Georgia-based childcare franchisor Legacy Academy and attorney M. Kathleen Hart of Andersen, Tate & Carr PC seem obsessed with bullying our franchise blog into removing a logo from a 2 1/2 year old post. Will this latest Cease & Desist Takedown Demand have the desired effect? Or are they setting themselves up for ridicule and derision?
(UnhappyFranchisee.Com) In January, 2014, attorney M. Kathleen Hart wrote us a letter that said our use of the Legacy Academy “derivative mark” and “adulterated derivative mark” on a post published 13 months earlier could create a “likelihood of confusion” between Legacy Academy’s brick and mortar franchised daycare centers and our UnhappyFranchisee.com franchise discussion website. (See the 1st Cease & Desist Letter: Legacy Academy Cease & Desist Letter to UnhappyFranchisee.Com January 24, 2014)
Citizens of the beautiful Southern state of Georgia, M. Kathleen Hart, Legacy CEO Frank Turner and VP Melissa Veal Turner were evidently concerned that there may be someone, somewhere, (a patient under heavy sedation? Or suffering from Traumatic Brain Injury?) who is unable to distinguish between a website and a large building filled with children.
It didn’t make sense to us but… Maybe it’s a Southern thing, we thought.
So we took the logo (temporarily) off the web page they objected to (ICHTER THOMAS Another Win Against Legacy Academy Franchise).
We created a proposed alternative graphic which included text that unmistakably disclaimed any relationship between UnhappyFranchisee.Com and Legacy Academy.
(See our response to the 1st Cease & Desist Letter: LEGACY ACADEMY UnhappyFranchisee.Com Complies With Legal Request/Threat)
With these changes, we were certain that even a recently arrived extraterrestrial who had not been paying attention in his Earth Object Differentiation 101 class could not mistakenly believe that Legacy Academy had created a website with which to criticize itself.
We submitted our proposed solution to M. Kathleen Hart for her immediate review and feedback.
We sent M. another email asking if our proposed solution was acceptable.
Her assistant confirmed that she received it, but again, no response.
21 months later, M. Kathleen Hart sent us the 2nd Legacy Academy cease and desist letter (below).
I could be wrong, but it seems to me that neither M. Kathleen nor her client ever bothered to check the original post to see that the logo they objected to was removed 21 months ago and never replaced.
A link to our response is posted below.
M. Kathleen Hart’s email as a PDF: LEGACY ACADEMY 2nd Cease & Desist
M . Kathleen Hart
Direct Phone : 67 8 -5 18-6 8 5 1
Email: email@example.com o m
Direc t Fax : 77 0 – 2 3 6 – 9 7 8 5
September 24, 2015
RE: UnhappyFranchisee.com’s Unlawful Use of Legacy Academy, Inc.’s Registered Service Mark
To Whom it May Concern:
This law firm represents Legacy Academy, Inc. (“Legacy”), the owner of a federal registration for the “Legacy Academy For Children” service mark, USPTO Registration Number 2686283 (the “Mark”), which registration has become incontestable. On January 24, 2014, we issued a written demand on behalf Legacy that you cease and desist violating Legacy’s protected rights in the Mark by removing the logo displayed on the webpage http://www.unhappyfranchisee.com/index.php?s=legacy. Despite this demand, you have chosen to continue using and displaying the Mark on your webpage (and, as a result, to be displayed as a result in Google’s “Images” search feature) and have merely added a disclaimer of sponsorship or affiliation. Legacy now hereby renews its demand that you immediately cease and desist all use of the Mark, as such use is not nominative fair use.
Since you claim to be just a “simple blogger,” I’ll try to be simple in outlining why your continued use of Legacy’s Mark is not legitimate. While the disclaimer might address the factor of the nominative fair use test relating to an indication of joint sponsorship or endorsement, it does not address the factor that weighs whether the use of the mark was necessary (also known as the “minimum necessary” test). Courts have consistently found that use of a design mark or logo is not nominative fair use, because it is not necessary to identify the trademark owner’s goods or services. Basically, you can use the name “Legacy Academy For Children”, but you cannot use the logo or the graphic, because the logo is not necessary to your goal of identifying Legacy or its services. It might be helpful in driving traffic to your website and to your directory of franchisee attorneys, but it isn’t necessary.
Also, with respect to the content of your articles regarding my client, I’ve enclosed a copy of the Georgia Supreme Court’s recent decision in Legacy Academy, Inc. et. al. v. Mamilove, LLC et al., in which the Court reversed the Georgia Court of Appeals ruling that you recount on your website. The Supreme Court unanimously determined that Legacy was entitled to a directed verdict on the plaintiff’s claims for rescission, fraud, negligent misrepresentation and violation of the Georgia RICO statute. To translate, the Court found that Legacy did not commit fraud and overturned the damage award. Given that you have invited all companies discussed on your website to “provide corrections, clarifications or rebuttals ,” I wanted to make sure that you have a copy of the decision so that you can update your story on Legacy accordingly (removing the headline that Legacy is “guilty of fraud” would be a good start), stop misleading those who visit your attorney advertising website and avoid any further pesky letters from me.
I’ve already give you all the nasty-sounding warnings in my January 24, 2014 letter, and I don’t want to repeat myself, so let’s just keep this simple. Stop using Legacy’s logo and update your story on Legacy so that it is accurate and not misleading , and you will not have to hear from me again or spend time trying to write responses to my letters on your blog (responses that you never bothered to actually send to me directly, even though you presumably know how to use email). At least not unless you do something else that violates the rights of one of my clients.
Of course, nothing in this letter is a waiver of any rights or remedies of my client, and Legacy reserves all rights regarding the same. Please direct your response to this letter to me.
M. Kathleen Hart, Esq.
for Andersen, Tate & Carr, P.C.
cc: Mr. Frank Turner (via email) Mrs. Melissa Turner (via email)
Mr. Robert Thomas, Esq., Andersen, Tate & Carr, P.C.
We have also had our own issues with Legacy Academy and its attorneys:
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TAGS: Cease and Desist letter, takedown demand, nominative fair use, Legacy Academy, Legacy Academy franchise, Early Learning franchise opportunity, Legacy Academy franchise complaints, Andersen, Tate and Carr PC, Frank Turner, Melissa Turner, M. Kathleen Hart, cease and desist, takedown demand letter