Flutterby™! : A claim of ownership

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A claim of ownership

2005-03-27 15:08:35.055367+00 by Dan Lyke 21 comments

Got this claim of ownership for "the copyright to Flutterby" this morning.

You need to be aware that a book has been written using that name (among others) and that when the book is published you may find yourself in a position where you may be asked by our attorneys to relinquish the domain name.

Anybody have any idea of what sort of scam he's running? Obviously he's woefully uninformed about intellectual property law...

[ related topics: Intellectual Property Books Weblogs Copyright/Trademark ]

comments in ascending chronological order (reverse):

#Comment Re: made: 2005-03-27 16:12:45.364701+00 by: patrick connors

I googled the author of the letter. Use the full, unusual name in the signature.

Based on that search, I'm guessing he just wrote a 'how I got rich' book and is about to self-publish it.

I think were I in your shoes, I'd pay my web registration another year or two ahead (a good idea anyway - I pay mine at random times at least 90 days before the renewal date), tell him you can't copyright a title, and wait.

He's right about one thing: Flutterby's a good site.

#Comment Re: made: 2005-03-27 17:19:02.788001+00 by: mvandewettering

I'm not sure what's he's smoking, but it's simply not possible to copyright titles. If the author held a trademark, he could possibly pursue a case, but he would have to be able to show that there was some legitimate grounds for confusion between your name and his in the area of trade in which he is engaged (remember, trademarks protect names under which trade is conducted, without trade, there is no trademark protection).

Usual disclaimers, I am not a lawyer, yadda yadda...

#Comment Re: made: 2005-03-27 17:59:02.58411+00 by: aiworks

You need to be more concerned about a WIPO domain name dispute. If he gets a trademark (which anyone can do, even if it's invalid) and files a claim, you're domain will almost certainly be taken away for a time.

#Comment Re: made: 2005-03-27 18:52:02.288396+00 by: ziffle

He is using his middle name it appears because he is trying clarify he is not the executed guy by a similar name. But it appears he does write books. http://www.blackwellpublishing.com/book.asp?ref=0632045647

I suggest you trademark the name today uspto.gov as a BLOG. Its trademarked already for a variety of things but no blog. I would think once you get a trademark you could keep the name. Maybe an attorne would have a smpler way to deal with it.

#Comment Re: made: 2005-03-27 19:29:00.888721+00 by: DaveP

Or if you're interested in reading a slightly related story (and have a half-day to spare), check out Taubman Sucks and all the associated legal documents filed for a lesson on trademark law and how it applies to domain names.

#Comment Re: made: 2005-03-27 23:09:46.75162+00 by: meuon [edit history]

First, why is it almost every 'asshole' letter I have ever gotten has been signed a variation of 'God Bless'? - Oh, because only a self-righteous fake Christian would send a letter like that. Wasn't that nice, he is allowing you to use 'Flutterby'. What about the prior use ranging from the original poetic use to a book titled: Flutterby

Somehow.. I smell something fishy. Like he thinks Dan would just hand it over? What does he mean when he says: "...has been written using that name (among others)" - He did not mention the actual name of the book, and this wording is just plain strange.

It is also possible this is a troll. A Quick Google shows this guys e-mail being listed as spam/flame bait on a forum... as well as they he's got "12 years experience as a concours detailer." - for VW's and is into fitness and homeopathy.

The scam: Perhaps this healthy homeopathic VW fanatic wants you to pay him off in fear so that you can keep your domain name. Me? I'm thinking he considers finding a better scam.

Is he: http://cehs07.unl.edu/fsinfo/cehs_pull.php?UserName=tcarr&

His IP's suggest Charlotteville Virginia though.

More of a search finds a Timothy Ayerst Carr at iron-bound.com in VA.. Which leads us to him as: 

   ***** removed by meuon for reasons difficult to explain to rational humans *****
Bingo! Where he hawks fitness supplements. with a hopefully true personal story where he combats a mild case of cystic fibrosis with strength training. ('Hopefully' - not meant to be sarcastic..)

There are good sides to being an asshole: Road Trip Anyone?

#Comment Re: made: 2005-03-27 23:35:53.635499+00 by: Dan Lyke

My initial response to him, because I was trying to figure out what he was attempting to tell me, was:

From: Dan Lyke <danlyke@flutterby.com>
To: <ayerstcarr@earthlink.net>
Subject: Greetings Mr. Lyke
Date: Sun, 27 Mar 2005 06:52:02 -0800

ayerstcarr@earthlink.net writes:
> However, at the risk of bringing bad tidings, I need to inform you that I
> own the copyright to Flutterby.

If you believe you own the copyright to "Flutterby", then you dramatically misunderstand intellectual property law.

Hopefully your legal council will help educate you.

Dan

In response to which he wrote:

From: <ayerstcarr@earthlink.net>
To: Dan Lyke <danlyke@flutterby.com>
Subject: Re: Greetings Mr. Lyke
Date: Sun, 27 Mar 2005 10:33:14 -0500

In that case, we will be in touch.

And I wrote a slightly longer:

From: Dan Lyke <danlyke@flutterby.com>
To: <ayerstcarr@earthlink.net>
Subject: Re: Greetings Mr. Lyke
Date: Sun, 27 Mar 2005 14:33:50 -0800

ayerstcarr@earthlink.net writes:
> In that case, we will be in touch.

A little education:

What you would seek on the word "Flutterby" is a trademark, not a copyright. Copyrights are for longer works, and give you a different set of rights and restrictions than trademarks offer.

To claim ownership of a trademark, you simply have to start using it as a trademark, the superscripted "tm" after a word is one of the tools that helps you do that.

But it's also the case that trademark has to be claimed for a very specific use of the word or phrase, the same word can be used as a trademark in multiple fields of practice by different people. Thus "Flutterby" in the context of publishing books is an entirely different matter than "Flutterby" in the case of, say, a gift and card shop (several of those have approached me in previous years).

There's a *lot* of case history in this, especially as it relates to domain names (as you can imagine that's been a source of a lot of intellectual property dispute over the past few years). I'd strongly suggest reading up on the topic, as the intricacies of intellectual property law are useful and worth knowing.

As always, I am not a lawyer and this is not legal advice.

I have precedence of having used Flutterby.com as a name for my online publication for over 7 years now, any legal battle which would attempt to wrest that control away from me would be ugly, expensive, and unlikely to succeed.

Dan

This is, as you might imagine, not the first time I've heard desires for the domain name over the years. It is, however, the most weirdly phrased one I've ever seen.

#Comment Re: made: 2005-03-27 23:58:29.20986+00 by: Chris Bridges

Maybe this isn't a good time to mention the book I've just written with a main character named "Timothy Ayerst Carr." Total coincidence, but he might have to give up using that name in public correspondance. Maybe not; I hope it doesn't come to that. But my lawyers will advise me how to proceed...

#Comment Re: made: 2005-03-28 00:01:28.139016+00 by: meuon [edit history]

As the prior owner (and seller) of just a few domain names, I can tell you you have nothing to fear until his lawyers get involved and that is expensive. - and we still don't know what he thinks he owns nor has he made you a reasonable offer for it.

This all smells of some bad 'net extortion scam and he does not comprehend who or what he's picked on. Which makes me wonder what is really going on. If he's the webmaster for Iron Bound you'd think he has at least half a clue.

#Comment Re: made: 2005-03-28 00:04:00.809408+00 by: Dan Lyke

The saga continues:

From: <ayerstcarr@earthlink.net>
To: Dan Lyke <danlyke@flutterby.com>
Subject: Re: Greetings Mr. Lyke
Date: Sun, 27 Mar 2005 18:52:31 -0500

I little education for you....

Money is something I have enough of. Threats are something I do not respond to. When and if it becomes necessary, we will respond. And do not worry, when we do respond we will have everything in order.

I am not an attorney, so it is not necessary for me to know the law. That is what I pay them for.

The next time you hear from me will be through them.

Good Day.

#Comment Re: made: 2005-03-28 00:39:18.512449+00 by: Larry Burton

>> I am not an attorney, so it is not necessary for me to know the law.

Then he's setting himself up to get all that money that he has enough of to be taken from him by his attorneys. This guy gives you a veiled threat and then says threats are not something he responds to? It sounds to me like someone just wishing to yank you around. I suspect his attorneys, after a long, hard, expensive look at the matter will advise him that a response will not be necessary because he doesn't have a case... if he actually has any attorneys at all. I also suspect that this guy understands that when you don't have a case you still have bluster and there are times that is all it takes.

I think I would e-mail him back one last time and tell him he has wasted enough of your time and that he should direct any further contact to your attorney. Doing otherwise could result in a charge of harrassment.

#Comment Re: made: 2005-03-28 01:06:18.920413+00 by: meuon

Dan.. just pulled some quick strings, you have just retained, for the first level anyway:
W. Lloyd Stanley, Jr.
633 Chestnut Street
Republic Centre, Suite 6309
Chattanooga TN 37450-0603
domainlitigation(at)lstanleylaw.com

If you end up needing heavies, I'll pull my CBS Law and Miller and Martin contacts that own me large favors.

#Comment More reality --> more Carr humor made: 2005-03-28 06:48:16.652347+00 by: Nonny Nonny Hey [edit history]

Does this guy have any chance of realizing that he is *not* likely to be the first person to have written, or even to publish, a copyrighted work under the title of "Flutterby"?

http://www.copyright.gov/records/

Using the above URL, one can see that a variety of works have had their copyrights registered using a title of "Flutterby" in the last couple of decades (the Library of Congress online search data doesn't seem to cover pre-1978 registrations.)

So Dan, you better look out! :-) Even if Timothy Ayerst Carr's lawyers don't get you, the prior music cassette and book publishers, printmakers, notecard sellers, and soft sculpture makers surely will come after you both! :-)

I wonder if Carr can sue his hypothetical lawyers for legal malpractice?

#Comment Hey, meuon... made: 2005-03-28 22:22:07.798407+00 by: baylink

Will you be *my* friend, too? :-)

#Comment Re: made: 2005-03-28 23:49:43.789064+00 by: meuon

Baylink, do you need a lawyer or a road trip with a clue-by-four? - Laughing.. --meuon--

#Comment Re: made: 2005-03-29 14:54:10.673188+00 by: petronius

I wonder if Carr can sue his hypothetical lawyers for legal malpractice?

Yes, but the settlement will be in hypothetical dollars.

#Comment Re: made: 2005-03-30 22:37:57.478369+00 by: Larry Burton

Dan, I'd like to suggest once more that you apply for an ISSN.

#Comment Re: made: 2005-03-30 23:09:06.607252+00 by: Dan Lyke

I sent in the paperwork once and never got anything back. I'll try again.

#Comment Re: made: 2005-03-31 18:46:37.122285+00 by: ebradway

I don't know if it's admissable in court, but The Wayback Machine has content for Flutterby dating back to Dec 12, 1998.

#Comment Re: made: 2005-04-10 14:04:54.365546+00 by: meuon

I have to ask.. Any updates?

#Comment Re: made: 2005-04-10 16:18:42.626022+00 by: Dan Lyke

Nope.