[HN Gopher] Getting a Cease and Desist from Waffle House
___________________________________________________________________
Getting a Cease and Desist from Waffle House
Author : lafond
Score : 219 points
Date : 2025-05-28 15:48 UTC (7 hours ago)
(HTM) web link (www.jack.bio)
(TXT) w3m dump (www.jack.bio)
| dutilh wrote:
| waffle house was NOT fucking around holy shit
| danesparza wrote:
| What a missed opportunity on the part of Waffle House. How
| disappointing (and dumb)!
|
| I would have hoped that if they had the sense to send out a cease
| and desist (because somebody obviously knew that "the waffle
| house index" was in the cultural zeitgeist -- heck, it even has
| its own Wikipedia page:
| https://en.wikipedia.org/wiki/Waffle_House_Index ) ...
|
| that they would have the good sense to work with somebody on a
| web page WHICH COSTS THEM NOTHING, and yet can foster a sense of
| good will for their company??
|
| Well, I guess Waffle House doesn't deserve them.
|
| Good riddance. And I'll definitely be going to IHOP when making
| my next Hurricane escape.
| BryantD wrote:
| IHOP is good too!
|
| If I were Waffle House, I would be thinking "hm. This is a one
| person project; what are the odds that it will break/go down
| eventually, and people will assume it was ours and get angry at
| us? Could write a clause about rights returning to us, get the
| code in escrow... but then we might wind up maintaining some
| random project using a stack that isn't part of our core
| competencies..."
|
| And then I'd try to work something out anyhow, cause this is a
| cool project. But I sadly get the caution.
| bee_rider wrote:
| It is a cool project but probably imagine they wouldn't want
| the escrow idea either, right? I mean they are a restaurant
| chain, they don't want to go anywhere near anything that
| looks at all like providing emergency notification services,
| right? Even as a joke...
|
| And I mean, do they even want to lean into that reputation to
| hard? I'm sure they don't want to have some managers get
| somebody hurt by not closing a restaurant out of a misplaced
| sense of pride or bravado based on the reputation (I mean, I
| know almost nobody would do that, but _somebody_ might!)
| alexpetralia wrote:
| The issue is moreso that they exclusively control their brand,
| and by letting someone else - who doesn't work for them and
| need not listen to them - control part of that, they are
| indirectly loosening control of their brand and narrative. They
| probably do not want the additional headache of buying this
| product, onboarding it, managing it, etc. The easiest but
| unfortunate solution here, to limit risk and liability, is to
| shut it down.
| danesparza wrote:
| If this is the case, then they are truly beholden to their
| own lawyers (and not the other way around, which is just
| ridiculous).
|
| Why aren't they insisting that FEMA not use their brand when
| talking about "the waffle house index"?
| josefritzishere wrote:
| This is a great story. The world needs more of this.
| lafond wrote:
| Appreciate the kind words :)
| CaliforniaKarl wrote:
| As great as Waffle House is, this is a good reminder that they
| are a corporation, and so must not be trusted.
| resource_waste wrote:
| Maybe I am a bit jaded by life, but I think Trust is a bit
| foolish. However I have some notes from my International
| Relations Realist studies:
|
| >Trust is subordinate to anything that can flip Power dynamics.
| If things will not change the Status Quo of power, trust can be
| a held as it has benefits in reducing costs. If a power dynamic
| can be flipped, trust will be broken.
|
| >Trust being broken has implications. After Hitler invaded
| Czechoslovakia, Britain refused to negotiate with him. Not even
| minor issues could be resolved and only naked power decided
| things. Stalin had this issue after enforcing communist parties
| over Eastern Europe.
|
| >As an alternative to trust: Verification. Verification
| mechanisms exist. Weapons inspectors are an example of this. If
| the weapons inspectors are not allowed somewhere, you should
| not just Trust blindly. Obviously the cost is higher when you
| need to spend resources on verification.
|
| It feels weird to say, but I don't need much trust. I ensure
| interests are aligned and have verification for things that are
| important.
|
| Blind trust that wasnt earned is absurd. Trust when stakes are
| high is absurd. I genuinely feel bad for children and young
| people who are taught to blindly trust, as they will get
| burned.
|
| /unpopular reality.
| Molitor5901 wrote:
| Terrible response from Waffle House. After all this time they
| should know better.
| dylan604 wrote:
| After all of the examples of people protecting their brand, you
| should know better. Of course this is what they are going to
| do. Every. Single. Time.
|
| The least dickish example is probably the Jack Daniels
| incident, but even their first contact to the offender was a
| C&D.
| Molitor5901 wrote:
| After all the examples of brands handling things badly, _you_
| should know better. From Bud Light to Peloton, corporate-
| customer relations is not a new topic. There are different
| ways to handle this. Waffle House chose a path which now has
| however many people on Hckrnews making up their minds in both
| positive, and negative ways. That 's not what a company
| wants.
|
| The least dickish thing to do is to not be a dick.
| dylan604 wrote:
| No, the least dickish thing to do would be to _not_
| infringe upon what is clearly someone 's trademark. If you
| think you can use something someone else created as their
| identity without permission, then you're just a dick.
| mcmgoodall wrote:
| Based af. Wish Waffle House was cool enough to recognize that.
| mushufasa wrote:
| FYI it is literally required by law that, to maintain a
| trademark, the company with the trademark must actively enforce
| it on an ongoing basis. Even if this side-project was benign,
| Waffle House must send cease-and-desist letters to maintain their
| trademark generally under US law.
|
| That said, if the author had posted a tracker of Waffle House
| closures descriptively, without using their marks or branding,
| that would be fine, in the same way that google maps is fine to
| list which restaurants are open/closed. The key being that
| "google maps" is referencing the brand of google, their own
| trademark, and could not be confused for something authored by
| any of the restaurants featured on the map. Trademark is designed
| to avoid anyone being confused with who was the author, it's a
| "feels like" definition with a rubric, not a specific technical
| definition.
|
| My suggestion would be to rename a site "disaster indices" and
| include the waffle index as one index. Even batter (yes) if you
| add other similar indices, like theme park closures or other.
| cactacea wrote:
| Yeah, dude copy/pasted the logo with the R and everything. What
| did he expect to happen?
| mushufasa wrote:
| the blog post made it clear he is a teenager. I don't think
| he thought about any of this. Hopefully he reads this thread,
| learns a bit more about trademarks, and tries again in a
| proper way.
|
| If it's really true that there's no true Waffle House index,
| that would have some value for the world. Though I also
| suspect that there is something that exists for that (maybe
| part of a paid data subscription, e.g. from Bloomberg or
| something), since it isn't clear that the author did rigorous
| research for this fun side project.
| lafond wrote:
| Author here - I absolutely do have more to learn about
| trademarks and appreciate everyones comments :) I was
| attempting to go for a good faith representation but
| (obviously) now know that wasn't the best way to go about
| it.
|
| As far as rigorous research, I looked semi-heavily and
| couldn't find anything in relation to it. I'm sure it's not
| a foreign concept to use local area data in this way for
| disaster planning though!
| DoctorOW wrote:
| Couldn't they just draft up a license to give them permission
| to use it?
| dylan604 wrote:
| It's much cheaper/easier to send the C&D. Licensing would
| mean a department to handle the licensing. They'd have to
| accept request for new licenses. They'd have to maintain the
| service being licensed. They'd have check for compliance with
| licensing terms. So the legal team rightly said, fuck that,
| here's a C&D.
| quietbritishjim wrote:
| > My suggestion would be to rename a site "disaster indices"
| and include the waffle index as one index. Even batter (yes) if
| you add other similar indices, like theme park closures or
| other.
|
| Is it really necessary to go that far though? I think they just
| need to stop using the visual mark and make clear that it's
| unofficial. (But I am very much not a lawyer.) You are allowed
| to identify a product or company by name so long as it's clear
| it's not you and trademark law can't be used to stop you (e.g.,
| for a bad review). Maybe the site could be renamed "disaster
| index based on Waffle House closures" or simply "unofficial
| feed of Waffle House closures"
| mushufasa wrote:
| Yes you can name a brand name without using their logo.
|
| That's not what the author did here -- he invented a fake
| logo and chose a domain name and title that include
| "WaffleHouse." Trademark law is specifically designed to
| prevent people from creating a fake logo and registering a
| domain that makes people think it is your own brand. Yes,
| there is some exception for parodies and criticism, but
| writing a review / parody sketch is a completely different
| format than a website that lists information that purports to
| be official open/closures of your business.
|
| You can't create a product that contains the brand name of
| another product; I can't invent "Magic Kleenex" or "Better
| Google," so he similarly can't name something a "Waffle House
| Index." What he could do is name something "disaster index"
| or "breakfast restaurant index" where the data happens to be
| from the waffle house locations.
| potato3732842 wrote:
| I think the degree to which the waffle house index is
| popularized among demographics who make a lot of noise and
| don't do a lot of spending money at waffle house (an analysis
| that a BigCo marketing team is more than capable of
| performing) had something to do with their decision to levy a
| blank "stop this" rather than something more collaborative.
| ceejayoz wrote:
| > FYI it is literally required by law that, to maintain a
| trademark, the company with the trademark must actively enforce
| it on an ongoing basis. Even if this side-project was benign,
| Waffle House must send cease-and-desist letters to maintain
| their trademark generally under US law.
|
| That's not the only option available. They can, if they find
| the use of the trademark to be benign (or even beneficial),
| offer a license to use it for this purpose.
|
| For example, the Linux trademark has an approval and
| attribution process: https://www.linuxfoundation.org/legal/the-
| linux-mark
|
| Folks should consider hiring Jack Daniels' law firm.
| https://www.abajournal.com/news/article/jack_daniels_cease-a...
|
| > In order to resolve this matter, because you are both a
| Louisville 'neighbor' and a fan of the brand, we simply request
| that you change the cover design when the book is re-printed.
| If you would be willing to change the design sooner than that
| (including on the digital version), we would be willing to
| contribute a reasonable amount towards the costs of doing so.
| lowercased wrote:
| At first blush, it would seem the use of the name/logo really
| violates something, making it look 'official'. Something
| referencing their name, without the logo, and a bit 'not
| officially affiliated with' notice might have earned a bit more
| cooperation from them, vs legal aggression so soon.
| shayway wrote:
| It's a shame this sort of thing leads to legal threats instead of
| job offers. Still, I wonder why the author didn't keep it up and
| just remove the branding - call it the "Waffle Home Index" or
| something.
| dole wrote:
| this was massive at the time and imho what the internet was
| made for. strike while the iron's hot, lawyer up as much as
| possible fr
| DrillShopper wrote:
| With what bankroll?
| koolala wrote:
| Replace logo with a picture of a waffle and name it the Waffle
| Index?
| kevin_thibedeau wrote:
| Waffle domocile --> Waffledom Index
| rolph wrote:
| "that big yellow sign"
| the_sleaze_ wrote:
| AwfulHouseIndex.org
| fkyoureadthedoc wrote:
| Why take the whole site down instead of just removing their logo?
| xyst wrote:
| The mere threat of legal action for most Americans means $$$.
|
| As a college student, probably broke as well. This person
| probably does not have the legal understanding or access to
| lawyers to guide him through it.
|
| Much easier to take it down rather than deal with potential
| legal ramifications.
|
| A half decent lawyer or even the "free" lawyer services at most
| universities probably would have advised just removing the
| "trademark" elements as you would.
| JohnMakin wrote:
| You ignore the cease and desist, they take you to court
| (still unlikely because they also incur cost they dont want).
| You don't need a lawyer to go to a courtroom, they will order
| you to take it down and then you do. They're very unlikely to
| sue for damages because the cost of their lawyers far exceed
| whatever 'damages' are in place here, which I would assume
| are close to zero.
|
| Please don't fold immediately to this tired legal tactic.
| 0cf8612b2e1e wrote:
| And if they do sue for damages?
|
| Feeling invincible is nice, but even low probability events
| can lead to financial ruin if someone chooses to make an
| example of you.
| pixl97 wrote:
| >You don't need a lawyer to go to a courtroom
|
| You need money and free time to go to a courtroom.
|
| >They're very unlikely to sue for damages because the cost
| of their lawyers far exceed whatever 'damages' are in place
| here,
|
| This is a not a smart thing to do without legal console.
| There are plenty of very large, very wealthy companies that
| love to play SLAPP.
|
| Your suggestion of FAFO isn't a great idea.
| DrillShopper wrote:
| > You don't need a lawyer to go to a courtroom
|
| You don't _need_ one, but it is incredibly ill-advised and
| reckless to go into a case like this without a lawyer.
|
| > They're very unlikely to sue for damages
|
| Lawyer's fees are very often moved for in IP infringement
| cases, so even if they don't sue for damages, you're going
| to end up paying their lawyers.
|
| > Please don't fold immediately to this tired legal tactic.
|
| If you feel so confident about this, why not put up a
| replacement site and try this strategy when you get the
| inevitable C&D? Keep us informed. I'm interested to see how
| that plays out.
| dragonwriter wrote:
| > You don't need a lawyer to go to a courtroom
|
| That...depends on how much you care about the outcome.
|
| > They're very unlikely to sue for damages because the cost
| of their lawyers far exceed whatever 'damages' are in place
| here, which I would assume are close to zero.
|
| If they "take you to court" to force a takedown, they are
| already suing you (for an equitable remedy.) The marginal
| cost of adding a claim for damages _and_ , on top of that,
| lawyers fees and costs (which, as you note, may well exceed
| the actual damages), is very close to $0 once they are
| already doing that. So, you may choose not to pay for a
| lawyer for yourself, but that won't stop you from paying
| for lawyers for the firm suing you.
| jcranmer wrote:
| > that won't stop you from paying for lawyers for the
| firm suing you.
|
| Note that in the US, the usual rule does not allow for
| shifting attorney's fees to the loser.
| dragonwriter wrote:
| > Note that in the US, the usual rule does not allow for
| shifting attorney's fees to the loser.
|
| While in the US, the _default_ rules in _many_ kinds of
| cases don 't _start with_ loser pays, as in some other
| systems, there are conditions applicable to most causes
| of actions which will allow attorney 's fees, and the
| default rules for _some_ claims _do_ assign costs and
| fees to a party found liable without requiring any
| additional factors--notably, in the context of a
| trademark demand letter from the holder of a registered
| trademark, this includes violation of _any_ of the rights
| of a holder of a registered trademark, see 15 U.S.C. SS
| 1117(a).
| xyst wrote:
| It works because the populace is tired, broke, and minimal
| time and effort to deal with it.
|
| I don't know many people that would purposefully drag
| themselves through the court system out of principle. Maybe
| those with enough free time on their hands and money to
| delegate/consult with lawyers.
|
| You are probably right though. If a majority of people
| rejected the cease and desist orders and actually called
| their bluff about vague legal action. Then these legal
| tactics would become useless, and the recovery in whatever
| damages to their "trademark" would be far less than the
| cost to hire even junior legal teams at big firms.
|
| Maybe you should test your principles. Recreate this
| persons website idea, wait for Waffle House corporate
| lackey to send C&D, then you show us how it's done. Instead
| of doing your armchair "should have, would have, could
| have" analysis.
| Spooky23 wrote:
| This is why companies come on strong like this.
|
| The dude made in good humor, a website and pushed it on
| social media at a time that attracted a bunch of attention.
| It included graphics close enough to the trademark to be
| confusing to visitors, and did something that the company
| didn't want done for reasonable reasons.
|
| They incurred cost. People handled phone calls, their
| counsel billed for the response, the web agency had to
| modify the website. Waffle House sells greasy diner food,
| every aspect of dealing with this is zero value to them.
|
| Rather than beat around the bush, they said "stop". He did,
| and wrote a funny blog about it. But for every 10
| situations like this one, there's probably 1-2 where the
| counterparty is a prick and wastes everyone's time.
| otterley wrote:
| IAAL (but not a practicing one, so I don't have skin in
| this game, and this is not legal advice). I also once lost
| $25k+ in a copyright litigation relating to music piracy
| before I became a lawyer. It was decidedly not fun.
|
| You ignore a C&D at your peril. The rules are complicated
| and the fines and penalties for not following the rules are
| expensive. U.S. IP law is fiercely protective of patent
| rights, trademark rights, and copyright. It's not something
| you mess around with, and anyone who tries to defend
| himself without a lawyer is a _god damned fool_. The author
| of the blog post did the right thing by engaging and trying
| to work something out without coming across like "go pound
| sand, I do what I want."
|
| Please don't walk around giving bad advice like this. I
| pray for the poor sap who listens to it.
| Xorakios wrote:
| Thank you and I have been the poor sap in the past, and
| never, ever again
| nice_scott wrote:
| if the issue was just using the trademark and likeness, why not
| just remove those issues of contention, and keep the site up and
| running under a different domain? it wasn't mentioned that they
| had an issue with the data scraping.
| lafond wrote:
| Author here!
|
| After receiving the C&D, the method with which I was getting
| the data was removed/patched (which I'm now noticing was not
| mentioned in the blog post...) I did ask them if there was any
| thing I could to keep it up and never received a response, and
| rather than playing a cat & mouse game of "now you don't have
| our branding, but you are scraping are data so here's another
| C&D" I just took it down :)
| xyst wrote:
| Probably because of you, the legal dogs hired by Waffle House
| probably updated their ToS to include "unauthorized scraping"
| dylan604 wrote:
| If the WH legal dogs needed this as an the impetus for that
| change in 2020s, then they aren't very good legal dogs. ToS
| updates are pretty common, and if some one didn't like
| scraping, you'd think that unauthorized text would be added
| some time ago. It's not like scraping is a new thing. If
| they are savvy legal teams, this should pretty much be
| boiler plate language. Only neophyte legal teams would not
| expect scraping as something to expend ink.
| edm0nd wrote:
| its still okay to break websites ToS and AUP though.
| jeron wrote:
| this is a bummer - scraping is one thing but this was free
| marketing for them. If only they put their marketing
| department in front of their legal department (assuming they
| have a marketing department)
| itishappy wrote:
| No guarantee that such marketing will be good, however.
| jjmarr wrote:
| "Waffle House is so reliably open that FEMA uses it to
| measure hurricane devastation" is a great piece of
| marketing.
|
| If you're tired, hung over, or really hungry, you can
| always stumble into a Waffle House at any time and get
| something to eat. If you can't, there are bigger problems
| in your life (hurricane, zombies, tornadoes).
| itishappy wrote:
| In situations like this I always think to myself "what
| would Reddit say?" Then I get a bit depressed.
| HWR_14 wrote:
| Don't blame the legal department. They are legally required
| to send a C&D in situations like that or they can lose
| their trademarks.
| mindcrime wrote:
| That's an oversimplification. WH could also reach out and
| offer to work out a deal with the site owner to license
| use of their trademark. That would probably entail some
| compensation (which could be anything from "good will" or
| a token cash amount, up to millions of dollars) and
| probably some verbiage on the page reading something
| along the lines of "Logos and identifiers on this page
| are the property of Waffle House, Inc and are used under
| license" or whatever.
| throwawaymaths wrote:
| sure but thats also work that someone doesn't have to do.
| and the "house" was evidentally dealing with a disaster
| at the time.
| orra wrote:
| After the initial legal letter they could have licensed /
| agreed to the usage, or taken over the running of the
| website. There are several ways to protect their
| trademark without being killjoys.
| quantified wrote:
| What about the Big Mac index that the Economist uses to
| measure purchase price parity across countries?
| sdenton4 wrote:
| I believe scraping is generally ok - there's actual trademark
| law about trademarks, which is why you got a c+d about
| trademark usage, instead of a general 'stop what you're doing
| we don't like it' c+d.
|
| A good point of comparison is steam db (and other similar
| sites), which uses Steam public info to triangulate market
| info that isn't immediately apparent.
|
| https://steamdb.info/
| jjmarr wrote:
| The first sentence on SteamDB is:
|
| > This third-party website gives you better insight into
| the Steam platform and everything in its database.
|
| It clearly states that it's not affiliated with Steam and
| is a separate organization. There's also a further
| disclaimer in the footer of the page.
|
| In contrast, the "Waffle House Index" had the Waffle House
| logo at the top of the page, with zero explanation or
| elaboration on who created the website.
| mcphage wrote:
| On one hand, yes, the author was using Waffle House's own data to
| populate the site. But on the other, Waffle House has no way of
| guaranteeing that _remains_ the case, and they don 't want their
| private APIs to be depended upon by a 3rd party site seen by
| thousands of people. So I guess I'm not surprised by their
| reaction. Still: it would be fun if it actually _was_ a thing.
| rtkwe wrote:
| It's a trademark thing, brands are really protective of them
| because the rules around dilution are a bit murky so they err
| on the side of trying to stamp out any unauthorized use just to
| make it clear it's in use and protected so there's little
| chance of losing it because a court takes a different view of a
| time they let it slide.
| WorldMaker wrote:
| Waffle House also has an interesting history with trademark
| protection and dilution. The company started and expanded
| when trademark protection involved more per-US State
| registries than it does today. In Indiana for a couple
| decades the Waffle Houses there were known as Waffle & Steak,
| because a home-grown Indiana company was already known as
| Waffle House there. Sure, Waffle House does serve Steak
| (though many don't realize and wouldn't think of Waffle House
| as the first place to go for a Steak), but it wasn't about
| marketing their non-Breakfast menu items (they have burgers,
| too!), they wanted to protect their trademarks on the signs
| and other parts of their branding, even in states like
| Indiana. Steak has 5 letters like House, that was the
| important part. The signs looked clearly enough alike from
| the interstate even if the words were different.
| mcphage wrote:
| Right, and I don't really have anything interesting to say in
| that direction. I was more discussing that Waffle House
| claimed "This information is incorrect. We currently do not
| have a live website tracking restaurant closures", and the
| author's response "But I was quite literally USING their data
| for this, so it wasn't really incorrect at all."
| iambateman wrote:
| There's a world where Waffle House acquires this from him for
| like $50k and it's an endearing story of corporate humanity.
|
| But if I'm running the WH brand, I simply don't want to be the
| semi-official corporate sponsor of every major natural disaster.
| jdonaldson wrote:
| They probably already make a ton of money selling this
| information to hedge funds.
| WorldMaker wrote:
| It's a post facto index. It lags disaster by a few days and
| is far more interesting as a _recovery_ statistic than a
| forecast. That 's why it was important to certain types of
| FEMA operations, going in days or weeks later and trying to
| assess the hardest hit areas and triage them into a priority
| list. If Waffle House is serving a limited breakfast menu
| 24-hours a day in a neighborhood you can focus on sending the
| Red Cross-sponsored food tents to a different neighborhood.
|
| Waffle House has been trying to distance themselves from it
| as a "Disaster Index" ever since the FEMA Director admitted
| to using it as an unofficial index. It's part of why FEMA
| increasingly refers to it as "unofficial" and has started to
| distance itself from discussions about it, too. I agree with
| the OP that part of it is definitely Waffle House wants to
| distance themselves from being "the brand of disasters". When
| it has been talked about _as_ a "Recovery Index" (and
| without mentioning FEMA, because FEMA _is_ the "brand of
| disasters") and the light has been shined to focus on _why_
| they 've been among the fastest businesses in the country to
| _recover_ from the worst problems, they 've been happy to
| discuss and market that. It really is cool to see their
| flowcharts and checklists and graded levels of menus designed
| for all the scenarios they thought to design disaster
| recovery for (does the building have electric? does it have
| gas? when was the last supply truck in? when is the next
| supply truck expected? what are the road conditions?; it
| truly is fascinating).
| loopdoend wrote:
| I think you hit the nail on the head, waffle house index has
| too many negative connotations.
| jrochkind1 wrote:
| Probably true, even though the point of it is a testament to
| how robust and reliable WH's are, they don't close if they have
| any way at all to stay open, is the original point of it. It's
| quite positive toward WH.
| drjasonharrison wrote:
| Does the company take care of it's employees? Are employees
| expected to travel to/from the workplace during horrible
| weather? If the conditions worsen is the company responsible
| for the employee's safety? What about customers?
| dmoy wrote:
| They send specific jump teams in there. More details:
|
| https://www.govtech.com/em/disaster/hurricane-preparation-
| an...
|
| Waffle House is like weirdly serious about disaster
| preparedness, for a restaurant chain.
| JohnMakin wrote:
| Cease and desists are the equivalent of asking firmly but nicely
| in the legal world. They don't hold any legal bearing or obligate
| you to any sort of response. They are usually hoping you get
| intimidated into doing what they ask. You can always call their
| bluff and say 'no,' although I see in comments the OP neglected
| to mention they also patched/fixed the technique used to get this
| data so it probably was more of this, I hope.
| PhotonHunter wrote:
| Is it completely correct to say they have no legal bearing? As
| I understand things, they can be used to establish a date when
| someone was made aware of infringement, and that date can be
| used to start the clock on enhanced damages.
| dowager_dan99 wrote:
| How would they confirm that you received an email or even
| letter mail? They're not serving you. This is about
| potentially proving that the owner is trying to protect their
| IP, which is required for it to be considered enforceable.
| ShakataGaNai wrote:
| True. But he was using a variation of the Waffle House logo
| that their lawyers would argue would "confuse the average
| consumer", and he was using the "Waffle House" name in a
| domain. In something that was actually directly related to the
| real Waffle House. Unfortunately, their lawyers would have an
| easy time with that lawsuit.
|
| If op had named it something different, and didn't use such a
| closely inspired logo, he probably could have kept it up. Or at
| least had a much stronger case of fair use. But this is always
| the problem with "fan appreciation" and our trademark system.
| In order for Waffle House to keep their trademark, they must
| enforce it. They cannot let a fan use/abuse it, or else it can
| get to the point where a judge can say it is been made generic
| (ex: escalator).
|
| When I was young, I learned this lesson via a very scary letter
| from Warner Brothers. The lawyers aren't always trying to be
| dicks (though some clearly are), but they are paid to protect
| the brand. And someone registering a site with your brand name,
| putting up a logo very similar to your real logo.... is always
| 100% of the time going to get that C&D letter. And eventually a
| lawsuit if you fail to comply.
| dmurray wrote:
| > But he was using a variation of the Waffle House logo that
| their lawyers would argue would "confuse the average
| consumer", and he was using the "Waffle House" name in a
| domain. In something that was actually directly related to
| the real Waffle House. Unfortunately, their lawyers would
| have an easy time with that lawsuit
|
| For this to be trademark infringement, wouldn't he need to be
| selling products or services that compete with Waffle House?
| I don't think this is an obvious easy win for the WH lawyers
| at all, apart from the fact that they would have much greater
| legal resources.
| kevincox wrote:
| No, there just has to be a risk that consumers think that
| this is somehow associated with Waffle House. The point of
| a trademark isn't directly commercial. It isn't about
| preventing other people from making money from your brand.
| It is about protecting the integrity of your trademark so
| that when users see your name and logo they know it comes
| from you.
|
| Basically trademarks are like a signature, they "prove" who
| you are doing business with.
| athenot wrote:
| > there just has to be a risk that consumers think that
| this is somehow associated with Waffle House
|
| More than _risk_ ; some of the tweets could be actual
| evidence of that confusion.
|
| I think if the general branding vibe of the site was more
| about hurricanes and only made a reference to the "Waffle
| House index" via NOAA, it might have had better chances
| of surviving. And also a big disclaimer that there is no
| affiliation with WH would have also helped.
| no_wizard wrote:
| I am not a lawyer. This is not legal advice.
|
| However, you should always speak to a lawyer if you get any
| kind of legal notice, but especially of this type. Never
| assume, thats how things can go sideways, even if you may
| initially have had standing to dispute the notice.
|
| Always talk to a lawyer before taking any action in situations
| like this.
| drob518 wrote:
| Yes, but... lawyers cost money and you need to decide if the
| gain is worth the cost.
| dragonwriter wrote:
| Disregarding a demand letter can cost far more money than a
| consultation with an attorney, and you need to decide if
| the gain _from that choice_ is worth the cost, hence the
| need for a consultation.
|
| (Though its less likely, _complying_ with such a letter can
| also have hidden costs, so a consultation may be a good
| idea even if that is your inclination, but you are usually
| far more likely to experience adverse consequences beyond
| those you voluntarily and knowingly undertake from
| disregarding than from complying wiht such a letter.)
| shmeeed wrote:
| Out of curiosity, what could be the hidden cost of
| complying?
| Molitor5901 wrote:
| I would have handled it better, not with lawyers but with PR
| people.
| cjbgkagh wrote:
| Not a lawyer but I think this could result in a duty of care
| under tort law if people start to reasonably rely on this
| information to make decisions. If it can be perceived as semi
| official information then it's reasonable to expect people to
| rely on it.
| jacknews wrote:
| + for such a funny title
| unethical_ban wrote:
| I can understand, particularly with the branding, that they would
| want you to stop making people think that is an official site.
|
| Imagine the scraper breaks for 24 hours and in that time, several
| WHs shut down due to a natural disaster. Someone looks at this
| site, decides to travel in their car, and gets electrocuted by a
| downed power line. They sue WH because they were relying on that
| information, and by goodness it looked official.
|
| WH was aware of the site, and if they don't tell you to stop,
| then are they complicit in the person being fooled into trusting
| it and thinking it's a first-party site?
|
| ---
|
| I think the site itself should have been allowed to stay up, had
| the style been changed to clearly be unofficial and had
| sufficient disclaimers. It sounds to me like their legal
| department is scared shitless of the implications of people
| actually relying on the Waffle House Index to make life and death
| decisions.
| spogbiper wrote:
| yes i think their public replies that "this information is
| incorrect" was an attempt to avoid liability for exactly the
| reason you mention. it likely had nothing to do with whether
| the information was accurate
| AStonesThrow wrote:
| Or more realistically, stale website lists N stores as "Closed"
| while they are open; customers (C) decide not to patronize
| "Closed" stores; stores have now lost N * C * $X business based
| on misinformation distributed by a domain squatter.
|
| Or, employees begin to rely on domain squatter's map, argue
| with supervisor over whether they need to come into work, and N
| employees lost their jobs because of a third-party
| misinformation site.
| mk_stjames wrote:
| I'm surprised at some of the comments here that don't see Waffle
| House's side of this.
|
| You're a company, and some third party makes a website that very
| much looks like it could be official, using your name and logo in
| part, and this website is purporting to know the open/close
| status of your stores. Literally an indicator if people should
| bother going out to spend money at your business or not. An
| actual signal to economic performance of your entire corperation.
|
| Now, this person is using your own data from your own websites to
| update this map. But, you do not control that person. They are
| not an employee. What if their scraping scheme breaks? What if
| their implementation has some bug and shows stores closed that
| are not closed. What if they get pissy and decide to just
| randomly start showing locations as closed just to F with you.
|
| If the site got very popular and you had no control over it, you
| could could be losing customers and have no way to fix it.
|
| It's a seriously irresponsible move to allow people this kind of
| leeway with your brand and trademarks. Even if it seems they mean
| well at first.
| Molitor5901 wrote:
| I think we all see Waffle House's side of this, but there is a
| best, better, and worst way to engage a customer. A cease and
| desist is the worst, it's taking something which could have
| been handled by PR, to a legal threat. Regardless of Waffle
| House's legal rights, which they do have, from a public
| perception and way to run a company it was not the right
| approach. They should have embraced this guy and his website,
| engage him, and through that channel let him know "hey, you
| can't use our trademarks, etc. so you'll need to rebrand, but
| we love what you're doing and want to help."
|
| Vastly different approach with a much better upswing.
| throwaway173738 wrote:
| That "want to help" phrase implies a level of support that
| they might not have resources to give.
| itishappy wrote:
| They might not want to help. They could host this data
| themselves, they obviously already have the data, but instead
| they removed the way it could be scraped. The connotations
| here may not be perceived as purely positive. For example, it
| could be perceived as putting extra stress on Waffle House
| employees.
| hinkley wrote:
| I think it's like 'needs work' in a pull request. What one
| person sees as just honest feedback another sees as starting
| a fight that didn't need to be one. And a lot of tech people
| have learned to hit back when they think they're being
| bullied. Because bullies don't stop until they're bleeding in
| front of witnesses. Let's get this over now instead of
| dragging it out.
|
| You've escalated where threat of escalation should have
| sufficed. Hey we need you to change your site to make it
| obvious this is a fan site and not ours. Otherwise we'll have
| to send a properly lawyery letter in a few weeks if we don't
| hear back from you about a plan.
|
| One of these throws a person's life into utter chaos. The
| other gives them time to be a grownup about it.
| dmoy wrote:
| From a lawyer perspective though, a cease & desist is a
| threat of escalation.
|
| A lawsuit is the escalation. A cease and desist is a
| strongly worded letter that isn't really legally binding or
| anything.
|
| The issue here is just impedance mismatch on the language.
| The legal department is used to doing things in legal
| terms, and probably sends out like a _lot_ of cease and
| desists. And most of the targets of those also have lawyers
| who are speaking the same language, so it works. Just when
| it 's a random individual getting the letter, there's a lot
| more confusion.
| cloudpushers wrote:
| We run a search and chat company and felt particularly
| compelled to send a demo to a customer using a competitor's
| API. The search was so poor and slow, we saw it as an easy
| lay up.
|
| Our mistake was posting it all over X and LinkedIn. We got
| hit with a cease and desist so fast.
|
| Marked as _wrong timing_ in the CRM and moved on!
| dfxm12 wrote:
| How can you assert what is _the_ right approach in this
| situation? What if they _don 't_ love what he's doing?
|
| If this is about PR, as one data point, I don't think any
| differently of anyone involved. I wouldn't if Waffle House
| engaged him either.
| seligerasmus wrote:
| The C&D isn't for the customers, it's for Waffle House.
| Apprising a party of their infringement and putting them on
| notice is a crucial procedural step for potential litigation.
|
| >They should have embraced this guy and his website, engage
| him, and through that channel let him know "hey, you can't
| use our trademarks, etc. so you'll need to rebrand, but we
| love what you're doing and want to help."
|
| I don't mean this cynically or rhetorically, but: why? I get
| that this is a fun and humorous side project for the creator,
| but I don't see any real upside for Waffle House in
| supporting it. If Waffle House wanted to lean into the proxy-
| for-FEMA marketing angle, it'd be much better off doing it
| in-house, where it'd have complete creative control. More
| likely, Waffle House marketing strategists crunched the
| numbers and are understandably hesitant to expand branding
| based on national disasters and the woeful state of
| government response infrastructure.
|
| We do this every year when Nintendo sends an icy C&D to some
| quirky project built on its IP. Techies rend their garments
| about the deplorable state of IP law, and forecast imminent
| fallout from all the "bad PR" and "missed opportunities," as
| if there's a vast, highly sensitive market segment of
| temporarily aggrieved nerds that has somehow gone unaccounted
| for in its sprawling global marketing strategy. "I'll never
| buy a Nintendo product again!" says the 42-year-old Senior
| Software Engineer with 312 unplayed games in his Steam
| library, and the money-printing machine continues to hum
| unabated.
| caycep wrote:
| I wonder if they have the bandwidth/expertise at the company to
| hire him, or at least ink a marketing contract w/ their PR
| department
| mk_stjames wrote:
| They literally have a locations information site, which has a
| map, and shows if the locations are open or closed. So, they
| already have a web team capable of doing this because they
| already have it.
|
| https://locations.wafflehouse.com/
|
| What this person did was summarize this to a single map with
| red dots and a "% closed" indicator at the top. And tying it
| to the connotation that it is due to storms/natural disasters
| with the "index" moniker. Not something Waffle House really
| needed.
| jasonjayr wrote:
| .. maybe not _need_ , but it could have been an easy win
| for for a viral marketing campaign, as well as feeding that
| "lore" of the Waffle House index.
| superultra wrote:
| To add to that - if a company is not actively protecting the
| trademark, even in well intentioned cases, then someone can use
| the trademark and point to a precedent of the brand not
| defending its trademark, especially if it's probable that the
| company was aware of the usage.
|
| Waffle House (or any other brand) must and 100% always will
| send out a C&D for trademark misusage, otherwise they lose
| legal protection for that trademark.
| mschuster91 wrote:
| > Waffle House (or any other brand) must and 100% always will
| send out a C&D for trademark misusage, otherwise they lose
| legal protection for that trademark.
|
| Time to change that braindead law then. Copyright has a "fair
| use" provision, and trademark law could be adapted similarly.
| hinkley wrote:
| You can use a trademark any time you want. How would brand
| recognition work if people couldn't talk about Mustangs and
| Corvettes?
|
| What you can't do is claim it's yours. Or let people think
| it's yours.
| dragonwriter wrote:
| > You can use a trademark any time you want.
|
| No, you can't. If you could use it whenever yoh want, we
| wouldnt have the concept of "nominative fair use" as the
| exceptional case of when and how you are allowed to use
| someone else's mark in commerce without permission.
| kopecs wrote:
| https://en.wikipedia.org/wiki/Fair_use_(U.S._trademark_law)
|
| https://en.wikipedia.org/wiki/Nominative_use
| gorkish wrote:
| To me this whole situation seems to be a pretty good
| example of what not to do if faced with a copyright claim.
| It's tempting to see outfits like The Onion or Cards
| Against Humanity doing this kind of thing and feel like you
| are bulletproof and can do it too. But it's pretty easy to
| tell when these 'open letter' responses have not received
| legal review.
|
| Waffle House had a legitimate claim and acted on their
| obligation to their trademark.
|
| There is a pretty good argument that Waffle House continues
| to have a claim.
|
| They probably wont do anything because its, frankly, a
| waste of time.
|
| This could probably have been avoided entirely if
| copyrights were correctly respected from the beginning.
| cycomanic wrote:
| What exactly is the trademark violation that they are
| "obliged" to defend? Somebody putting location and
| opening times of their restaurants on a map?
| rostigerpudel wrote:
| > Waffle House (or any other brand) must and 100% always will
| send out a C&D for trademark misusage, otherwise they lose
| legal protection for that trademark.
|
| Actually, I'm pretty sure their request has no trademark law
| legs to stand on. Trademark infringement first and foremost
| requires two things: a) commercial use and b) for the goods
| and services the trademark is registered for.
|
| Now I just checked and Waffle House has registered its
| trademark for "waffles", for "mugs", for "keychains" and
| other trinkets and for "restaurant services", but has zero
| registrations for "providing information online" or similar.
| So they really had nothing to defend with regard to a website
| that sells nothing.
|
| Basically, had he just changed the website to use the name in
| text, they would have had a hard time to even forbid the
| nominative use of the trademark to refer to the actual waffle
| house (referring to the actual owner of a trademark in a
| nominative/descriptive manner is generally allowed).
|
| There may be other areas of law that are more pertinent, but
| this is no case of good faith trademark defense. There was no
| "must" here. Looks like BSing someone who does not know
| better so he backs off. Also looks like using the archaic und
| expensive US legal system as a tool for coercion. Even if
| you're right, you need to be able to afford being right...
| bbarnett wrote:
| You don't trademark for your advertising, commercials,
| menus, signs, or your website. You trademark for contents.
| cycomanic wrote:
| What do you believe is actually covered by trademark law?
| Maybe, the name of the website, but clearly the location
| and open status can't be, that would mean Google and many
| other map providers are violating trademarks on a massive
| scale. Or another example those websites with maps of
| petrol stations and their prices?
| rostigerpudel wrote:
| Sorry, I do not understand what you mean to say. Could
| you elaborate?
| superultra wrote:
| I think you're missing some nuance in your understanding of
| trademarks with all due respect.
|
| The core use of trademark protection isn't a commercial
| use, necessarily. Rather, it's the act of _infringing_ on
| the trademark holder 's commercial use. So, if Waffle House
| is selling Waffle House t-shirts, and a business next door
| is giving away free Waffle House t-shirts that they printed
| - then yes, Waffle House would very likely win a lawsuit
| against someone giving away waffle house t-shirts.
|
| Basically if someone is giving away or, especially, selling
| something that causes a confusion against the original
| trademark, then yes, the trademark "must" be protected.
|
| By "must" I don't mean it's legally required. I just mean
| you're going to have a harder time in court if you need to
| pursue legal action against a company or person if there's
| a precedent you have not actively protected the trademark
| in other instances.
|
| edit: and in this case, the site was causing confusion, so
| they sent a C&D. Also as the other commentor mentioned, the
| logo is trademarked.
| rostigerpudel wrote:
| To make it clear: The trademark is the combination of the
| sign (e.g. the word or logo) and the goods and services
| it is registered for. If you use the same sign for
| different goods and services then there is no
| infringement and no watering down/dilution, thus nothing
| to defend against.
|
| There is a difference when treating well-known trademarks
| (say Coca-Cola, Sony, Google), however I doubt Waffle
| House gets over the threshold set for that for being too
| local (I counted at least 20 states that do not have one)
| and not sufficiently known by all demographics (if you
| want to know more read up on the Lanham Act).
|
| Full disclosure: I am a TM lawyer, but not in the US.
| YMMV and what I write here is no legal advice ;-) since
| only gathered from US colleagues' explanations regarding
| cases clients had in the US.
|
| The notorious/well-know concept is part of an
| international treaty (Art. 6bis of the Paris Convention)
| and its interpretation is similar in most western
| countries, so I'd expect the US interpretation to not be
| that far off.
| superultra wrote:
| Thanks for explaining and lending your expertise.
|
| Though, I am, again not a lawyer, but I am 99% sure you
| can't go use the Waffle House logo to sell _anything_ ,
| let alone waffles. I only say that because no one is
| using, say, the Coca-Cola brand to sell shoes, and if
| they did, we all know Coca-Cola would prevent that. That
| goes for any trademark in the US. So perhaps trademark
| law is different here?
|
| Also, Waffle House are ubiquitous as a brand in the
| United States - certainly not as well known as Coca-Cola
| or Sony, but I have no doubt they'd be able to prove
| national awareness in any demographic.
|
| In this particular case if you look at the C&D, it is for
| the trademark usage. It's likely that this person could
| have simply removed the trademark from the page and it
| would have been fine.
|
| edit: I think the key in other industries would be proof
| of brand dilution - that is, if you start using the Nike
| logo to sell waffles, Nike would send a C&D if not a team
| of lawyers because you are diluting the trademark. So I
| guess you're technically right, although functionally,
| brand dilution is easily provable.
| rostigerpudel wrote:
| No prob. Just some random bits I found looking around for
| clues whether there already were any decisions from US
| courts wrt whether Waffle House is a well-known
| trademark:
|
| Interestingly enough, Waffle House is mentioned in a 2007
| article related to a US trademark law reform as an edge
| case [1].
|
| This does not seem to be the first time that Waffle House
| appears to be overreaching: [2]. The balls to pull this
| off with a straight face, kudos to the colleagues.
|
| An article from INTA relating to dilution [3].
|
| [1] https://scholarship.shu.edu/cgi/viewcontent.cgi?artic
| le=1864... page 458, last paragraph and footnote [2]
| https://www.techdirt.com/2011/08/17/waffle-house-says-
| rap-so... [3] https://www.inta.org/fact-sheets/trademark-
| dilution-intended...
| skeaker wrote:
| This is often brought up and almost never true. No reasonable
| court would dump their trademark over this. It needs to be
| overwhelmingly out of their hands and in the public
| conscious. "Frisbee" for example still holds their trademark
| over the word Frisbee despite the fact that the vast majority
| of people don't even realize that it's a trademarked term.
| Businesses have de facto no obligation to defend their
| trademark to the extent that the internet often thinks they
| do.
| superultra wrote:
| I am not a trademark lawyer. I'm guessing you aren't either
| or you would have said so. But multiple lawyers on multiple
| projects with multiple brands have mentioned this to me,
| and we have sent C&Ds to protect trademarks. With at least
| two of those lawyers, sure, it might just be more billable
| hours. But two were pretty decent guys and wouldn't have
| done it if they didn't think it was necessary.
|
| At least within my corner of the business world (and not
| just "the internet"), it seems this is common knowledge
| among lawyers.
|
| My guess is that, sure, would a court throw out a
| trademark? Maybe not, but the law works on a fine line
| between actuals (precendent) and hypotheticals, and it's
| just cheaper to issue a C&D than it is to fight a prologned
| legal battle about predcedent.
|
| Also, it's interesting you mention Frisbee. There's a term
| for that: "genericide," and it's the term used to describe
| that exact scenario. Frisbee is one brand that didn't
| actively protect against trademark erosion and now we call
| every flying disc a Frisbee. Retrospectively, Frisbee might
| have wished they'd sent more C&Ds. Nintendo is one brand
| that has actively protected brand erosion, which is why we
| don't call it a Sony Nintendo.
| lenerdenator wrote:
| Completely valid, but a cease-and-desist? C'mon. You're Waffle
| House. Give your attorney an undershirt, mullet, and broken
| whisky bottle and challenge me in the parking lot.
| bredren wrote:
| Websites have been creating, collating and displaying
| combinations of user generated data and business-provided data
| for a long time. For example, customer reviews on yelp or
| google places.
|
| People make decisions on whether to try going to a place or not
| on this all the time. Sites use company logos in all kinds of
| ways, not the least of which is display in image SERPs, whether
| they fit brand guidelines or not.
|
| The difference is this was a small site without the leverage to
| ignore WH.
|
| The data should be accurate as possible, and if it isn't, the
| person should take the site down for that reason. But
| otherwise, they should have just changed the branding and kept
| it up.
| jrochkind1 wrote:
| i'm glad he just got a trademark cease and desist, and not an
| accusation of felony unauthoried use of their APIs under DMCA.
| Hopefully that isn't coming. :(
| ostracoda wrote:
| Tampa represent
| jonny_eh wrote:
| > React Server Components run on the server, and unlike client-
| side components, they don't return raw HTML you can easily
| inspect in Dev Tools
|
| Isn't it the opposite? RSC returns raw HTML. Did you mean that it
| obscures the API fetches it makes?
| ascorbic wrote:
| No, the RSC wire format is a stream of text, where each line
| starts with an ID and contains a JSON object that specifies
| which nodes to update and how.
| cloudpushers wrote:
| This must make those trips to WH all the more special. What a
| fantastic story to tell anytime you're in one. Good on you for
| full-sending it.
|
| Cease and desist letters can be scary. In my opinion, (which is
| not a legal one) theirs was pretty chill and straightforward.
|
| In case you're curious, hafflewouse.com is available ;)
| Havoc wrote:
| >No live feed, no map, and certainly no counter of closed
| restaurants
|
| I wouldn't be so sure about that:
|
| https://en.wikipedia.org/wiki/Waffle_House_Index#/media/File...
| bwoah wrote:
| Readable without JavaScript: https://archive.is/Ixtsa
| TedHerman wrote:
| "all publicity is good publicity"
|
| Apparently false (from WH perspective).
| Bengalilol wrote:
| Great read! Keep on being you!
|
| I am confused about FEMA: are they using some automated process
| or is it an abandoned index?
| 0x457 wrote:
| https://abc11.com/waffle-house-storm-center-index-fema-hurri...
|
| also this:
| https://en.wikipedia.org/wiki/Waffle_House_Index?useskin=vec...
| pikminguy wrote:
| It's never been an official index.
|
| This is conjecture but I'm pretty sure the idea of it even
| being an "index" is a stretch. More like people who work in
| disaster relief talking about their jobs informally. "I just
| got back from Town A. They had a tornado but it wasn't too bad.
| The Waffle House stayed open." "I'm heading to Town B. They've
| been having flooding so bad the Waffle House has been closed
| for 12 hours." That sort of thing.
|
| Edit: Apparently FEMA contacts local businesses including
| Waffle Houses in the areas affected by a disaster to ask how
| they are doing. This makes sense as an added source of data to
| gauge the severity of an emergency. Still a stretch to call it
| the "Waffle House Index".
| AStonesThrow wrote:
| > _Records show the index started out as a joke - and that
| some employees would prefer it stay that way_
|
| https://www.muckrock.com/news/archives/2017/sep/01/waffle-
| ho...
| hk1337 wrote:
| > Honestly, I was more surprised that the silly logo I made (a
| very great representation, if I do say so myself) was what got me
| in trouble, and less so the scraping or reverse-engineering part.
|
| I am not all that surprised. Companies have to take trademarks
| and such VERY seriously and act quickly. They can be royally
| screwed later if they do not.
|
| I am surprised the creator of the site didn't add a disclaimer
| that information should not be used in any sort of serious
| manner.
| fakedang wrote:
| The more important question though, did they unblock you?
| frereubu wrote:
| I put up a (much less interesting and more nerdily annoyed) site
| that described how Dannon / Danone was using made-up sciency
| names for the bacteria in their yoghurt, and their legal
| department got in touch. I didn't back down:
| https://whatisbifidusregularis.org/legal-action-against-this... I
| think this example would have been fine if the Waffle House
| branding had been removed. Then just put a big disclaimer at the
| top, which also makes clear the silliness of the kinds of legal
| claims made by these companies.
| quantified wrote:
| You post a tweet and don't expect anyone to see it? Every major
| brand is monitoring their mentions.
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