is also a documentary made in 92.

                        Comment


                        • #13
                          I hate to be the pessimist in the group, but I think you should definitely consult an attorney whom is paid to do these things. Trademarks cost a fair amount of money (350$ simply for the filing fee, plus attorney costs, court costs, etc.). They need to be registered at the U.S. Patent and Trademark Office. The registered symbol, "®," the legend "Registered, U.S. Patent and Trademark Office," and the abbreviation, "Reg. U.S. Pat. & Tm. Off.," should be used only on, and in connection with, marks registered with the PTO. The use of these notices on unregistered marks is a crime, punishable by fines and/or imprisonment. Any unregistered trademark should always be accompanied by (TM)

                          Also trademarks should always be adjectives, and in singular form, neither plural nor possesive they should also not be nouns or verbs, so the part of your place you would most probably trademark is "Heartstopper" Another thing they may want to check into is the fact you do not, I assume, provided interstate services or goods. So it may be possible they will allow since it is used only in Utah, for a Heartstoppers in California.

                          Ofcourse issues with the Heartstopper TM could also arise as Heartstopper has already been trade marked.

                          Word Mark HEARTSTOPPER
                          Goods and Services IC 041. US 100 101 107. G & S: Entertainment services by a musical artist and producer, namely, the presentation of live musical performances by a recording artist, entertainment services by a musical artist and producer, namely, musical composition and production of musical sound recordings
                          Standard Characters Claimed
                          Mark Drawing Code (4) STANDARD CHARACTER MARK
                          Design Search Code
                          Serial Number 78776045
                          Filing Date December 19, 2005
                          Current Filing Basis 1B
                          Original Filing Basis 1B
                          Owner (APPLICANT) Eries Cornelius INDIVIDUAL UNITED STATES PSC 115 Box 1044 APO APO FOR EUROPE 092130115
                          Type of Mark SERVICE MARK
                          Register PRINCIPAL
                          Live/Dead Indicator LIVE

                          You're best bet is to get with a Trademark Attorney and try as you can to get "Heartstoppers Haunted House" trademarked, if this is what you decide to do...

                          Ofcourse if we get serious and control our trademarks on everything, Haunted houses will become a lot more unique, and perhapss run out of ideas....

                          Did you know "Haunted House, Enter at your own Risk" is trademarked? Man just think if noone could use that anymore lol, luckily the guy does not pursue it apparently. Also disney trademarked "Haunted Mansion"

                          Just my two cents

                          Comment


                          • #14
                            If oyu already have copyright and trademark on your name, it absolutely behooves you to protect it. Especially since they are falunting and taunting on their website, it is intolerable, home haunt or no.
                            The word for the day is NPD. Check it out.

                            Comment


                            • #15
                              I understand that the term "heartstopper" has been trademarked after
                              my initial use date. The no "s" name is relating to a band, Brad Leo's
                              Heartstoppers. They have the user ID "Heartstoppers" on MySpace.
                              User Ids are a whole other issue that has been brought up lately
                              concerning infringment suits...

                              The name can still be considered unique because it is in a separate, non-
                              related industry. The issue is use of the same name in the same industry.

                              If "haunted House" is a definer, then I could open up a Spirits Haunted House right down the street from the Spirit Halloween Shop, couldn't I?

                              The club in SC is not registered with the Secretary of State as a
                              legal business. However, it would still be in a separate and non-
                              confusing industry.

                              The move title is a Copyright, not a Trademark...

                              I do provide goods via interstate commerce (and also internationally),
                              through eBay, and have used the name in legally verifiable business
                              for over 5 years as required for the "in-use" Trademark requirement.

                              I spoke to the Sec. of State of CA and was told I can legally bind the
                              name through the state because of my original business licence and
                              because my items are available in CA through interstate commerce.
                              I just sent an item to CA today...

                              I'll be speaking to an attorney in CA in the next day or two on how
                              to proceed. All of the information and opinions have been great
                              and give me more options to consider...

                              Thanks as always,
                              HEARTSTOPPERS

                              Comment

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