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Discussion Starter · #1 ·
I recieved this lewtter this morning. I am so new to this diapering world I am not quite sure what to do. I did everything legal, searched tradenames etc and did not find anything, bought the name in Washington State. So<br>
I did not respond yo Jennifer's e-mail. But even if I am legitament. The power of the wahm boards rock. so shed a little light girls I don't want to lose my money I invested in our name can't really afford that. I don't want to step on anyones toes. Any one got an opinion?
 

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<img alt="" class="inlineimg" src="http://www.mothering.com/discussions/images/smilies/headscratch.gif" style="border:0px solid;" title="headscratch"><br>
What are you asking exactly?
 

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Well, when you type in <a href="http://www.ittybittybunS.com" target="_blank">www.ittybittybunS.com</a> the diaperbabies site comes up...you changed 1 letter ittybittybunZ...I have to agree w/ the letter writer that the 2 are so similiar that it is confusing to the customer...Sorry mama, but if I were you I'd look for another name.
 

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Discussion Starter · #4 ·
thanks todswife I guess it doesn't matter that she bought the domain after we bought ours. oh my gosh i just sounded like my 5 year old
 

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Well, that is a bit of a problem. It can't really be an infringement if they're spelled differently, I think. But it is kind of a PITA for both of you. I had some trouble finding your site because I didn't remember it was spelled with a 'z' and kept getting results from Jennifer's stuff.<br>
I don't know much about the legal end of things but it does seem a bit rude of the letter-writer to threaten to blackmail you on the WAHM boards...from what you've said (which is all that I know about the situation) what you have 'done' isn't exactly appalling. That being said, people in the diapering community have a lot of personal feelings wrapped up in what they do and buy, and maybe they are greatly offended by your use of that name.<br><img alt="" class="inlineimg" src="http://www.mothering.com/discussions/images/smilies/hug.gif" style="border:0px solid;" title="hug"> I hope it works out without any more nastiness; it's really unnecessary.
 

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I am sorry to say it, but I agree with Shandelle. Bitty Buns and Itty Bitty Buns have been around for a long time and it wouldn't have been that difficult to find them. I am sorry that you are out the registration money, but it does look like you should change your name just to limit the confusion. Even though she bought the web address after you, she has been making and selling the diapers for a while. Her site has a 2002 copyright - I don't know if the dipes were around back then but that is a long time in business.
 

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I didn't mean to sound rude- I just thought for YOUR benefit you might want to change the name- esp. since it's confusing...and I am sorry that the letter writer was sorta rude to you. <img alt="" class="inlineimg" src="http://www.mothering.com/discussions/images/smilies/hug.gif" style="border:0px solid;" title="hug"> I hope you can come up w/ something else! Good luck to you! <img alt="" class="inlineimg" src="http://www.mothering.com/discussions/images/smilies/love.gif" style="border:0px solid;" title="love">
 

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I don't mean to sound rude, either. I am not a customer of Diaper Babies and I have no invested interest. I wish there was some easy resolution that could be beneficial to everyone. I really do wish you good luck in your business.
 

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I don't think it's THAT cunfusing because Itty Bitty Bunz is your company name and DiaperBabies is Jennifers company name.<br><br>
I've seen lots of Fancy Pants companies just spelled a little different. Now THAT's confusing! KWIM<br><br>
Hugs to you!
 

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I am just a bystander. I really feel for all parties involved. Perhaps, since the OP did not mean to confuse people, and she had purchased her domain first... The Jennifer of Diaper Babies could purchase the domain from her and have them both link to diaper babies. That way at least the OP would not be out the money, but unfortunately would still have to come up with a new name. I am not sure of legal implications, but just trying to offer a solution. Good luck!
 

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Well trademarks don't have to be registered (in ANY database) to be legally upheld (as we almost saw with the wonderoo's issue), and it doesn't have to be exactly the same, changing one letter is enough to cause confusion and possible loss of sales on both sides so it IS actionable, if she would actually persue action I don't know, if it were me I would be plenty upset and want to, it would fall as if I could afford it, but a public 'trial' is bad enough if it is put out there in the WAHM circles you will come of as in the wrong (of course that is my opinion only) because she has been using the name for years now and it is my understanding that she e-mailed you and asked you about it and you didn't respond? which doesn't look good either.<br><br>
Now as for if it is 'right' or 'winable' in court well I guess there is room for debate, but personally you won't come out 'smelling like roses' so to speak if this goes much further so I personally would change my name and pick something that isn't in use.<br><br>
Yes all you used to have to do with a business is search it in your state, but in the days of internet when no state is really alone here it really doesn't cover nearly enough IMO. You sell the same product and the name is the same save ONE letter, that is still trademark infringment. The domain being purchased after yours doesn't really matter, she has been using the name for years with or without the domain it is still HER trademark that she has spent time building yk?<br><br>
Now you don't want to get off on the wrong foot as a diapering WAHM, business is built on word of mouth and a lot rests on reputations so if you do decide to fight it, you need to realize that you may never recover from it. (not saying this forsure but it is a BIG possibility.)
 

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not to be rude but did you ask permission to post that mama's email on a public board?<br><br>
also, you don't have to have your trademark registered. you can't use the little (R) unless you legally register it. you can use TM (which diaperbabies and many many MANY other wahms use). the bottom line is, jennifer has been making ittybittybuns for 2 years now. when coming up with a name for a diapering company it is wise to search google, ebay, mdc and yahoo groups and trying different spelling variations of the name.<br><br>
edited to add legal trademark info:<br><br><div style="margin:20px;margin-top:5px;">
<div class="smallfont" style="margin-bottom:2px;">Quote:</div>
<table border="0" cellpadding="6" cellspacing="0" width="99%"><tr><td class="alt2" style="border:1px inset;">from: <a href="http://www.bitlaw.com/trademark/infringe.html" target="_blank">http://www.bitlaw.com/trademark/infringe.html</a><br><br>
"The elements for a successful trademark infringement claim have been well established under both federal and state case law. In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services. To do this, the plaintiff should first show that it has developed a protectable trademark right in a trademark. The plaintiff then must show that the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff."<br><br><br><a href="http://www.bitlaw.com/trademark/infringe.html" target="_blank">http://www.bitlaw.com/trademark/infringe.html</a><br><br>
and<br><br><a href="http://www.nolo.com/lawcenter/ency/article.cfm/objectID/DD1CA29C-2C6E-424B-98702C46192940E4" target="_blank">http://www.nolo.com/lawcenter/ency/a...702C46192940E4</a></td>
</tr></table></div>

<div style="margin:20px;margin-top:5px;">
<div class="smallfont" style="margin-bottom:2px;">Quote:</div>
<table border="0" cellpadding="6" cellspacing="0" width="99%"><tr><td class="alt2" style="border:1px inset;"><a href="http://www.nolo.com/lawcenter/ency/article.cfm/objectid/12B2CF4F-A662-478D-A66A77DF17E2637C/catID/D8932879-DC34-43DF-BF65FC92D55FEE5D#8C214B0F-184E-445B-ADD50DA49B3044C5" target="_blank">http://www.nolo.com/lawcenter/ency/a...D50DA49B3044C5</a><br><br>
"What's the purpose of the "TM" symbol or the "R" in a circle?<br><br>
Many people like to put a "TM" (or "SM" for service mark) next to their mark to let the world know that they are claiming ownership of it. However, it is not legally necessary to provide this type of notice; the use of the mark itself is the act that confers ownership."</td>
</tr></table></div>
 

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I totally agree with what Marnie has said. ALSO, Jennifer from Diaper Babies emailed you several times giving you this information & requesting you to change the name. I find it odd that you are only coming forward after a customer request that you change it. Why not respond directly to Jennifer if you have any questions or issues. She's a mama just like the rest of us & is only try to do what's right for her company (that's she's had for over 2 years).
 

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To the original poster, you asked for opinions-Change your business name.<br><br>
You clearly know that the name is someone esle's business product. Jennifer has emailed you, others have emailed you. You are posting here on MDC hoping to get others to tell you what you want to hear. Unfortunately for you it is not happening, wahms don't like when other "new" wahms pop up and try to take their business names.<br><br>
Change your business name-
 

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This is my who point of view as a former WHAM. Why would you want a simalar name anyways? When I had a prouduct I wanted a distinctive name that wouldn't get confused with any other prouducts. You want you and your product to stand out and stand on its own. You want you customers to say I love X prouduct. No, hmm now where did this come from anyways? I personally get very confuzed with similar names such as Dyer and Bryers and even with Bummis and Bumkins.
 

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First of all... not only is it questionable to post someone's personal letter but I believe it might even be against MDC guidelines... not sure.<br><br>
Secondly, if I were you I would change my name. DiaperBabies is a very well known diapering company and, if it were me, I would not want people confusing my product with someone else's. If I were to call my products Cool Sheep Soakers and someone were to think they were getting a Kool Sheep Soaker they might be sorely disappointed. Like the PP said, you want your name to POP for it's own reasons. Enough diapering names sound similar as it is.
 

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My opinion- I'd change my name.<br><br><div style="margin:20px;margin-top:5px;">
<div class="smallfont" style="margin-bottom:2px;">Quote:</div>
<table border="0" cellpadding="6" cellspacing="0" width="99%"><tr><td class="alt2" style="border:1px inset;">You clearly know that the name is someone esle's business product.</td>
</tr></table></div>
I agree. Now you know the name ( sans the "s" ) has been a product of another WAHM for years. I, personally, would feel uncomfortable keeping the name. Unfortunately, I also agree that it may hurt your business.
 

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I'm not a WAHM and my son is no longer in our beloved cloth diapers, but here's my 2 cents:<br><br>
It is actually a lot less expensive for you to deal with this now by registering a new domain name for $8.95 (at <a href="http://www.godaddy.com" target="_blank">http://www.godaddy.com</a> for instance, a fabulous registrar - I own far too many domain names, so I know. LOL!) than after a potential lawsuit for Trademark Infringement (retainer for an attorney, plus billable hours, etc.) The previous posters are correct. It doesn't matter who registered the domain name first, what matters is who <b>Trademarked</b> the name of the product, <b>Produced</b> said item first, and <b>Used</b> the name first in print/on the web. Unfortunately for you, looking at the documentation of both sites, Diaper Babies did all of the above beginning two years ago, while you just opened.<br><br>
I'm sorry, I know that's not what you wanted to hear as I'm sure you've been so excited about your new venture. Your site is very cute. Maybe look for available names with a flower or daisy theme?<br><br>
Good luck to you.
 

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Discussion Starter · #19 ·
How intersting Thanks for everyones input we totally wanted to hear what people wanted to say. We did do the research in August and did not find Jennifer's diapers anywhere. i wonder why. perhaps she did not have much advertising going on at the time. It is certainly questionable as to posting her private message however it is also questionable to threaten me and my company by giving it a "bad name". Perhaps if her letters hadn't been so threatening we might have replied. After researching and talking to council we decided she did not have much of a case. Our council interperted the law to read that a the trade mark of a product and business name is completely different. The name did not become confusing until Jennifer bought the other domain. Kodos to her though it was a good idea. If we had found anything about her diapers in August we would have gone a completely different direction with the name. So I really appreciate you all taking a look; after all we are all mamas trying to do the best for our families. We will be advertising a new name soon, I hope.
 

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Discussion Starter · #20 ·
How intersting Thanks for everyones input we totally wanted to hear what people wanted to say. We did do the research in August and did not find Jennifer's diapers anywhere. i wonder why. perhaps she did not have much advertising going on at the time. It is certainly questionable as to posting her private message however it is also questionable to threaten me and my company by giving it a "bad name". Perhaps if her letters hadn't been so threatening we might have replied. After researching and talking to council we decided she did not have much of a case. Our council interperted the law to read that a the trade mark of a product and business name is completely different. The name did not become confusing until Jennifer bought the other domain. Kodos to her though it was a good idea. If we had found anything about her diapers in August we would have gone a completely different direction with the name. So I really appreciate you all taking a look; after all we are all mamas trying to do the best for our families. We will be advertising a new name soon, I hope.
 
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