(2015-01-21, 05:02)Eleazar Coding Wrote: There is nothing at our site that tries to "impersonate" XBMC or deceive people.
For fun, here are two images. Let us see how many people on this forum can tell me which image comes from the "Unofficial XBMC Addons for Kodi" site, which still isn't named using your own name. And which one comes from Kodi.tv/download. The rules are simple. You can't visit either site. You have to just guess based on what you see.
Here's Image #1.
Here's Image #2.
There is a clue to the difference in there at the moment, but that clue requires at least a bit of thought and disregarding another clue that confuses the issue.
Here's the thing. it doesn't matter how many times you say on individual twitter posts that you aren't us. The important thing is you make clear that you are you and not us. Which is different. It's possible that maybe you don't understand that, because you don't have a legal background or aren't particularly familiar with trademark law. So to make this easier, I'll list the
8 factors that determine likelihood of confusion, the most important issue in the world of trademark violation according to the courts. And I'll do it publically, both so it can be entirely clear to you and everyone at TV Addons, and it can be clear to anyone else interested in going down this road in the future.
8 Factors
- the similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings);
- the similarities of the goods and services involved (including an examination of the marketing channels for the goods);
- the strength of the plaintiff's mark;
- any evidence of actual confusion by consumers;
- the intent of the defendant in adopting its mark;
- the physical proximity of the goods in the retail marketplace;
- the degree of care likely to be exercised by the consumer; and
- the likelihood of expansion of the product lines.
There's the list. Now let's analyze it with relation to your site, going through each factor individually.
the similarity in the overall impression
1. This is easily the most important thing, though there are ways to mitigate the problem. Right now, your title is similar to ours and overlaps quite a lot, given that everything in your title suggests you are us except the word "Unofficial." This almost complete overlap is at least a warning sign under #1. Not a great way to start.
For the remainder of this discussion, we'll make up another website, which I'm going to call Brazilian Fans of Kodi, to use as a comparison. That title doesn't overlap nearly as much under #1, since It's got both Brazilian and Fans in there, neither of which could be confused as us. It still uses our name, but in a much less confusing way.
the similarities of the goods and services
2. The similarity of the goods and services involved completely overlaps as well. We both provide addons. We both provide binaries that can run those addons. And while you have done a good job in renaming your binary, you still CALL it one of our names on your website, as is pretty obvious in the picture above. So not only are you overlapping on this level, you are naming that overlap wrongly again. If we look at Brazilian Fans of Kodi, they don't provide what we provide, either in addons or in binaries, so they have no problem. That's another strike against you that wouldn't be a strike against them.
the strength of the plaintiff's mark
3. People in this community VERY strongly associate the names XBMC and Kodi with us. So if someone else comes in and uses those names in their titles and to describe their apps that are being downloaded, then the community is much more likely to be confused by that word association. Another mark against you. And a mark against Brazilian Fans, I suppose. Though nobody associates us with Brazilian Fans, so at least there's some clearing there that you haven't really got.
any evidence of actual confusion by consumers
4. I mean, do I need to go into depth on evidence of confusion? Chinese manufacturers are confused. Engadget and Ars Technica was confused. Users are constantly confused and asking us in the forum, in social media, and elsewhere. And I'm still curious to see just how many people will be able to say which of those images above comes from us. I'll grant you that you've reformed some since the Engadget/Ars bungle. But the rest are happening literally right now. I'm going to guess nobody would ever be confused by a site called Brazilian Fans of Kodi.
the intent
5. I don't know your intent. My guess is that you want to use those names because they help you with SEO. Which means you want to get people who are searching for Kodi or XBMC. Which means you are trying to get our users. In itself, there's nothing wrong with that. But if you've already violated the previous 4 factors, that gets a lot less cool, very quickly. The clear intent of a site called Brazilian Fans of Kodi is to say that they are brazilian fans of Kodi. Not that they are Kodi. That one is simple.
the physical proximity of the goods
6. I did some research into what "physical proximity" meant for online, and it basically means do we use similar marketing channels. And I mean, the obvious answer there is yes. We're both online only. We both are heavy social media orgs. We're both working on maintaining our page rank on google. You get the idea. We use the same channels. Here's another area where Brazilian Fans overlaps with us. Though they actually probably might also have physical meetups in Rio and Brazilia, so maybe not quite as much of a match.
the degree of care likely to be exercised by the consumer
7. As pointed out in #4, consumers/users don't care at all. They mostly don't even know there could be a difference, so the chances of them actually paying close enough attention to scroll past the fold to find your disclaimer is roughly 0%. This would definitely not be the case for Brazilian Fans. Brazilian Fans actually looking for other locals to share their love of Kodi aren't going to accidentally end up in British Fans of Kodi or any other site. They know exactly what they're looking for.
the likelihood of expansion of the product lines
8. This question is really only for if our products differ. Beyond the fact that you primarily deal in piracy addons, we deal in basically the exact same things. Apps and addons. I guess the only difference is that we also provide a remote control for iOS. I don't know if you have any plans in that regard, but for now we'll assume we don't need to worry about this one. Needless to say, Brazilian Fans of Kodi are never going to make products, so there's no chance of expanding into our production.
So there you go. At the moment, you are confusing to users on 7 of the 8 factors normally used by courts for deciding such things. And the only reason you aren't confusing on the 8th factor is because there's basically no more room for expansion. And I'm saying you are confusing right now. At this very moment.
Suggestions for Change
The point of that discussion was not to do a witch hunt. The point was to show you exactly what is problematic. The same test can be done on super repo, and he probably also violates many of the same things, though I think he does a better job of actually pushing his name "Super Repo." But just because there are problem areas now doesn't mean we're always going to be at each other's neck.
If you really want to be on our good side, we need to work out the confusion, so you can drop quite a few of those factors. Some of them you can't. For example, you provide addons and apps. I'm not going to ask you to stop. So there's not much to be done with #2. But I'll provide some tips for the rest.
1. Differentiate yourself. For real. Don't call your site "Unofficial XBMC Addons for Kodi." That's not different at all. You have a name. Use it. Call your site "TV Addons." Or "Unofficial TV Addons for Kodi" if you absolutely must use the word Kodi. Your site's name is not XBMC Addons. It is TV Addons. That doesn't wholly fix #1, but it gets closer.
2. When linking to TVMC downloads, don't call it XBMC or Kodi. Don't use the words XBMC or Kodi directly above the link in order to confuse the users as to what the link means. On the page, actually call it TVMC for Windows. And TVMC for OSX. Etc. Use your name. And don't use our name right next to your name.
3. Don't use our download design. Try to refrain from using our design anywhere. For example, let's see if people can guess which addons list is yours and which is ours.
and
They look almost identical and literally use the same icons. Surely there are some CC icons out there that can be used instead.
4. Keep your disclaimer above the fold. And if it's too ugly up there, use some other sort of simple way to make clear to people that we are different groups. We appreciate that you put the warning up for a few months. You don't have to leave something ugly up forever, but you do need to keep something nice looking and clear forever easily visible, if you're going to otherwise use our name and offer competing "products" as us.
5. I still don't know what "Powered by Kodi" means. My suggestion: Just drop the phrase. Or at least tell me what you meant by it.
Conclusion
And I think that's all I've got. I apologize for being so harsh before, but I hadn't visited your site in quite some time, and all the layers of confusion struck me in a pretty negative way upon seeing it. I really would be happy to work with you guys in the effort to clear up confusion, rather than against you. And I hope this walkthrough is a first step in that regard.
