Truck and Barter

[This is cross-posted on Always Low Prices].

After a year of my blogging about Wal-Mart on ALP, Wal-Mart has had enough. WM has sent its attorneys after me -- to stop me from using their slogan "Always Low Prices", and to scoot me off the alwayslowprices.net domain.

Let me be clear at the outset; there is no scandal here. I am not outraged. This is about business and control of property -- not persecution. Unlike GM, WM did NOT send a goon squad. And though I find many of Wal-Mart's claims spurious, I am not a lawyer, and I will have to consult with my own lawyers before proceeding formally. And though they will tell me to not discuss the matter any further, I think transparency is more important than most lawyers do.

I promise to fight to keep the alwayslowprices.net domain and Always Low Prices name. And I want the blogosphere's help and advice on how to proceed.

Here is a cropped PDF copy of a letter sent to me by email and snail mail by Wal-Mart's attorneys regarding my use of their "logo". (I have removed sensitive contact information).

What is the claim?

The claim is that I am in voliation of the Lanham Act -- §1125(a), §1125(d), and §1114. Basically that I pretend to be allied to Wal-Mart, and that I use Google Ads to profit off of Wal-Mart's trademark.

I am sympathetic to Wal-Mart's desire to control its private property, but my use of this domain has in no way taken business away from them. Indeed, as one of Wal-Mart's most ardent defenders, taking this domain away from me is likely to hurt Wal-Mart in the short and long run. Who else regularly faces off against Wal-Mart's opponents, union sympathizers, and the like on the internet?

Why are they after me after a year of blogging?

WM filed for a service mark for "Always Low Prices" (with a few variants) on 2/2/04, for both retail store services and online retail store services. As of today, according to the US Patent and Trademark Office, WM has not had this sloagan registered as a trademark. However, their claim went forward on March 29, 2005, and will likely have little problem under further review (unlike WM's older slogan Always the Lowest Price, which was without a doubt, a bald but understandable lie).

As far as Wal-Mart's specific claims go, I will reply honestly:

I admit that I have their logo prominently displayed. But I think it's a fair intellectual use. Low Prices are the primary consumer aim of Wal-Mart, and should be the core of discussion about Wal-Mart. I don't think anybody has ever been confused ALP and WM, walmart.com, walmartstores.com, or walmartfacts.com. Does anybody actually think that Wal-Mart would stick "The Best and the Worst about Wal-Mart" on top of its own website?

The URL, alwayslowprices.net, is the same as the blog nam -- that's the entire point of name recognition. Anybody who comes to ALP will realize immediately that they have not come to Wal-Mart, but to a site that discusses Wal-Mart. If the URL was so critical to Wal-mart's business, why didn't they buy it 10 years ago, when they starting using their slogan?

Of course, I should have had a disclaimer up on the sidebar the entire time; As Kevin Drum once noted, I did at the beginning, but in one of my reformattings, I must have dropped it by accident. So, a new disclaimer is up.

Wal-Mart claims that I pretend to be a part of Wal-Mart by linking to walmartstores.com under the label "WM News". Does anybody find this an even remotely sensible position?

Wal-Mart claims that my use of advertising for services that "might be of interest to Wal-Mart's partners and vendors" concurrent with use of their trademark and name on the blog is against "U.S. law" and my "domain name agreement."

The entire $95.83 I have collected from advertising has not even been enough to pay for the $11 monthly bandwidth charges. Though I'd rather not have to, I have decided to take down the advertising. I know that free speech isn't free, and I'm willing to pony up.