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	<title>Comments on: DMCA Trademark Claim?</title>
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	<link>http://www.desktopnexus.com/blog/2009/05/dmca-trademark-claim/</link>
	<description>Backstage with the rockstars who run Desktop Nexus</description>
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		<title>By: IP Attorney</title>
		<link>http://www.desktopnexus.com/blog/2009/05/dmca-trademark-claim/comment-page-1/#comment-33</link>
		<dc:creator>IP Attorney</dc:creator>
		<pubDate>Thu, 14 May 2009 03:23:08 +0000</pubDate>
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		<description>Legally, there&#039;s nothing wrong with what they did.  There are no safe harbors in trademark law, so there is no requirement to follow any notice procedure.  

I didn&#039;t see the pics or how DN allegedly used them, so I can&#039;t say whether you were infringing on the trademark or not.  But for the sake of this discussion, let&#039;s just hypothetically say you were (because if you weren&#039;t infringing, there&#039;s no reason to have this discussion).

Assuming you were using their mark in an infringing manner, they could just sue you outright.  If it was a copyright infringement matter, they&#039;d be _REQUIRED_ to follow DMCA takedown procedures.  The Lanham Act (the basis for most trademark law) doesn&#039;t require any sort of takedown procedure.

Once again, this is assuming that you were in fact infringing.  I have no idea how you allegedly used their marks, or whether their marks are valid.

In the business world, what happens is that if they send you that takedown, you can file a declaratory judgment lawsuit against them (this happens all the time).  In some cases, the Copyright Act and Lanham Act allow you to recover some attorney&#039;s fees if you do win, but it&#039;s rarely the total cost of attorney&#039;s fees.

-- I&#039;m not your attorney.  I do not represent you.  Do not bother to contact me through the email address provided.  I might check back here to respond to any questions, but again, I&#039;m not your attorney.</description>
		<content:encoded><![CDATA[<p>Legally, there&#8217;s nothing wrong with what they did.  There are no safe harbors in trademark law, so there is no requirement to follow any notice procedure.  </p>
<p>I didn&#8217;t see the pics or how DN allegedly used them, so I can&#8217;t say whether you were infringing on the trademark or not.  But for the sake of this discussion, let&#8217;s just hypothetically say you were (because if you weren&#8217;t infringing, there&#8217;s no reason to have this discussion).</p>
<p>Assuming you were using their mark in an infringing manner, they could just sue you outright.  If it was a copyright infringement matter, they&#8217;d be _REQUIRED_ to follow DMCA takedown procedures.  The Lanham Act (the basis for most trademark law) doesn&#8217;t require any sort of takedown procedure.</p>
<p>Once again, this is assuming that you were in fact infringing.  I have no idea how you allegedly used their marks, or whether their marks are valid.</p>
<p>In the business world, what happens is that if they send you that takedown, you can file a declaratory judgment lawsuit against them (this happens all the time).  In some cases, the Copyright Act and Lanham Act allow you to recover some attorney&#8217;s fees if you do win, but it&#8217;s rarely the total cost of attorney&#8217;s fees.</p>
<p>&#8211; I&#8217;m not your attorney.  I do not represent you.  Do not bother to contact me through the email address provided.  I might check back here to respond to any questions, but again, I&#8217;m not your attorney.</p>
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		<title>By: Free Culture News &#187; Hansen Beverage Company claims trademark infringement by Desktop Nexus wallpaper</title>
		<link>http://www.desktopnexus.com/blog/2009/05/dmca-trademark-claim/comment-page-1/#comment-29</link>
		<dc:creator>Free Culture News &#187; Hansen Beverage Company claims trademark infringement by Desktop Nexus wallpaper</dc:creator>
		<pubDate>Tue, 12 May 2009 20:08:55 +0000</pubDate>
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		<description>[...] Desktop Nexus [...]</description>
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