This post does not necessarily represent the opinions of the owner of this site. We understand many people feel strongly about the following post from Mike, and rightfully so - it is a strong, opinion-based post, and whether you agree or disagree, you have every right to feel strongly about it, as does Mike. I consider Mike a friend and support his right to freedom of speech whether or not I agree with his opinions, and I'm not going to say publicly because my opinion has no weight on the situation. This post will remain up due to those freedoms.
Who is Elise Bauer and what is SimplyRecipes? Why am I comparing them to Monsanto? Let me break it down for you, and you'll see what I believe to be wrong with how things go down in this country.
I have a raw food recipe blog called SimplyRawRecipes that I started because people were always asking me, "What do you eat?"
This blog was launched mid-summer 2009. It was my way of showing people what I eat and how they can make the dishes themselves.
Fast forward to November 2009. I receive an email from Elise Bauer stating that she thinks my domain and website are infringing on her federally registered trademark for SimplyRecipes.
She concludes the email by saying that unless I change the domain and web site name, she will file a legal claim against me.
Luckily, I have some lawyer friends that I was able to contact to put me in touch with someone who could help me out as a favor at no cost.
The first thing that the lawyer said was that the easiest thing to do would be just change the domain name to avoid possible court fees and the like.
I wasn't about to roll over and play dead just because she had more money and "muscle" to flex than I did. Isn't that what Monsanto does to small farmers?
As another solution, I was advised to put up a disclaimer stating that my site had no affiliation with SimplyRecipes and Elise Bauer, while the copyright information was looked into.
Apparently that wasn't enough for Elise Bauer because a few weeks later I was sent another email, this time from her lawyer. To sum up that email it stated that the similar named domains could cause confusion to visitors. People will think that our blogs are affiliated despite the big disclaimer stating otherwise.
The letter also states even though the disclaimer is there visitors might overlook it and think that our sites are affiliated.
The last point in the letter and "point of confusion" is the most comical to me. It says that potential visitors to SimplyRecipes will be directed to SimplyRawRecipes by search engines because of the similar names.
So it sounds to me like there is fear of competition. That a site (my site) might be better optimized for the search engines than her site for her copyrighted phrase. She doesn't seem to like that.
Now back to how Elise Bauer and SimplyRecipes is like Monsanto. If I wasn't able to pull a favor from a friend, up until this point I'd be looking at spending $5,000-10,000 just for someone to see if Elise Bauer's case is even legit.
To me this sounds like what Monsanto does to small farms. They use their money and lawyers to chase off the competition. If I didn't have these connections, what would I have done? What do these small farmers do? They give and succumb to the money.
What Elise Bauer is doing with SimplyRecipes isn't nearly on the same scale as Monsanto, but I just want to show you what goes on in this country.
I'm sure that Elise Bauer and Monsanto aren't the only ones to use money in an attempt to squeeze out the competition. This is likely a common practice by those with money.
Am I the only one that sees something wrong with this? Is this how our country works?
95 Responses
1
marvin
December 15th, 2009 at 8:38 am
just like monsanto, powerful!
2
Matt
December 15th, 2009 at 10:10 am
This is not right. While there MAY be legal grounds for her complaint, she should be ashamed of herself.
3
Mike Lieberman
December 15th, 2009 at 10:18 am
@Marvin Powerful yes, but does that make it right?
@Matt I am having someone look into the legalities of it all.
4
Danielle
December 15th, 2009 at 11:52 am
She should go fire her marketing and SEO people for not telling her a while ago to buy up all similar domain names. Like years ago when her company was new, before your site.
She doesn't have a leg to stand on. If you own the domain name, then you own it. The court can't make you accountable for her lack of foresight when buying her domain name.
Like Monsanto, she figured a letter from a lawyer would spook you into submission. She figured you couldn't muster the legal resources to fight it and would cave on the 1st go.
When you have to throw lawyers around, chances are you are a schmuck without a case. Elise Bauer pays others to whine for her. Shameful.
5
Mike Lieberman
December 15th, 2009 at 12:00 pm
Nicely put Danielle. I couldn't agree with you more.
6
aFriendlyFace
December 15th, 2009 at 12:09 pm
how about this for a solution
SimplyRawRecipes
becomes
SimplyHonestRecipes
or
MikesHonestRecipes
and do permanent redirects on all your URLs = you keep your google juice.
then offer to sell them SimplyRawRecipes
for what they think it's worth to them. Must be in the tens of thousands if they are opening the legal box....
Then, well, if they can't maintain an SEO for themselves, that's their problem.
Or you could offer to take adversiting from them, or syndicate your content to their website. Winning from the inside out is always a better outcome. Change them from the inside.
Lawyers are not paid for content, but upholding a set of rules which they usually haven't defined and can't be bothered to change (that'd be a cost not a win).
7
Melissa
December 15th, 2009 at 12:36 pm
Who's being harsh now? Someone trying to protect a brand that they've worked hard to cultivate and you're likening them to Monsanto? That's pretty unfair.
8
Mike Lieberman
December 15th, 2009 at 12:43 pm
Thanks for the comment Melissa. Yes, I am saying what she is doing is similar to Monsanto. She is attempting to use her money to crowd out the little people who don't have money.
9
Hillary
December 15th, 2009 at 12:55 pm
There's a difference between bullying like Monsanto and protecting your brand. The potential ramifications of mistaken affiliation between your site and hers are unknown to both of you, but it makes sense for her as a businessperson to attempt to head off problems before they come up. As far as I know, that website is her main business now. If she is garnering revenue from advertisements, it would be problematic for her to lose advertisers who don't like your site.
Whether or not she has a valid legal case, the comparison to Monsanto seems overboard. Monsanto sends an inquisition to small farms to find out if they're reusing their seeds. They blacklist farmers. They have created a monopoly that spreads with the wind, like in the cases of farmers who don't plant their seeds but still end up with them on the property anyway.
Elise Bauer is doing what any business owner would do - protecting her brand and trying to assure it stands out. Her having a lawyer doesn't make her an evil entity. It makes her smart about how she runs her business.
10
Chris W.
December 15th, 2009 at 12:57 pm
Do you have any idea at all how the US Trademark system works?! If you don't defend your trademarks, they are no longer valid. If she's aware of something possibly infringing, she is obligated to deal with it or lose it.
Comparing this to Monsanto is ridiculous. The obligation is on you to make sure when you choose a name it isn't infringing on someone else's trademark.
11
Anita
December 15th, 2009 at 12:58 pm
You may have a point (though I can't really see why you wouldn't want to pick a unique name) but your over-the-top photo of the schoolyard bullies and your inflammatory "Elise is like Monsanto" rhetoric is making me highly unsympathetic to your plight. It's like the foodie version of calling someone Hitler or Satan: Not exactly well-reasoned rhetoric, is it?
I also think that you'd be well served by learning about what the law requires of trademark holders: As I understand it, Elise is likely defending her trademark in order to preserve her own rights, not because she really thinks your site is a threat.
12
Jenn
December 15th, 2009 at 1:01 pm
I have to agree with Melissa--just because she's trying to defend a brand that she's worked hard to market and something that is the source of her livelihood doesn't make her like an evil corporation who does everything to choke out small farmers. She isn't contesting your right to have a site and potentially earn money; she is pointing out that "SimplyRawRecipes" is very similar to SimplyRecipes, and she has every right to defend her trademark, else it would no longer be hers.
The comparison to Monsanto is highly unfair.
I highly doubt she has vast resources with which to squeeze you out of business, and I highly doubt she even wants to shut you down. She just wants to keep her trademark valid.
If you're going to run a website that generates revenue (and functions, essentially, as a business), you cannot be upset when someone else whose site is a business takes action against you to protect it.
13
Julia
December 15th, 2009 at 1:02 pm
Still, offering to buy it off of you seemer a lot nicer solution. Not to mention cheaper for everyone involved, most likely. Plus no money going to lawyers!
14
Mike Lieberman
December 15th, 2009 at 1:03 pm
I appreciate all the comments and viewpoints, but my point of how Elise and Monsanto are doing the same thing is simple.
She has money to have a lawyer and so does Monsanto. I do not and nor do little farmers.
So what am I and the little guys supposed to do? Just curtail because we don't have money?
She may or may not have a valid claim with the trademark issue, but in order for me to even find out, I need to shell out money.
Does that seem right and ok with everyone?
15
Dawn
December 15th, 2009 at 1:07 pm
If I was playing the devil's advocate, I would say that she is simply protecting her brand name, which she has worked very hard for years to build. You argue she is "using her money to crowd out the little people." That description of Elise is completely out of character, as anyone who as met her will attest. I am new to the blogging world, and I have found that Elise is very supportive of food bloggers - especially the "little people" who are just starting out - even setting up a free food blogging resource website (which, as far as I am aware, she maintains on her own time, and her own dime). Maybe there are people out there who make an honest mistake in giving their site a name that is strikingly similar to an existing, famous site. And maybe there are others who know that a strikingly similar name will drive accidental traffic to their own, not-so-famous site. I'd like to give you the benefit of the doubt, but in either case, you can't fault someone for protecting their business brand.
16
Chris W.
December 15th, 2009 at 1:07 pm
It may not be "right," but it's the system we (through our elected government) created, and we all have to play under the same rules.
17
Meg
December 15th, 2009 at 1:08 pm
I like SimplyRecipes! While I don't know Elise, I know how I'd feel if someone bought something three letters away from my website's domain. Of course this is serving as a learning experience, and I'm definitely registering all the other domains, but still. I think you'd face a much bigger battle, and criticism should you have registered, I don't know, rawrecipezaar.com or rawallrecipes.com.
I must say though, this post does nothing for you or your new endeavor, and if anything, makes you look foolish.
18
Alice Q. Robertson
December 15th, 2009 at 1:09 pm
Wow, who's bullying now?? Making up silly allegations and whining about the situation to your readers does NOT make you the better person, just FYI. You have a legal dispute with someone. It's part of doing business, and you should handle it like an adult.
19
anonymous
December 15th, 2009 at 1:09 pm
Actually, I think it's both untrue and unprofessional of you to compare Elise to Monsanto. She has a TM for a reason, and this is exactly the reason. You don't have to have had bad intentions to make what you're doing problematic for her TM, and given the circumstances, she has every reason to be concerned that your site name is infringing on her traffic. And writing a post comparing another food blogger to Monsanto is something no self-respecting member of this very friendly community should do in good conscience.
20
Jenn
December 15th, 2009 at 1:09 pm
Is it fair for her to give up her trademark--and thus her business--because others don't have money or lawyers?
Your comparison is simplistic and absurd.
She has a right to defend her business and trademark (in fact, an obligation lest her trademark become invalid), and you have a right to contest it. Instead of doing so, you throw stones at her and compare her actions to those of Monsanto, when no actual comparison exists or makes sense.
Who is the schoolyard bully now?
Incidentally, your title should be "How SimplyRecipes and Elise Bauer ARE..." Since you have a compound subject, thus requiring the verb to be plural.
21
Mike Lieberman
December 15th, 2009 at 1:09 pm
Chris W. said:
So if you have money for a lawyer, you get what you want because you have money for a lawyer. Is that what you are saying?
22
Mike Lieberman
December 15th, 2009 at 1:11 pm
Jenn said:
My comparison is simple because life is simple. It's made complex by people that want to sell you services and products. Take down the fluff and it's simple.
23
Anita
December 15th, 2009 at 1:13 pm
Yes, that does seem right and OK. Here's why:
You're running this blog as a business (see those ads? yeah). Elise is running hers as a business, too.
If you don't have the money to support the costs of doing business -- and legal advice is just one of the many things you will need if you're going to make this work -- you need to take a cold, hard look at your business plan.
You've also already said you have an attorney who's giving you free advice; I'm not sure why you're feeling like the persecuted minority here. Elise isn't some aggressive mega-corporation - she's just a blogger who got into the game early enough to now be one of the big dogs.
If you do everything right, you may get there some day. But here's a little advice: Going after a highly respected blogger with ad hominem attacks isn't going to help.
24
Amy
December 15th, 2009 at 1:14 pm
How would you feel if someone registered a site called "Focus Organic Food?" How would you feel if you made your living on this site? Threatened perhaps? Protecting your trademark and stifling competition are two very different things. What Elise Bauer did was the former, not the latter.
25
Kare
December 15th, 2009 at 1:14 pm
An opposing viewpoint - I just can't help but chime in. Hopefully it doesn't come across too flamy - not intended as such!
Trademarks exist for a reason, and for a good reason. I'm not exactly sure why you think you're being bullied by Elise, or why you think she's swimming with money (maybe she is. I don't know. It's just a strange assumption).
http://www.uspto.gov/faq/trademarks.jsp#DefineTrademark
"'What is a trademark?'
A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name."
It's a pretty straightforward concept. Someone else came up with the word/phrase and has been working hard to build her brand for years. Why should someone else be able to come along and benefit from someone else's hard work? You know what I mean? That would be wrong. I think folks should conduct some research before deciding on a blog/business name and then do what's right - pick an original name and start from the ground up and rightful earn what's yours (and protect it accordingly), just like everyone else has to.
I truly doubt your intent was to take advantage of someone's hard work, but I'm just saying. I'm sure you can come up with another name that's just as great - or better - and be successful all on your own.
26
matt
December 15th, 2009 at 1:14 pm
I must stand up for Elise here. Mike, you do have a nice site and I can speak honestly when I say there is nothing malicious -- she is a businessperson protecting her brand. I would do the same and I imagine you would as well when it comes to protecting our brands.
The comparison is steep, harsh and undeserved.
27
Mike Lieberman
December 15th, 2009 at 1:15 pm
Meg said:
If protecting her trademark meant that much, I think that she should've bought and protected all variations of it.
28
Mike Lieberman
December 15th, 2009 at 1:17 pm
Here's a question for everyone, how am I benefiting from Elise's hard work?
29
Mike Lieberman
December 15th, 2009 at 1:19 pm
Amy said:
This is not my site, so I can't comment on that.
If it was really that important to me, I would have reserved it and prevented others from getting it. That's just me though.
30
Mike Lieberman
December 15th, 2009 at 1:20 pm
matt said:
It's a simple comparison. She is using "law" and money. So does Monsanto. That's the comparison.
31
Sean
December 15th, 2009 at 1:25 pm
Mike Lieberman said:
No, it means not having money does not entitle you to work outside the system and infringe on another's brand.
32
Stefanie
December 15th, 2009 at 1:28 pm
Just wanted to add that Mike writes here, but Focus Organic is my site, so comparing this site to what Mike is saying isn't exactly relevant. Just a side note
33
matt
December 15th, 2009 at 1:29 pm
Mike, that would mean you are Monsanto, too.
You are now using legal assistance because of this ("law) as well as "money" (I see ads on your blog).
That means I'm just like Monsanto too. I stand by my comment that it's a far-reaching comparison.
34
ian
December 15th, 2009 at 1:32 pm
I was on your side initially, mostly because I kind of have a problem with copyright laws generally. However, it sounds like your proper beef is not with Elise, but with the legal industry:
"So what am I and the little guys supposed to do? Just curtail because we don't have money?
She may or may not have a valid claim with the trademark issue, but in order for me to even find out, I need to shell out money."
The fact that lawyers cost money is not her fault. And you even admit that there may be some validity to her claim, so you can't really say that she's leveraging her money in a way that's unfair. If she was simply launching a nonsense claim in the hopes that you roll over because you can't afford to fight it, then you might have a point - but that's not what she's doing, even according to you.
So the problem, it seems, is that legal counsel is often only accessible to those in a certain income bracket. While this may be a problem, it's certainly not Elise's problem. Based on your version of the story, it seems like she's done everything right and she's certainly not behaving like Monsanto. By making that comparison, I fear you may have Godwin-ed your own argument right out of the gate.
35
Fatemeh
December 15th, 2009 at 1:38 pm
Your "simple" comparison and putting "law" in quotation marks is a blatant affront to our country's judicial system, and I can't help but wonder what you're more pissed off about: that someone is protecting her trademark, or that you're now required to deal with the judicial system you so clearly despise.
We have trademark laws. Just because YOU don't have the money for an attorney doesn't mean you aren't required to abide by them.
As Anita has stated, there are inherent costs to doing business in this country, and legal fees are one of them. The moment you placed ads on your site, and started generating revenue from them, you became a business. Ergo, you should have been prepared for the possibility that legal issues could arise.
36
katie
December 15th, 2009 at 1:38 pm
I don't think you have a leg to stand on... Legally, Ethically or morally.
YOU should have done your home work and ensured there was not another blog, trademarked or otherwise with a name so similar to yours.
As Elsie's blog was long established when you started yours you should back down. Elsie is no Monsanto and you sir are no small farmer!
37
Michael Edwards
December 15th, 2009 at 1:53 pm
Seems to me that this is exactly the same kind of games the big companies play to get their way. Instead of David and Goliath we've got David and a smaller David, but it's exactly the same mindset. Bottom line, this lady is wrong. Even if she did have the law on her side (and the law is so flexible based on $$$, maybe she does) it doesn't mean that it's ok to take someone else's URL.
I am building a brand myself. Someone else has my perfect URL on .com and I was forced to go with .net. They aren't doing anything with it. They do not want to sell it. That's just the way it is.
And if I did try to get the URL I would ask politely, without threats.
But what's really sad is this: We are all on the same team here. We are all trying to make this world a healthier place to live. Agree to disagree, but let's not get greedy and threaten with lawyers. We should be helping each other.
Elise Bauer, what if you had asked Mike, "What would it take to get that URL?" Suppose he said no way in heck. You could have then teamed up with him. Just a thought, maybe silly, but you both could have given each other exposure and gained readership by sharing and working together.
Mike, I only know about this story from what you have written, your side. But from what I do know, I support you 100%. And I think the image and the analogy is perfect.
38
Anita
December 15th, 2009 at 1:56 pm
Curious about who wouldn't understand trademark law basics in this day and age, I did clicked through to Mike's various blogs and profiles.
I think it's highly unlikely that someone who manages three blogs and does SEO for a living (according to his @canarsiebk Twitter profile) wouldn't understand the value of picking a domain that's three letters away from the #1 food blog's URL.
39
Michael Edwards
December 15th, 2009 at 1:57 pm
Now for some sarcasm:
Yeah, Mike, you were completely wrong. You should have realized how popular this URL would be, and that someone else would want it. That was stupid. Next time you go to purchase a URL, make sure it does not, and will not, ever be similar to somebody else's website.
40
Emma
December 15th, 2009 at 1:58 pm
Stefanie said:
I would like to point out that Mike's inflammatory remarks do your site or your business NO service. He is missing the point of the trademark action and instead of being responsible and grown-up about an unfortunate potential infringement is acting like a petulant child. For shame.
41
Brad the Lawyer
December 15th, 2009 at 2:04 pm
Looks like Goliath has a posse! The bully photo is really funny. BTW, did you get the rights to use it?
42
eric
December 15th, 2009 at 2:08 pm
The insanity here is the ability of anyone to trademark something so pedestrian and uncreative as simplyrecipes. This reminds me of trademark symbols attached to already existing popular expressions.
If she can't distinguish her site by the quality of its content, then she deserves any competition she gets.
43
Hippie Chick
December 15th, 2009 at 2:13 pm
If Elise Bauer and Simply Recipes has a problem with your domain name, they should have thought of that when they bought and registered domain names!
I for one, much prefer Raw anyday!
44
Meg
December 15th, 2009 at 2:16 pm
Mike Lieberman said:
There are an awful lot of letter combinations out there... I don't think it's possible to buy every single variation. Just because she didn't think of one, doesn't mean that she shouldn't defend it, and just let anyone go and make a bunch of other simplyrecipes sites.
And I agree. This discussion is silly. You choose a domain very similar to someone else's. That someone else had a legal trademark. Expect to be served. This is no one else's fault but your own.
45
Organic my ass
December 15th, 2009 at 2:21 pm
Anyone else find it ironic that the owner of a blog titled "Focus Organic: On Living WELL" is accusing someone of being a bully and using it as a platfom to inform readers of "what goes on in this country?" Is this a political blog? If you want social commentary, Mike, I think your sense of entitlement is what's wrong with this country!!
46
Heather
December 15th, 2009 at 2:34 pm
I am new to blogging and when I set about establishing my identity many of my ideas for names were already taken. It would never had occurred to me to use a name that was so similar to someone elses. In the business world, and from your bio you have been in business for a while, using a name that sounds like a famous brand is a dirty tactic, unfortunately used by too many companies who don't have ethics. Many large companies spend a lot of time and money defending their brand. If you had selected a name similar to say Nike or Martha Stewart you would encounter the same response. These companies have huge legal teams to work on their behalf. Elise is not a huge corporation. She's a regular normal person who had a great idea, trademarked her identity and over time has worked hard to be able to earn a living from this business and her idea. Do you know that she has pots of money like Montesano? Does she display draconian tactics like that company?
You made an error in choosing a nonunique name too similar to someone elses. From her account she contacted you professionally and when you didn't do the right thing she had no recourse but to take action, like any business person would, small or large. Being able to afford a lawyer doesn't make you evil. Maybe her lawyer is volunteering time just like your friend is helping you. Maybe she's spending money on this that might be needed elsewhere, like to support herself. Just how much money do you think this woman has by writing a food recipe site? It's not Montesano-like behavior at all.
Further, in business, if you have a legal disagreement with someone, you do not start smearing them on the Internet. Making public negative comments may be popular right now because of Yelp and similar sites but is hardly a grownup response. It doesn't endear public opinion to your side.
47
Emiliano Jordan
December 15th, 2009 at 2:41 pm
That's the way the law rolls. It's capitalism at it's purist the side with the most money is weighted to win.
48
Beth
December 15th, 2009 at 3:05 pm
I really think the problem started when people stopped being nice. Had Elise Bauer started the first email a little more civil Mike might have responded differently, however she chose to approach this with a hostile voice. If she had told Mike about the situation, she and Mike could have come up with a solution without getting the lawyers involved sounds like Mike is just mirroring this ladies attitude. However it has now gone down this path and they are at the point of no return.
Good Luck Mike
49
ian
December 15th, 2009 at 3:10 pm
ian said:
a) Define "nice"
b) How "nice" is stepping on someone else's idea, as Mike has done (or may have done, which he admits himself)? Even if it was inadvertent, part of "being nice" as the owner of a website involves doing a reasonable amount of research to ensure that your publishing platform is not unfairly infringing on someone else's space.
So yes, maybe the problem is that someone stopped being "nice", but I won't grant your point that it was Elise just because Mike has managed to convince you he's "the little guy".
50
clarlune
December 15th, 2009 at 3:20 pm
simply lasagna recipes
simply potato recipes
simply vegetable recipes
simply hamburger recipes
simply chile recipes
ad nauseam...
so because someone has registered a trademark for Simply Recipes, they automatically "own" all phrases that contain the words "simply" and "recipes"
bullcrap.
51
barbara
December 15th, 2009 at 3:23 pm
I find the photo in this article offensive. I met Elise when I first starting blogging almost 5 years years ago. She made contact with me when she was visiting the city I lived in. Elise has always been supportive of my blog. Each year she has participated in my annual blog event to raise awareness of cancer issues. Having the support of an 'A list" blogger like Elise has only been good for me and my cause. To portray her as a bully is plain wrong and incorrect.
52
Susan
December 15th, 2009 at 3:26 pm
The problem here is that no one is communicating. You have not sat down and discussed this with Lisa, nor has she done so with you. You have a disagreement. It can be solved by two adults who want to resolve it. The more via-type communication (lawyers, emails, written demands) that is put between you, the worse it will get. The only solution is to talk.
I think I'll post the same on her site.
53
ian
December 15th, 2009 at 3:26 pm
@clarlune They don't own it, but you could argue (obviously) that this particular phrasing unfairly exploits someone else's. It's not like "Simply ___ Recipes" is common-use English, the phrase makes no sense except as a stylization, which, I imagine (I'm not a lawyer) is an important distinction when determining fair use.
Or, to look at it from another angle, if someone started a website called Simply Raw Recipe, would Mike get upset? Would you still call bullcrap to that?
54
JMO
December 15th, 2009 at 3:49 pm
Mike, I can empathize with you. Getting a C&D from a lawyer is never fun or easy, especially when it's for a project that you are passionate about. But, I do disagree that simplyrecipies is in the wrong.
At first glance, your URL (simplyrawrecipies) is very similar, and does appear to be a subset of simplyrecipies. Elise is certainly within the letter of the law to argue that you have infringed on her trademark. I think we can all agree on that.
Now, you are arguing that she should have bought all the variations of simplyrecipies (comment 27). Just off the top of my head, I can think of the following additions to her URL: simplyfoodrecipes, foodsimplyrecipes, simplyrecipesfood. Now, replace food with grub, gourmet, salad, raw, organic, healthy, yummy, or tasty. That would total an extra 27 extra URLs. To register the .net, .com, and .org, it would be 81 URLs. At $10 a year, that is $800 a year for only the ones I listed. For the the 6+ years that Elise has had her site before yours, this would total $4,800. Now add all options with "simple" instead of "simply" and you are close to $10k. And that's just the few that I thought of right now.
As you can see, it would be very expensive (and a bit ridiculous) to have to protect a trademark by registering every related URL. Fortunately, the U.S. government helps us by giving us a better way to protect a trademark. This would be to use lawyers and the law to actively pursue trademark violations (which is actually required of trademark owners).
Now, for your comparison to Monsanto. I too saw Food, Inc. and am now aware of the seemingly deplorable practices that Monsanto uses. Monsanto sells a product that is trademarked. They are also required by law to pursue people who attempt to use their product without authorization. If I sold seeds, and I named my business "Mon Good Santo Seeds", then Monsanto would likely sue me for trademark infringement. This is similar to your situation. And, Monsanto would win even if I had money for great lawyers.
Monsanto may push farmers around with their size, but the reason they can do that is 95% of the other farmers are following the rules attached to the seeds (no seed cleaning, no re-using). The people that are prosecuted break the rules.
So, overall, I think you'd have much less of a headache by picking a different brand name and website. It will certainly be the cheapest option. I'm more than happy to back the little guy going against "the man", but in this case, your URL just looks too close and I think you would lose, even if you had more money and better lawyers. Best of luck to you and your raw food recipes.
55
ian
December 15th, 2009 at 4:20 pm
@JMO - a reasoned and insightful post. Well done.
56
Hannah
December 15th, 2009 at 5:10 pm
She told him that she was going to file a legal claim against him...for what reason? Cause of similar blog names? I totally understand the comparison and agree with everything you say here. You now own that domain name and for her to come in and try to take that away from you because it's similar to her blog's name is absurd.
57
Kris
December 15th, 2009 at 5:14 pm
This is a bit, right? To drive up your traffic?
I'd discuss it more in depth, but I have to go manage my baseball team, the New York Jankees.
58
Holly
December 15th, 2009 at 5:21 pm
Here's what's simple:
Elise is protecting her business.
You are shooting yours in the foot by whining.
It's not too bright to use a food blog to malign the most respected and most successful food blogger there is. And it's just bad karma. Should you ever enjoy the kind of success Elise has had, imagine how foolish you'll feel the first time YOU need to defend your trademark. Imagine how the person infringing on your trademark will use this post in court.
59
Mike Lieberman
December 15th, 2009 at 5:39 pm
Thank you everyone for your comments and opinions.
I appreciate Stefanie for giving me the forum to express MY opinion (not hers) on this topic.
I think Beth's comment was spot on.
I'll leave one last comment. What's being lost here is the point of the post.
Most of the people commenting are assuming that her claim that I am infringing is 100% legit, which at this point is debatable. I am saying that in order for me to even find that out, I need to enlist a lawyer.
From what I've seen and read Monsanto does the same thing to small farmers. They get lawyers involved and bills racked up that the other side can't pay, so they have to back down. Finding out isn't an option.
Thank everyone again for sharing their views and opinions on this. There is no right or wrong and 80 sides to every story. I am just telling mine.
60
Holly
December 15th, 2009 at 5:43 pm
Oh, my apologies. When you put Elise in the headline and compared her to Monsanto, I got the impression the point of your post was to malign her.
How silly of me.
61
clarlune
December 15th, 2009 at 6:16 pm
LOL wonder where all the comments came from mike?
your adversary complained about you to her twitter followers.
let the social media wars begin.
oh, and
ian said:
obviously? perhaps too obvious for some. google the word "simply". look at how many domains are out there with that "stylized" name. are you arguing that she has rights to the style, too?
LOL
62
cp
December 15th, 2009 at 6:27 pm
Kris said:
This.
63
emily
December 15th, 2009 at 7:04 pm
well, everything sounds big and bad, "monsanto-ish" if you will in legalese. that's the problem.
64
Jeffrey
December 15th, 2009 at 7:09 pm
Mike,
Ms. Bauer does not have a case.
'Simply' put both words 'simply' and 'recipes' are common words.
If someone where to build a site called 'Google Recipes' then look for quick response from Google lawyers.
As for the disclaimer you put on your site, I would delete it.
I would not put another thought into listening to her.
If you get a "Cease and desist letter" ...NOT an email....then you know she is playing hardball.
65
Not So Simple
December 15th, 2009 at 7:42 pm
Some great commentary, maybe a bit inflammatory on both sides but nothing in this surprises me. Not the first time Elise has flexed her muscles and surely not the last.
I've heard stories of her telling others to remove recipes she considers hers too; she must spend a fair amount of time acting as food blogger police. We are supposed to believe her blog is a fun family affair, but her behavior infers the fun is gone!
Many of her legions of fans will side with her without regard to the real issue or her behavior which is apparently as rude as her website is big. I've been putting recipes online for almost 15 years as a way to share an experience that I love; when it turns into a money making proposition; seems priorities do change!
I'm not a fan of Elise and for that reasons wish you well; seems someone is overstepping a boundary and I think it's Elise.
66
Holly
December 15th, 2009 at 8:24 pm
Not So Simple said:
If you want to give away your content for free and maintain your sainthood, that's fine, but I'm guessing you have another source of income. Elise's blog is how she makes a living, and she has every right to defend both her trademark and her copyright.
67
Anita (the nice one)
December 15th, 2009 at 8:54 pm
clarlune said:
I think this comment says it all. Is she going to try to wipe out all those sites too? Sounds like it isn't Mike who should have done his homework, but Elise. And after reading one of the earlier comments, it looks like she is no stranger to this type of behavior.
Mike, I really hope that this works out for you and that you are able to keep your site domain. I appreciate you speaking up on the behalf of those who have less money and power but are full of great ideas and creativity and are only asking for the equal opportunity to express and cultivate them. Although Monsanto is a much larger and more powerful company than Elise, I think your case is evidence of how the "little guy" is pushed around on a smaller scale. And it these everyday , small scale injustices that add up to large scale takeovers and the silencing of various ideas/perspectives because of unbalanced economic scales.
68
Not So Simple
December 15th, 2009 at 9:03 pm
Wow, Holly..maybe from your hallowed perspective it's not I who should be awarded sainthood?
By the way, unless I'm mistaken, Elise did not invent recipes; her harassment of others infers that she is the originator of, well, most everything and now we're to believe that two simple (oops, there I go) words like Simply and Recipes can never be combined in conjunction with other words without suffering the consequence of legal threats?
And I cite clarlune; just how far does this go? Simply and Recipes are two very common words...are we to believe that anyone who uses any combination of those two words with a third word is now treading on this same hallowed ground?
Seems a bit much to presume but I'll be sure to avoid naming my next blog NotSoSimpleRecipes just to be safe from similar persecution.
I'm not vested in the argument regarding Monsanto and the little guy so much but do see this as one entity engaging in an overbearing way to assume more rights than I believe the standard would/should allow.
69
Holly
December 15th, 2009 at 9:29 pm
Not So Simple said:
Actually, I, like you, write a blog for fun, not for money, so we're both "little guys" in this arena. But just because we have made the choice to blog for free doesn't make it the right choice for everyone. I do not begrudge Elise her success and her ability to make a living at this.
I've also spent the bulk of my career as a professional writer, and now I've added photography to the mix. And when I write or shoot for money, you bet I defend my copyright. Failure to do so is an invitation for people to steal from me. So,yeah, I really don't feel sorry for people who whine about getting called out on copyright infringement.
70
C.
December 15th, 2009 at 9:42 pm
Epic use of logic in your argument there champ. You really should be just as ashamed of yourself as she should be of herself.
71
Holly
December 15th, 2009 at 9:59 pm
C, it's a shame the public doesn't get to see the ever-so-enlightened personal attack that was the third sentence of your comment (which did come through in the email notice, though it appears to have been deleted here on the site). It said so much more about you than it did about me.
And truly, I wish I could understand why people are so offended by copyright and trademark law. I'd love to see how everyone who's defending Mike would react if someone encroached on YOUR means of making a living.
72
Becky
December 15th, 2009 at 10:18 pm
This reminds me of what happened a while back when Sew Fast Sew Easy went after the woman who wrote Stitch and Bitch:
http://overlawyered.com/2006/02/stitch-bitch-trademarked/
The little guy has little to no recourse when some large company decides to come after us. It breaks my heart.
73
Jeanne
December 15th, 2009 at 11:21 pm
I’ve been watching this debate evolve throughout the day. It’s been interesting to see how the bias of each party’s supporters colors their comments.
Elise’s supporters are totally convinced that Mike has done something wrong, either intentionally or unwittingly. As a friend of Mike’s, and someone who has witnessed the agonizing creative process that Mike goes through when he’s starting a new project, I can assure you, the name of his site has NOTHING to do with Elise Bauer or SimplyRecipes.com.
Mike is one of the most authentic and honest guys out there. To insinuate that he named his site to skim traffic from SimplyRecipes.com is absolutely absurd.
SimplyRecipes.com may be a well known blog in the food bloggers’ world, but most of us have never even heard of it.
And what kind of threat is Mike’s site to Elise’s trademark??? He doesn’t even advocate the use of a stove!!!! Mike is appealing to a very targeted niche. He doesn’t want Elise’s traffic.
Mike got a letter from a lawyer telling him to change the name of a website that he has worked very hard on for several months. Elise got compared to Monsanto. They both have a case for being upset. But for those commenting with unsubstantiated accusations, insults and inflammatory remarks, that’s just not productive.
I think the point Mike is making with his Monsanto comparison is that in our capitalist society we do things in the name of “business” that we wouldn’t actually do to our family members, neighbors, or friends. Elise is protecting her business from someone who, in my opinion, isn’t even a threat to it. She wants him to make a drastic alteration to something that he has worked very hard to create.
Mike is just a guy who is using the internet to raise awareness and make the world and the people in it better and healthier. Why would anyone want to mess with that?
74
Holly
December 15th, 2009 at 11:42 pm
Jeanne, I really appreciate your calm and civil perspective. And I really do see where you're coming from in Mike's defense, saying he's trying to do a good thing and not hurting anyone. I get that.
But it's worth repeating what at least one other person here has said: It is a well-known tenet of trademark law that you MUST defend your trademark against all possible infringements or it means nothing. To say, "Oh, I'm not gonna mess with this little guy because his blog probably won't hurt me - I'll just fight other people who have lawyers" is essentially to forfeit your trademark.
75
ian
December 16th, 2009 at 1:20 am
clarlune said:
Yes, it is obvious that it is arguable, since someone is arguing it.
To answer your question, I don't know if she has rights to the name under the law, I'm not familiar enough with the law to say one way or the other.
But what I do know is that at a certain point, a particular configuration of common elements becomes copyright-able. That's why you can copyright a melody, despite the fact that it's made up of 13 tones that are not copyrightable in and of themselves. Elise seems to believe that her configuration of elements that are otherwise common-use - i.e., the words "Simply" and "Recipe" in that order as a complete phrase - constitute a copyrightable configuration. And yes, I can see her point.
Personally, I don't know where the line is between common-use and copyright - e.g., do three words assembled in an uncommon way constitute a copyrightable configuration? Two? Four? - but I'm not surprised that Mike is getting hit with threats of legal action. Nor should he be.
76
David
December 16th, 2009 at 8:09 am
I wonder what the authors and publishers would think of "The Joy of Raw Cooking", "Mastering the Art of Raw Cooking", or "The French Laundry Raw Cookbook"?
And speaking of which, what's to stop someone from using in a book title, or website, everyday terms and words: "French Laundry" (a commonly-known concept, outside of the name for the famed restaurant), "Chez Panisse" (named for a character in a film), or if your last name happens to be, say, "Zagat" or "Fodor", why can't you write your own "Zagat" of "Fodor's" guide?
77
Moreganic
December 16th, 2009 at 8:36 am
So it's very clear to me reading the comments that most people really don't get the concept of trademarking around here.
They completely miss the point.
78
Chris W.
December 16th, 2009 at 8:40 am
Moreganic said:
This is what you end up with comments on blogs... a critical mass of the uninformed speaking as if they were authoritative on the subject. The vast majority of the commenters haven't a CLUE how the trademark laws in the US work, and Elise's obligations under them.
79
Mick Rogers
December 16th, 2009 at 9:14 am
One has to tread carefully here especially if copyright can be proven.
I don't know the law in regard to this in the USA...it seems similar to mine...I can't see the comparison between Monsanto and raw foods however but it does seem suspicious...I mean lets face it they sound alike...I tend to agree with Jeffrey who commented on
December 15th, 2009 at 7:09 pm
80
Jerewhon
December 16th, 2009 at 10:21 am
Aha !
Lawyers have friends?
ROTFL !
81
David
December 16th, 2009 at 1:05 pm
Moreganic said:
If you're referring to my comment, 'trademarking' something means that you may be entitled to protect words or combination of words. Since Chef Thomas Keller has a restaurant called "The French Laundry", I assume he has trademarked the name. And since he is published, I assume his publisher has trademarked or copyrighted the names of his books, too. Same with the others I mentioned. Although I could be wrong and if someone came out with "The Simply French Laundry Cookbook" they'd be okay with that.
The US Patent & Trademark Office (http://www.uspto.gov/trademarks/basics/trade_defin.jsp) defines a trademark as; "..a word...or a combination of words that identifies and distinguished the source of the goods of one party from those of others." (The whole quote is at the link.)
So by those standards, even though I'm not a lawyer, wouldn't the combination of words "Simply Recipes", like "Good Housekeeping", "Ladies Home Journal" and "The New York Times", fall under the same protection?
82
Elizabeth Arik
December 16th, 2009 at 3:26 pm
I am thinking of marketing a soft drink. I'm going to call it Coca Raw Cola. Does that seem fair to you?
Here's the deal: you're both food bloggers. If you were opening a store by that name, you'd have no problem.
83
Anne
December 16th, 2009 at 3:47 pm
Would love to know the legalities of this issue because as an admitted lay person it is certainly a conundrum!
The many variables I've seen cited don't 'seem' to establish credence for me in so much as comparing the use of two basic words like simply and recipes is not an identifiable brand as Coca Cola is. They made up a name, whereas Elise is using two rather typical and mundane words together.
Does that really forego anyone from using any variation of those words in any way, number or combination with other words as a result? That does seem an exaggeration of standards for which this protection was deemed but I'm admittedly not knowledgeable in this matter, so just personal opinion.
I've been involved in the Internet industry for almost 15 years, have searched often for recipes and even post my own online and had never heard of Simply Recipes until I saw a Twitter RT to this post. So, yes, am chuckling a bit at the irony that I also would never have heard of Simply Raw Recipes without it!
84
Trilliongrams
December 17th, 2009 at 12:26 am
Money does not equal evil. Just because someone has more money than you (which, really, can you prove that about Elise?) does not make him/her a worse person.
It doesn't matter how "nice" or "not nice" Elise or Mike are. Niceness shouldn't factor into the law. You don't get legal points for being nice or poorer than someone else.
And I did not realize Elise's bank records were available to the public. How do you have any idea how much Elise makes off of her website?
85
Vegan One
December 17th, 2009 at 10:49 am
It's odd that someone could claim sole legal rights to such common words as 'simply' and 'recipes.'
If the raw site had used the same name, that's one thing. But its focus is clearly different. It's obvious from first glance at the domain name that the functional word is "raw".
86
ian
December 17th, 2009 at 11:16 am
Vegan One said:
I think it's the combination of the words (they are common, but like I said above, "Simply Recipes" as a complete phrase is not grammatically common or correct - it's a stylized phrase) and their use as a brand. So a bit of copy on a website that includes a sentence like "my book is not simply recipes - it's techniques too!" wouldn't be infringing (I think - again, not a lawyer) but those two words used as phrase by themselves is a different story.
It's also possible to see how someone might be mislead into believing that the two sites are related, since, conceptually, Simply Raw Recipes could potentially be a subset of Simply Recipes. Either way, many people have pointed out that the law requires Elise to challenge Mike's use of the phrase, or risk losing her trademark. Even if a judge eventually smacks down her challenge, my understanding is that she's required to make it in order to preserve her copyright.
And you can copyright lots of crazy things - if my graphic design teacher is to be believed, you can copyright a colour (e.g., Pepsi blue). That one blew my mind a bit.
87
Danny
December 19th, 2009 at 12:52 am
I do not think Elise has a case at all. Maybe if you registered Simply Recipes under a different TLD....but she has to have patent on her domain name...and I don't think she has any right for a patent (her domain is quite a generic term).
Another reason I think why she is coming after you is maybe cos, many food bloggers are some of the most pickle headed people in the world. Maybe it has to do with them being women and therefore nit picky to the max? I don't know...I'm thinking of Martha Stewart lol
I hate Monsanto too. Monsanto will come down one day. They are kingpins right now in a world so wrong if only you people begin to wake up and open your eyes.
I think Elise makes enough money by having a top 10,000 Alexa site to not have to worry about some website registering a similar name, which in this case I cannot even see the similarity.
By just being IMHO pig headed, she is showing her true colors, which will knock off some of her fans, that's for sure.
I know one case in which Microsoft did NOT pursue a teenage guy who built a forum using one of their product names and turned it into a top forum and made a lot of money from it. Yes, that's evil Microsoft for you. They waived the case aside and told the teenager they welcomed the exposure.
Please note, I'm not advocating infringing on other's rights here...but this case is a little overboard - IMHO.
Here's to a better world...
88
Chris W.
December 19th, 2009 at 12:56 am
Danny,
Yeah, because there are no trademarks of "generic terms"... I'm sure that "American Airlines" or "General Electric" don't have those trademarked since they're such generic words...
89
Oklahoma City attorney
December 19th, 2009 at 6:21 am
Just because people MIGHT overlook the disclaimer, that's not your fault. Maybe she should put a disclaimer on her site too.
90
Holly
December 19th, 2009 at 11:06 am
Danny, I suggest you go back and read some of the comments here about trademark law (and this is about trademark - not patent, not copyright, not domain name).
Also, nice tactic, maligning women in your comments - isn't the person who runs THIS site a woman?
Chris, I think General Raw Electric and American Raw Airlines wouldn't ruffle any feathers at all... LOL
91
David
December 20th, 2009 at 5:37 am
David said:
There was also a case of a porn star going by the name of Mary Carey, of which Mariah Carey won a legal battle against: http://www.mcarchives.com/news/spec.asp?id=6171 S
92
SusieQue
December 22nd, 2009 at 4:22 pm
So let me get this straight - someone spends years building a brand and trademark. There is a possibility (without deciding whether the claim is valid or not) that the title of Mike's website infringes on that mark. And Elise Bauer is on the level of a multi-national global conglomerate (with armies of lawyers, I might add) because she seeks to protect her trademark from potential infringement? Wow. So is your solution is she should just ignore any potential infringement because you can't afford a lawyer, thus losing her trademark protection?
Your problem is with trademark and copyright laws in the US, not with the people who must act to protect them, whether you think it's a legitimate "threat" or not. Trademark law does protect from similar sounding brands that may cause confusion. I think it's unfair to so malign someone for simply seeking to protect their rights the only way available. Criticize the system, fine, but calling out Elise personally just makes you seem whiny and attention grabbing. Talk about a straw person argument.
93
WoeIsMe
December 23rd, 2009 at 10:30 am
Amen, SusieQue. Amen.
94
Hand Knotted Rugs
December 30th, 2009 at 12:31 pm
I totally agree with #4 (Danielle).
How much do domains cost per year?
Like 8 bucks?
Maybe less if you buy in bulk?
95
Holly
December 30th, 2009 at 9:18 pm
Hand Knotted, it's NOT just about the domain name - it's about TRADEMARK.