Shit - My Merchant Got Sued. Am I Screwed?

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Arkad

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Jun 3, 2008
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Overstockjeweler got sued over selling replicas/inspired jewelry by a few big name jewelery designers: Gucci, Cartier, David Yurman to name a few. The jewelry designers won.

Problem is I have really high rankings for a lot of namebrand keywords like knockoffs, replicas, copies, etc.. I am making at least a sale a day with this merchant - $500 monthly.

I noticed OSJ had removed mention of these desingers from their website. Today I received this in my email:

To Overstock Jeweler affiliate,

After many repeated requests to all affiliates, this is the FINAL NOTICE for
compliance, due to legal action that has been taken against OverstockJeweler.com,
regarding Pending Case No.07-1241 (SAS/HP), it is our policy that all affiliates in
the Overstock Jeweler affiliate program comply with our request to remove any and
all text, images and content mentions of the following designer names and the
following collection names from your website.

Designer Names:
Cartier
Bulgari
Gucci
Van Cleef & Arpel
David Yurman

Collection Names:
Albion
Noblesse
Renaissance
Love Bracelet
Alhambra
Agrafe
BZero1
Trinity
Parentesi

In addition to removing the text and content of the abovementioned designer names
and collection names, we require that you comply with the following:

* For data feed affliates, you are requested to update your product data feed
immediately and remove all previous versions, of our data feed from your site,
which may contain the abovementioned designer names and collection names
* All affiliates must completely remove any text and/or content that contains
any mention of the designer names and/or collection names, including but not
limited to, navigation menus, link text, alt tags and banners.
* All search engine marketing affiliates are required to cease and desist all
pay-per-click campaigns that mention the designer names or collection names, on
the web or in any manner.
* All affiliates are required to be fully compliant with removing all mentions
of the designer names and collection names, within seven days from the date of
this newsletter.

If you do not comply with this notice of removal for the abovementioned designer
names and collection names, legal action may be taken again you in a court of law by
the aforementioned designers.

We must recieve an e-mail confirming that you are in compliance with all of the
aforementioned requirments within the next seven days.
Click to expand...


Am I completely screwed? Do I have any options?

There's no doubt in my mind that removing mention of these designers is going to completely murder my conversions. How would I be able to sell people looking for gucci replicas if I can't even mention the word Gucci in the fucking copy?
 


I've seen many replica websites that use the "it looks very similar to the gucci xxxx model" kinds of thing. or "very similar to gucci xxxx"
 
First off - I am NOT an attorney.

I'm a little unclear on who sent you this email- Overstock's affiliate program?

If they no longer carry "similar" looking stuff do you care about losing your relationship with them? If the answer to this is no- I'm pretty certain if OVERSTOCK sent you this they have zero fucking authority to tell you to do ANYTHING to your site- but are likely abiding by some terms of the suit which they (likely) promised to "make all best faith efforts to remove any trademark violations from their sites and all corresponding affiliate sites" or something equally lame written by attorneys.

What exactly are you concerned about- not having a place to move this traffic and monetize (I understand this), or feeling like you have to take down your site b/c you got this email (who sent it?).
 
Sonny Forelli said:
First off - I am NOT an attorney.

I'm a little unclear on who sent you this email- Overstock's affiliate program?

If they no longer carry "similar" looking stuff do you care about losing your relationship with them? If the answer to this is no- I'm pretty certain if OVERSTOCK sent you this they have zero fucking authority to tell you to do ANYTHING to your site- but are likely abiding by some terms of the suit which they (likely) promised to "make all best faith efforts to remove any trademark violations from their sites and all corresponding affiliate sites" or something equally lame written by attorneys.

What exactly are you concerned about- not having a place to move this traffic and monetize (I understand this), or feeling like you have to take down your site b/c you got this email (who sent it?).
Click to expand...

Thanks for the reply Sonny.

This email was sent to me by my OverstockJeweler affiliate manager. That point you made makes a lot of sense and puts me at ease. Hopefully they won't boot me out of the program if I don't remove designer keywords from my site.

They also said there's a chance that I could be sued if I don't comply. The domain has a bogus whois, are there other ways they can track me through that?

I am concerned about having to remove all designer name brand keywords from my content, which will probably make me lose my rankings.

And if OSJ decided to remove me from their program, there are pretty much are no other desinger replica jewelry merchants out there to work with.

I sent my affiliate manager an email asking if I would be removed if I don't comply. Hopefully he will give me some good news.
 
They also said there's a chance that I could be sued if I don't comply. The domain has a bogus whois, are there other ways they can track me through that?
Click to expand...

Did you purchase your domain with a credit card or account of any nature tied to your identity? - If yes then in that case you will receive the legal C&D's eitherway.

Your registrar will divulge your personal billing details.
 
Arkad said:
Thanks for the reply Sonny.

This email was sent to me by my OverstockJeweler affiliate manager. That point you made makes a lot of sense and puts me at ease. Hopefully they won't boot me out of the program if I don't remove designer keywords from my site.

They also said there's a chance that I could be sued if I don't comply. The domain has a bogus whois, are there other ways they can track me through that?

I am concerned about having to remove all designer name brand keywords from my content, which will probably make me lose my rankings.

And if OSJ decided to remove me from their program, there are pretty much are no other desinger replica jewelry merchants out there to work with.

I sent my affiliate manager an email asking if I would be removed if I don't comply. Hopefully he will give me some good news.
Click to expand...

I'd certainly suspect that they'd remove you from the program if you don't comply- otherwise it kinda flies in the face of them losing the suit. And yes, I believe you might also be sued by the designers themselves- though the real question there is whether Overstock turned over a list of affiliate domains thus putting you on the radar- or if your risk is the same as the million other 'replica' jewelry/sunglass/watch sites.

Again I know nothing about this- but logically I'd (at a BARE MINIMUM) make damn sure you have "similar to" or "looks like" or whatever is industry standard for some of the largest 'replica' sites per the poster above.

Good luck
 
I would simply send the traffic some place else. Until you start getting C&D's anyway. I wouldn't try to hide, I would actually add some sort of contact info to your page. That way if they go after you, you will know before they have a chance to take real action(usually).
 
*I am only assuming and do not know for sure*

I would think that you are perfectly fine if you tweak your things to say "similar to gucci" or "compare to a XXX gucci watch" as posted above. They cannot prevent you from doing that. I've seen countless commercials from fortune 500 companies that do that, legally.
 
I've just received an updated agreement.

This is an automated notification regarding the program agreement for the
OverstockJeweler.com ShareASale Affiliate Program.

New Agreement Effective Date: 11-4-2008

Merchant provided summary of changes:
Explicit Prohibition of mentioning Designer names and Collection Names


Designer Names:
Cartier
Bulgari
Gucci
Van Cleef & Arpel
David Yurman

Collection Names:
Albion
Noblesse
Renaissance
Love Bracelet
Alhambra
Agrafe
BZero1
Trinity
Parentesi

Complete New Agreement:
Agreement

This Affiliate Program Agreement ("Agreement") contains terms and conditions that
apply to an individual's or entity's participation in the OverStockJeweler.Com
Affiliate Program ("Program") as managed by PartnerCentric.com. These terms and
conditions are in addition to any terms and conditions required by
PartnerCentric.com as the acting independent affiliate program management company.
As used in this agreement "We" and "Our" means OverStockJeweler.Com and its
subsidiaries, and "You" means the affiliate applicant or participating affiliate. By
submitting an application to become an OverStockJeweler.Com affiliate, you warrant
that you have read and understood this agreement in its entirety and agree to be
bound by said agreement.

Termination

Non-compliance with the OverStockJeweler.Com Affiliate Marketing Policies is cause
for removal from the OverStockJeweler.Com affiliate program and forfeiture of any
outstanding commissions.

Affiliate Marketing Policies

You hereby agree that your web site will not in any way copy or resemble the look
and feel of the OverStockJeweler.Com web site nor will use any means to create the
impression that your web site is our web site or any part of our web site including
without limitation framing of our web site in any manner or URL manipulation.
Banner, button and text link code provided through Shareasale.com must be used
without modification; altering these graphics and text links is expressly
prohibited. Wholesale orders by offline buyers are not entitled to affiliate
commission.

Upon request, affiliates must agree to change any affiliate wording or descriptions
which may be deemed duplicate content, from the OverstockJeweler.Com main site.

Expressly Prohibited Content and Practices

* Affiliates can in no way describe the item as just copies. All partners must use
the word “inspired” when describing the designer item.

* Copy or resemble the look and feel of the OverStockJeweler.Com web site.

* Use any means to create the impression that your web site is our web site or any
part of our web site including without limitation framing of our web site in any
manner or URL manipulation.

* Use of OverStockJeweler.Com or OverstockJewels.Com in the display URL. Affiliates
must use their own web address in the display URL.


* Violation of our Trademarks and/or copyright laws. No images or other content may
be copied from the OverStockJeweler.Com web site without our prior written consent.

* Affiliates are explicitly prohibited to mention any of the following designer
names and collection names

Designer Names:
Cartier
Bulgari
Gucci
Van Cleef & Arpel
David Yurman

Collection Names:
Albion
Noblesse
Renaissance
Love Bracelet
Alhambra
Agrafe
BZero1
Trinity
Parentesi

* Discriminatory themes, promotion of violent groups or illegal acts, sexually
explicit sites including pornography and use of explicit language.

* Use of parasite software. OverStockJeweler.Com does not permit affiliates to
promote using downloadable applications or software that redirects traffic.

* Inappropriate advertisements including false or misleading claims and links.

* Sending unsolicited spam e-mail.

* Bid on keywords in the PPC restricted keyword list, as outlined in the ShareASale
interface.

* Use of pop-ups or other cookie stuffing methods
Click to expand...


I talked to my manager and he said I have to comply but he won't remove me from the program - I'm not sure what that means.

At any rate some of these desingers are very sue happy so it's probably in my best interest to remove any mention of designers from my site. I will even have to change a shit load of the permalinks that have some nice links which is really going to fuck me over.
 
smaxor said:
Honestly I'd give Bidz a try. You may find the pay-per-lead kicks ass on that stuff.
Click to expand...

I was thinking that I should just take the site in a new direction, and Bidz was one of the programs I've been checking out. Despite a lot of complaints they get, they seem to be a good earner from what CJ tells me. Thanks for the suggestion.

If anyone has any more it would be very much appreciated. I'm trying to make the best of this situation.
 
Arkad said:
I was thinking that I should just take the site in a new direction, and Bidz was one of the programs I've been checking out. Despite a lot of complaints they get, they seem to be a good earner from what CJ tells me. Thanks for the suggestion.

If anyone has any more it would be very much appreciated. I'm trying to make the best of this situation.
Click to expand...

I think you might be limited in the beginning of how many leads a day you can push with Bidz. They limit you to around 100-200 to see your lead quality.
 
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