Do you think a large franchise can't hurt your business?

[truckmount girl]

So guys out there who don't think a big corp can touch you. Try this scenario on for size:

You've been doing business in your area 10 years, over time you've developed a logo that is catchy and people identify it with your business.

There is a new (SM, CD, whatever) franchisee in your town and they would like you out of the mix, or at least to hamper your popularity in the area....and they'd like to send a message to the other independents there as well.

They file a TM infringement suit against you, saying your logo looks too similar to there's. Doesn't matter if it does look like there's or not, they can file a suit, the franchise will pay for it.

You are a very small corporation....maybe just you or you and your wife and kids. You incorporated to protect your assets in case of disaster. You know the suit is bogus, the attorney you consulted says "no problem" just give me a $10,000 retainer and I'll take care of it. Only problem, you've got 2 kids in college a mortgage and car payments and you just bought a new TM, the econoimy is down and money's tight. You don't have $10,000.


Do you just represent yourself? Sure, why not? It seems a simple case. it's obvious they're just trying to railroad you.

Guess what, you're a corporation and you can't represent yourself. it's against "the rules". You better come up with that $10,000 or you just lost your logo by default. AND you better hope their lawyers don't keep dragging it out so your lawyer needs more than the $10,000 retainer, because if you run out of money, your attorney runs out of representation and you are out your logo and $10,000.

Our civil justice system is lawyer driven and favors large corps and deep pockets.

Take care,
Lisa

 

[Brian R]

Ouch

 

[Chris Muetterties]

Then add injury to insult and you get a like NN bashing you on the BB's for not fighting the Corp correctly.

 

[John Buxton]

Before CCing, I was a sales rep for a couple fortune 500 drug companies. Long time ago, we had a chain drug here called Hook's. They would go into a town and try to buy the small independent drug stores. If the owner refused, they would build a store as close as possible and sell items less than the independent even if was below cost, until they got what they wanted. How many independent drug stores do you see today?

Another friend of mine had a heating & air business. A SUBCONTRACTOR made an indecent remark to a housewife. Her lawyer sued the sub, and my friend for sexual harassment and won. My friend had to buy insurance against that and I think he said the premiums were 5 figures a year, and worth it.

So if the big company comes to town, have a girl hire them and claim sexual harrassement.

 

[Bjorn]

3]http://www.youtube.com/watch?v=h6sj89xgnl43]

 

[diamond brian]

Your first mistake is owning a corporation rather than a well-formed LLC.

Your second mistake is not having an attorney willing to assist you in this matter.

But, you're right. It could be a scary situation for someone. I'm no attorney, although I did have a very brief stint in law school. I'm thinking that if the logos are entirely dissimilar, then any judge worth his/her gavel would throw the frivolous suit out immediately.

 

[truckmount girl]

Scenario two:

Same situation except you are NOT a corporation. You are a sole proprietor.

Lucky you! You can now represent yourself in this bogus lawsuit. You know your logo doesn't infringe on their TM, so you prepare for "trial", you will show the judge that your logo obviously doesn't look anything like their logo and he will rule in your favor and probably award you damages for your time and trouble, right?

WRONG.

They file a Complaint; that's the paper you got served with that let you know you were being sued. Now you have to write a Response. it must be written in correct legal form. It must site case history to support your claim. You have to study their TM and see which claims they are asserting against what aspects of your logo....if they mentioned it in their Complaint, if they didn't (they don't have to) you'll have to find it out in Discovery (really expensive, tedious and the most time consuming and stressful part of litigation). Then you will have to learn how to argue around the claims of their trademark.....put something wrong, make a mistake, cite case history wrong, miss a deadline....you just screwed yourself.

Does the Court help you? Do they tell you when things are due and how you are expected to answer and what info/proof you need to provide them? No. They can't.

It's okay, they don't expect you to be able to answer it all, they expect you to roll over. Don't roll over or settle and you become "difficult". This can work to your advantage or against it....but do you know how to play it? probably not.

take care,
Lisa

 

[LeeCory]

If that is what it takes you pay the money.

Doesn't make sense to simply toss in the cards..... unless you simply don't care and want out anyway...

So if you want out and don't care.... give up.

If you do care you pay the money and have it taken care of professionally. No moron would try and handle something like this on their own.

 

[truckmount girl]

What if you don't have the money? Should that be a bar from justice? What if the litigation carries on for years?

If you were accused of a crime, even a misdemeanor, you would have an attorney appointed for you....not so in the CIVIL justice system.

A note on LLC's. Every state is different, some cnsider an LLC a corporation and they must have an attorney, others do not unless the LLC filed a form 8832, in which case they must have an attorney. Check your state. By the way, you also need to check the laws in the state you are being sued in....most likely it won't be your state, it will be in the home state of the franchise.

Take care,
Lisa

 

[LeeCory]

I hear ya, there is alot about the justice system that could use improvement.

But one thing I've learned is that life isn't fair, and life will give you a good kick in the rear if you let it.

Nobody is entitled to a single thing. If you want something you have to stand up and fight for it.

 

[joe harper]

lisa,

Why were you sued ?

Did they claim a pattent infringement ?

Why is this in a Civil Court.?

 

[truckmount girl]

Yep. Even if you don't have money for an attorney.

And the only way our civil justice system will ever change is if enough people push for it to change....and push where it counts. It needs to change.

"Find out just what people will submit to, and you have found out the exact amount of injustice and wrong which will be imposed upon them; and these will continue until they are resisted with either words or blows, or both. The limits of tyrants are prescribed by the endurance of those whom they oppress." ---Frederick Douglass

Take care,
Lisa

 

[truckmount girl]

Harper,

Patent Infringement.

it would not be a criminal case, it is a civil case.

Take care,
Lisa

 

[Greenie]

Lee mentions "you pay the money", unless Lee's wife is an attorney i doubt he would actually pay, as it wouldn't likely be $10K, it would be $100K if he actually stood his ground.

You will be provided the exact amount of justice that you can afford, it's simply how the law is written.

Harp, why would it be criminal, it's just a civil case, no criminal laws are being broken, just one Co. claiming loss of revenue by another.

 

[joe harper]

Lisa,

Then as you probably already know..."You are ScReWed"

If you had thrown $250K at this issue....the outcome would probally be the same.{sad}

Patent attorneys are as usless as an TAX attorney...They RACK-UP the hours in frivolous
breifs. Until their cleint is BROKE...The settle "behind closed doors"..with a handshake and
a wink..!

Even the Judges don't understand the "LeAGle-Eze" in these breifs...! They just sit there
& PRETEND to be listening....and Just wait for one of the parties to CRY "Uncle"...

I am sorry that this injustice had fallen upon your business & family..!
But without UNLIMITED FUNDS....you cannot prevail in this type of Litigation...{not fair}

Since there is no criminal suit filed..."Your only RECOURSE is to Offer a Judgement in lieu
of debt." Allow them their Judgement....Then file bankruptcy....Then they can "WIPE"
their ASS with the USLESS peice of paper..!!!!!!

Keep your CHIN-UP....! Change 1 small thing in the design...! Open a new company..!

And let the "BastUrDs"... SPEND SOME MORE MONEY....sueing you AGAIN...!!!!

They will run out of MONEY...before you will run out of HEART....carry-on...!!

 

[Greenie]

Exactly.

But Lisa's fight is not for her, it's for the industry, she is setting the benchmark in frivolous suits.

The worst thing a big Corp. can do is sue a small very popular sole prop. who doesn't own assets or have savings and investments, who also has a very loyal customer base, and a wide assortment of unique high demand products with excellent service and support.

Lisa will be fine, and Chem-Lie will be a BAD news story.

And Glides will be here to stay.

Anyone need a glided wand this week?

 

[LeeCory]

How much pressure you could withstand would depend on your business and it's worth.

Me, I'd probably fold if the cost got into the hundreds...

I agree 100 percent with Greenie that you will get the amount of justice you can afford. I had a family member go through the process and for the right outcome it cost alot of money.

The best advice would be to avoid anything to do with lawyers and courts.

 

[floorguy]

fook it move to utah, where things are a bit cheaper out here....including the lawyer issue

 

[Greenie]

Yea....Lisa needs to be domiciled in UTAH state right now....lol

I just checked deadlawyer.com Utah does have some of the lowest rates, must have a disproportionate amount of of douchebag lawyers.

 

[diamond brian]

This will be unpopular, but what you're facing legally is not what you have described is this post. Why substitute trademarks and logos for the what is really happening? You're good as gold, and I'm all for ya, but the allegory you have presented here doesn't hold water.

There's a legal reason for the venue of a trial, and patent infringement is nothing like TM infringement. I know this is very personal to you, Lisa, and, again, I'm on your side...But to say that your glide design is not at all similar to an existing patent is, well, denial.

You should hook up with a good attorney that's not in it for the money. Hell, I know a few like that here, and we're short on old hippies (comparatively speaking).

 

[truckmount girl]

Brian,

Actually this spilled over from another thread and i copied and pasted my initial post here from my last post on that thread, which was illustrating a situation where a owner/op could be affected by a franchise.

Although in some ways the illustrated scenario does parallel our case, it does not mirror it.

My intention is to let people know that just because you are in the SERVICE end of the industry does not mean that large corp's or franchises can't affect your business. That there are huge gaps in the civil justice system which cause individuals, sole proprietors, small corps and even mid-sized corps to be unable to initiate or defend themselves from legal action when facing a much larger opponent with far greater resources. if our justice system is going to be called a justice system, it has to have a basis in equity for all; including those of limited or modest financial means.

I became painfully aware of this gap in the justice system going through my current legal situation....but that doesn't mean you, or anyone else here is immune from being sued (justly or unjustly) by a large corp and falling into the same gap I did.

Understand my intentions now?

Take care,
Lisa

 

[truckmount girl]

Shawn,

I do know i have power in my situation...namely because I have the Court of Public Opinion to plead my case to and they are NOT pro large corporations.

I saw this coming a long time ago and secured the domain name chemdrysucks.com over three years ago. As yet it has remained undeveloped, but....if things get ugly, it will be launched along with a PR firestorm they've never seen or dealt with before.

Take care,
Lisa

 

[Dolly Llama]

Brian,


My intention is to let people know that just because you are in the SERVICE end of the industry does not mean that large corp's or franchises can't affect your business.

I may have misunderstood the premise of your original thread that sparked this one, Lisa
I thought we were discussing how large corps put the hurts on small ops/sole proprietors thru buying power leverage.
Those forces effect "product" sales.
The service biz is insulated from those pressures due to a footing based on trust and performance, not "products"

Of coarse large, deep pocket corps can effect sm biz/sole props in the scenarios you put forth.
However, that's on a small "individual" basis and not effecting the sm service biz as "a whole"
Like the wal-marts and HD's of the world have done to small mom 'n pop establishments.
That was my point.

Otherwise, we're in complete agreement that the justice system's "justice" favors the one with the deepest pockets

an advocate with deep pockets would be needed.
or you fold and then simply hang a new shingle on the door under another name.
'cause in the service biz, while you might lose the name/logo, you don't lose your contacts.


..L.T.A.

 

[davegillfishing]

i would shut down shop after i contacted all my customers with a complete explanation and the name of my new company and i would start a
boycott campaign of the company that tried to shut me down.
99.9% of my customers would support my efforts and jump on board and we would see just how successful the big company would be.
it would not be a fun road but you have to look at every situation or problem..make a list of solutions play out those lists and do what
ever one makes most sense...every problem has a solution you just have to find the best one..and sometimes the best one
is to turn your head and walk away..then sometimes it is best to roll up your sleeves and fight, with your army (customers)..no one likes to see big business
screw the little guy if anything you would get more market share and grow from it..
not trying to make it sound simple but i feel it is something that is doable.
dave

 

[truckmount girl]

Certainly there are innumerable ways a large corp can hurt, and possibly even force a smaller business out of business....the scenario I presented was just one possible way. As I have some experience in patent and trademark cases and was able to speak with knowledge and experience greater than the average layperson on that matter that was the scenario I chose.

take care,
Lisa

 

[randy]

Representing yourself in court against a better financed opponent who is represented by counsel might make for a great made for Tv movie (some Sarah Palin hockey mom type as the small business owner) but I have actually never seen it work. Most small business owners would be better served by not having any assets in the operating company. Form a separate LLC for all your trucks etc. and have them leased to the operating company. The holding company conducts no business except to park your assets. For example a New Mexico LLC can be formed with you even telling the State who actually owns the LLC. Several States allow similar formations. A separate LLC can be maintained in New Mexico for $200 a year. Let them spend money suing your empty bucket of a operating company, so what. It means nothing. If it's serious enough you bankrupt it ($175 filing fee) and are back in business the next day under another LLC.

Some high risk business like collection agencies, taxi cabs, security companies, sky diving schools actually have a dormant LLC ready to operate if and when the need arises.

Sad to have to think this way but that is reality. Hope for the best, provide a great service but have a contingency plan for disasters.

 

[SFC]

You have to be retarded to go to court.

Simply send notice to you clients that you will be changing your name to a numbered company. And then change it. But on your truck put your name and address on the vehicle.

They can't take your name. And then when you meet up with the franchisee you do what real mean do. Oh and nothing illegal if you know what I mean. :roll:

 

[Ed]

Lisa, I agree with you. In my eyes your example applies more toward a manufacturing/distributing/retail situation over a service busines. Around here, we have CleanMaster, RestoreMaster, CarpetMaster, ClaimMaster......To my knowledge nothing has ever been done to address this obvious attempt at association through tagging the word Master to your company name. It really doesn't bother me, but I have gotten numerous calls from people raising hell because they thought we did the job :mrgreen: .. There was even a roofing company here that was actually named ServiceMaster roofing. I did inform our corporate office of it, but to my knowledge nothing was done about it.

 

[truckmount girl]

For those of you who said it'll never happen: Read the "Being sued for my business name" thread here today. It can happen and it has happened and it will happen again in the future.

Some franchises are more litigious than others.

Take care,
Lisa

 

[randy]

For those of you who said it'll never happen: Read the "Being sued for my business name" thread here today. It can happen and it has happened and it will happen again in the future.

Some franchises are more litigious than others.

Take care,
Lisa

So true, I know a guy that owned two gyms that catered exclusively to women. He sold them and opened a gym that catered to men exclusively, power lifters. Even though he was in another area and abiding with the terms of his agreement with the franchise they sued him. He ended up paying a settlement because the legal fees would have ate him alive. We need legislation that punishes plaintiffs that abuse the system and a streamlined legal system. Using the legal system to abuse a little guy or gal, is not the way it is supposed to work.