FC: Consumer Reports wants to flush "Consumer Toilet Report" site

[Declan McCullagh <declan () well com>]

[Jamie works for Ralph Nader and has been active against Microsoft. His 
brother Terry, a plumber, maintains a low-flush toilet reports web site. 
Apparently concern over crappy products runs in the family. :) --Declan]

********

Date: Sun, 26 Mar 2000 21:39:21 -0500 (EST)
From: James Love <love () cptech org>
Subject: [Random-bits] Trademark dispute on Consumer Toilet Report

This is a dispute between Terry Love, who is a plumber and my brother,
and Consumer Reports, over his "Terry Love's Consumer Toilet Report."
(http://www.terrylove.com/crtoilet.htm).  Consumer Reports thought his
web page on low-flow toilets voilated their trademark rights.

The dispute appears to have been resolved.

  Jamie

---------- Forwarded message ----------
Date: Sun, 26 Mar 2000 17:42:15 -0800
From: Terry Love <terry () terrylove com>
To: James Love <love () cptech org>
Cc: KathrynKl () AOL COM, Eric Menge <eric.menge () sba gov>

I had received a request from Wendy Wintman of Consumer Reports, to not
use the words consumer and report in a "confusing" way.  below are the
emails back and forth between her and I.

A little background first.  In the Winter of 1998, I had posted on the
Internet, a page from the AOL version of the CU 1995 toilet report.
This html page was text only with no links or pictures, just as it
appeared on AOL.  A single typewritten page.  During my Winter vacation,
I had decided to write a better toilet report than the old CU 1995
toilet report.  It seemed out of date and listed toilets that I
considered poor working in addition to their highly rated ones.  It was
at this time also, that the Nice& Easy plumbing bulletin that I had been
posting to, and was referred to as an resident expert, had sold
advertising to someone that had references to me and my site removed.
Within a week of meeting with the purchaser of that advertising in
Hawaii, Consumer Reports asked me to remove their report from the
Internet.  Timing was good, as I felt I was ready to move on this
anyway.  Their report was deleted.

I promptly got my own plumbing bulletin board up and running.  I also
polled the four hundred plumbers on the plumbers.org discussion list
about their opinions about toilets.  From this input, I purchased
toilets, and tried them out.  Within a short amount of time, I had
assembled quite a bit of new information, of which a few surprises
showed up.  The page currently is updated monthly.  No advertising has
been taken on this web site.  That could change.  It would have to be in
a way that does not interfere with the integrity of the writing.  I have
considered taking non-plumbing advertising.

I know that the report on toilets is quite a thorn in CU's side.  I
think it gets read much more than their May 98 report. 6,985 page views
this month so far on the front page.  159,719 hit requests for the
pictures and back pages on this report this month.

   http://www.terrylove.com/crtoilet.htm

Terry Love

<-------------------------------------------------->

 From CU, Wendy Wintman
 Dated 3/8/2000

I continue to notice that on your web site you are refer to the Consumer
Report on Low-Flow Toilets and in a confusing and unapproved way in that
consumers confuse with us, Consumer Reports magazine. This use
unfortunately misuses the registered trademark, "Consumer Reports". We
are sure the misuse was unintentional, however, such an oversight can
serve to weaken the identity and value of our publication, CONSUMER
REPORTS, and the service we offer consumers.

Your commercial use of our name and Ratings was done without our
knowledge or consent. It is in violation of Consumers Union's
long-standing policies. Misuse of our materials results in significant
harm caused to both Consumers Union and the consuming public. Those who
violate these policies damage Consumers Union's most precious asset-its
reputation for independence and integrity. Our name is tarnished by
misuse. It dilutes the meaning of our trademark, "Consumer Reports" and
creates public distrust of our findings and the perception that in
someway Consumers Union is somehow affiliated with the very same
commercial interests whose products are being evaluated. Overwhelmingly,
once they learn of Consumers Union's rights, product manufacturers,
sellers, and advertisers throughout the United States agree to refrain
from any further use of our name, Ratings, and materials. Please, let me
explain why Consumers Union regards such a situation with the utmost
gravity.

Since its founding in 1936, Consumers Union has built its hard-earned
and well-deserved reputation for objectivity, accuracy, and lack of bias
upon its independence from commercial interest. Consumers Union does not
accept outside advertising for any of its publications nor do we accept
commercial contributions. Permission is never given to anyone to use our
name or Ratings for advertising or commercial purposes. These policies
are stated in every issue of CONSUMER REPORTS, as follows:

We accept no advertising and buy all the products we test on the open
market. We are not beholden to any commercial interest. Our income is
derived from the sale of CONSUMER REPORTS and our other publications,
and from nonrestrictive, noncommercial contributions, grants, and fees.
Our Ratings and reports are intended solely for the use of our readers.
Neither the Ratings nor the reports may be used in advertising or for
any other commercial purpose. Consumers Union will take all steps open
to it to prevent commercial use of its materials, its name, or the name
of CONSUMER REPORTS.

Now that you are aware of Consumers Union's policies, its rights, and
the important rationale supporting them, I trust that you will agree to
discontinue your current use of our name and will respect our rights in
the future. You should confirm your agreement to remove this from your
web site and refrain from using this or any other reference to CONSUMER
REPORTS whether in print or electronically. Please eMail your
confirmation to me at the address below within the next seven days so
that we may consider this matter resolved.

Thank you for your courtesy and cooperation. I would be pleased to
answer any questions.

Sincerely,
Wendy Wintman
Copyright Manager
Legal Department
Consumers Union of U.S., Inc.
101 Truman Avenue
Yonkers, NY 10703-1057
PH: 914-378-2448
FX: 914-378-2946
E-Mail: wintwe () consumer org <mailto:wintwe () consumer org>
Our POLICY is below:

CONSUMERS UNION OF U.S., INC.
NO-COMMERCIAL USE POLICY STATEMENT

Consumers Union's no-commercial use policy is stated in the front of
every issue of CONSUMER REPORTS, CONSUMER REPORTS ON HEALTH, CONSUMER
REPORTS TRAVEL LETTER, ZILLIONS, our CD-ROMs, interactive telephone
services, on-line services, the Internet, and every book published by
Consumer Reports Special Publications. The policy is as follows:

Our Ratings and Reports are intended solely for the use of our readers.
Neither the Ratings nor the Reports may be used in advertising or for
any other commercial purpose.

This policy is interpreted to preclude the use of any of Consumers
Union's material or title of publication by professionals and/or
commercial organizations who would have a direct or indirect benefit
from making use of our material, both in print and electronically,
including use on the Internet. More specifically, Consumers Union does
not permit the use of its material by a manufacturer of a product or a
provider of a service, or a professional in the related field discussed
in the work.

Our material cannot be used by a manufacturer, service provider, or
professional internally with employees (for informational purposes),
sales force (for training, informational, or sales purposes), dealers,
distributors, retailers, or agents. It may not be used externally with
existing or potential customers and clients. Mention of our material may
not be included in a press release, an annual report, nor a radio or
television commercial (whether initiated by the manufacturer, service
provider, or by anyone else acting on their behalf).

NO MATERIAL MAY EVER BE USED FOR ANY
ADVERTISING OR PROMOTIONAL PURPOSES

Consumers Union will not sell you additional copies of the entire
magazine or book containing the article of interest, nor will we sell
you reprints of the specific article. We will also deny permission for
you to reproduce the article, in whole or in part, or quote from the
article or book. If you believe that your intended use of our material
is not commercial in nature, please resubmit your order with payment and
a brief explanation of the purpose of your order directly to
CU/Reprints, 101 Truman Ave., Yonkers, NY 10703-1057. For permissions
requests, please resubmit your request with an explanation by mail or
fax it to W. J. Wintman at 914-378-2946. In some cases, your use of our
material may violate our legal rights. All of CU's products are fully
protected under the United States Copyright Laws, 17 U.S.C. ?? 1 et
seq., and unauthorized copying of, or quoting from our materials is
strictly prohibited. CONSUMER REPORTS, CONSUMER REPORTS ON HEALTH,
CONSUMER REPORTS TRAVEL LETTER, and ZILLIONS, are federally registered
trademarks. Advertising that deceptively or falsely misrepresents our
findings, or which creates confusion, infringes on our rights under the
Lanham Act, 15 U.S.C., ??1 et seq. Such advertising may also contravene
our rights under state laws prohibiting false advertising and other
unfair trade practices.

Under ?397 of the New York State General Business Law, the use of the
names or identities of nonprofit organizations for advertising or trade
purposes is strictly prohibited without obtaining prior written consent.
Indeed, CU is a nonprofit organization.

If Consumers Union learns that this policy has been violated, it will
forward the information to its attorney, who will take all steps open to
Consumers Union to prevent the misuse of any of its materials. We hope
you can understand why Consumers Union has adopted this policy. Please
feel free to share this with your colleagues, clients, and others as
appropriate.

NOCOM.POL0300

<----------------------------------------------------->

My response to the CU email

Wendy,

I went through my site and updated links.  Things should be better now.
Terry

Terry Love's consumer toilet reports
A report on low flow toilets
I list 22 toilets on my report. (02/00)
I list 16 toilets that are not listed on "Consumers Report".
We list six toilets in common.

Consumers Report (05/98)listed 13 toilets total, of which two of them, I
listed as bad buys at the lower part of the article, but not in the
ratings .

Consumers Digest (04/00) on remodel listed a total of nine toilets, five
toilets in common with Consumers Report and five in common with Terry
Love

Consumers Report (05/98) copied the idea for the title of their toilet
report from one of my web pages CR Search for a better toilet.  TL
Search for a better plumber.

Terry Love's toilet report is based on plumber input.  Plumbers choose
toilets for different reasons.  We don't like hearing customer
complaints on products that we sell.  Rather than fixing poor working
toilets, we would prefer they buy good ones.  For that to happen, the
public needs more information.  My web site is meant for plumbers and
homeowners.  Currently we supply information to 1,169 people a day,
4,590 pages, 15,184 files hits.  The toilet report gets updated monthly,
with input from water districts, plumbers and homeowners.  I am in a
position to hear all the new and upcoming product information first.

If you question people about plumbing on the Internet, they will
remember TerryLove.Com

TerryLove.Com is a brand name on the Internet.

I accept no advertising.  I do use the information that plumbers and
homeowners give me.  I do sell plumbing products.

Terry Love

<-------------------------------------------------->

March 13, 2000

Dear Terry:

THANK YOU. We sincerely appreciate it.
Sincerely,
Wendy Wintman
Copyright Manager
Legal Department
Consumers Union of U.S., Inc.
101 Truman Avenue
Yonkers, NY 10703-1057
PH: 914-378-2448
FX: 914-378-2946
E-Mail: wintwe () consumer org <mailto:wintwe () consumer org>
File #NC1869


Terry Love
<http://www.terrylove.com/>Love Plumbing & Remodel
18628 NE 25th St.
Redmond WA 98052
(425) 649-5683

<http://www.psbl.com/>Puget Sound Business Listings




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