A VC-funded startup called WhosHere is trying to steal my social network

http://brianhama.com/a-vc-funded-startup-called-whoshere-is-trying

by pclark • 14 years ago

787 219 14 years ago

TylerE• 14 years ago

Sounds like he made the biggest mistake by caving the first time around. If he'd stood his ground at first, maybe pointed out if there was any potential for confusion (a key point in trademark law), it was the other way around, as he was the one with an established user base and a 10-year history.

ontoillogical• 14 years ago

He says he made the app 2 years ago, where as WhosHere is from 2008. If it is in fact a trademark issue, sounds to me like they beat him to the name.

picklefish• 14 years ago

This is what bothered me about the whole post. He never once said how old the other company is. A critical (purposeful?) omission.

schwanksta• 14 years ago

Sounds like some dirty business. Hope someone helps.

logical422• 14 years ago

Put up something to accept donations, I'd be happy to kick back a few bucks to the cause.

castillowl• 14 years ago

same

seivan• 14 years ago

Me to, I'd donate. I hope someone helps you, I'd hate to see this shit happen to a fellow hacker.

jwarzech• 14 years ago

"It's a Kickstarter for legal fees" in 1...2..

swalsh• 14 years ago

People will eventually become cynical, and stop contributing after they realize there are two sides to each story. I find often that the sob stories you read on the internet exaggerate the tragedy of the situation.

simpleenigma• 14 years ago

I know the developer and I just let him know that he is getting attention here ... and to get a donation link up ASAP ... He is a good guy and this has been an awful experience for him ... I've told him to get an account and start posting to this thread, so hopefully he'll be here soon ...

pooriaazimi2• 14 years ago

Merely a 'Donate' button is not enough. It should show how much has been donated so far (it gives people more motivation to donate, if they see that this 'donate' thing actually works and for example, $1900 has been raised so far).

blueben7• 14 years ago

Your friend appears to have lied by omitting key parts of the story. I'm wondering if he now has to worry about a defamation suit.

https://whoshere.zendesk.com/entries/21514943-the-other-side...

logical422• 14 years ago

done. hopefully the inertia of your post generates enough momentum so that it makes a difference.. regardless, good luck.

fear91• 14 years ago

Fuck those pricks - what do they want from you? You don't infringe anything - that names are not that similiar.

Find a lawyer who will defend you for a part of the money if you win.

Turn it around. They obviously are acting to drag your service (company?) down.

kvnn5• 14 years ago

Ugh, this is crushing.

Here's to hoping that someone like Grellas can find time to comment and tell you how to beat these guys.

If that result isn't possible, than I ask you to keep your head up, move on, and keep building.

Do your part to (soberly and safely) reduce the reputation of the founders and VC's behind this.

kvnn5• 14 years ago

In spite of only having one side of the story I'm going to decide to choose my ground and ask this:

What if we started a Kickstarter campaign to fund the legal fees to counter-sue this company? The precedence set in a success would be profitable to the builders of the startup community. And I'd sleep better at night.

jsprinkles19• 14 years ago

You want to completely buy in to one side's story without any context or response from the other side, then start a Kickstarter to fund a legal assault upon that company? Really?

Not only are you surprisingly easily manipulated, apparently, don't you have better things to hack on?

muriithi• 14 years ago

The Other Side of the Story

https://whoshere.zendesk.com/entries/21514943-the-other-side...

larrys3• 14 years ago

"Here's to hoping that someone like Grellas can find time to comment "

Facts matter. Grellas isn't going to offer any opinion without having a chance to review all the documents that have been filed as well as communications and that is going to take time.

kvnn5• 14 years ago

You're right.

blueben7• 14 years ago

Crushing to whom? https://whoshere.zendesk.com/entries/21514943-the-other-side...

kvnn5• 14 years ago

Good question. It appears that I jumped the gun a bit, doesn't it?

sujal• 14 years ago

Contact EFF.org and see if they have any pointers. Also, check with the Cyberlaw Clinics organized by the Berkman Center - they might be able to help: http://cyber.law.harvard.edu/teaching/cyberlawclinic

josscrowcroft• 14 years ago

Yeah I was gonna recommend contacting https://www.eff.org too.

smattiso3• 14 years ago

Somewhat unrelated, but I ask the legal experts here.

If someone sues you for some bogus claim, is it possible to submit a written plain english rebuttal and have the court throw it out before it gets too serious? I mean if I sue some company for something absurd and demand $10 million dollars, are they forced to actually entertain my lawsuit or can it be dismissed readily without a lawyer?

jarrett7• 14 years ago

The short answer is this: It's possible, but hard to pull off.

First, you would have to do some basic research on court filing procedures. It's not rocket science, but you can't just pop an envelope in the mail addressed to the judge.

Once you figure out how to file documents for the case, you need to determine what type of documents to file. E.g. a motion to dismiss might be appropriate if you think the claim is utterly bogus.

It can be "plain English," as Smattiso suggested, and indeed, judges always appreciate clarity. Legalese isn't required, but valid legal reasoning is. Contrary to popular belief, "legal reasoning" doesn't have to be arcane. It's pretty much just a matter of using everyday logic to apply legal principles to the facts of the case.

It's a lot like learning to program. There's no magic involved. It's just a matter of reading the relevant documentation, looking at examples, and using your innate reasoning abilities to put something together in accordance with the rules. And yet, as with programming, reasoning and writing about the law take practice to do well. You can hack together a simple CRUD app with zero programming experience and a lot of motivation. But you wouldn't want to bet your entire net worth on it. Likewise for legal writing. You can spend a few evenings of hard work learning the anatomy of a motion to dismiss and the basics of trademark law, and then you can write your motion. But I wouldn't do it if my personal finances were on the line.

In a situation such as the OP describes, there is an additional challenge. According to the OP, the plaintiff is using and perhaps abusing quirks of court procedure to his advantage. (I'm referring to the bit about default judgement and the alleged absence of certain documents.) That, too, could in principal be dealt with by a non-lawyer, but it would be quite difficult. You'd have to learn a great deal about the finer points of court procedure. This is especially difficult because it's not uniform across jurisdictions.

EDIT: You would also need to determine whether this would constitute unlicensed practice of law in your jurisdiction. Generally, you're allowed to represent yourself in court ("pro se.") But the rules about representing your business are a little more complicated. Sometimes it's OK, sometimes it's not.

So, yes, you can sometimes write something up and get a case dismissed without hiring a lawyer, provided you're willing to learn a great deal very quickly. But you'd be taking a tremendous risk. Probably not a good idea.

Just to be clear: I'm not at all recommending that the OP do this. I'm just answering the question posed in the parent comment. The OP really does need a lawyer, especially considering the plaintiff has allegedly shown a willingness to play procedural games.

smattiso3• 14 years ago

What a screwed up system. Seemingly there should a vetting process where the court system determines a claim at least has merits before the defendant has to waste his/her resources fighting it.

As it stands it is way too easy to use as a weapon to sue people into submission. Although I think this is already well known.

tuxidomasx• 14 years ago

This is the kind of information that I would be most interested in. I understand that the legal system is very complex (like a programming language with funky syntax), but there IS a process and there ARE standard ways to go about doing things, even if there are particularities for different locations. I suppose this is the kind of thing you learn in law school or from experience in a courtroom, but there is no reason that it can't be taught outside of those environments.

Is there a repository for learning the basics (and maybe more advanced) legal processes? What forms to send to whom, and when, and what to be sure to do, and what to never do?

It's learn-able if there is a resource that teaches it. An online Khan Academy-like resource. Or even maybe an educational game. The only lawyer sim I've seen is Phoenix Wright.

Sure, I'd still prefer an experienced lawyer to do the driving if something comes up, but I'd feel more confident with some solid legal knowledge of my own.

marshray2• 14 years ago

IANAL, but here are some other things that others involved in the system have related to me:

A lot of what the lawyers do is to prepare the case and documents in order to save work for the judge. If there's a amateur doing it, it can mean a lot more work for the judge and he may not be real thrilled about it.

Be prepared to explain why do you don't have a lawyer doing it. It's hard to know how well the answer "because I didn't want to pay lawyer's rates" is going to go over because the judge and all of his professional peers are lawyers.

In a smaller city it's quite possible that everyone in the room (including the opposing lawyer) will know each other well and lunch together on a regular basis. Except you.

lancepantz• 14 years ago

He mentions Lightbank is the vc, is it fair to judge them for this behavior? As an entrepreneur it does really put me off.

zheng• 14 years ago

I think so, although there is always two sides of the story, so I would reserve judgement for the next couple days.

blueben7• 14 years ago

Reserving judgement was a good idea. https://whoshere.zendesk.com/entries/21514943-the-other-side...

malbiniak• 14 years ago

I stopped reading when I came across Lightbank. I've spent time in Chicago, got to know a few of those guys and companies they've funded, and have since stayed as far away as possible. Anyone in the area should do the same.

Curious? Look into their deal structures.

gluegeorge• 14 years ago

can you elaborate a bit?

smattiso3• 14 years ago

Also it appears that WhosHere launched in July 2008, so 2 years before your product appeared? Or is that incorrect? Regardless you should fight these dudes as I'm sure they would not relent to you in kind.

dollar2• 14 years ago

The adage "An attorney who represents himself has a fool for a client" has some relevance, but in the information society self represeration can have major advantages. The best way to be a Pro Se is to hire outside counsel to advise you, but to do all the dirty litigation work yourself. If this company has hired an outside attorney to litigate, this person could make that a very, very expensive proposition for them. I think this company's board would grow very concerned at legal expenses exceeding $100k with no hope of recovering from the defendant. My advise is hire counsel to advise you, educate yourself of self representation and court procedures, and rake these fuckers over the coals.

law5• 14 years ago

> My advise is hire counsel to advise you, educate yourself of self representation and court procedures, and rake these fuckers over the coals.

This is terrible advice. Unless you're a duly licensed attorney in OP's jurisdiction, don't offer legal advice. You're practicing law without a license, which is a crime. Moreover, were OP to rely on that advice to his detriment, you may find yourself named as a defendant in a civil suit.

fijal• 14 years ago

Can you find some documents under which circumstances this is a crime? I find that you should not do that for money or in court on wikipedia, but I somehow fail to find that "giving advice" or even "drafting legal documents" can be a crime.

dollar2• 14 years ago

Perhaps you should read my advice to the OP a second time, which clearly says "My advice is hire counsel to advise you, educate yourself...". In what bizarre lawyer-universe is telling someone to hire counsel and educate themselves on the Internet practicing law? You must be smoking crack, my friend, and a lot of it.

blueben7• 14 years ago

You might do well to wait for both sides of the story before lighting your pitchfork and calling to "rake these fuckers over the coals". Because looking at some of Brian Hamachek's emails to WhosHere, it appears you've been had by an untruthful sob story.

https://whoshere.zendesk.com/entries/21514943-the-other-side...

throwaway19792• 14 years ago

Wow ... this is shocking! Can someone explain how this is even remotely trademark infringement?

I'd also suggest you dig up research papers in conferences such as UbiComp and Pervasive. The "who is near me" app has been around for years. Also, check out papers on the cooltown project. I'm not totally sure what a defense to a trademark infringement claim would be. Perhaps if a researcher used the same name in a paper, that might help?

rhizome3• 14 years ago

My sense is that it is only "remotely" infringement.

Frankly, I think they like his name better than theirs and are trying to steal that. It's indeed a better name.

armandososa• 14 years ago

I'm clueles, but what if you hired a lawyer for equity, then raise some money and utterly crushed them? Obviously there's a valuable market and you are good at what you do. So, is it unrealistic to think that's possible?

drivebyacct22• 14 years ago

I know it shouldn't, and I know the "hacker" or VC communities are huge with tons of diversity, but it annoys and saddens me to see some people just being bullies and jerks like this.

ajross2• 14 years ago

Wikipedia says that WhosHere was founded in 2008 and launched their app in 2009: http://en.wikipedia.org/wiki/WhosHere

If that's the case and their app predates Who's Near Me, I have to say that the OP is probably going to lose this. The names and apps certainly do seem confusingly similar.

netcan• 14 years ago

really? Confusingly similar? How about Who's Online, Who's In Town, Who's Out Tonight?

Genuinely curious. Do you think they have owners ship of "who" in the context of a social network. Surely using such an obvious descriptive name should count give you less rights to similar names. IE If I have "The Family Teacup Company" I can't complain about "The Swedish Teacup Company."

krrose272• 14 years ago

The trademark wasn't filled until February 2010. http://tess2.uspto.gov/bin/showfield?f=doc&state=4003:5a...

adamt3• 14 years ago

I am not a lawyer but have been involved in various trademark registrations and disputes.

The trademark is for the concatenation 'whoshere'. Given that both are common words obvious to the topic I would have thought the interpretation would be very narrow and 'who's near me' is suitably different. I certainly don't think you should give in to their somewhat extortionate demands.

adamt3• 14 years ago

I would have thought inadvertent trademark infringement is unlikely to lead to any damages. I would feel the other party would have to show continued use after some prior cease and desist (or agreement between the parties a year ago) and also shown they had financially suffered a a result.

rhizome3• 14 years ago

Who do you think is going to be confused by a compound two-word term, and a plain-English three word phrase that shares only one word, and that word is unclaimably common?

ehutch79• 14 years ago

I'd kick in a couple of dollars for your legal fees if you get a donation page up

philco• 14 years ago

Me too. Seriously.

user40682• 14 years ago

Work the PR front, in addition to all the legal work you need.

Ideas:

-Start tweeting about it & create a hashtag #WhosHereThieves

-Get in touch with the TechCrunch author who wrote about about your app. This story is a big deal

-Reddit post

-Accept donations page

-The VC probably doesn't know anything about this, but they might respond if included in all the negative PR

pooriaazimi2• 14 years ago

> -Start tweeting about it & create a hashtag #WhosHereThieves

IANAL, but I think it's a very bad idea. I don't have the faintest idea if it's considered defamation in the court, but I suspect it might be, and thus should be avoided.

adamt3• 14 years ago

To what extent did they 'agree' to the change of name a year ago? You say you 'agreed' to do it. But did they agree to the new name? Eg did you inform them about your name or reach any sense of resolution.

Unless they could somehow prove you have wilfully be continuing to violate their trademark I don't see how any damages are valid. I would certainly not give in to their threats.

What about the origins/timeline of the name and the trademarks. Who was using it first? What exactly is their trademark?

Subject to answers above, and given that this is a side project to you - I would suggest you simply write back stating you don't feel you are violating their trademarks, but would consider a rebrand in your mutual interests to avoid any potential for customer confusion provided they contributed to the cost of paying an advertising agency to create a new logo and other menu costs and estimate their share of those costs as $5,100 (eg they pay you what they are asking from you)

nirvana9• 14 years ago

I never went to law school so there's no way I could be a lawyer, I'm just giving my thoughts on things I would do in this situation. This isn't legal advice.

I sympathize with your situation and I'm sure there are a couple lessons learned here- namely that they used negotiation with email to apparently cause you to forget that there was court case pending. But saying that doesn't help you.

I've been in the situation where lawyers told me I didn't have a case, and it sounds like this is what you're hearing too-- but I think you might be missing something- you may have a case, you just haven't found it yet. The lawyers are looking to hear something that gets them excited-- something that they can really use for their profit. Since you don't have a lot of cash, the bar is higher to get them interested.

At this point, you just haven't figured out what the case is. I suspect you probably have a good one, however, if you've been running your service since 2008 or before 2010, or based on the contract they entered into with you.

If you find a case, you'll likely find a lawyer eager to take your case on contingency because both of you can make out profitably. (though of course they will settle when they realize that you have a case, but that still can be profitable.) Until you find it, though, there's no obvious case on the face of it.

This means you need to do the legwork. Start going thru every communication you have with them and organize your documents as best you can. I would strongly suggest you get a timeline going. Dig up that old agreement where you changed the name-- did they agree that doing so would settle the matter? Even in writing in an email? If that's the case, then you may have them violating a legally binding contract by bringing this case.

Build this timeline going back to the beginning and gather evidence proving each step (Eg: your receipt for registering the domain name, etc.)

Find where they have done you wrong- failing to serve you correctly is one example. You need more.

Find the relevant laws-- the cybersquatting laws give you rights against "reverse cybersquatting" where someone tries to steal a legitimate domain name.

Go to the USPTO.gov website and research their trademark application. Do they actually have one? Does it actually cover the area of what you're doing? For instance, I found a registration number 3885293 for "WHOSHERE" which shows a first use in commerce claim of 2008. Does your service predate them? Can you find evidence of you using the name "Whose near me" or whatever, including registering that domain prior to that date in 2008? How about prior to the date they filed for the trademark in 2010? When looking at their trademark, find the "TARR STATUS" button, click that, then find the "Trademark Document Retrieval" link near the top of the page, go and select all the documents for their trademark and download them as a PDF. You may find that the trademark examiner has done footwork for you, limiting their possible use of the TM, and they may be in violation of that... this will give you even more cause.

Basically, if you have been using your name prior to 2008, and can prove it, then you are in good shape. If you stared your site between 2008-2010, and they cannot prove that they started in 2008 as they claimed then you're probably in good shape. If you started your site after 2010 then you're reduced to claiming that the marks are not confusing. But you also have the fact that you already have agreement with them (and their failure to attempt to enforce their trademark rights after you changed the name of your service per the agreement) to show they've abandoned it.

The stress they are causing you, and any actions they have engaged in that are dishonest or violating the law or agreements give you cause to sue them for damages, I believe.

The odds are pretty good that they know you are young and don't have a lot of resources and they are attempting to abuse the system as a result.... simply doing this research and showing how they don't have a case may be sufficient. Like brining a gun to a gun fight-- they may think you just have a knife, but showing the gun may cause them to back off. Its no risk if they claim to have a gun and you just give up-- which is what they're trying to get you to do.

Plus, if you have a bunch of this kind of stuff, you may get a lawyer that wants to extract money from them on contingency basis-- but even if not, simply a very sternly worded letter might cost you only a couple hundred bucks, or even less.

If you find a case. I am almost certain there is one there... but you need to do your research quickly.

The first thing I would do is find what you need to do to file to request a stay or delay of the judgement and get yourself time to engage in this research.

You can call the clerk of the court where the lawsuit was filed and find out what the procedures are to file a pleading or request a stay or delay. Tell them you were not properly served, or notified about the court dates (if this is the case-- never lie-- but use what ammunition you have here) and ask what the correct filing is. They WILL NOT give out legal advice, but they can tell you the procedures, and you need to get up to speed on those so that you can get yourself some breathing room.

Good luck!

-----

PS-- another avenue to investigate: look for use of the term "Who's near me" or "who's here" in commerce on the web prior to 2008. One reason a trademark might be invalid is that someone else (even if it is not you) was using it in commerce in a similar way-- were there any location based services prior to 2008? did dodgeball have a "who's near me" feature?

PPSS--- Also assuming there were no location based services prior to 2008, find an extensive evidence of the common use of the phrase "whose near me" and "whose here" on the web. If this is a common phrase it may not be trademarkable, just as "thank you" can't be a trademark because it is a common english expression.

Further, if this phrase describes the feature of the service literally (which it sounds like) it is also possibly not trademakrable because it is purely descriptive. Frankly, I think they may not have a legitimate trademark, since the phrase describes the feature literally, not a service or brandable name.

I'm just going to keep adding points because I keep thinking of them.

"Whose near me" is not obviously "Whoshere" and so infringement does not seem to be a slam dunk. Further, since they contacted you previously, and you changed the name at their behest, you may have an affirmative defense because you attempted to remedy the situation. Thus this suit could be a nuisance suit. They need to show you willfully violated their trademark.

Right now, I would change your service and remove the phrase "whose near me" everywhere you can. Document this change with screenshots so you can prove you are attempting to comply with their demands-- even if they are unreasonable.

But it would seem to be hard for them to make a case when they contacted you, you responded by making changes, and then they wait a year and decide suddenly you're infringing again.

IF the company suing you is not "myRETE INC" of Delaware, then how can "WHOSHERE" have the right to the mark? Did they provide you with a license agreement? IT doesn't matter-- myRETE is the owner of the mark according to the USPTO so you can only be sued by them, I believe. (and if none of these names make sense, did they even file a TM with the UPSTO?)

A reading of their specific claims implies that there is not an infringement because finding people near you does not appear to be any of the features they claim to be using the mark for. Their list of uses, by the way was flagged by the examiner and they had to update it to get the mark registered.

Finally, it appears their mark is for "WHOSHERE", e.g. "WHO" + "SHERE" They included no space in their filing, so "whoshere" which is a "name" in the sense that it could be "bobby whoshere" pronounced "wooSHeer" doesn't sound much at all like "who's near me".

These are just ideas for which there might be a case. More digging would be required.

Finally, if you know any law students this might be just the kind of thing that is fun for them to help you research. They may help you build a case for not too much money or no money at all, and the price of beer and pizza.

jsprinkles19• 14 years ago

I appreciate what you're doing, but you just wrote an essay full of legal advice, including conclusions on how the proceedings will go -- something you really shouldn't predict. By putting the words "this isn't legal advice" before your comment, you aren't magically making it okay to give your opinion in the guise of advice. Just be aware of that.

MiguelHudnandez3• 14 years ago

How messed up is it that someone can't share what they know (or think they know) because they don't have a credential?

Edit: I'm convinced. Don't give or accept legal advice over the Internet. Establish a relationship with an attorney and only discuss it with them. If you don't like the answers they give you, you can find another attorney.

jarrett7• 14 years ago

I agree with jsprinkles for the most part. There is a great deal of legal advice packed in there. The OP needs a lawyer.

But on the other hand, I have to agree with nirvana about one thing. A certain amount of work must necessarily fall on the OP to find the right lawyer for the case. As nirvana says, there will be plenty of lawyers who aren't really interested and just say "roll over," while there will be others who would want to aggressively pursue the case. I'm not saying the former type is wrong and the latter right. But it's worth considering that different lawyers will have fundamentally different attitudes about the case and different styles. The OP should be cognizant of that when picking a lawyer.

nirvana9• 14 years ago

I found a missing "possibly" and a spot where I clarified that something was my perception, but to be honest nearly every perspective I give is qualified with a "may" or a "it appears" or some other similar language.

Nowhere did I give a single bit of legal advice. I merely illuminated a variety of ways that he could do some research that might show that he has more of a case than the lawyers he originally talked to concluded, towards the goal of getting a lawyer interested in the case.

----

Edit to add: The opposition continues to dishonestly claim that I am giving legal advice. I have not. I have merely suggested avenues of the law that could be researched and then discussed with a lawyer.

There is zero risk in someone reading the law and then talking it over with a lawyer. There is zero liability in me suggesting someone get a lawyer and offering suggestions for how they might get one.

I find it astounding that this comment has been down voted by %75 because persistently dishonest people have continued to claim that I'm "giving legal advice" when I am not, and have convinced people to punish me for trying to help this guy.

I mean, I actually went to the USPTO and pulled up the relevant mark and read the examiners comments!

Yet on HN, lying about me and attacking me carries 3 times the weight, apparently.

That's a shame.

debacle• 14 years ago

When you aren't a lawyer, it's a lot easier to tell someone you're not providing legal advice.

When you are a lawyer, it's generally best to just not give legal advice.

It's a strange system, but there are different rules for different people.

ard0r• 14 years ago

Ipse dixit.

Also, this is a state-by-state issue, and in Texas, at least, you are quite wrong.

http://www.legis.state.tx.us/tlodocs/76R/billtext/html/HB015...

wisty• 14 years ago

Note: IANAL

Is there any problem with giving legal advice? I thought that anyone can give legal advice, as long as they don't practice law (without authorization).

I guess the real question is, does legal advise always constitute the practice of law? I can go to an accountant, real estate agent, government department, police station, bank, or school and get something which technically constitutes legal advice.

I think it's a gray area, and I think the laws are a little vague (and vary with state law).

I'm pretty sure an offer "Ask me legal questions, even though I'm not a lawyer" would put you in hot water. I doubt you could create a forum specifically for non-lawyers to offer people advice.

I think there is a line somewhere between coincidental legal advice, and practicing law, and while I don't think anyone (even a lawyer) knows where that line is, I've never heard of a poster on an internet forum getting charged.

polymatter• 14 years ago

I just want to say thanks for writing such a detailed comment and that it provides value to our community. I hope it doesn't constitute legal advice, but I'm not convinced you can take the views of armchair lawyers that it does.

famousactress• 14 years ago

I honestly wonder if leaving the country helps in situations like this.

Seriously.

danberger• 14 years ago

Everyone should tweet about this and make sure to include their twitter handles: @WhosHere and @lightbank

liber8• 14 years ago

General advice for legal questions: it's fine to ask these sorts of questions, but please, for the love of god, don't listen to anyone who isn't a lawyer or who hasn't gone through something very similar to what you're going through. And, even in those cases, take their advice with a HUGE grain of salt. (If you disagree, please see below, where OP is variously advised to (1) commit unlicensed practice of law [serious repercussions], (2) commit fraud, (3) waste money, and (4) likely destroy his own case.)

As a lawyer (who doesn't have anywhere near enough facts to give you anything close to competent advice), my advice is to find a lawyer to represent you. If you can't afford one, try the EFF or similar organizations. If they won't take you, find a legal clinic nearby. If you're in the bay area, you have have two of the best lawschools in the country within bicycling distance of you (UC Hastings isn't half bad either...). They have legal clinics, generally led by highly respected and knowledgeable faculty that are happy to have cases like this.

Unless you really don't want to fight this, go get a lawyer who knows what he's doing. If you don't want to spend a lot of energy, possibly a lot of time, and likely some money, just roll over now. But, don't half-ass it and try to do this yourself. By blowing at least two deadlines, you've already shown you're not up for it.

jsprinkles19• 14 years ago

I wish your comment was the only one, frankly, and we could really use a "you are not a lawyer, stop pretending to be one" guideline.

Edit: I've made a "Ask PG" to ask for just that: http://news.ycombinator.com/item?id=4055661

nirvana9• 14 years ago

The idea that only lawyers can know anything about the law, and therefore nobody else can suggest avenues of investigation is shockingly elitist.

Imagine what HN would be like if only state approved programmers were allowed to have an opinion on technical subjects.

You're being down voted because you are lying about what I said and attacking me for the "crime" of trying to suggest areas of investigation for this guy... who's primary problem is that he has been UNABLE to get a lawyer.

So, yeah, shame on me for trying to help him get a lawyer. I won't sleep tonight.

Aaronontheweb• 14 years ago

This is the second time in two days I've seen really great advice from a lawyer on HN. I would really like a way to a do virtual "ask a lawyer" office hours on HN.

Edit: even better - do a virtual legal clinic.

nickler• 14 years ago

One of my lawyers put her job description quite succinctly, and it fits particularly well here. 'Lawyers are better defined as Risk Assessment. Our expertise is required so that we can give a client our best assessment of the risk entailed in any course of action the client chooses'

Think about the myriad of actions you could take here...wouldn't it be wise to have an idea of where the risk lies?

Get a lawyer stat.

tlogan• 14 years ago

I agree that it is smart to say "get a lawyer" in this situation. It does seem very hairy.

But now something off topic...

I noticed that these kind of answers ("get a lawyer") are used also to answer question even when people are just curious or they just want to learn something. It is nearly impossible to learn what needs to be read or investigated in order to evaluate the situation.

For example, I don't need a lawyer for small claims court but where to get some advise?

In other words, even the most common sense questions regarding law, health, taxes, etc are answered with "get a lawyer, see a doctor, get tax advisor, get accountant, etc".

It does seems that market of legal, health, tax, and similar professionals is due to a disruption.

Is there a cheap lawyer service? Something like not visiting doctor but just visiting nurse.

cube133• 14 years ago

The problem really is that all three of those fields(law, taxes, and health) are highly personal. To get to the right answer in most non-trivial situations, a lot more personal information is required.

Because of that, while anecdotes are very helpful in making a person feel better about their situation, they might not be the right information that the person needs.

It's better to consult with experts who should be able to assist with the specific situation.

newbusox2• 14 years ago

The issue with law is that laws are dissimilar from jurisdiction to jurisdiction, in meaningful enough ways that giving advice based on the laws for one jurisdiction might be entirely useless in another. Moreover, even I were to live in that jurisdiction, unless I am intimately familiar with the aspect of law questioned about (which is highly unlikely, even extremely experienced attorneys do legal research), I will have to spend time researching. If I spend time researching, I expect to be paid, generally because the tools used to research are not, themselves, free, like Westlaw or LexisNexis. Moreover, I generally get paid to research to begin with so, in not doing paid research for other clients, I am potentially losing money I might otherwise be making.

Not to say that lawyers can never give good legal advice to legal questions without researching--but the paradigm that I just described is a big reason why people, including lawyers, answer legal questions with "hire a lawyer."

feralmoan• 14 years ago

Not sure where you're situated but I met a founder of upcounsel.com last night which specialize in affordable outsourcing of startup legals. It seems timely that I just came across these guys, so may be worth a try?

waivej• 14 years ago

Monetize your social network enough to defend against threats like this. Otherwise, someone is going to steal your lunch.

fakhrazeyev• 14 years ago

Open a PayPal account for donations. We, the community, will help you out. Do not let this LightBank scare you.

leoplct• 14 years ago

WhosHere exist by about 5 years!

rhizome3• 14 years ago

The word "who" and the implication of location is not enough to hang an infringement.

dllthomas3• 14 years ago

It also means the same thing, and almost rhymes. "Who's Here" and "Who's Near" probably shouldn't both exist doing about the same thing - it would cause confusion. With "Who's Near Me", I think it's no longer a worry (in terms of what the law should be doing - I'm not a lawyer, so I can't speak to what it is doing until we see what happens in court, if it gets there).

dutchbrit• 14 years ago

How long has WhosHere been around for? (Okay, I read an update, 5 years and trademark since 2 years - still, irrelevant) Seriously, this news sickens me, your app name is a common phrase, a big f you to WhosHere from me to be honest :)

They can't trademark "Who's", surely.. I hope this makes big news, you deserve to win this, which is really obvious in my eyes. Good luck!!!

GigabyteCoin• 14 years ago

Something tells me you don't have 400,000 users: http://www.alexa.com/siteinfo/wnmlive.com

dannyr• 14 years ago

It's a mobile app.

ne0codex• 14 years ago

It's a dog-eat-dog world out there and I guess the author had to find out the hard way. He'll have to consider that this might be a lost cause, but remember that you have the knowledge that they did this to you and can share it with everyone else, people will be less likely to buy the VC-funded app if this bit of information was out in the open :)

edit: clarity

hippich• 14 years ago

Looks like in USA you have to have at least LLC setup even if you doing something for fun only. In worst scenario give away or "give away" it to offshore company and "sue me" to these pricks.

amosson• 14 years ago

I am not a lawyer - so don't take this as legal advice. But if I read your post correctly, you said you were never properly served. Since it sounds like you have access to all the court documents, if you search through them some where in the documents you will probably find a place where the plaintiffs swear under penalty of perjury, that you were served with notice. If you were truly never served (make sure to check with a lawyer to see what constitutes service) and they claimed you were - you may have grounds for a counter suit. Check into Small Claims Court as well - you can sue for up to $10,000 and abuse of process is a valid claim there. Forms are available online, your opponent can't bring a lawyer and there is only one appeal allowed.

But if you do nothing and if they choose to press this, they will go to court to ask the judge to put liens on any assets they can and to garnish your wages.

In any event contact a lawyer to see if I am correct about this.

kika• 14 years ago

I'd put some dollars to bomb these crooks back into obscurity they deserve.

blueben7• 14 years ago

Jesus, the Internet Hate Machine is brutal. You haven't heard the other side of the story and you already want to BOMB them?

The guy you're willing to BOMB other people for said to them, and I quote, "I was born wealthy; I have an obscene trust fund. I assure you that if required, I will obtain the best legal representation for corporate litigation in the Silicon Valley. After your last proposal, I will resist this legal action well beyond what makes any financial sense, simply out of principal."

Are you really sure you want to BOMB people to support him?

krrose272• 14 years ago

http://www.wholivesnearyou.com/

Ok so I am stretching this one but it seems to have been around since 2004.

davidandgoliath• 14 years ago

IANAL, advice: get one. Also: To reiterate everyone else -- we'll happily contribute to help pay your ass-kicking fees. :)

va_coder• 14 years ago

Do a search on twitter for whoshere. What a P.R. nightmare.

If they cared about protecting a brand name they should have chosen something more original than 'Who's Here'.

brianhama9• 14 years ago

Thank you everyone for all your feedback and suggestions. The response has been really overwhelming, but I will try and respond to all of your comments. Also, in response to some of your requesting it, I have added a donation button to the bottom of the blog post. Thanks again for the really amazing response!

weixiyen• 14 years ago

The opposition only has 1.25m in funding, of which only a fraction is probably reserved for legal purposes like this.

If you can get inexpensive representation, just call their bluff. This is not a big corporation you are dealing with. I'll put money on dropped case or some type of amicable settlement that doesn't cost you anything financially, which is your goal.

brianhama9• 14 years ago

That is actually what I did. They weren't bluffing though.

neilkelty2• 14 years ago

Since we aren't lawyers, is there a possibility that this guy is actually at fault of infringing upon this startups trademark?

andrewguenther• 14 years ago

He says his application is two years old, but Who's Here has been around since 2008. While I think they are being a bit harsh, it would seem that they have a case.

filmgirlcw• 14 years ago

So obviously the guy needs legal advice, and ASAP.

We obviously also only know part of the story, and from his perspective. Still, something here smells really, really bad.

As a media professional, my advice is to take this to the public if you can. That means Tech Crunch, AllThingsD, CNET, the Next Web, etc.

(I'll also include my own employer, Mashable, where I'm the entertainment editor but often end up being the defacto point person for stuff that's developer-centric)

Not knowing the facts around the situation, I'm inclined to say focus on getting public attention as early as possible, especially if you're worried about being able to get a response submitted to the court by the deadline.

On that note, I would ask your lawyer friends what would be involved in requesting an extension, because if you want to fight this, you will need more time.

Finally, even though this is a labor of love and not one of profit, after you get through the eye of the storm, it might be time to shit or get off the pot regarding the service. After all, if you're looking at wanting to invest a lot into the legal defense of this project, it might be time to start looking at how you can transition it from a hobby side-project into more of a real business.

If you aren't interested in making that transition, you need to evaluate the costs -- not just in terms of money, but in terms of time and effort -- in this particular hobby.

jusben1369• 14 years ago

Am I the only one that reads an article like this and has the following thought process? "Man I can't believe those guys!" "Wait you agreed to what?" "I hope you documented that right?" "I'm guessing he didn't document that" "He still hasn't fully engaged a lawyer?!" "Man those guys suck but for the love of Mary why didn't he just get in front of this with a good lawyer."

- Who needs a lawyer when you can marshall the Internet Pitch Forkers!!!!!

brianhama9• 14 years ago

My thinking was that lawyers cost money, so why not try and resolve it myself. But, as a result of all of this I have learned that not having a lawyer costs more money.

shrikant• 14 years ago

Somewhat OT: but is it standard practice for the app developer to review their own app on the App Store (sort of like how a dev would 'seed' their newly built social network/forum I guess..)? OP appears to have done so. Or is it possible to leave reviews under arbitrary names?

See http://i.imgur.com/BPypw.png

brianhama9• 14 years ago

Ya, I wrote that review myself. I would think it is a pretty common thing individual developers of free applications do.

chuinard• 14 years ago

I hate to be negative about this, but it sounds like you've had a successful product for 2 years. Why are you still working on it if you're sacrificing time, sleep, and a social life to 'break even'? At some point (and I would think well before 400,000 users), why didn't you go out, seek $1.25m for yourself, and win your market over with a better quality product? I do think what is happening is wrong, but why are you so intent on fighting this if you've spent 2 years just to be breaking even, even with a half million users?

MartinCron2• 14 years ago

Not all projects are blockbuster profit projects, some people do things as a labor of love for the joy of doing them. Sometimes great things are made that way.

Seeking out $1.25M is not the sort of thing that has any draw for a lot of people, and that's OK.

brianhama9• 14 years ago

Exactly. I entertained the idea of fundraising briefly, but realized that it didn't really give me any sort of satisfaction and wasn't something I was very good at. I like to write code, I like to build things, I like interacting with my users and turning their suggestions into reality.

CurtMonash• 14 years ago

When I was threatened with libel by Sybase, I jumped on the phone with the general counsels from Oracle and Computer Associates, and based on their "I'm not acting as your lawyer" general comments, handling things myself. The big difference is that "Handling things myself" amounted to sending back a couple of letters, not dealing with legal paperwork.

I'd say that advice across the internet on whether to engage a lawyer, how to engage a lawyer, or what your negotiating strategy might be is fair game, and could be just as good or bad as any other internet advice. Talking about your case in public, for the other side to see, could be disadvantageous, but that's a reasonable risk to take.

For actual legal procedures -- yeah, you absolutely need a lawyer. But the best organized and most affordable one may not give the best strategic advice.

curiouscats• 14 years ago

I would like to see someone create an plugin that would give a warning if you went to a site that had used obnoxious legal bullying to harras small sites. I realize policing who gets shown on such a list would be a big job.

I would love to have someone reliable do this and then I could chose to just not deal with such sites (or decided well yeah I don't like using lawyers to bullying but I am willing to sell out my principle because this site is so cool I can't live without it).

The way to counter the strategy of paying lawyers lots of money to bully your small competitors is to setup a method that forces those companies to suffer the consequences for their decision. I would be happy to help that process, but I can't keep track of who is doing the bullying.

This type of providing better information so I (and others) can make informed decisions not to use sites with practices I find obnoxious is something I would really love to see. Both for this type of obnoxious behavior but really a platform could support all sorts of notices on whatever people object to (probably using lists from whatever they care about World Wildlife Fund, NRA, EFF or whoever).

I don't think the legal system is going to be reasonable. We need a solution that allows the market to enforce an acceptable code of conduct with consequences for being obnoxious (even if the legal system thinks it is fine).

ypeterholmes• 14 years ago

For what it's worth I've started a boycott of WhosHere: http://www.boycottspot.com/view_boycott/23-WhosHere.com-and-...

And I shall tweet them letting em know.

newbusox2• 14 years ago

I am a lawyer, and I have, in my own startup, contended with a company attempting to sue me/my startup for allegedly infringing on their trademark.

I'm sympathetic to your cause, but playing with intellectual property issues is serious stuff and the reality of the situation is that better-funded players will not infrequently attempt to bully you into getting what they want, as appears to have occurred here. Obviously hindsight is 20/20, but you should have consulted an attorney immediately on receiving a cease-and-desist letter, even if you thought that their claim was entirely frivolous (which, given the facts presented here, is hard to say). Had this occurred, you almost certainly would either not be in this situation, or saved yourself a ton of trouble.

Given that you did not and this situation has evolved to what it is, your only choice is to retain an attorney if you’d like to continue operate the app and not pay whatever damages they alleged. And, frankly, you're in a poor position because, since the court has already entered a default judgment against you, you will have to show cause as to why the court should set aside this judgment, which will require more time and effort than if you have initially opposed the lawsuit, even if what you say regarding a piece of the document missing is true.

If you do retain an attorney and fight this, realize that, if you lose, the opposing side might be able to recoup the entirety of their attorney's fees (which would be very expensive for you, particularly in the unlikely event you went to trial or the like, and it appears that they have already alleged this right now), and, possibly, your profits (depending on a number of factors). That's very serious stuff.

I wish I could give more direct advice, and I strongly agree with commenters here in other posts lamenting how elitist law is and so on, but you have absolutely no alternative but to retain an attorney. I don't know where you live and where this litigation is taking place, but there are tons of lawyer referral services out there (your local county bar will have such a service, you can find out on their website), and you can speak to various attorneys who might understand your financial situation and be able to work with whatever budget you have. Just because an attorney says that they charged $X does not mean that you can’t find another, competent attorney, who might charge less. If I were in your position, and wanted to fight this, I would spend my time either finding/raising money, or talking to attorneys about how you can structure a fee schedule that would work with your finances (lawyers are open to negotiating: you can say "I can only pay you this or that" or "I can pay you this or that in the future"—see what they say and how flexible they will be). I am skeptical that someone would take your case pro bono.

As a general piece of advice based on personal experience to others: don't ignore intellectual property issues. Getting a trademark is not particularly expensive (and, unlike this situation, something that you can, actually, do without consulting an attorney, or at least for little $ should you need to consult an attorney) and can save you headaches in the future. If you receive a cease and desist-type letter, take it seriously, regardless of how frivolous you think their claim is. If whoever sent you the letter went to the trouble to have their lawyer draft a letter to you--which means that they probably paid the lawyer a non-insignificant fee to do that--they are certainly taking it seriously, and so should you. Even well-funded companies don't throw money away to, of all people, lawyers, unless they think they can get something they want from you, and/or they think they actually have a meritorious claim. Do not attempt to respond to the cease and desist letter, unless you have experience in how to do this. If you want to avoid paying an enormously onerous legal fee, you can try your hand at drafting a response—but absolutely get a lawyer to look at it prior to sending it. This may be more affordable than you think (~1-2 hour of work, or the like, for a lawyer). If you're worrying that you may be infringing someone else's trademark, or someone will try to sue you in the future (as apparently happened here), you can get a declaratory judgment (for a fee) from a court stating that you're not infringing-again, something to talk to a lawyer about.

jaems33• 14 years ago

Good post though I will say even without the power of hindsight consulting a lawyer should've been step one. There's enough big trademark cases to go around in the public eye to know that these things shouldn't be taken lightly.

XiaoPing• 14 years ago

It's spreading like wildfire: http://startupjunkies.org/blog/2012/06/01/lightbank-whoshere...

nphase• 14 years ago

WhosHere's response: https://whoshere.zendesk.com/entries/21514943-the-other-side...

hamax• 14 years ago

The Other Side of the Story: "We are not patent trolls, we are entrepreneurs and developers, and here's what we're struggling with." https://whoshere.zendesk.com/entries/21514943-the-other-side...

theunixbeard• 14 years ago

Who's Near Me's side of the story: https://whoshere.zendesk.com/entries/21514943-the-other-side...

It appears this isn't such a clear cut story...

throwaway999_• 14 years ago

I agree that this is certainly in bad practice, but before everyone goes all crazy hitting the donation pool, are you or aren't you "wealthy"

From a PDF they have posted regarding emails from you (https://whoshere.zendesk.com/entries/21514943-the-other-side...):

"" I was born wealthy; I have an obscene trust fund. I assure you that if required, I will obtain the best legal representation for corporate litigation in the Silicon Valley. After your last proposal, I will resist this legal action well beyond what makes any financial sense, simply out of principal. ""

brianhama9• 14 years ago

It was a failed attempt at a bluff. I regret sending that email. I posted on my blog in response if you want to hear the full details.

neilkelty2• 14 years ago

If you're reading this - you need to ensure you read the response from WhosHere: https://whoshere.zendesk.com/entries/21514943-the-other-side...

edsouza• 14 years ago

Since you do not have the funds to hire a lawyer, it maybe better to look for a settlement in your favour.

Even if you hire a lawyer, they will attempt to stall the case until you run out of funds.

It maybe hindsight now, but I would of created a corporation and move all your assets under it, (website, apps, etc).

Not sure if you can do that now before the default judgement on the lawsuit. I would still hire a lawyer to do that just in case.

brianhama9• 14 years ago

All of the assets are under a corporation I started. Considering the type of application it is (location based mobile app for meeting strangers near you), I figured the number of possible liabilities definitely justified creating a layer of protection for myself.

knows_chicago• 14 years ago

Their VC firm is Lightbank is run by two sleazy people. They are the same people behind Groupon. Their founders are notorious for their sleazy tactics, which are solely aimed at scamming investors out of their money. Never work for a company or get investment from Lightbank.

wrekkuh• 14 years ago

Have you, or anyone representing you company/app, ever approached WhosHere to 'merge' businesses as they claim in their rebuttal blog posting?

brianhama9• 14 years ago

I initially contacted WhosHere and offered to build them a Windows Mobile and Windows Phone 7 app for free. They ultimately declined, so I built my own entire network.

speg2• 14 years ago

The other s

speg2• 14 years ago

The other side of the story: http://m.techcrunch.com/2012/06/02/the-other-side-of-the-sto...

A VC-funded startup called WhosHere is trying to steal my social network

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