Cease and Desist Letter

Jackson_FrugalistaJackson_FrugalistaSeptember 9, 2009

VIA Email (JacksonFrugalGal@gmail.com)

Re: Trademark Infringement – FRUGALISTA

To Whom It May Concern:

This firm represents Ms. Natalie McNeal, founder of the online journal and blog originally published in the Miami Herald, THE FRUGALISTA FILES (“FRUGALISTA”), in connection with her intellectual property matters. Ms. McNeal is the owner of the following United States trademark application, Serial No. 3532912, for FRUGALISTA (See http://tess2.uspto.gov/bin/showfield?f=doc&state=4008:kalmm2.2.3) (the “Mark”) in connection with an online journal and blog in the field of financial advice and tips.

This letter serves as formal notice that your use of the Mark in the blog “Jackson Frugalista” (http://jacksonfrugalista.wordpress.com/), is confusingly similar and exactly the same to our client’s Mark and unfairly capitalizes on the goodwill and reputation embodied in our client’s use of the Mark. The Mark is a strong brand associated with our client’s professional reputation and livelihood in the field of online journalism and has garnered local, national and international recognition. Your continued unauthorized use of the Mark is likely to confuse and mislead the consuming public and suggests an affiliation with our client’s business and dealings with the public. Further, our client has not authorized, consented to, or granted permission to you to use the Mark in any manner.

This type of trade practice could constitute trademark infringement, unfair competition, false designation of origin, and may constitute dilution, all of which are violations of federal law and state law. The Lanham Act provides numerous remedies for the misuse of a trademark, trademark infringement, and trademark dilution, including but not limited to, preliminary and permanent injunctive relief, money damages, an infringer’s profits, an award of attorneys’ fees and costs, and up to three times the amount of actual damages.

It is our clients’ preference to resolve this matter amicably, if it is possible to do so. Further, please let us have your prompt written assurance that you and any affiliated companies or individuals will promptly discontinue and refrain from the use of the term “FRUGALISTA” in any form or derivation in any online blogs or journals. Please note that we will require documentation evidencing any changes or the cessation of use of any name or mark identical or similar to the Mark.

We look forward to receiving the information regarding your use of the Mark and your unambiguous favorable response, in writing, no later than 5:00 p.m. on Wednesday, September 23, 2009. Absent receipt of such, our clients reserve their right to take appropriate legal action to protect their trademark rights.

This letter does not purport to be a complete statement of the law or facts, and is without prejudice to our clients’ legal and equitable rights, which are expressly reserved. We look forward to your prompt response.

Sincerely,

Alexis Hart McDowell, Esq.

Cc: Natalie McNeal

  1. September 18, 2009 at 5:24 pm | #1

    What a total waste of time and resources. Leave Amy alone!

  2. Stewart Quarles
    September 18, 2009 at 6:26 pm | #2

    This is just silly. someone at the trademark office really dropped the ball.

    • Lincoln Paradox
      September 21, 2009 at 9:14 pm | #3

      Target uses the term frugalista liberally in its advertising. I say, fight her in court and drag Target along for the ride.

      LP

  3. September 19, 2009 at 5:38 pm | #4

    I’m no expert on trademarks, but if you go to the U.S. Patent and Trademark Office website search (http://www.uspto.gov/main/profiles/acadres.htm) and do the Free Form Search for the Serial Number in the letter, it looks like one of those applications is still open to opposition.

    The notice looks like it was filed around 30 days ago (top document – http://tinyurl.com/mnlwzr), so you had probably better at least ask them for an extension to oppose if you are interested in doing that.

    • Frugal Gal
      September 19, 2009 at 8:17 pm | #5

      There are 2 applications — one has been approved, one is pending.

      I can file opposition to the one pending, but the filing fee is $300. I can file an appeal to the one already approved, but the filing fee is also $300.

      I don’t make any money off this blog and as I’ve said elsewhere, FrugalGal is frugal for a reason. I just don’t have $600 to devote to this. Same reason I can’t afford an attorney.

      Which is why I wrote my response to the C&D letter the way I did. I can’t fight this formally, but they are going to KNOW WELL how mad I am about it.

      Maybe all the attention coming to this will have an impact, I don’t know. Thanks for paying attention, though — I really do think that the approval of such a restrictive trademark sets a very dangerous precedent for online expression.

  4. September 20, 2009 at 9:52 am | #6

    Hello FrugaGal – We are with you. Fight the good fight! This is doubtful it will go too far, but those attorneys will milk it for all they can. We know – we have been through similar. (BTW – we use the term a lot in our business blog, vivaglobal.wordpress.com)
    The VIVA Diva

  5. Leslie
    September 20, 2009 at 11:35 pm | #7

    GOOD LUCK! This is ridiculous! “Goodwill”? This Natalie McNeal and her blog HAS no goodwill from me! She flies in the face of what most frugal bloggers seem to be doing. I’d never heard of her or you before I came across the article about it on another blog. I definitely won’t be reading hers.

  6. Johnny
    September 21, 2009 at 8:54 pm | #8

    It’s like trying to trademark the word “chef” and saying only you can use the title Chef. The trademark should be revoked and she should be lucky to keep her job after wasting the paper’s retainer on junk like this. It would serve her right to have a judge throw out the case and award you fees. The coverage would probably ruin her career, such as it is.

  7. Dave
    September 23, 2009 at 1:29 pm | #9

    I would do nothing. It is what I learned in my legal battles, although it did not involve “Trademark” law. I spent time and money hiring a lawyer, and after over a year traveled to another state so I could sit in court for 5 mins and have a judge tell me “Ok, you are dismissed from the case”. While the others just never did anything. My lawyer said, it’s like getting blood from a rock.

    They can sue, they can win, but what will they get when there is nothing to have. They spend all the money and attorney fees to end up with a “judgment” and if they want, have to go back to court to argue contempt of court when the person doesn’t pay. More time and money, and still nothing.

    Keep using your term. Obviously she has money to spend, so let her spend it. What is she going to do?

  8. JD
    September 24, 2009 at 1:20 am | #10

    A LEGAL VIEWPOINT==THIS IS A LEGALLY REGISTERED TM

    Why are you all harrassing a person who popularized the term, filed a Trademark Application, took it through the legal process and received registration? Where were you and other so called “Frugalistas” during the trademark “notice period” . The trademark notice period is the time to raise objections. Raising complaint for a personal agenda on this a blog is completely without merit. McNeal is exercising her legal rights and protecting a term that has been distinctive to her since 2008. She is well established as the Frugalista. When she appears on TV, she is called The Frugalista. When you Google, Frugalista, her blog appears at the top of the search engine rankings. The others protesting here used the term after Ms. McNeal registered it. She has used the term Frugalista to describe her blog and has used it distinctively. This is why she was GRANTED a Trademark by the Patent & Trademark office! Everyone can a have blog, but they should not call their blog Frugalista as that term has become distinctive to McNeal. Do a simple online Trademark search before putting a product into the market. Target is using McNeal’s Trademark in an ad campaign, without license or permission. Target filed for use of Frugalista Fashionista (this is a matter of public record, look it up), which is the two words used together. So, how do they now infringe on McNeal’s mark by running an ad campaign which does not use the mark they have filed for registration of, but rather use McNeal’s mark, the one word, Frugalista.

    In this case, Frugalista applies distinctively to Ms. McNeal’s blog, The Frugalista Files. Moreover, she is the person who she writes about in her blog who is living a frugal lifestyle.

    What is wrong with big business today, Target, and copy cat bloggers taking the trademark of another and misappropriating it and then whining about it on a blog to pressure a small business owner like Natalie McNeal who is merely exercising her legal rights as they have been granted. She is a newspaper writer, not an heiress. This reads like a personal attack on someone who had an innovative idea and sought to legally protect it.

    Think of a new name distinctive to you and please contact a lawyer instead of posting privately addressed legal correspondence, it will be more effective. Why not do your own TM search on Frugal Gal, and if it’s not take, change your name.

  9. Dylboz
    September 24, 2009 at 2:43 pm | #11

    The above post proves beyond a shadow of a doubt how stupid, absurd and abusive of both reason and common sense so-called “intellectual property” laws are. Anyone who would subscribe to such a point of view has very little intellectual capacity due to their lack of inter-cranial property.

    The reason that no one should have to do a trademark search every time they want to use a word is because IT’S A WORD! You can’t “own” a word, our shared means of communication, language, is not subject to ownership. Names convey identity, and even they are not entirely unique. Words simply convey meaning and belong to us all as part of our common cultural heritage, because to claim ownership and control over their use infringes on our freedom of speech and our ability to communicate. This particular word has a definition and appears in the Oxford English dictionary, since long before this 3rd rate hack decided to use the threat of violence implicit in all of the state’s obscene catalogue of statutes to bully other honest business people into changing their domains or the name of their blogs, despite the fact that they existed prior to her little act of petty tyranny, aided and abetted by one of those loathsome parasitic creatures who feed on the state’s offal like maggots in a rotting corpse, a lawyer.

    This is perhaps the lowest thing I’ve ever seen emanate from the bowels of The Miami Herald. Dave Barry should be ashamed to work in the same building as this “lady.”

  1. September 19, 2009 at 9:38 am | #1
  2. September 21, 2009 at 4:45 pm | #2
  3. September 21, 2009 at 7:47 pm | #3
  4. September 23, 2009 at 9:58 pm | #4

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