We’re Being Sued – For Linking To Shopzilla « Datadial Blog
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April 18th, 2013.


Filed under Datadial,Legal and Financial,Off Topic

We’re Being Sued – For Linking To Shopzilla

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If you like crime stories, you’ll love this. ‘True Crime: Hammersmith’ is the story of a deranged criminal organisation (Datadial) and the ensuing legal battle to stop it.

Chapter 1. The Best Intentions.

On August 17th, 2010; the world was rocked to its core when the Datadial blog posted an article titled ‘Increase Conversion rates – advanced techniques’. Of course, it all seemed fairly innocuous. A simple review of tools to help increase conversion rates on your website.  The article named several companies and their websites and praised them for their techniques. Indeed, one man even thanked Datadial for the mention! Eames2 Clearly Mr. Eames didn’t realise that he was just a pawn in one man’s cruel game; the likes of which the legal world has never seen. …until now.

 

Chapter 2. The Worst Intentions 17th April 2013. Almost three years later. An email is sent from Fox Williams LLP to the author of the article and owner of the website, Mr. Robert Faulkner. The email was sent on behalf of Fox Williams LLP’s client, Shopzilla.co.uk. You’ve probably heard of Shopzilla. According to their Trade mark List of Goods and Services (which was supplied in the email) they specialise in: ‘Promoting sale of goods and services of others; Internet consumer comparison shopping services; providing ratings and reviews of businesses and products and services for use by consumers; providing databases containing commercial information relating to products and merchants’. As it transpires, Shopzilla had been mentioned in Datadial’s article all those years ago. Right at the bottom. As an honourable mention, as recognition for their online service. excerp1t Shopzilla had finally gotten wind of the article, after all that time; and they did the only thing any self-respecting company would do. They contacted their solicitors to have the link removed.   Chapter 3. Motives Why did they want the link removed? Why indeed. Allow me to reprint the grounds of the legal action and analyse each point in-depth:

  1. Trade Mark infringement
The Infringing Website contains a link to our client’s website, http://www.shopzilla.co.uk, creating an unauthorised association with our client and their Trade Mark. Your use of the link on the Infringing Website is:
  • Causing detriment to the distinctive character of the Trade Mark;
  • Causing detriment to the reputation of the Trade Mark by creating an undesirable association with the Infringing Website; and
  • Taking unfair advantage of the goodwill attached to the Trade Mark.
Our client is entitled, at its own election, to damages or an account of profits for use of the Trade Mark.
 

Now… as I’ve mentioned, Shopzilla is legally defined as one that “provides ratings and reviews of businesses and products and services for use by consumers”. It sets itself up as one. That is the legal definition of Shopzilla. If acknowledging this definition is ‘detrimental to the distinctive character of the trademark’ and it creates an ‘undesirable association’ I daresay they might need to have a brand re-think. I wasn’t sure exactly what ‘Goodwill attached to the Trade Mark’ meant. Suing for a mention of your brand doesn’t seem like an act of goodwill to me. I have since looked up ‘Goodwill’ in legal terms and it pretty much means ‘the right to do business without direct competition’.

Basically not stealing other people’s business. (If anyone has a better definition, I’d welcome it in the comments). I’m not quite sure how praising a company prevents it making profits; but I’m fairly sure Datadial didn’t steal any of their market, or any other products that Shopzilla recommends on its site.

As requested, I’ll provide an account of the profits Datadial made through the use of Shopzilla’s name alone:

£0, 000, 000, 000, 000, 000, 000, 000

We’ll happily share in these profits with Shopzilla. It’s only fair.      

2. Passing off [Fox William’s LLP’s] client’s goodwill Our client has invested significant time and money in developing the Shopzilla® brand making it instantly recognisable amongst the public as a trustworthy and reputable online comparison shopping engine. It is highly likely that the average consumer will be confused, believing that our client is in some manner connected with the Infringing Website, either through ownership and operation or through a commercial relationship or endorsement with the operator of the Infringing Website. Such connection is causing our client damage. As such, your use of Shopzilla® in this way constitutes passing off.

I had to open my legal dictionary again for this one. Basically ‘Passing off’ means creating an undue association between two parties, specifically one claiming undue association with the goods sold by another company. I’d like to state unequivocally that Datadial’s use of a link congratulating Shopzilla® on its use of product comparison is not an attempt to gain an association with Shopzilla® or any products sold or compared on Shopzilla®’s website. It would be interesting to see if Shopzilla® could provide proof that Datadial has stolen any of its business.      

3. Copyright Infringement The use of the Infringing Website of text and graphics taken from our client’s websites is an infringement of our client’s copyright. You have copies and communicated the copyrighted work to the public through the Infringing Website. The use of the copyrighted work has occurred without the consent of our client, the copyright owner. We put you on notice that any continued use of our client’s text and/or graphics (in whole or in part) on the Infringing Website will constitute and infringement of our client’s copyright. This is without prejudice to our client’s position that you already have the requisite knowledge to establish such liability.

I was totally on-board until the last sentence. Even my module in Forensic Linguistics couldn’t have prepared me for that. I guess they’re suggesting that because Shopzilla® is a well-known website we should know that everything on their site belongs to them.

If Fox Williams LLP is reading this, I would recommend visiting The Plain English Campaign’s site. I’ve provided a link so you know what I’m talking about. . http://www.plainenglish.co.uk/ I hope they don’t sue me…

Legalese notwithstanding, Datadial hasn’t stolen any content from Shopzilla®. Neither text nor images have been used. Shopzilla®’s name wasn’t even used. It was a link via a URL, and you can’t copyright a URL. And even if you could (WHICH YOU CAN’T) it was a mention in a review so it’s fair use! What’s even more confusing is that Shopzilla appears to have sold out on Point 6 of its own philosophy:

‘Information is Empowering: Share it Wherever Possible’.

 screenshots   Chapter 4. Reasons. So far as I can tell there are no legal grounds for removing a hyperlink. We have been advised by Fox Williams to seek legal advice, so I am hoping the readers of this article can offer some help. Fox Williams have not mentioned that this is a link clean-up operation; and surely they would have gone down the normal route if that was the case. If they’d sent us a polite email asking for the link removal, we would have explained that since we have a reasonably high domain authority of 50+ the link in question would likely have little effect on their rankings and it’s 3 years old anyway so any effect would have been discounted anyway…etc As a precautionary measure we have taken down the link, as requested. If anyone has any thoughts on why Shopzilla wanted this link removed so badly, please share them here though keep it legal!   Chapter 5. A riposte. Datadial is not a law-firm, but it is an internet marketing agency. We know how to use Google. Upon receiving the email, we took to the web to find out all we could about the legalities of Hyperlinking. Here are some insights into the subject as documented by Out-Law.com.

  • “…hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not. There is thus no communication of the work.”  (source)
  • “Just as an improved search-engine that improves the ability of users to locate material for which they are searching should not be required to obtain permission as a matter of copyright law, so providing links or access to material already publicly available should not be regarded as an act that requires any authorisation” (source)
  • “every internet user enjoys access to the work simply by learning the uniform resource locator (URL) the court held. The hyperlink technique obviates the need to enter the URL manually and merely provides an easier and more convenient way to use the internet.” (source)
  • “Kranten.com successfully argued that such deep linking to other sites is a widespread and commonly accepted practice on the internet and because, as in UK law, news articles can be copied for the purpose of reporting current events, provided there is sufficient acknowledgement.” (source)

The author of the original article has never been in trouble with the law. He’s an honest man who does business by the book. You can imagine his upset when he received the original letter. Faced with the fear that he would spend the rest of his life in prison, he considered transfering all of the company’s money to The Battersea Cat’s Home, and move to a Tibetan Monastery. However, he quickly rationalised the situation and sat down on his sofa with a glass of wine and a Twix. Since Shopzilla® and its lawyers are solely responsible for causing an undue amount of stress, it only seems fair that they reimburse him for the glass of wine and Twix. Twix: £0.80 Glass of wine: £2.40

– Update:

Chapter 5. Prologue.

Shopzilla’s VP has come forward to apologise for the misunderstanding. The apology is in the comments below. They acknowledged that it was a mistake and said they were sorry it happened. I guess we’re not being sued anymore!

–Update 2:

We just received a courier delivery…

before1

I wonder what it is…

after1

Well, how about that! A bottle of Red Wine and a box of Twixes. Thanks very much Shopzilla!

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40 comments on We’re Being Sued – For Linking To Shopzilla

  1. Simon Wharton says:

    The actions of Shopzilla and Fox Williams LLP could possibly be described as naive. They could also be described as really very dumb. I can only assume that they thought that the link might be detrimental to their link architecture. In which case a simple phone call might have worked well. I do wonder how much Fox Williams are charging for this ill advised campaign?

  2. Andy Kinsey - Redstar says:

    I love it. Its like when NY Times told google to stop stealing content / sorry linking to it. Its funny that clearly the corp brains have no idea what the dev / internet hands are doing.

  3. Chris says:

    Unbelievable Jeff!! *Chris Kamara Voice*

    It astounds me, wouldn’t you simply be grateful that someone has independently, and was not coerced, to put a mention to your site in a post and even linked to you?

    I shall be checking all my sites to make sure I haven’t *illegally* or inadvertently linked to Shopzilla and remove them forth with.

  4. Tanya Smith Lorenz says:

    Seriously??!! I wonder, just out of interest how many links to other web properties Shop**lla have (I dare not print the name in full for fear of guilt by association ;-)

  5. Chris Lake says:

    This is the funniest thing I’ve read for at least three days. Crazy tactics, and rather ironic for a shopping aggregator to complain about links. It’s the very last thing it should be doing.

  6. Dave says:

    Gotta agree with Simon.

    However, you could change every mention of their brand to Sh**zilla, and the URL too :-) If you do it, do it on this page too, and replace the screenshot (potential copyright violation — ohh noes!!!) with kittens.

    They could have just emailed you and asked you to change it, rather than doing what they’ve done — seems a really crazy way of doing business.

    Btw, you also missed a few (R)’s in the post title, first few paragraphs and URL. Add them in before they send you a restraining order which doesn’t allow you within 50 meters of the internets.

    Good luck with the pointless legal battle.

  7. Gareth James says:

    Keep the link live, go for the all out battle, get tonnes of links and PR :)

  8. Adrian says:

    Utter madness.

  9. Jason Meininger says:

    I think you’ve undervalued your glass of wine.

  10. Aaron Brockhurst says:

    You’ve got to love the moment the suits get involved and common sense is left outside the meeting room and their brains take up residence in their backsides. I wonder if they think any PR is good PR and are rubbing their hands at every mention of their name.

  11. Matt says:

    80p for a Twix? Mental.

  12. Luke says:

    I have had a similar experience recently, and I believe it is mainly down to fear and lack of knowledge or understanding about links. You would think a simple phone call to request removal of the link would suffice, and would be better for PR and your wallet than getting Solicitors involved. Best of luck with it.

  13. Alessia says:

    On one think they are right, by putting that link you damaged them as you started the chain of event that brought me and probably many others to think they are just too idiotic to be worthy of my money. They’ll never have me as a customer so yeah, there’s ground for the action now haha

  14. Eric says:

    Try contacting ShopZilla directly from contact details on their website to make sure the email detailing a threat to sue is legitimate.

  15. David Bixler - Shopzilla says:

    Dear Joe,

    I’m terribly sorry you received the letter from our attorney’s office. We appreciate that your site is not a spam site and is not mis-using our trademark. We flag up thousands of backlinks that are potentially spam and unfortunately your site slipped through our filter. Please disregard the notice and let me know if the wine was red or white…I’m sure I can find some twix as well.

    Kind regards,
    David Bixler
    VP, Operations – Shopzilla Europe

  16. Craig Edmonds says:

    Glass of wine: £2.40? What cheap ass wine are you drinking bro?

  17. SEOEnquirer says:

    Judging by Shopzilla’s(how do you do the trademark symbol?) Alexa rank tumble, my guess is they have been slapped pretty hard by either Panda or Penguin or some other cute creature that Google has now made us hate. So yes this was a badly disguised attempt at link removal.

    The funny thing is they are a shopping site and as we all know Google is now directly in that market so Shopzilla(trademark thingy), you can link remove until the cows come home but your business model is about to die.

  18. thehme says:

    This reminds me of bogus law suits in other subjects against people for the purpose of instigating fear. This law suit would not stand a chance or it would end the internet as we know it. Good luck! Start fund to win case.

  19. Joe Joe says:

    Hi David,

    Thanks for getting back to us. We appreciate the apology and definitely appreciate not being sued!
    I’ve spoken to Rob; he likes full-bodied red wine.

    Thanks again,
    Joe

  20. Mike says:

    I suggest you formulate a reply that closely follows that given in Arkell v. Pressdram…

  21. Sha Menz says:

    Wow! Somebody from Sh**Zilla definitely should have attended our link removal workshop and panel at ionSearch last week. “Be human, be nice, remember you are asking the webmaster to do you a favour” might have helped save them from sending their own brand rapidly down the toilet.

    also, one other thing…is there ANY lawyer out there somewhere who knows how to spell or proofread? “will constitute and infringement of our client’s copyright.” grrrrrrr

  22. Maybe this EXACTLY what they want says:

    Streisand effect ?

  23. Richard says:

    You’ve posted a screengrab of their website here now.

    You must be rich from the profits that’s brought in.

  24. Costin says:

    Sorry for my double posting
    Maybe this is EXACTLY what they want – Streisand effect ?

  25. Chris says:

    Funny but also a little worrying they are going after links when it looks like they were hit by panda, 80-90% visibility drop in April 2011 with no recovery (according to searchmetrics) .

  26. Steven Mapes says:

    As someone who has received IPO threats in the past from organisations I’m sort of glad I’m not the only one who receives these types of over the top letter. In my case it was for a company which had just been formed and had a domain with a blank page.

    Sadly many companies seem to now have, or contract out, legal teams who are “looking out for infringements” so that they can start cases often under the guide of protecting their client’s will. Whilst I can understand their client wishes to protect their brand, I do wonder how often these letter are thrown out as a way to justify the value of the legal team, especially if it’s an external company.

    You may well find that Shop**** were not actually even aware of such a letter going out. They’ll only know if they look into a breakdown of their legal costs. It’s hard to say, but if the shoe was on the other foot and you were the legal team looking to justify your fee, stretching your arms, so to speak, could be a good way to remind clients why they are paying you. This is, of course, theoretical speculation as to possible motives one may have from.

  27. jonners says:

    if you have professional indemnity insurance, get in touch with your insurer (or broker) asap. they’ll help with your defence, while your policy pays the legal costs. if, by some miracle, it goes to court and shopzilla win, they’ll pay the damages too.

  28. BIll Hartzer says:

    Joe, I think you need to update the title of this post. It sounds like you were sent a Cease & Desist Letter (threatening that you will be sued if you don’t remove the link) and not actually being sued.

    All Shopzilla did was send a threatening letter, telling you to remove the link.

    I would put the link back up, but make sure it’s a “nofollow” link so that they don’t benefit from the link.

  29. Bob says:

    Your site probably got caught up in sites that we’re ingringing on their trademark. I’m sur ethey we’re just compiling a list of companies and sending letters.

  30. Douglas Muth says:

    > We flag up thousands of backlinks that are potentially spam

    Wait, what? How is this a problem, exactly? Last time I checked, Google doesn’t penalize you if spammers are linking to your site.

  31. [...] posted on their blog about being sued by Shopzilla. Honestly, this is a classic case of “link bait” if I have ever saw one. Sure, they got [...]

  32. [...] UK-based online marketing agency named datadial recently received a threatening letter (a Cease and Desist letter) from Fox Williams LLP demanding that a link on their website be [...]

  33. Shirley Tan says:

    Thanks for sharing your story with us. All this does make me wonder about how in the past, for conversion purposes, we’ve been told and have advice others on borrowing creditability. Is this the same as putting on trust seals, and company logos like UPS, FED EX, VISA, AMEX and Mastercards? The trust seals like Truste, Verisign and MCafee are obvious because you pay for it but what about the others.

    The idea of having to now link prune your own backlinks is really crazy as it just encourages your enemies to create bad links and point them to your sites, you’ll be wasting your time just trying to get all these remove, sure you can disavow them, but you’ll be doing that all day as well. This is Google’s job, if they them its a worthless link, they should just give it no value and move on…. this is getting more ridiculous by the day.

  34. Paul Graham says:

    This is the latest I could find about it from Matt Cutts, Douglas http://googlewebmastercentral.blogspot.com/2012/07/new-notifications-about-inbound-links.html

    Seems like there is a penalty for having a bunch of spam links but if you can’t get a takedown Google will fix it for you so it’s not like you’re helpless if the site owners won’t cooperate.

  35. Andrew Kirkegaard says:

    Goodwill is an accounting fudge. Let’s say the net worth of your company is $1 million, but you sell it to Yahoo for $30 million. Yahoo would carry $29 million of your “good will” on their books as intangible value, along with the $1 in physical assets acquired. Trademarks and brands are pretty clear examples of an intangible value.

    http://en.wikipedia.org/wiki/Goodwill_(accounting)

  36. Christopher Jan Benitez says:

    Clearly, two things have been proven by this article:

    1) There’s no such thing as bad publicity
    2) Twix solves all problems

  37. Nick LeRoy says:

    Sounds like a scare tactic that they quickly reverted from once they realized you weren’t going to immediately freak out and delete the link.

  38. [...] There is NO need to send a legal notice to sites for link removals, especially quoting trademark infringement, unless such infringement is occurring. First try a polite request, and THEN think of such drastic methods. This post shows the kind of damage an incompetent team can do: http://www.datadial.net/blog/index.php/2013/04/18/were-being-sued-for-linking-to-shopzilla/ [...]

  39. Spook SEO says:

    Unbelievable! Did they even think about the outbound links on their site? I mean, they might as well be shooting themselves on the foot with what they did.

  40. [...] getting links from the likes of Yahoo, Business Insider, Design Taxi and many others. He has also toppled a lawsuit and got onto the front page of Reddit with a picture of a [...]

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