Community name - copyright protected?

Sorry, it's probably trademark, not copyright...

DarylF - If you and your group are going to have a site to discuss your community, change the name of the site to not include the name of the community. If you have a message board on the site, make it secure with user name and password, and have a disclaimer such as:

To ensure that the message board is used responsibly for everyone's benefit, the following rules must be observed:

1. Slanderous posts will not be tolerated. This includes posts that threaten, make fun of, or attack others. First time offender’s posts, and the offender barred from the web site. No warnings.
2. We expect posts to be clean, with no offensive language or links to offensive sites.
3. Please do not post copyrighted, or trademarked materials on this site. If you copy and paste copyrighted, or trademarked material, it will be deleted. If you post copyrighted, or trademarked information that you own on this site, you understand that you are making the information available for public use.
4. Any attempt by anyone entering this site to harvest e-mail and/or other information about our members, affiliates or visitors is prohibited, and will be dealt with to the fullest extent of the law.
5. Graphics, pictures, or banners are not allowed in any posts or signatures and will be deleted by our administrators without notice.
6. Posting commercial advertising messages or solicitations in the message board is prohibited. Any URL containing a referral code or referral address will be edited or deleted at the discretion of the Administrators. These are considered advertising. No 'blind' or 'hidden' referral links are allowed.
7. Any conduct by you that in our discretion restricts or inhibits the use of this site by any other member will not be tolerated. We reserve the right to pursue any and all legal and equitable remedies against you, including the posting of your address and the reporting of your activity to our partners, your Internet Service Provider (ISP), and other authorities.
8. Any material in any post that we determine to be disruptive, argumentative, or not suitable for our forum may be edited or deleted at the discretion of our Moderators or Administrators. We also reserve the right to ban abusive users from the web site.

Thanks for the disclaimer! I was looking for a good one.

I have some experience with copyright/trademark/patent law and re-read some stuff, but it all seems to come back to goods and/or service and the likelyhood of confusion of the two entities. i.e. if i owned McDonald's plumbing I'm okay, but if I owned McDonald's burgers and fries I'd probably be getting some legal letters.

The HOA, via incorporation hold the trademark to the community name. However, likelyhood of confusion is low. The site is password protected and people have to be approved by me to join. I verify they live in the neighborhood before they join, and it is clear on the site that it is not affiliated with the HOA in any way. Neither my site or the HOA really has goods or services, yet alone competing services. The only fear is someone confusing us for them and suing them for actions by us. But if only us can see what us posts and we are clear we are not confused on who we are, is it a problem or lawsuit risk?

ARG I'm so confused...

Thanks for the responses thus far. Any other opinons would be appreciated.

How did the HOA "demand" that you dismantle the site or at least change the name? By official written letter?

If so, you have been put on offical notice.

Right now, you are individually liable for what is said on that site. You have no legal representaion from the HOA, no lawyer representation, no idemnification. The HOA could sue YOU!

Is that all worth it?

P.S. Most likely, the corporate name is not a trademark or copyrighted. The issue is that your site may be confused with the corporation position on issues.

Frankly, *I'm* confused.

How can you claim that the likelihood of confusion is low?

The name belongs to a "Homeowner's Association."

The site is for members of that particular Homeowner's Association for social networking, among other things.

I think there's tremendous room for confusion.

As a new homeowner into the subdivision, were I to run across this site online, I would very like assume it was a site developed for my subdivision, most likely by the official HOA there.

It's not like it's the name of a homeowner's association and you're hosting a site for NASCAR aficionados.

I also think you're looking at the connect to "goods and services" very narrowly.

Too narrowly. It's not always about profit or tangible goods or services. It's the representation of the identity.

If you have some experience with copyright/trademark/patent law, then I'm confused also that you don't know that.

Now, having said that, I'm not sure what the exposure for a lawsuit actually is or could be. I'm trying to think of a worst case scenario but having a little difficulty doing that. Especially if you have a prominent display in several areas of the site where you make it very clear that the site is NOT the official site for the Bob Loblaw HOA.

Even so, it's still easy enough to switch, in spite of the initial concern for it.

Companies, groups, organizations, they all do it all the time.

I just moved an entire bulletin board/forum site to a new provider, new URL, new webmail address, involving over 300 people. It's not the first change over the course of the years, either.

It's not fun, but it's not terribly difficult.

Here we go again, folks, talking about things we have little information or knowledge about. There is a lot of unsubstantiated opinions posted here.

There are two entities here. There is the homeowners association itself. Probably incorporated.

Then there is the subdivision.

Unless the homeowners association has filed for a trademark on the subdivision name, it is fair game for use. And, even if it is trademarked, it still may be fair game for use.

Even though a subdivision name is trademarked, if it is in common use to identify the subdivision, then it can be used.

So, "it depends" as Michele noted.

If you are using just the name of the subdivision and pictures that are in public view, then you can, most likely, continue. If you are using the name of the homeowners association corporation to identify the website, then you might want to consider a change.

You could legitimately call the website something like, "ABC Acres Neighborhood Notes" and include a tag line along the lines of "A website for sharing neighborhood information. Not affiliated with ABC Acres Homeowner's Association, Inc."

It sounds as if you are being intimidated by threats from the homeowners association board and its attorney. It is the arrogance of power that characterizes so many such boards and their attorneys. It is up to you to decide if you want to stand up to the intimidation and face possible legal action. Or if you want to give in and change the name. I think a good attorney would give you the following pieces of advice:

(1) You have a excellent chance of prevailing in any suit that is brought against you.
(2) Is it really worth it to you financially to fight this?

Intellectual property rights is a highly specialized, complex part of the law. I doubt if the homeowners association attorney is well versed in what is fair use and what is not.

George:

I agree with your post except the last part unless you are a trademark attorney...I wouldn't go say they have an excellent chance of prevailing, I have no idea...

What I do know is if your board believes strongly enough in this they will use association funds to try to shut you down...win or lose that will be money that is being spent from your HOA and will in the end hurt everyone in the association.

If it is that big of a deal to stand up and make a statement I can't answer whether you would have any chance of winning or not...In the end I would think there are bigger fish in the sea to go after and it may just be better off in the end to change the name and avoid the circus and litigation that may follow.

FWIW: On the "confusion" factor - My HOA has the same name as a city in CA and a community in FL. Our website uses the name (fully sanctioned by the Board) and on the front page it states that it is about the XXXX HOA in Idaho. I still get messages about things in both CA and FL (my favorite so far was the request for me to come do something about the alligator in the retention pond next to a home).

I don't know about the legalities of using the name of the community that you live in, but some amount of "confusion" is going to exist no matter what you call it or how you disclaim it. Accept it.

Sorry, but most of the advice so far here is worth less then the time to read it. While certainly the HOA can intimidate you if you don't budge, the simple truth is that they won't have a legal leg to stand on. Case law is very strong on your side to the point where defendants are starting to see their legal fees awarded after the case is quashed in pre-trial motions.

Very simply your HOA does not hold an exclusive use of their name. This kind of thing very much bothers big name sports, and media, but it remains true.

I would not change the name of the site or the email address. You are now setting the tone of your board and it would appear to me that they are suffering from "Bloated Head Syndrome." (You know where little people get big heads at the first sign of power.)

I wouldn't be ugly, but I would insist that I don't care to change the name and insist on compensation should they believe it that needed. I would remind them that they are not in control of the whole thing and that it clearly states that the site and list are not affiliated with the HOA. You might also remind them that you will vote against any moron who continues to spend pointless money on a lawyer who is practicing well outside the scope of his knowledge.

The simple fact is that if the lawyer continues down the track, he/she could be sued for malpractice because he is way out of his/her area. Case law is very strong on your side to the point that defendants are starting to see reimbursement of their legal costs after a short summary judgment.

Further, the bar for suing the site in a case of someone getting their feelings hurt is extremely high. If you are doing your job as moderator then you really have nothing to be concerned about.

Uh oh!! Watch out everyone, KirkW1 feels that our advice so far here is worth less then the time to read it. You know, the kind of advice that is encouraging Daryl, regardless of right or wrong, to take a path that will steer him away from a lawsuit, rather than toward it. You know, the kind of advise that comes from years of experience that just because you may be right doesn't mean it's worth the battle.

I am aware of a similar situation which was solved by using "BigMeadowsOwners.org" with a disclaimer that it is not the official web site of Big Meadows. I would say change the name and remove any potential for an annoying lawsuit.

I still want to know who's footing the bill.

Michelle,

In the poster's case, he is not hosting a site with a direct name conflict. It would be somethign on the order of www.hostedgroups.com/HOa_name_here. That combined with the fact that he has already placed information that this is not directly connected by the assures that this is fair use.

Part of my issue is the with the BOD thinking that they can suddenly control all that has the neighborhood name on it. The incorporation of the HOA doesn't give it sudden new powers concerning the use of the name. And chances are that their trademark protection is extremely limited anyway. What are the chances they actually trademarked the name? There are varying levels of protection starting with registering a DBA name.

Keep in mind that they didn't bother to ask the person running the site/service. And when the fact it wasn't under their control was pointed out they just charged forward. Perhaps I am just cynical, but I doubt they will settle for anything less then complete control. My experience says these people's heads have bloated from their taste of power.

If the group makes sure that they represent themselves as a group apart from Walmart and are in no way trying to benefit from the Walmart name they are within bounds of Trademark law.

Walmart has a trademark for being a discount store. They don't own the name. And I am within the law to create a site that pertains to Walmart and use their name in my site. Now the logo is a horse of a different color. But if it is clear that I am not connected to Walmart and am not using their name for anything other then to identify that it relates to the store, it is fair use.


While I realize that each person has their perception, this doesn't sit well with me. The board didn't decide to request the name be changed, they decided they would simply change the name. And they ignored the input indicating that they were not in a position to take this action. In my world of experience such people will continue to exercise their power until they hit a road block. And unfortunately, there is a vast quantity of cases where HOA boards have used their lopsided power arrangement to the demise of an owner.

Part of why I would not back off is because of the president of the whole thing. Now if they politely apologized when they lack of control was pointed out and requested a name change to avoid potential confusion I would be of mind to cooperate. It is not that I don't have sympathy for a Board afraid of a suit. That kind of struck our Board as we started out because of all the fiduciary responsibility information.

In my opinion, an even better idea is to request the Daryl to help build an official web site. And work together with him. He could link to the real web site further entrenching that his site was not part of the HOA.

I wish our neighborhoods had something like that going as it would be a great source of knowing what people are feeling (good or bad).

After some digging...

The board has an automatic trademark on the name they incorporated with. For the sake of argument we'll say they are the "The Range on the Lake Home Owners Association". Note that they only have the community name with the HOA after it trademarked. Thus, I'm free to use the name of the community as it's a location and it's in common usage. Just as i could use the name of a city/county/state in my business name.

It is not yahoo groups but it's similar. Thus it's free and the name is www . yahoogroupstypething. com /the rangeonthelake(then our zip code). Emails go to "therangeonthelake(zipcode) @ yahoogroupstypething .com".

For now, I put some disclaimers on the site and changed the title (that's easy). I don't intend to do more unless they start trying to pay lawyers. At that time I'll poll the site to see if they want the HOA to waste the money or if they'd rather just change the name. I don't want to be the bad guy causing the neighborhood to waste money.

And exactly what I said too!