WhosHere's response to Brian Hamachek/Who's Near Me

<i>We literally bet our life savings on this and years of zero vacations to bring WhosHere to where it is.</i><p>Making a bad business decision and living a shitty life doesn't entitle you to sue people who make a similar app just because their app's name uses some of the same letters as your app's name. (Both companies picked crappy names that are poor brands and poor trademarks. It's like calling your hamburger shop "Hamburger Shop" and then suing anyone who sells hamburgers for trademark infringement. It's not their fault you picked a generic name.)<p><i>Would you protect your company and its name?</i><p>With the facts I've heard today, absolutely not. Taking a competitor to court is an absolute last resort, done only in the most egregious of cases (serious fraud that people are associating with your business, etc.) While the case has legal merits, it has zero ethical merits. You picked a generic name. The other guy picked a similar generic name. He is not trying to compete and is not negatively affecting your business. You are being jackasses.<p>Making sacrifices to follow your dream does not give you the right to treat other people badly. You may be proud for the sacrifices you have made and the hard work you have put into your idea, but you <i>deserve</i> nothing for it. You're just another group of people equally good as every other group of people. Act like it.

Brian's blog posting (now with a donation button):<p><pre><code> "... the deadline to file a response to the lawsuit had passed and that WhosHere had requested a motion for default judgment (meaning that they would automatically receive everything they had asked for - which would effectively bankrupt me..." "The lawyers I have spoken to thus far are asking me for at least a $10,000 retainer just to get started on the process and I don't have those kind of resources laying around." </code></pre> Compare to Brian's response in the email thread:<p><pre><code> "I was born wealthy; I have an obscene trust fund. I assure you that if required, I will obtain the best legal representation for corporate litigation in the Silicon Valley. After your last proposal, I will resist this legal action well beyond what makes any financial sense, simply out of principal." </code></pre> And, to complement this, a snippet from Judd Weiss' blog [0]:<p><pre><code> "Quick tip: When you do engage the other side (or their lawyer), whatever you do, never say the line “I’m taking this all the way to trial, I don’t care what this costs me”. Everyone says that. Everyone. That doesn’t work with someone like me. I smell blood. “Oh really, you don’t care what this costs you? Alright then, let’s find out how much you really don’t care.” People who say they don’t care about the costs often cave sooner, because they are showing that they’re weak. They’re showing that they really don’t have much solid to fight you with except their loudly stated tolerance for pain. That tolerance is easy to test. And it’s usually very low when there’s not much else but puffery to back it up. Any modestly wise person cares about the financial effects of litigation. Don’t try to pretend you’re stupid, or else you’re going to look stupid." </code></pre> [0] <a href="http://hustlebear.com/2010/12/14/how-to-handle-lawyers-threatening-you/" rel="nofollow">http://hustlebear.com/2010/12/14/how-to-handle-lawyers-threa...</a>

Look, both your team and the other fellow involved in your dispute are in the wrong. And by wrong, I mean that you're both shaking your proverbial gender-specific parts around a crowded street, shouting about who's part is bigger, and trying to get the passersby to agree with your side or his.<p>No. One. Cares.<p>Put your shit away and handle this like men. Either reconcile or go to war, i.e. court. Just stop acting like you're still in high school and trying to win the who-likes-me-more popularity contest.

I don't care how immature Brian is (and boy is he immature) the fact of the matter is there is no basis for the aggression that WhosHere put forth.<p>Brian is a douche for not sharing the whole story. He is a douche for saying he could make 400 an hour. He is a douche for pretending that he can't fight a suit when he can.<p>But the fucking fact of the matter is that he is right. WhosHere is not confusing with the stupid ass name Brian choose. Period. I don't like siding with the asshole cousin, but sometimes the asshole is right.

Quite frankly, from what I've read (the blog posts only), this seems like a pissing contest that's got out of hand. Each side should back down, stop trying to use the internet to throw poo at each other and work it out. Merge, settle or ignore each other and deal with it when there's a good reason to. Neither of you will lose money if you just compete.<p>I agree with jrockway's points, especially on the sub par branding, they're both very standard names and that is literally your only problem. If you're all capable of starting up these companies, I'm sure you're capable of rebranding. Both companies should rebrand in my opinion, it's a matter of originality, which neither brand has and neither party has the moral ground to get litigious over.

There are two issues that come to mind when I decide how much sympathy to allocate:<p>1) Is the trademark sufficiently unique to have merit?<p>2) Is the infringing trademark similar enough to cause confusion?<p>I'll give WhosHere a pass on #1. It's a poorly-chosen trademark but I've seen worse. However, nobody can claim with a straight face that customers are confusing WhosNearMe for WhosHere. This is preposterous on its face.<p>This jury finds for the defendant.

I don't get it. If you are the small bootstrapped ultra-busy startup founder, why continue to concern yourself with this stuff.<p>He was willing to rebrand his app, even though the trademark registration was apparently not finalized at this point. So at which point did they feel entitled to make the demands they were making?

You made a decision to turn him down. He made a decision to turn you down. That part of it is not really at issue, in my opinion.<p>You turned him down, he decided to do it on his own, and called it a different name. I don't think I would confuse the two. If he'd wanted to cash in on your TM (as said in the other thread) he wouldda called it simply "Who's Near". Changing the web address to wnmlive was a huge compromise in my opinion.

I'm siding with WhosHere on this one (although it doesn't matter). Here's why.<p>First, they asked Brian to change the name from "Who's Near Me" to something else, and he apparently agreed to, but his rebranding was to "WNM (Who's Near Me) Live" which is basically the same thing except that "Who's Near Me" is written smaller and acronym-ized in the brand. But it's still the same name.<p>Second, a lot of people are talking about how the name is generic. That's exactly the point. When you're using your phone and see "Who's Here", you think, this will tell me who's here. If there's another app that's called "Who's Near Me", you think the same thing. So it's more than just them both having the word 'who'. It's more like if one app were called "Shoelaces" that tied your shoelaces for you, and then another app named itself "Tie Your Shoelaces" and did the same thing. It's, people will look at this app and know that this is what they use to tie their shoelaces, a trademark should prevent another app from being able to do that.<p>Third, "It is also offensive to me that you would think my time was only worth $100/hr, considering I turn down requests offering 4 times that rate regularly". I'm tired of the fake arrogance in C.S. culture. Brian's 26, I don't think he regularly gets offers for $400 an hour, and even if he did there's no reason to put it in that e-mail.<p>This is impersonal and based on limited information.

I'm slightly more sympathetic having heard their side--there is more to it than just random legal threats out of the blue.<p>..BUT.. This suit revolves more around "we felt wronged" than "this clearly infringes our trademark." The only similarity in the trademark is the word "who." The law is the law, your feelings are irrelevant.

A slap fight over an awful trademark.

Great response. Very direct, with no vague language. Thank you for posting - now I'm looking at your app in a positive light!

Reading between the lines given the complete lack of similarity between the names, it seems to me you are grasping at straws because your own business model is not viable. If I were an investor, I would really question the sustainability of your startup given you are having to use vc money to shut down competitors as opposed to building constructively a sustainable business. Just my 2 cents.

apparently according to Brian he has an obscene trust fund, so why didnt he lawyer up. Perhpas the mileage HN could bring + bad press he can bring about to a competitor was more enticing?<p><a href="https://whoshere.zendesk.com/attachments/token/v4qbuvns0xkiktv/?name=Re_-_WhosHere_v_SynergeTech_Solutions.pdf" rel="nofollow">https://whoshere.zendesk.com/attachments/token/v4qbuvns0xkik...</a>

Still... I mean Who's Here and Who's Near Me are in no way similar as far as the TradeMark is in my opinion. Come on.

I find it interesting that the comments in this thread still largely support Brian Hamacheck even though the response from Who's Here - if accurate - demonstrates that his original blog post is little more than a one sided publicity piece designed to gain sympathy for him and. to villify. Who's Here

Shame on Brian for claiming to be a poor developer about to be crushed by a big company (see quote below). I feel like a fool for up voting him.<p>Shame on WhosHere for suing Brian. People are not confusing these two apps. Brian did not steal the WhosHere brand or product.<p>Here's an example of stealing a product, of when it's appropriate to sue:<p>My Facebook app Quiz Monster was cloned by mike onagai (a man from hong kong). He copy pasted my CSS and JavaScript. His app looked exactly like mine. He then started emailing my users with links to his site, claiming to be me.<p>Appbank (a vc funded company) almost did the same thing, they definitely stole my design. The only reason I did not sue is because my product was better and more popular. They didn't seem like a threat. Nowadays I think facebook apps are silly. It must seriously suck to be Appbank or Mike Onagai. They have to make Facebook apps, I get to build whatever I feel like.<p>Also I think stealing fuels innovation. Facebook came from facesmash, a clone of hotornot. So did YouTube. Appbank started as a clone of quiz monster, but they evolved into something better, something original, and innovative. I'm happy for them.<p>&#62; "I was born wealthy; I have an obscene trust fund. I assure you that if required, I will obtain the best legal representationmfor corporate litigation in the Silicon Valley. After your last proposal, I will resist this legal action well beyondmwhat makes any financial sense, simply out of principal."

Someone should tell WhosHere that their pdf redaction is terribly ineffective...

As my good friend (a lawyer) says... There are three sides to every argument. Your side, my side, and the truth.

Let's do a kickstarter defence fund for WhosHere too and let the crowd decide! Bread and circuses.

Sounds like both parties are young.

Seriously... they are not the same. When I think "Who's here?" I think who is in the same place I am. Not just near me. If I am home and someone comes to my house... they are here. If I am home and someone goes to the house across the street... they are near me... but not here.<p>If "Who's Here" and "Who's Near Me" are close enough to cause a problem... someone needs to warn Facebook that their new app Camera is pretty friggin' close to the app that Apple already had. What was that called? Oh right... CAMERA.

Whatever damage or confusion Who's Near Me might have caused to your brand, this lawsuit has done worse. Ever heard of the Streisand effect? Even if you did have a valid claim your demands were way over the top. Thousands of dollars in legal fees? Give up his Facebook page?<p>For what it is worth I personally want absolutely nothing to do with your app ever, and will tell people about your bad ways if they bring up your app. I hope your business fails because actions like this do not deserve to be rewarded.

The names aren't even that similar. "Who's" is the trademark you are being assholes about? seriously? I can't see how they would stand a chance in court.

The only thing I like about this is the fact that they "censored" out the email addresses at the bottom but you can still hover &#38; click on them. :)

You know what seems weird to me? the fact that at first they turned down this (alleged) offer to integrate a windows mobile version of the app into their version and then just a few years later<p>"Just a few weeks ago, we offered to partner with Mr. Hamachek. We offered to integrate his Windows Mobile work into WhosHere and offered a revenue share deal for $100,000, plus fees, for ongoing development"<p>something smells wrong.

I assume WhosAround, WhosThere, WhosClose, WhosComing and WhosUpMyAss are also trademark infringements?

This definitely provides more insight, but this seems really childish and juvenile for two professionally competing products. Dropping the legal documents just seem like a huge dick move to me, especially on the smaller guy who does not have the resources fight back. It would have been nice for WhosHere to just play it out and continuing building a better product (especially if you have confidence in your product). If you want product segregation, then you should have chosen a less generic name. WhosHere ended up, at least, having Brian change his product name, and they are being sore losers for not getting what they expected.

I find it interesting that the in his post, Brian insinuates that he can't afford to fight this legal battle. However, in the emails between him and the WhosHere people he talks about his large trust fund.

It seems like the best outcome here would be if both companies chose better, more accurate names. I was thinking maybe "WhosAnOverLitigiousFounder" and "WhosAHyperAggressiveConcernTroll."

Clearly, no one wins from this ridiculous exchange. All parties involved need to man up, get in a boardroom and bang out a deal.<p>Prior to that, they should both delete these posts and same themselves further embarrassment.<p>Agreements are hard to make sometimes, and compromise sucks, but the ramifications of spending time on crap like this instead of building your business is massive.<p>Best of luck to both parties, here's hoping they can put the egos aside long enough to do some business.

Who's Here (WhosHere) and Who's Near Me are two totally different names. What's the same? Just "Who". Here and Near Me are very different.<p>Anybody else agree with me?

tldr; WhosHere is wrong, and Brian is asking for donations despite an "obscene trust fund"<p>Moral of the story: don't waste your CS degrees on SoLoMo apps.

what does your vc think about you spending part of your funding on lawyers to litigate a TM lawsuit against a Windows mobile developer?

I have a new app. It's called "Who's Around Me".

Social media startup douchebag fight club plz.

Honestly, I find it rather deplorable that they would post this. Regardless of any bad press they have, if they win in the end, the truth would come out.<p>The first thing most lawyers would say is "keep your mouth shut". Posting this doesn't do anything but make this pissing match all the more public.<p>I hope they can stay classy.

Ah, someone here doesn't like my opinion and thusly is downvoting every comment I've ever made. It's been quite a while since I was around HN, but I'm very disappointed. Is suggesting that perhaps letting a Judge decide these legal matters such a bad idea?

I've found another company for Whoshere to sue!! They should go full speed after those guys: <a href="http://itunes.apple.com/us/app/whos-hiding-preschool/id396335703?mt=8" rel="nofollow">http://itunes.apple.com/us/app/whos-hiding-preschool/id39633...</a>

All I want to know is, if I launch a location based app named "Around Here", will you sue me?

For what it's worth, here is my response to all the comments: <a href="http://brianhama.com/my-answer-to-all-the-questions-since-whoshere" rel="nofollow">http://brianhama.com/my-answer-to-all-the-questions-since-wh...</a>

Who's Here and Who's Near Me are different names. Get over it.

Does anyone else think "hoosier" when they read "WhosHere"? They don't seem to be from Indiana, though.

Weasels. Seriously.

Something is missing here. Did Brian Hamacheck rename his app or not. One of the letters Brian says he will change it, but Who's Near Me is all over his website. Is this a case of he said he would do something then lied about it and is now surprised he's being sued?<p>And I don't understand how they are stealing his work. They just asked for a name change. Then they offered to buy him out and share revenue.<p>Why wouldn't he just change the name?<p>Am I missing something?

Their trademark probably shouldn't have been granted. This company didn't trademark the word "Who", they trademarked "WhosHere" which is quite obviously a different word. This reminds me of McDonald's who go around the world suing every company that has a food product starting with "Mc" (eg. a Scotch distillery founded a hundred years before McDonald's even got sued). Unfortunately the US patent and trademark system is broken and can be easily manipulated by entities with money, and when abused by assholes like this, it just makes our world suck even more.<p>I hope their actions haunt these individuals for the rest of their hopefully short careers as business founders.

After reading the original, it's obvious that this response is complete bullshit.<p>"and offered a revenue share deal for $100,000, plus fees, for ongoing development (that is where the license agreement that Mr. Hamacheck references comes into play, but he left this upside out of his blog post). We truly expected a counter offer. But, when he rejected the offer outright, we asked him what he thought was fair. We never received a response."<p>Meaning:<p>We offered him a "deal" worth $100,000. It was only after he refused that we put the hit out.

Can we settle this Notch-style with a Quake match?

They are patent trolls. The worst is that maybe they not even realize it.