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  • Cease and desist?

    I've recently been given a call by a competitor that makes a copy cat product that our company carries.

    They are going to send us a formal cease and desist letter from their lawyers to stop using photographs that we have that shows their product failing in trials in our presentations.

    I'm seeking legal advice in the morning but was wondering if anyone has experience with this?

    I've never slammed the copy cat products but only used factual feedback from users to share with customers on the differences.

    PSB legal gods?

  • #2
    first off, I'd wait for the letter.

    at least make them play their hand.
    The greatest excitement comes from besting who you were yesterday.

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    • #3
      Wait for the letter, however once you receive the letter regarding their products, I would definitely remove them or you are up for slander/potential loss of income.

      Aside from that, continue on your merry way.
      Originally posted by Rich...
      You got me in trouble...

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      • #4
        Find your own lawyer. Talk to them about it. There's a very definite line between slander and an objective discussion about product faults.
        "Once upon a time we would obey in public, but in private we would be cynical; today, we announce cynicism, but in private we obey."

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        • #5
          Remove all details that could be used to identify their product and in the presentation have a disclaimer mentioning that these are images from a test of our product vs other similar products. Assuming the test is fair I don't think they can stop you from presenting data from a test (just don't mention brand/company etc).

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          • #6
            You need to reply with something along the lines of this:

            Last edited by Phildo; 09-10-2013, 09:15 PM.
            One owner. Only driven gently on Sundays. Sold to best offer. First to see will buy. Reward offered for safe return. Coming soon to a cinema near you. Available for a limited time only.

            My waterbed broke this morning. Oh, I don't have a waterbed. Bugger.

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            • #7
              Originally posted by SomeBloke View Post
              Remove all details that could be used to identify their product and in the presentation have a disclaimer mentioning that these are images from a test of our product vs other similar products. Assuming the test is fair I don't think they can stop you from presenting data from a test (just don't mention brand/company etc).
              I'm far from a legal expert, but I have seen quite a few companies recently who do compare products, and happily advertise who produce the other products. Not just bob's tool shop down the road, but a few big name companies on tv.
              The greatest excitement comes from besting who you were yesterday.

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              • #8
                Back in 1971 a US Attorney General, Bill Baxley, re-opened an investigation about a church bombing. The Ku Klux Klan sent him a threatening letter (various KKK people were later convicted and jailed). Baxley’s official reply to the KKK’s threat:

                One owner. Only driven gently on Sundays. Sold to best offer. First to see will buy. Reward offered for safe return. Coming soon to a cinema near you. Available for a limited time only.

                My waterbed broke this morning. Oh, I don't have a waterbed. Bugger.

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                • #9
                  Not legal advice- If you are providing an exact side by side comparison, there are a number of defences to defamation (if they are pointing to 'slander' or 'libel', tell them to consult a WA lawyer as neither of those actions exist here). Some defences include "truth" - eg their product is shit and breaks easy and "opinion" (to a degree) - eg their product is shit and breaks easy. If you can demonstrate to a Court that their product is shit and breaks easy (but not yours) then stress less

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                  • #10
                    Originally posted by Sookie View Post
                    Wait for the letter, however once you receive the letter regarding their products, I would definitely remove them or you are up for slander/potential loss of income.

                    Aside from that, continue on your merry way.
                    Wrong

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                    • #11
                      Wait for the letter. Talk is cheap letters from lawyers aren't.

                      No point engaging a lawyer for something you haven't even recieved yet.
                      In sterquiliniis invenitur.

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                      • #12
                        Well it is only Wikipedia but there is at least an Aussie section:

                        Comparative advertising - Wikipedia, the free encyclopedia

                        Look up the case studies it references; at least it might give you an idea if they're bluffing or not.

                        Edit: Here's an interesting paper on the legal regulation of comparative advertising in Australa:

                        https://lr.law.qut.edu.au/article/download/390/379
                        Last edited by truewheel; 09-10-2013, 11:55 PM.
                        It didn't look that far on the map...

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                        • #13
                          Originally posted by Crobbo View Post
                          Wait for the letter. Talk is cheap letters from lawyers aren't.

                          No point engaging a lawyer for something you haven't even recieved yet.
                          This. The number of times people get a call from a "lawyer" then nothing happens when the bluff is called...

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                          • #14
                            Originally posted by fincl
                            http://www.austlii.edu.au/au/legis/w..._act/da200599/

                            Just one of the reasons why you're wrong (see section 7). Is my story getting cooler?

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                            • #15
                              Mmm and note that my hastily discovered paper was from 1995. But even so I'd be surprised if its basic premise that comparative advertising is ok as long as you're accurate and tell the truth did not apply in 2013.

                              Edit again: Just found this 2012 tips n tricks article from an Aussie law firm

                              Comparative advertising: Tips and traps | Clayton Utz

                              which reiterates the need for the comparison to be accurate and not misleading or deceptive.

                              Importantly though - is your competitor large enough to lawyer up and drag you through the courts and if so can you afford to defend it?

                              Sometimes there's a big difference between the law and justice.
                              Last edited by truewheel; 10-10-2013, 12:24 AM.
                              It didn't look that far on the map...

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