Legacy Academy, through their law firm of Andersen, Tate & Carr, P.C., sent us a 2-page cease & desist letter yesterday requesting that we not use the Legacy Academy logo in such a way that (in their opinion) implies that the embattled franchisor endorses, sponsors or is affiliated in any way with UnhappyFranchisee.Com.

While we admit that the idea that Legacy Academy would sponsor a website that was reporting on its contentious (and losing) legal battles with its franchisees (LEGACY ACADEMY Ichter Thomas Wins Suit for Legacy Academy Franchise Owners, ICHTER THOMAS Another Win Against Legacy Academy Franchise, LEGACY ACADEMY Franchise Complaints) was momentarily amusing, we then read M. Kathleen Hart’s ominous line “The demands made in this letter are serious in nature…” and we nearly sobered up almost immediately.

We then focused on understanding, and then complying with, Ms. Hart’s demands.

You can read Legacy Academy’s threatening letter here:   LEGACY ACADEMY Issues Cease & Desist Letter to UnhappyFranchisee.Com

You can read our response below:

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M. Kathleen Hart, Esq.

Andersen, Tate & Carr, P.C.

One Sugarloaf Centre

1960 Satellite Boulevard, Suite 4000

Duluth, Georgia, 30097

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January 25, 2014

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Dear Ms. Hart:

Thank you for your letter of January 24, 2014 expressing the concerns of your client, Legacy Academy, about the use of their logo on one of our blog posts.

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When I contacted your client last August inviting input on our coverage of their franchisee litigation and expressing concern about representations in their franchise marketing materials, I wasn’t expecting 5 months of silence followed by a threatening legal letter(!).

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But hey… I guess any dialogue is better than none!

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While I disagree with much of your letter, I will try to alleviate your client’s concerns and comply with your requests within the timeframe you requested.  In return, I hope that your clients will respond to our request for clarification on the important issues we raised.  Perhaps they can even respond directly, without an attorney speaking for them (no offense).

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Please Correct Me if I’m Mistaken…

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Ms. Hart, I am just a simple blogger, not an attorney, so please correct me if I am mistaken.

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I believe that when you refer to your client’s “Mark” you are referring to the graphic that includes the red apple icon and the words “Legacy Academy for Children.”

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I believe that when you refer to your client’s “Derivative Mark” you are referring to the graphic that includes the “Mark” plus the words “Early Child Care Development and Education Excellence.”

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I believe that when you refer to the “adulterated Derivative Mark” you are referring to the composite graphic that includes both the “Derivative Mark” plus the url “UnhappyFranchisee.Com” in red type.

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It seems to me that what you are objecting to is not that we used your client’s “Derivative Mark” in our blog post (which seems permissable under the doctrine of “nominative fair use”), but that the URL of our website appears in Google Image Search in proximity to your client’s logo when Google references the “adulterated Derivative Mark” in its search results.

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In compliance with your request, I have deleted the “adulterated Derivative Mark” from our website.

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In its place, and from now on, we will use only the Legacy Academy “Mark,” as permitted by “nominative fair use.”

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To make doubly (and triply) sure there is no confusion, we have added a disclaimer (see B. below) that should inform even the most inattentive Google Image Searcher.

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Please let me know if this will satisfy your client’s concerns, or if you think additional disclaimers are necessary.

	A. Legacy Academy “BEFORE” Logo Legacy Academy is concerned that the presence of our URL in proximity to their logo “could create confusion in the minds of consumers as to whether the Webpage and the unhappyfranchisee .com website (the “Website”) in general is sponsored by or affiliated with Legacy , or whether Legacy has consented to the use of its Mark in this fashion.”
	B. Legacy Academy Proposed “AFTER” Logo (with disclaimer) UnhappyFranchisee.Com respectfully submits this revised presentation, which includes a clear disclaimer disassociating Legacy Academy as either a sponsor or affiliate of UF.

Have we have complied with your (somewhat confusing) requests?

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Ms. Hart, in your letter you wrote:

…Legacy hereby directs that you:

(1) immediately ceases [sic] and desist your use of the Derivative Mark on the Webpage and Website; and

(2) within five (5) days from the date of this letter, provide the undersigned with a writing in which you attests [sic] that you have ceased all use of the Mark , the Derivative Mark or any confusingly similar mark.

 

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We have complied with your request #1, and are hereby notifying you with “a writing” that we have done so.

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We have added a prominent disclaimer that should eliminate any likelihood of confusion as to the nature of the Legacy Academy and UnhappyFranchisee.Com relationship  I believe that disclaimer satisfies your request #2, as it has eliminated any likelihood of confusion.

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As to our continued use of the “Mark,” your impressive credentials and referencing “nominative fair use” in your letter lead me to believe that you understand that we have the legal right to use the Legacy Academy “Mark” in our blog posts.

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According to the Electronic Frontier Foundation’s Blogger’s Legal Guide:

“I want to complain about a company. Can I use their name and logo?

“Yes. While trademark law prevents you from using someone else’s trademark to sell your competing products (you can’t make and sell your own “Rolex” watches or name your blog “Newsweek”), it doesn’t stop you from using the trademark to refer to the trademark owner or its products (offering repair services for Rolex watches or criticizing Newsweek’s editorial decisions). That kind of use, known as “nominative fair use,” is permitted if using the trademark is necessary to identify the products, services, or company you’re talking about, and you don’t use the mark to suggest the company endorses you. In general, this means you can use the company name in your review so people know which company or product you’re complaining about.

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Despite your client’s “incontestable” Federal trademark registration, there are numerous websites, businesses and schools using the name “Legacy Academy,” including a Colorado-based iSchool, an indoor activity center in Wisconsin, a Christian satellite school in California, and a charter school in Rockford, IL.  We think people should know which “Legacy Academy” we are discussing.”

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According to the Thompson Hall Santi Cerny & Dooley website:

“…website owners may use another’s trademark on their website if they meet the requirements of nominative fair use:

1. the website owner must use the trademark to describe the genuine trademarked  products being sold;
2. the website owner is using the trademark no more than necessary; and
3. the website owner did not create a likelihood of consumer confusion through the trademark.”

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Ms Hart, I believe UnhappyFranchisee.Com clearly meets the requirements for “nominative fair use” of the Legacy Academy “Mark,” as we are reporting on the business the mark represents, we will use it no more than once per blog post, and our disclaimer clearly eliminates any likelihood of consumer confusion.

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If we have failed to satisfy your demands, please notify us and explain your rationale immediately so we can address it.

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As to your warning that several of our articles come “perilously close to constituting libel,” I would like to address those issues with you in a separate communication.

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Again, thank you for your letter.  I look forward to further correspondence with you and, hopefully, with your client.

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Sincerely,

ADMIN

UnhappyFranchisee.Com

We will respond to Ms. Hart’s libel warning, so check back soon.

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TAGS: Legacy Academy, Legacy Academy franchise, Legacy Academy child care, Legacy Academy lawsuit, Legacy Academy franchise complaints, Legacy Academy franchise lawsuits, M. Kathleen Hart, Attorney Kathleen Hart, Anderson Tate and Carr, Frank Turner, Melissa Turner, Unhappy Franchisee, cease and desist