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View Full Version : Trademark Infringment - Heartstoppers Haunted House



HEARTSTOPPERS
09-10-2006, 05:05 PM
About a week ago I became aware of the Heartstoppers Haunted House
in CA...I offically opened my business - HEARTSTOPPERS - in CA in 2001
and moved to Utah in 2003...

I have owned Heartstoppers.com since 2000.
I was an IAHA member for 4 years as HEARTSTOPPERS.

I told the haunt owner via email about my business through an informal
cease and desist letter but have been ignored. I had to get their email
from the site developer since they registered privately. My address
Heartstoppers.Com is not privacy protected and would have come up
in a search. I'm consulting an attorney soon...

What else would you / can I do to keep my legal business name?

Heartstoppers

Bonesaw
09-10-2006, 09:01 PM
No worries.
Yur domain registration has a date.
Their business registration (dba) has a date.
As long as yur domain registration pre dates their dba you win!
I HIGHLY suggest you hire an attorney to simply write them the letter.
That legal letterhead works wonders.
Plus an attorney will be able to quote the legal penalties for infringement to them and make em wet thier pants!
Also Google the legal forums for free legal advice.
Good luck bro!

Nightmaretony
09-10-2006, 11:57 PM
Also, check out their address and see about getting copies of their permits for their haunt, since they WILL have contact information. also, even with the registyration of the website kept pricvate, you may still be able to find out their host and have their website forzen out with a cease and desist for copyright infringement.

haunter112
09-11-2006, 06:19 AM
This type of thing can be tricky. It is almost NEVER open & shut.

If the dba name is not EXACTLY the same, you could have a hard time proving infringment.

Infringement is not just about ownership... you have to prove that their use of the name hurt your business.

The fact that you no longer operate your haunt in CA may come into play.

Example: There is a huge restaurant chain known as the WAFFLE HOUSE that operates out of the southeast. There is literally one at every interstate exit. There is also an entirely different much-smaller restaurant chain known as THE WAFFLE HOUSE that operates in the midwest. Both have a valid claim to the name even though the Georgia-based WAFFLE HOUSE predates the other chain by at least a decade.

You need to consult a lawyer.

Empressnightshade
09-11-2006, 07:53 AM
Before I say anything, I want to make it clear that I DO NOT want anyone pumping me for information. I will not answer any questions or give out anything other than what I say here.

I know the person who runs the haunt Heartstoppers. In fact, his haunt is just a short drive from my own and he has visited here on ocassion.

I think everyone is getting excited over nothing here since his haunt is a HOME HAUNT. He doesn't charge admission and is not gaining anything financially from it. He presents his haunt to the children in the community out of love for our holiday.

Heartstoppers, I can imagine how you may feel. I would feel the same if I found out there was a local haunt here using the same name or a version of our haunt's name, as well. Heck...there could be! But, you may be spending money needlessly for an attorney when all you're going after is a home haunt.

Fright Yard
09-11-2006, 10:48 AM
I agree, is it worth the legal costs, Is you name specific to your business making money? You would also have to prove that the use of that name is hurting your business or its detrimental to it. That is kinda hard since its also in another state. Id review this carefully before you jump and make the investment.

Bonesaw
09-11-2006, 12:04 PM
Oh! Itz just a home haunt!!! Drop it bro. Just walk away.

I have seen many cases of infringement but they were all commercial ventures. We had a restaurant here called McDarmas. It was a local health food eatery. McDonalds sued them for infringement! Seems like you can sue now if the name is even CLOSE to yours. But McDonalds has tons of attorneys on retainer & on staff. they also have deep pockets and can win just by being the big dog. Lets face it, in the real world nobody iz gonna confuse a granola place called McDarmas with a burger joint called McDonalds. They looked entirely different too.
Then there was the case of Jimmy Buffet that sued the people that named their restaurants "CheezeBurger in Paradise". Buffett had a song called cheezeburger in paradise so he sued. WHAT???? Now you can own language???? Bullcorn! Now if they made a song called cheezeburger in paradise I could understand. The law says you can't copyright an idea, concept, principal or procedure. A song called cheezeburger isn't even an idea of a restaurant called cheezeburger in paradise. Itz a song about someone wanting a cheezeburger! Thatz it.
Anyway, the restaurants are still called cheezeburger in paradise so I guess Buffett lost hiz case.

Duke of Darkness
09-11-2006, 12:34 PM
Free piece of advice: free legal advice over the internet tends to be worth exactly what you pay for it! Be very careful about following the advice of well intentioned people without checking with a licensed attorney in your state. For an initial (30 min) consultation on a matter like this, I charge $35. I am sure there are many in your state that would review your situation for a similar fee, and --in my (not always so) humble opinion-- it is more than worth the cost to get some advice at the beginning and avoid more complex (and expensive) legal complications later.

From what is written here, I suspect that your best course may well be not to pursue the matter, but even that has its risk. If you know that someone is using your name and you don't protect it, it is possible to lose your right to use it exclusively. In other words, you may not be able to stop other people (other than the one that you let slide) from using your name. There are ways around this that may make everyone happy, and they don't have to be difficult or expensive. Please, consult an attorney.

I'll get off my soapbox now.

Dave

HEARTSTOPPERS
09-11-2006, 12:59 PM
Thank you all for the advice so far!

The problem is that they plan on charging a specific $5.00 donation, which
I thought was illegal for a home haunt. I may be wrong but didn't Kim's
Krypt get into trouble for that...The name "heartstoppers" could get
dragged through the haunted industry monster mud if it has problems!

They may only be a home haunt now, but in HeartstoppersHauntedHouse
MySpace they say they plan to go pro using the name HHH next year!

On their MySpace : "Also we are looking at going pro next year, so
you can get in early and be able to tell your friends 'I was part of their
crew, back before they paid, back before you ever heard of
Heartstoppers Haunted House!' ;)"

They are in the same industry and are using my exact name of
Heartstoppers with "haunted house." You could just as easily have any
other business name with "haunted house." This will cause confusion in
the industry. From what I could find on the internet they seem to change
names often, of course, they plan to go pro with mine!

I sent them an informal cease and desist letter via email and not only
was ignored, but then more updates were placed on the internet!

Thank you all again for the advice! It IS appreciated...

HEARTSTOPPERS!

Empressnightshade
09-11-2006, 01:20 PM
Being a Nonrprofit, a "donation" is different than charging an admission such as we do. With pro haunts, if you don't have the admission price, you will be sitting on the side lines like any other business.

I don't know.....

To pursue this is up to you. But, him adding "Haunted House" on the end makes all the difference to me. There are dozens of "Fright Factorys" in this business and nothing has stopped them from continuing.

I just know that I hope it all comes out peaceful.

Good Luck to you Heartstoppers and Heartstoppers Haunted House.

haunter112
09-11-2006, 01:56 PM
I just remembered why the name HEARTSTOPPERS seemed so familar...

That's the name of a "gentlemen's club" here in SC.

I drive past it every day on the way home from work.

Empressnightshade
09-11-2006, 02:24 PM
HeartStoppers is also a documentary made in 92.

Levarius
09-11-2006, 04:48 PM
I hate to be the pessimist in the group, but I think you should definitely consult an attorney whom is paid to do these things. Trademarks cost a fair amount of money (350$ simply for the filing fee, plus attorney costs, court costs, etc.). They need to be registered at the U.S. Patent and Trademark Office. The registered symbol, "," the legend "Registered, U.S. Patent and Trademark Office," and the abbreviation, "Reg. U.S. Pat. & Tm. Off.," should be used only on, and in connection with, marks registered with the PTO. The use of these notices on unregistered marks is a crime, punishable by fines and/or imprisonment. Any unregistered trademark should always be accompanied by (TM)

Also trademarks should always be adjectives, and in singular form, neither plural nor possesive they should also not be nouns or verbs, so the part of your place you would most probably trademark is "Heartstopper" Another thing they may want to check into is the fact you do not, I assume, provided interstate services or goods. So it may be possible they will allow since it is used only in Utah, for a Heartstoppers in California.

Ofcourse issues with the Heartstopper TM could also arise as Heartstopper has already been trade marked.

Word Mark HEARTSTOPPER
Goods and Services IC 041. US 100 101 107. G & S: Entertainment services by a musical artist and producer, namely, the presentation of live musical performances by a recording artist, entertainment services by a musical artist and producer, namely, musical composition and production of musical sound recordings
Standard Characters Claimed
Mark Drawing Code (4) STANDARD CHARACTER MARK
Design Search Code
Serial Number 78776045
Filing Date December 19, 2005
Current Filing Basis 1B
Original Filing Basis 1B
Owner (APPLICANT) Eries Cornelius INDIVIDUAL UNITED STATES PSC 115 Box 1044 APO APO FOR EUROPE 092130115
Type of Mark SERVICE MARK
Register PRINCIPAL
Live/Dead Indicator LIVE

You're best bet is to get with a Trademark Attorney and try as you can to get "Heartstoppers Haunted House" trademarked, if this is what you decide to do...

Ofcourse if we get serious and control our trademarks on everything, Haunted houses will become a lot more unique, and perhapss run out of ideas....

Did you know "Haunted House, Enter at your own Risk" is trademarked? Man just think if noone could use that anymore lol, luckily the guy does not pursue it apparently. Also disney trademarked "Haunted Mansion"

Just my two cents :)

Nightmaretony
09-11-2006, 07:08 PM
If oyu already have copyright and trademark on your name, it absolutely behooves you to protect it. Especially since they are falunting and taunting on their website, it is intolerable, home haunt or no.

HEARTSTOPPERS
09-11-2006, 07:31 PM
I understand that the term "heartstopper" has been trademarked after
my initial use date. The no "s" name is relating to a band, Brad Leo's
Heartstoppers. They have the user ID "Heartstoppers" on MySpace.
User Ids are a whole other issue that has been brought up lately
concerning infringment suits...

The name can still be considered unique because it is in a separate, non-
related industry. The issue is use of the same name in the same industry.

If "haunted House" is a definer, then I could open up a Spirits Haunted House right down the street from the Spirit Halloween Shop, couldn't I?

The club in SC is not registered with the Secretary of State as a
legal business. However, it would still be in a separate and non-
confusing industry.

The move title is a Copyright, not a Trademark...

I do provide goods via interstate commerce (and also internationally),
through eBay, and have used the name in legally verifiable business
for over 5 years as required for the "in-use" Trademark requirement.

I spoke to the Sec. of State of CA and was told I can legally bind the
name through the state because of my original business licence and
because my items are available in CA through interstate commerce.
I just sent an item to CA today...

I'll be speaking to an attorney in CA in the next day or two on how
to proceed. All of the information and opinions have been great
and give me more options to consider...

Thanks as always,
HEARTSTOPPERS

PumpkinHead
09-11-2006, 10:37 PM
Not to cause any problems but on the CA's Heartstoppers Haunt website http://scaredyou.com/ it says they have been haunting in the same location for 11 years. Maybe you "stole" their name.
It is such a small industry you are bound to find overlappings somewhere.

HEARTSTOPPERS
09-12-2006, 02:54 PM
Just for info...Before this year, their name was Horror Fest-Evil.

AcoreMANNER
09-12-2006, 06:26 PM
Haunted Houses becomeing too unique and running out of ideas?!? wont happen. Art will never all of a sudden have no more ideas for us.

Heartstoppers -

Thats a great name...defend it.

If you cant beat it, then change your name or just be a better, badder heartstoppers haunted house than them.

I used to be The Haunted Manor, and changed it to The Haunted Manner because of all the manors around. Maybe I should hurry up and trademark my name!

Jim Warfield
09-12-2006, 06:33 PM
Of course have multiple haunts and make more money,
"The Infected Dripping Bladder" could be next to "The Exploding Bowel", right across from "The Punctured Screaming Eardrum".
Then fool everybody by having no body parts in them at all!

I still like (after all these years) "Doctor Eval Bludfeast's House of the Ultimate Satanick Jr. Leeches" (Voted "Suckiest!")
It kind of grows on you after awhile, then you notice how the whole name begins to smoothly just rolllllll off your tongue.......

PumpkinHead
09-12-2006, 10:53 PM
Haunted Houses becomeing too unique and running out of ideas?!? wont happen. Art will never all of a sudden have no more ideas for us.
I didn't say we will run out of ideas. But, only so many people find good ideas, everyone else usually emulates them until a newer better idea is formed. No matter how rapid an industry is expanding there will always be copycats ( wether they know it or not).



I used to be The Haunted Manor, and changed it to The Haunted Manner because of all the manors around. Maybe I should hurry up and trademark my name!
What does Haunted Manner mean? lol, at first I just thought you might have misspelled manor, lol. If it is a play on words it went right over my head (this happens when you see eveyone else using Manor!)
PH

09-13-2006, 06:17 AM
I am changing the name of my haunt to:

The Haunted Ravens Grin of Horrors in the Darkness of a Fright Factory next to a Barn of Terror where the Silo X marks the spot of a Carnival of Fear on the Psycho Path where the Headless Horseman rides in 3D.

How does that sound?

Howie "Slobber" Erlich
Deadly Intentions Haunted House
www.deadlyintentionshaunt.com

haunter112
09-13-2006, 11:24 AM
You're just trying to rip off the name of MY HAUNT.

Our name is Pirates of the Haunted Ravens Grin of Horrors in the Darkness of a Fright Factory next to a Barn of Terror where the Silo X marks the spot of a Carnival of Fear on the Psycho Path where the Headless Horseman rides in 3D.

I am SOOOOO gonna sue you!

HEARTSTOPPERS
09-13-2006, 07:10 PM
Great...another serious topic getting reduced to jokes...

Why don't haunted houses care about infringment?

Not a "real" industry? It's just for "fun"?
Its only a month out of the year so it's not worth sueing?
Used to doing what you want and getting away with it?
Everyone else does it...or you just don't care?

The IRS finally caught up with Haunted Houses...maybe
it's time the rest of the business legalities caught up too!

HEARTSTOPPERS

haunter112
09-13-2006, 07:20 PM
Speaking of jokes...

Have you contacted a lawyer yet?

Levarius
09-13-2006, 07:48 PM
Well I think it did pretty good, and the majority of the people here gave you pretty decent ideas that you could try to get this done...

It's up to you now to see whether or not you can actually make it happen. When things get bad sometimes making light of them can be just what it takes to make it through.

Some people have more fun with things than others, at least they are still enjoying themselves.

I do believe as long as this topic has been opened you have probably got about as much useful information as you are going to get out of it, so if someone trys to lighten the mood for everyone else, just check it and go on... You have a lot of work to do anyways... Smile, Laugh, crack a joke...

You'd be amazed how far it can get you.

Good luck trying to get this issue resolved, I think you will probably need it.


Great...another serious topic getting reduced to jokes...

Why don't haunted houses care about infringment?

Not a "real" industry? It's just for "fun"?
Its only a month out of the year so it's not worth sueing?
Used to doing what you want and getting away with it?
Everyone else does it...or you just don't care?

The IRS finally caught up with Haunted Houses...maybe
it's time the rest of the business legalities caught up too!

HEARTSTOPPERS

Terror_Field
09-14-2006, 09:47 AM
There are a few things that can provent any action. First if you file a DBA (doing business as) that business name is only protected in your county. If you file a corporation that name is protected from others in the same state. You would have to have a Trade Mark on the name/style to get protection that covers the US. There are many ways to get around these systems which suck for us because even a TM the name has to be the same name using the exact font etc. in order to file againts them.

Good Luck and let us know.

I know they are saying it is a home haunt but many pro haunts had started as a small home haunt, and being a home haunt they should have stoped using the name from your original email seeing they have not that leaves me to wounder their intention and I personaly would pursue it.

HEARTSTOPPERS
09-29-2006, 12:31 PM
First off, Id like to acknowledge the views this post is receiving
and thank you for taking the time to look. I have been rather busy
between my full time swing shift job and my seasonal retail business
and apologize for the lack of follow-up on this topic lately.

I finally received a reply to my cease and desist letter once this topic
showed up in the top ten hits on Google for a search of Heartstoppers
Haunted House.

I have contacted an attorney in California and will be making some
choices in the next week about how to proceed.

Thank you, HEARTSTOPPERS

Nightmaretony
09-30-2006, 12:44 PM
Hi Heartstoppers.

that was GREAT information that they had changed their name to yours recently. That would be a prior use, and it is seasy to show that you have used HEartstoppers in the prior IAHA telephone directories.

In using it as a business name, did you trademark it? Please tell me you did. I finally got the approval for Nightmare Park for me, waiting on the certificate or whatever to show up. 250 bucks to start, 100 after for the challenge. That will help determine the strength of your case there.

am glad you are looking into the legal remedy side of it all. Let us all know, fingers crossed here...

Xeverity
10-04-2006, 04:43 AM
I suppose it can get all the more competitive if similar huants operate in the same catchment area.

As for copying or stealing ideas I would bet that most of us are guilty of that. When I watched the ticket chop on hostel (the dungeon) I made a mini guilatine with a 'blood quirter' and that is what we are doing this year. Last year it was somthing else.

I know that we have our imitators as well. But that is what keeps us looking for new ideas on how to put a new twist on it.

Not that without competition we would keep things the same but with competition we get a little more fired up!!

Luckily for us we don't have anyone around using our moniker.

Jim Warfield
10-04-2006, 07:51 AM
A guy with a big black moustache once borrowed my moniker, after being strapped to the organ grinder all day he was brought back in a real cranky mood!
Didn't even want to touch his bananas!

HEARTSTOPPERS
10-04-2006, 01:07 PM
I was told by the attorney that, by the time we get an
injunction for them to stop through the CA legal sytem
and served, Halloween will be over.

I'll post the letters soon, but they KNEW I have been using
Heartstoppers for years. After using "Heartstoppers Consortium"
as their name for 11 YEARS, they decided its a bad business name!
Their home haunt was always named something else online!

So, at this point, they get to use the name because I do not
have enough time to stop it. If they go PRO next year with the
name HHH, I can try to go for damages and attempt to shut them
down, instead of just stopping them from using the name.

HEARTSTOPPERS

Jim Warfield
10-04-2006, 05:53 PM
Did the lawyer say if they continued using "Consortium" ahead of "Heartstoppers" What could be done? Could anything be done then?
Just curious.......?

ClusterOne
10-04-2006, 08:30 PM
Heartstoppers,
Am I missing something here? After reading your posts aren't you an ebay seller with a halloween retail buisness and these other people are a haunted house, a home haunt at that? How is that competition?

Most of the people who have been responding to this post seem to think this is two haunts fighting over a name, and as far as I can tell its not that at all.

It seems to me that you are taking this whole thing way to personally... I mean, how can a haunted house in a different state then you, (if it's like my home haunt, that sees maybe 200-300 people every year), going to effect somebody selling brain jello molds and spooky cd's on ebay.
Being involved in the same holiday is not automaticly competition. If there was a christmas tree lot called 'Happy Elf's Xmas Tree Lot" in Washington and an ebay seller called 'Happy Elf' who sold xmas stuff out of Jersey, how is that competition? Its not.

Please don't take this all the wrong way, but I think you just got your emotions involved in what is a very tricky area. I do feel for you, thinking you had this cool name and found out somebody else is using a version of it. I had the same thing happen to me about 8 years ago, and trust me unless there is a very clear competition between your buissness, (and generally in the same state) its a long and very tricky battle that usually resolves nothing.

My thoughts would be to contact the haunted house and see if you guys can work together, maybe you can help each other, seems much more productive (and cheeper) in the long run!

Jim Warfield
10-04-2006, 09:43 PM
So Wut Yoo talkn Terminal? Anti-Lawyer Talk?