Getting a Cease and Desist from Waffle House(jack.bio)
jack.bio
Getting a Cease and Desist from Waffle House
https://www.jack.bio/blog/wafflehouse
217 comments
I put up a (much less interesting and more nerdily annoyed) site that described how Dannon / Danone was using made-up sciency names for the bacteria in their yoghurt, and their legal department got in touch. I didn't back down: https://whatisbifidusregularis.org/legal-action-against-this... I think this example would have been fine if the Waffle House branding had been removed. Then just put a big disclaimer at the top, which also makes clear the silliness of the kinds of legal claims made by these companies.
If McBroken.com can stay up...
Your website seems to be an aggregator of surface-level news blurbs from the mainstream media and some interviews with individual physicians. There are claims about "made-up" names and "correct scientific names". Putting health claims aside, there are no citations to any legislation that may have prevented a manufacturer from writing these names on a label. This website has a UK perspective, but I was trying to recall if any FDA or FTC regulations would prohibit the coining of new names for ingredients, particularly organisms. I think not.
In biological taxonomy, new names are coined all the time. Aliases for species are quite common. Common names for species are also common. We just learned that a "Buzzard" in the US is different than "Buzzards" in Europe/UK.
Pharmaceutical companies and scientists coin new "fake Latin-sounding" names all the time. So do astronomers! If there can be an asteroid named "25924 Douglasadams" then why can't Activia add a brand-name alias to something they use? Arguably, bacteria replicate so fast that Danone could have a new species if they cultivated it in a lab, rather than in animals.
Conversely, the food industry has taken names such as "milk" and "water", and expanded their definitions far beyond what common people recognize as those substances. Always receiving legal assent to sell fruit juice [nuts are fruits] with a mammalian name.
I've not had much experience with supplements, but more than a few I've purchased made proprietary blends of substances, and named that blend. Totally FDA-compliant.
I think your website got left up because it's fundamentally not a threat to any such practice in labelling.
I hereby address the candida albicans growing in my intestines, to announce that I dub thee candida hackernewsensis because sitting here has undoubtedly helped it grow.
In biological taxonomy, new names are coined all the time. Aliases for species are quite common. Common names for species are also common. We just learned that a "Buzzard" in the US is different than "Buzzards" in Europe/UK.
Pharmaceutical companies and scientists coin new "fake Latin-sounding" names all the time. So do astronomers! If there can be an asteroid named "25924 Douglasadams" then why can't Activia add a brand-name alias to something they use? Arguably, bacteria replicate so fast that Danone could have a new species if they cultivated it in a lab, rather than in animals.
Conversely, the food industry has taken names such as "milk" and "water", and expanded their definitions far beyond what common people recognize as those substances. Always receiving legal assent to sell fruit juice [nuts are fruits] with a mammalian name.
I've not had much experience with supplements, but more than a few I've purchased made proprietary blends of substances, and named that blend. Totally FDA-compliant.
I think your website got left up because it's fundamentally not a threat to any such practice in labelling.
I hereby address the candida albicans growing in my intestines, to announce that I dub thee candida hackernewsensis because sitting here has undoubtedly helped it grow.
Your perspective is incredibly US centric, so it is important to note that almost nothing which you note as normal or just happening is okay in the EU.
> Conversely, the food industry has taken names such as "milk" and "water", and expanded their definitions far beyond what common people recognize as those substances. Always receiving legal assent to sell fruit juice [nuts are fruits] with a mammalian name.
People don't seem to be complaining about that substance (not to be named) that usually goes with jelly on bread, and is not actually a dairy product.
This timeline is interesting: https://www.soyinfocenter.com/pdf/166/Milk.pdf
People don't seem to be complaining about that substance (not to be named) that usually goes with jelly on bread, and is not actually a dairy product.
This timeline is interesting: https://www.soyinfocenter.com/pdf/166/Milk.pdf
I know that all names are essentially "made up". It's the implicit nature of the "sciency" bit that annoys me. I don't believe Danone did a stroke of real science to come up with a bacteria that had any material difference from any other live yoghurt. The astronomers who discovered 25924 Douglasadams did do the science. Do you think Danone did any randomised controlled trials to measure its effectiveness over any other kind of live yoghurt? Of course not.
The idea of the site and its domain name is to try to get to the top of search engine rankings - which it has done successfully - so anyone who searches for it gets a clear answer, rather than just marketing fluff. I noticed that the Pages widget on the right was missing, which I've now reinstated, but here's the background to why I did it: https://whatisbifidusregularis.org/about-this-site/
The idea of the site and its domain name is to try to get to the top of search engine rankings - which it has done successfully - so anyone who searches for it gets a clear answer, rather than just marketing fluff. I noticed that the Pages widget on the right was missing, which I've now reinstated, but here's the background to why I did it: https://whatisbifidusregularis.org/about-this-site/
> Always receiving legal assent to sell fruit juice [nuts are fruits] with a mammalian name.
If you mean things like oat milk, it's unlawful in the EU (and I think still the UK) to label plant-based alternatives as milk or dairy under EU Regulation 1308/2013.
If you mean things like oat milk, it's unlawful in the EU (and I think still the UK) to label plant-based alternatives as milk or dairy under EU Regulation 1308/2013.
Which is absurd, since
> In English, the word "milk" has been used to refer to "milk-like plant juices" since 1200 CE. https://en.wikipedia.org/wiki/Plant_milk
It's like complaining that modern electric irons can't be called irons because the heat plate doesn't have iron in it.
> In English, the word "milk" has been used to refer to "milk-like plant juices" since 1200 CE. https://en.wikipedia.org/wiki/Plant_milk
It's like complaining that modern electric irons can't be called irons because the heat plate doesn't have iron in it.
That is referring to coconut milk, which is exempted.
The other uses like oat milk come from 1980's ads. It's so recent that the JM Smucker Company tried to trademark it.
The other uses like oat milk come from 1980's ads. It's so recent that the JM Smucker Company tried to trademark it.
if the issue was just using the trademark and likeness, why not just remove those issues of contention, and keep the site up and running under a different domain? it wasn't mentioned that they had an issue with the data scraping.
Author here!
After receiving the C&D, the method with which I was getting the data was removed/patched (which I'm now noticing was not mentioned in the blog post...) I did ask them if there was any thing I could to keep it up and never received a response, and rather than playing a cat & mouse game of "now you don't have our branding, but you are scraping are data so here's another C&D" I just took it down :)
After receiving the C&D, the method with which I was getting the data was removed/patched (which I'm now noticing was not mentioned in the blog post...) I did ask them if there was any thing I could to keep it up and never received a response, and rather than playing a cat & mouse game of "now you don't have our branding, but you are scraping are data so here's another C&D" I just took it down :)
I believe scraping is generally ok - there's actual trademark law about trademarks, which is why you got a c+d about trademark usage, instead of a general 'stop what you're doing we don't like it' c+d.
A good point of comparison is steam db (and other similar sites), which uses Steam public info to triangulate market info that isn't immediately apparent.
https://steamdb.info/
A good point of comparison is steam db (and other similar sites), which uses Steam public info to triangulate market info that isn't immediately apparent.
https://steamdb.info/
The first sentence on SteamDB is:
> This third-party website gives you better insight into the Steam platform and everything in its database.
It clearly states that it's not affiliated with Steam and is a separate organization. There's also a further disclaimer in the footer of the page.
In contrast, the "Waffle House Index" had the Waffle House logo at the top of the page, with zero explanation or elaboration on who created the website.
> This third-party website gives you better insight into the Steam platform and everything in its database.
It clearly states that it's not affiliated with Steam and is a separate organization. There's also a further disclaimer in the footer of the page.
In contrast, the "Waffle House Index" had the Waffle House logo at the top of the page, with zero explanation or elaboration on who created the website.
Yeah, exactly - fix the trademark problem by not using the logo and starting clearly who you are, and then go to town...
Unfortunately Craigslist pushed a precedent that puts scraping into risky territory.
https://en.m.wikipedia.org/wiki/Craigslist_Inc._v._3Taps_Inc.
Obviously this was a much different circumstance than a not-for-profit side project but still something to keep in mind.
https://en.m.wikipedia.org/wiki/Craigslist_Inc._v._3Taps_Inc.
Obviously this was a much different circumstance than a not-for-profit side project but still something to keep in mind.
All the AI companies are doing it so it must be fine. Right?
This but also with copyright.
Right, unironically.
this is a bummer - scraping is one thing but this was free marketing for them. If only they put their marketing department in front of their legal department (assuming they have a marketing department)
No guarantee that such marketing will be good, however.
"Waffle House is so reliably open that FEMA uses it to measure hurricane devastation" is a great piece of marketing.
If you're tired, hung over, or really hungry, you can always stumble into a Waffle House at any time and get something to eat. If you can't, there are bigger problems in your life (hurricane, zombies, tornadoes).
If you're tired, hung over, or really hungry, you can always stumble into a Waffle House at any time and get something to eat. If you can't, there are bigger problems in your life (hurricane, zombies, tornadoes).
It doesn't take much for that to become "TIL Waffle House's owners are so greedy they force their employees to work even during a natural disaster when other businesses are closed". No it's pretty obvious why Waffle House would want to stay far away from this sort of publicity and have very tight control on anything said about it, especially if that publicity looks like it comes from them or is in any way endorsed by them.
Except for the long list of stories that have detailed how they actually do this - they have special disaster teams that fly or drive in for the purpose. And where do all the power and other utility linemen eat between their triple-pay shifts in a disaster area? At Waffle House, because it’s always open.
Too late to edit, but: after a disaster, you can go to my nearest WH and watch truck after truck roll by full of utility employees staying at the hotels near it.
In situations like this I always think to myself "what would Reddit say?" Then I get a bit depressed.
Don't blame the legal department. They are legally required to send a C&D in situations like that or they can lose their trademarks.
That's an oversimplification. WH could also reach out and offer to work out a deal with the site owner to license use of their trademark. That would probably entail some compensation (which could be anything from "good will" or a token cash amount, up to millions of dollars) and probably some verbiage on the page reading something along the lines of "Logos and identifiers on this page are the property of Waffle House, Inc and are used under license" or whatever.
[deleted]
sure but thats also work that someone doesn't have to do. and the "house" was evidentally dealing with a disaster at the time.
Yeah, but it's work that would have had a great ROI if marketing had been fully in the game, which was kinda the point.
of course i would love to live in a world where waffle house can be as off the rails whimsy as kfc, but im just pointing out why not to get your hopes too high!
After the initial legal letter they could have licensed / agreed to the usage, or taken over the running of the website. There are several ways to protect their trademark without being killjoys.
What about the Big Mac index that the Economist uses to measure purchase price parity across countries?
The equivalent would be a simple text list of all Waffle Houses currently closed, sourced by physically visiting each location and noting any closures. The author here used Waffle House's branding and logos, and also sourced the data by scraping their web site.
The economist can afford lawyers
The Economist editors don’t blog to reproduce every letter they receive from attorneys, and they don’t taunt McDonald’s on social media, and probably don’t host the website that tracks operational status of soft serve machines.
Absolutely not. Legal takes precedent over marketing or should.
I do think Legal would be worried about a site they don't own potentially being wrong about store openings and customer being upset, let alone risking travel through a storm to get there. Trademark was the easy one to get
Probably because of you, the legal dogs hired by Waffle House probably updated their ToS to include "unauthorized scraping"
As long as you didn’t actively agree to anything, you are not held to the Terms of Service for a public website. There are restrictions on what you can do with the data, mostly around direct competition with the source (I’m not a lawyer, so DYOR). The average scraping volume from Google and AI companies would make an indie site’s scraping volume look minuscule.
Check out this wild case to see how far you can go with scraping and remain legal. It’s surprising.
https://techcrunch.com/2024/02/26/meta-drops-lawsuit-against...
Check out this wild case to see how far you can go with scraping and remain legal. It’s surprising.
https://techcrunch.com/2024/02/26/meta-drops-lawsuit-against...
If the WH legal dogs needed this as an the impetus for that change in 2020s, then they aren't very good legal dogs. ToS updates are pretty common, and if some one didn't like scraping, you'd think that unauthorized text would be added some time ago. It's not like scraping is a new thing. If they are savvy legal teams, this should pretty much be boiler plate language. Only neophyte legal teams would not expect scraping as something to expend ink.
its still okay to break websites ToS and AUP though.
AStonesThrow(2)
How would that work? The point of waffle house index is the association with waffle house. Without that, you have a unitless statistic unless you assume every visitor is already in the know.
>No live feed, no map, and certainly no counter of closed restaurants
I wouldn't be so sure about that:
https://en.wikipedia.org/wiki/Waffle_House_Index#/media/File...
I wouldn't be so sure about that:
https://en.wikipedia.org/wiki/Waffle_House_Index#/media/File...
I think the op implies a feed, map, or counter that is relatively fresh. The image you link to is 11 years old. Is there a link to a map no older than say a few hours?
I don't think it ever was public - either 11 years ago or now. My point was more there is a dashboard and FEMA does seem to have access
An old acquaintance of mine got a cease and desist from Jim Henson Company over his DJ moniker Mupperfucker. I know trademark holders are required to defend them, so I get it, but also...
https://gizmodo.com/heres-why-disney-is-the-proud-owner-of-m...
https://gizmodo.com/heres-why-disney-is-the-proud-owner-of-m...
Great read!
Keep on being you!
I am confused about FEMA: are they using some automated process or is it an abandoned index?
I am confused about FEMA: are they using some automated process or is it an abandoned index?
It's never been an official index.
This is conjecture but I'm pretty sure the idea of it even being an "index" is a stretch. More like people who work in disaster relief talking about their jobs informally. "I just got back from Town A. They had a tornado but it wasn't too bad. The Waffle House stayed open." "I'm heading to Town B. They've been having flooding so bad the Waffle House has been closed for 12 hours." That sort of thing.
Edit: Apparently FEMA contacts local businesses including Waffle Houses in the areas affected by a disaster to ask how they are doing. This makes sense as an added source of data to gauge the severity of an emergency. Still a stretch to call it the "Waffle House Index".
This is conjecture but I'm pretty sure the idea of it even being an "index" is a stretch. More like people who work in disaster relief talking about their jobs informally. "I just got back from Town A. They had a tornado but it wasn't too bad. The Waffle House stayed open." "I'm heading to Town B. They've been having flooding so bad the Waffle House has been closed for 12 hours." That sort of thing.
Edit: Apparently FEMA contacts local businesses including Waffle Houses in the areas affected by a disaster to ask how they are doing. This makes sense as an added source of data to gauge the severity of an emergency. Still a stretch to call it the "Waffle House Index".
> Records show the index started out as a joke - and that some employees would prefer it stay that way
https://www.muckrock.com/news/archives/2017/sep/01/waffle-ho...
https://www.muckrock.com/news/archives/2017/sep/01/waffle-ho...
Why take the whole site down instead of just removing their logo?
The mere threat of legal action for most Americans means $$$.
As a college student, probably broke as well. This person probably does not have the legal understanding or access to lawyers to guide him through it.
Much easier to take it down rather than deal with potential legal ramifications.
A half decent lawyer or even the "free" lawyer services at most universities probably would have advised just removing the "trademark" elements as you would.
As a college student, probably broke as well. This person probably does not have the legal understanding or access to lawyers to guide him through it.
Much easier to take it down rather than deal with potential legal ramifications.
A half decent lawyer or even the "free" lawyer services at most universities probably would have advised just removing the "trademark" elements as you would.
You ignore the cease and desist, they take you to court (still unlikely because they also incur cost they dont want). You don't need a lawyer to go to a courtroom, they will order you to take it down and then you do. They're very unlikely to sue for damages because the cost of their lawyers far exceed whatever 'damages' are in place here, which I would assume are close to zero.
Please don't fold immediately to this tired legal tactic.
Please don't fold immediately to this tired legal tactic.
> You don't need a lawyer to go to a courtroom
That...depends on how much you care about the outcome.
> They're very unlikely to sue for damages because the cost of their lawyers far exceed whatever 'damages' are in place here, which I would assume are close to zero.
If they "take you to court" to force a takedown, they are already suing you (for an equitable remedy.) The marginal cost of adding a claim for damages and, on top of that, lawyers fees and costs (which, as you note, may well exceed the actual damages), is very close to $0 once they are already doing that. So, you may choose not to pay for a lawyer for yourself, but that won't stop you from paying for lawyers for the firm suing you.
That...depends on how much you care about the outcome.
> They're very unlikely to sue for damages because the cost of their lawyers far exceed whatever 'damages' are in place here, which I would assume are close to zero.
If they "take you to court" to force a takedown, they are already suing you (for an equitable remedy.) The marginal cost of adding a claim for damages and, on top of that, lawyers fees and costs (which, as you note, may well exceed the actual damages), is very close to $0 once they are already doing that. So, you may choose not to pay for a lawyer for yourself, but that won't stop you from paying for lawyers for the firm suing you.
> that won't stop you from paying for lawyers for the firm suing you.
Note that in the US, the usual rule does not allow for shifting attorney's fees to the loser.
Note that in the US, the usual rule does not allow for shifting attorney's fees to the loser.
> Note that in the US, the usual rule does not allow for shifting attorney's fees to the loser.
While in the US, the default rules in many kinds of cases don't start with loser pays, as in some other systems, there are conditions applicable to most causes of actions which will allow attorney's fees, and the default rules for some claims do assign costs and fees to a party found liable without requiring any additional factors—notably, in the context of a trademark demand letter from the holder of a registered trademark, this includes violation of any of the rights of a holder of a registered trademark, see 15 U.S.C. § 1117(a).
While in the US, the default rules in many kinds of cases don't start with loser pays, as in some other systems, there are conditions applicable to most causes of actions which will allow attorney's fees, and the default rules for some claims do assign costs and fees to a party found liable without requiring any additional factors—notably, in the context of a trademark demand letter from the holder of a registered trademark, this includes violation of any of the rights of a holder of a registered trademark, see 15 U.S.C. § 1117(a).
> You don't need a lawyer to go to a courtroom
You don't need one, but it is incredibly ill-advised and reckless to go into a case like this without a lawyer.
> They're very unlikely to sue for damages
Lawyer's fees are very often moved for in IP infringement cases, so even if they don't sue for damages, you're going to end up paying their lawyers.
> Please don't fold immediately to this tired legal tactic.
If you feel so confident about this, why not put up a replacement site and try this strategy when you get the inevitable C&D? Keep us informed. I'm interested to see how that plays out.
You don't need one, but it is incredibly ill-advised and reckless to go into a case like this without a lawyer.
> They're very unlikely to sue for damages
Lawyer's fees are very often moved for in IP infringement cases, so even if they don't sue for damages, you're going to end up paying their lawyers.
> Please don't fold immediately to this tired legal tactic.
If you feel so confident about this, why not put up a replacement site and try this strategy when you get the inevitable C&D? Keep us informed. I'm interested to see how that plays out.
>You don't need a lawyer to go to a courtroom
You need money and free time to go to a courtroom.
>They're very unlikely to sue for damages because the cost of their lawyers far exceed whatever 'damages' are in place here,
This is a not a smart thing to do without legal console. There are plenty of very large, very wealthy companies that love to play SLAPP.
Your suggestion of FAFO isn't a great idea.
You need money and free time to go to a courtroom.
>They're very unlikely to sue for damages because the cost of their lawyers far exceed whatever 'damages' are in place here,
This is a not a smart thing to do without legal console. There are plenty of very large, very wealthy companies that love to play SLAPP.
Your suggestion of FAFO isn't a great idea.
It works because the populace is tired, broke, and minimal time and effort to deal with it.
I don’t know many people that would purposefully drag themselves through the court system out of principle. Maybe those with enough free time on their hands and money to delegate/consult with lawyers.
You are probably right though. If a majority of people rejected the cease and desist orders and actually called their bluff about vague legal action. Then these legal tactics would become useless, and the recovery in whatever damages to their "trademark" would be far less than the cost to hire even junior legal teams at big firms.
Maybe you should test your principles. Recreate this persons website idea, wait for Waffle House corporate lackey to send C&D, then you show us how it’s done. Instead of doing your armchair "should have, would have, could have" analysis.
I don’t know many people that would purposefully drag themselves through the court system out of principle. Maybe those with enough free time on their hands and money to delegate/consult with lawyers.
You are probably right though. If a majority of people rejected the cease and desist orders and actually called their bluff about vague legal action. Then these legal tactics would become useless, and the recovery in whatever damages to their "trademark" would be far less than the cost to hire even junior legal teams at big firms.
Maybe you should test your principles. Recreate this persons website idea, wait for Waffle House corporate lackey to send C&D, then you show us how it’s done. Instead of doing your armchair "should have, would have, could have" analysis.
This is why companies come on strong like this.
The dude made in good humor, a website and pushed it on social media at a time that attracted a bunch of attention. It included graphics close enough to the trademark to be confusing to visitors, and did something that the company didn’t want done for reasonable reasons.
They incurred cost. People handled phone calls, their counsel billed for the response, the web agency had to modify the website. Waffle House sells greasy diner food, every aspect of dealing with this is zero value to them.
Rather than beat around the bush, they said “stop”. He did, and wrote a funny blog about it. But for every 10 situations like this one, there’s probably 1-2 where the counterparty is a prick and wastes everyone’s time.
The dude made in good humor, a website and pushed it on social media at a time that attracted a bunch of attention. It included graphics close enough to the trademark to be confusing to visitors, and did something that the company didn’t want done for reasonable reasons.
They incurred cost. People handled phone calls, their counsel billed for the response, the web agency had to modify the website. Waffle House sells greasy diner food, every aspect of dealing with this is zero value to them.
Rather than beat around the bush, they said “stop”. He did, and wrote a funny blog about it. But for every 10 situations like this one, there’s probably 1-2 where the counterparty is a prick and wastes everyone’s time.
IAAL (but not a practicing one, so I don't have skin in this game, and this is not legal advice). I also once lost $25k+ in a copyright litigation relating to music piracy before I became a lawyer. It was decidedly not fun.
You ignore a C&D at your peril. The rules are complicated and the fines and penalties for not following the rules are expensive. U.S. IP law is fiercely protective of patent rights, trademark rights, and copyright. It's not something you mess around with, and anyone who tries to defend himself without a lawyer is a god damned fool. The author of the blog post did the right thing by engaging and trying to work something out without coming across like "go pound sand, I do what I want."
Please don't walk around giving bad advice like this. I pray for the poor sap who listens to it.
You ignore a C&D at your peril. The rules are complicated and the fines and penalties for not following the rules are expensive. U.S. IP law is fiercely protective of patent rights, trademark rights, and copyright. It's not something you mess around with, and anyone who tries to defend himself without a lawyer is a god damned fool. The author of the blog post did the right thing by engaging and trying to work something out without coming across like "go pound sand, I do what I want."
Please don't walk around giving bad advice like this. I pray for the poor sap who listens to it.
Thank you and I have been the poor sap in the past, and never, ever again
And if they do sue for damages?
Feeling invincible is nice, but even low probability events can lead to financial ruin if someone chooses to make an example of you.
Feeling invincible is nice, but even low probability events can lead to financial ruin if someone chooses to make an example of you.
Reminds of the Whataburger app being used about a year ago as someone pointed out the app's location map gave a good indication of Texas power outages. (https://news.ycombinator.com/item?id=40927364)
IIRC the marketing team embraced it on social posts and reached out to share some merch as acknowledgment.
IIRC the marketing team embraced it on social posts and reached out to share some merch as acknowledgment.
This is a great story. The world needs more of this.
Appreciate the kind words :)
There's a world where Waffle House acquires this from him for like $50k and it's an endearing story of corporate humanity.
But if I'm running the WH brand, I simply don't want to be the semi-official corporate sponsor of every major natural disaster.
But if I'm running the WH brand, I simply don't want to be the semi-official corporate sponsor of every major natural disaster.
I think you hit the nail on the head, waffle house index has too many negative connotations.
Probably true, even though the point of it is a testament to how robust and reliable WH's are, they don't close if they have any way at all to stay open, is the original point of it. It's quite positive toward WH.
Does the company take care of it's employees? Are employees expected to travel to/from the workplace during horrible weather? If the conditions worsen is the company responsible for the employee's safety? What about customers?
They send specific jump teams in there. More details:
https://www.govtech.com/em/disaster/hurricane-preparation-an...
Waffle House is like weirdly serious about disaster preparedness, for a restaurant chain.
https://www.govtech.com/em/disaster/hurricane-preparation-an...
Waffle House is like weirdly serious about disaster preparedness, for a restaurant chain.
They probably already make a ton of money selling this information to hedge funds.
It's a post facto index. It lags disaster by a few days and is far more interesting as a recovery statistic than a forecast. That's why it was important to certain types of FEMA operations, going in days or weeks later and trying to assess the hardest hit areas and triage them into a priority list. If Waffle House is serving a limited breakfast menu 24-hours a day in a neighborhood you can focus on sending the Red Cross-sponsored food tents to a different neighborhood.
Waffle House has been trying to distance themselves from it as a "Disaster Index" ever since the FEMA Director admitted to using it as an unofficial index. It's part of why FEMA increasingly refers to it as "unofficial" and has started to distance itself from discussions about it, too. I agree with the OP that part of it is definitely Waffle House wants to distance themselves from being "the brand of disasters". When it has been talked about as a "Recovery Index" (and without mentioning FEMA, because FEMA is the "brand of disasters") and the light has been shined to focus on why they've been among the fastest businesses in the country to recover from the worst problems, they've been happy to discuss and market that. It really is cool to see their flowcharts and checklists and graded levels of menus designed for all the scenarios they thought to design disaster recovery for (does the building have electric? does it have gas? when was the last supply truck in? when is the next supply truck expected? what are the road conditions?; it truly is fascinating).
Waffle House has been trying to distance themselves from it as a "Disaster Index" ever since the FEMA Director admitted to using it as an unofficial index. It's part of why FEMA increasingly refers to it as "unofficial" and has started to distance itself from discussions about it, too. I agree with the OP that part of it is definitely Waffle House wants to distance themselves from being "the brand of disasters". When it has been talked about as a "Recovery Index" (and without mentioning FEMA, because FEMA is the "brand of disasters") and the light has been shined to focus on why they've been among the fastest businesses in the country to recover from the worst problems, they've been happy to discuss and market that. It really is cool to see their flowcharts and checklists and graded levels of menus designed for all the scenarios they thought to design disaster recovery for (does the building have electric? does it have gas? when was the last supply truck in? when is the next supply truck expected? what are the road conditions?; it truly is fascinating).
[deleted]
This must make those trips to WH all the more special. What a fantastic story to tell anytime you're in one. Good on you for full-sending it.
Cease and desist letters can be scary. In my opinion, (which is not a legal one) theirs was pretty chill and straightforward.
In case you're curious, hafflewouse.com is available ;)
Cease and desist letters can be scary. In my opinion, (which is not a legal one) theirs was pretty chill and straightforward.
In case you're curious, hafflewouse.com is available ;)
You post a tweet and don't expect anyone to see it? Every major brand is monitoring their mentions.
[deleted]
It’s for blog posts like this that I love HN! Thanks for sharing this
Replace logo with a picture of a waffle and name it the Waffle Index?
AwfulHouseIndex.org
Waffle domocile --> Waffledom Index
"that big yellow sign"
i'm glad he just got a trademark cease and desist, and not an accusation of felony unauthoried use of their APIs under DMCA. Hopefully that isn't coming. :(
Now if your site was named wafflehurricanetracker.org it would have probably survived trademark issues. The scraping issues would have been better if they were anonymized - it wouldn't necessarily be obvious that it was Waffle House (TM) that you had scraped, but if you suggested it was made by slow scraping websites of one or more popular breakfast establishments, then it wouldn't have been obvious.
On one hand, yes, the author was using Waffle House's own data to populate the site. But on the other, Waffle House has no way of guaranteeing that remains the case, and they don't want their private APIs to be depended upon by a 3rd party site seen by thousands of people. So I guess I'm not surprised by their reaction. Still: it would be fun if it actually was a thing.
It's a trademark thing, brands are really protective of them because the rules around dilution are a bit murky so they err on the side of trying to stamp out any unauthorized use just to make it clear it's in use and protected so there's little chance of losing it because a court takes a different view of a time they let it slide.
Waffle House also has an interesting history with trademark protection and dilution. The company started and expanded when trademark protection involved more per-US State registries than it does today. In Indiana for a couple decades the Waffle Houses there were known as Waffle & Steak, because a home-grown Indiana company was already known as Waffle House there. Sure, Waffle House does serve Steak (though many don't realize and wouldn't think of Waffle House as the first place to go for a Steak), but it wasn't about marketing their non-Breakfast menu items (they have burgers, too!), they wanted to protect their trademarks on the signs and other parts of their branding, even in states like Indiana. Steak has 5 letters like House, that was the important part. The signs looked clearly enough alike from the interstate even if the words were different.
Right, and I don't really have anything interesting to say in that direction. I was more discussing that Waffle House claimed "This information is incorrect. We currently do not have a live website tracking restaurant closures", and the author's response "But I was quite literally USING their data for this, so it wasn’t really incorrect at all."
At first blush, it would seem the use of the name/logo really violates something, making it look 'official'. Something referencing their name, without the logo, and a bit 'not officially affiliated with' notice might have earned a bit more cooperation from them, vs legal aggression so soon.
I'd try getting data from another chain, then it's an aggregate and much easier to defend. Can't call it waffle house index anymore then tho… (but those trademarks were the problem to begin with)
Mock up some convincing letterhead, throw this on decent paper, and frame it. No one will ever know better and “Waffle House threatened to sue me” is a story you can tell until the grave.
> Honestly, I was more surprised that the silly logo I made (a very great representation, if I do say so myself) was what got me in trouble, and less so the scraping or reverse-engineering part.
I am not all that surprised. Companies have to take trademarks and such VERY seriously and act quickly. They can be royally screwed later if they do not.
I am surprised the creator of the site didn't add a disclaimer that information should not be used in any sort of serious manner.
I am not all that surprised. Companies have to take trademarks and such VERY seriously and act quickly. They can be royally screwed later if they do not.
I am surprised the creator of the site didn't add a disclaimer that information should not be used in any sort of serious manner.
archive https://web.archive.org/web/20250528155717/https://www.jack....
I think the site overloaded
I think the site overloaded
I wish I could C&D that achievement system. It's a blog, not a video game...
I can understand, particularly with the branding, that they would want you to stop making people think that is an official site.
Imagine the scraper breaks for 24 hours and in that time, several WHs shut down due to a natural disaster. Someone looks at this site, decides to travel in their car, and gets electrocuted by a downed power line. They sue WH because they were relying on that information, and by goodness it looked official.
WH was aware of the site, and if they don't tell you to stop, then are they complicit in the person being fooled into trusting it and thinking it's a first-party site?
---
I think the site itself should have been allowed to stay up, had the style been changed to clearly be unofficial and had sufficient disclaimers. It sounds to me like their legal department is scared shitless of the implications of people actually relying on the Waffle House Index to make life and death decisions.
Imagine the scraper breaks for 24 hours and in that time, several WHs shut down due to a natural disaster. Someone looks at this site, decides to travel in their car, and gets electrocuted by a downed power line. They sue WH because they were relying on that information, and by goodness it looked official.
WH was aware of the site, and if they don't tell you to stop, then are they complicit in the person being fooled into trusting it and thinking it's a first-party site?
---
I think the site itself should have been allowed to stay up, had the style been changed to clearly be unofficial and had sufficient disclaimers. It sounds to me like their legal department is scared shitless of the implications of people actually relying on the Waffle House Index to make life and death decisions.
yes i think their public replies that "this information is incorrect" was an attempt to avoid liability for exactly the reason you mention. it likely had nothing to do with whether the information was accurate
Or more realistically, stale website lists N stores as "Closed" while they are open; customers (C) decide not to patronize "Closed" stores; stores have now lost N * C * $X business based on misinformation distributed by a domain squatter.
Or, employees begin to rely on domain squatter's map, argue with supervisor over whether they need to come into work, and N employees lost their jobs because of a third-party misinformation site.
Or, employees begin to rely on domain squatter's map, argue with supervisor over whether they need to come into work, and N employees lost their jobs because of a third-party misinformation site.
The more important question though, did they unblock you?
Republishing published data isn’t stealing.
Yeah, using their logo like that is obvious trademark infringement, that would be why you got a C&D for trademark reasons.
> React Server Components run on the server, and unlike client-side components, they don’t return raw HTML you can easily inspect in Dev Tools
Isn't it the opposite? RSC returns raw HTML. Did you mean that it obscures the API fetches it makes?
Isn't it the opposite? RSC returns raw HTML. Did you mean that it obscures the API fetches it makes?
No, the RSC wire format is a stream of text, where each line starts with an ID and contains a JSON object that specifies which nodes to update and how.
It's OK. Now that waffle house index is down, people will just go to their favorite LLM to determine whether or not waffle houses are open or closed. Truly moving up the information value chain!
+ for such a funny title
I'm surprised at some of the comments here that don't see Waffle House's side of this.
You're a company, and some third party makes a website that very much looks like it could be official, using your name and logo in part, and this website is purporting to know the open/close status of your stores. Literally an indicator if people should bother going out to spend money at your business or not. An actual signal to economic performance of your entire corperation.
Now, this person is using your own data from your own websites to update this map. But, you do not control that person. They are not an employee. What if their scraping scheme breaks? What if their implementation has some bug and shows stores closed that are not closed. What if they get pissy and decide to just randomly start showing locations as closed just to F with you.
If the site got very popular and you had no control over it, you could could be losing customers and have no way to fix it.
It's a seriously irresponsible move to allow people this kind of leeway with your brand and trademarks. Even if it seems they mean well at first.
You're a company, and some third party makes a website that very much looks like it could be official, using your name and logo in part, and this website is purporting to know the open/close status of your stores. Literally an indicator if people should bother going out to spend money at your business or not. An actual signal to economic performance of your entire corperation.
Now, this person is using your own data from your own websites to update this map. But, you do not control that person. They are not an employee. What if their scraping scheme breaks? What if their implementation has some bug and shows stores closed that are not closed. What if they get pissy and decide to just randomly start showing locations as closed just to F with you.
If the site got very popular and you had no control over it, you could could be losing customers and have no way to fix it.
It's a seriously irresponsible move to allow people this kind of leeway with your brand and trademarks. Even if it seems they mean well at first.
I think we all see Waffle House's side of this, but there is a best, better, and worst way to engage a customer. A cease and desist is the worst, it's taking something which could have been handled by PR, to a legal threat. Regardless of Waffle House's legal rights, which they do have, from a public perception and way to run a company it was not the right approach. They should have embraced this guy and his website, engage him, and through that channel let him know "hey, you can't use our trademarks, etc. so you'll need to rebrand, but we love what you're doing and want to help."
Vastly different approach with a much better upswing.
Vastly different approach with a much better upswing.
The C&D isn't for the customers, it's for Waffle House. Apprising a party of their infringement and putting them on notice is a crucial procedural step for potential litigation.
>They should have embraced this guy and his website, engage him, and through that channel let him know "hey, you can't use our trademarks, etc. so you'll need to rebrand, but we love what you're doing and want to help."
I don't mean this cynically or rhetorically, but: why? I get that this is a fun and humorous side project for the creator, but I don't see any real upside for Waffle House in supporting it. If Waffle House wanted to lean into the proxy-for-FEMA marketing angle, it'd be much better off doing it in-house, where it'd have complete creative control. More likely, Waffle House marketing strategists crunched the numbers and are understandably hesitant to expand branding based on national disasters and the woeful state of government response infrastructure.
We do this every year when Nintendo sends an icy C&D to some quirky project built on its IP. Techies rend their garments about the deplorable state of IP law, and forecast imminent fallout from all the "bad PR" and "missed opportunities," as if there's a vast, highly sensitive market segment of temporarily aggrieved nerds that has somehow gone unaccounted for in its sprawling global marketing strategy. "I'll never buy a Nintendo product again!" says the 42-year-old Senior Software Engineer with 312 unplayed games in his Steam library, and the money-printing machine continues to hum unabated.
>They should have embraced this guy and his website, engage him, and through that channel let him know "hey, you can't use our trademarks, etc. so you'll need to rebrand, but we love what you're doing and want to help."
I don't mean this cynically or rhetorically, but: why? I get that this is a fun and humorous side project for the creator, but I don't see any real upside for Waffle House in supporting it. If Waffle House wanted to lean into the proxy-for-FEMA marketing angle, it'd be much better off doing it in-house, where it'd have complete creative control. More likely, Waffle House marketing strategists crunched the numbers and are understandably hesitant to expand branding based on national disasters and the woeful state of government response infrastructure.
We do this every year when Nintendo sends an icy C&D to some quirky project built on its IP. Techies rend their garments about the deplorable state of IP law, and forecast imminent fallout from all the "bad PR" and "missed opportunities," as if there's a vast, highly sensitive market segment of temporarily aggrieved nerds that has somehow gone unaccounted for in its sprawling global marketing strategy. "I'll never buy a Nintendo product again!" says the 42-year-old Senior Software Engineer with 312 unplayed games in his Steam library, and the money-printing machine continues to hum unabated.
I think it's like 'needs work' in a pull request. What one person sees as just honest feedback another sees as starting a fight that didn't need to be one. And a lot of tech people have learned to hit back when they think they're being bullied. Because bullies don't stop until they're bleeding in front of witnesses. Let's get this over now instead of dragging it out.
You've escalated where threat of escalation should have sufficed. Hey we need you to change your site to make it obvious this is a fan site and not ours. Otherwise we'll have to send a properly lawyery letter in a few weeks if we don't hear back from you about a plan.
One of these throws a person's life into utter chaos. The other gives them time to be a grownup about it.
You've escalated where threat of escalation should have sufficed. Hey we need you to change your site to make it obvious this is a fan site and not ours. Otherwise we'll have to send a properly lawyery letter in a few weeks if we don't hear back from you about a plan.
One of these throws a person's life into utter chaos. The other gives them time to be a grownup about it.
From a lawyer perspective though, a cease & desist is a threat of escalation.
A lawsuit is the escalation. A cease and desist is a strongly worded letter that isn't really legally binding or anything.
The issue here is just impedance mismatch on the language. The legal department is used to doing things in legal terms, and probably sends out like a lot of cease and desists. And most of the targets of those also have lawyers who are speaking the same language, so it works. Just when it's a random individual getting the letter, there's a lot more confusion.
A lawsuit is the escalation. A cease and desist is a strongly worded letter that isn't really legally binding or anything.
The issue here is just impedance mismatch on the language. The legal department is used to doing things in legal terms, and probably sends out like a lot of cease and desists. And most of the targets of those also have lawyers who are speaking the same language, so it works. Just when it's a random individual getting the letter, there's a lot more confusion.
They might not want to help. They could host this data themselves, they obviously already have the data, but instead they removed the way it could be scraped. The connotations here may not be perceived as purely positive. For example, it could be perceived as putting extra stress on Waffle House employees.
We run a search and chat company and felt particularly compelled to send a demo to a customer using a competitor's API. The search was so poor and slow, we saw it as an easy lay up.
Our mistake was posting it all over X and LinkedIn. We got hit with a cease and desist so fast.
Marked as wrong timing in the CRM and moved on!
Our mistake was posting it all over X and LinkedIn. We got hit with a cease and desist so fast.
Marked as wrong timing in the CRM and moved on!
How can you assert what is the right approach in this situation? What if they don't love what he's doing?
If this is about PR, as one data point, I don't think any differently of anyone involved. I wouldn't if Waffle House engaged him either.
If this is about PR, as one data point, I don't think any differently of anyone involved. I wouldn't if Waffle House engaged him either.
What gives you the impression that WH loves what he was doing? The company has never embraced its utility as a disaster index.
That “want to help” phrase implies a level of support that they might not have resources to give.
To add to that - if a company is not actively protecting the trademark, even in well intentioned cases, then someone can use the trademark and point to a precedent of the brand not defending its trademark, especially if it’s probable that the company was aware of the usage.
Waffle House (or any other brand) must and 100% always will send out a C&D for trademark misusage, otherwise they lose legal protection for that trademark.
Waffle House (or any other brand) must and 100% always will send out a C&D for trademark misusage, otherwise they lose legal protection for that trademark.
> Waffle House (or any other brand) must and 100% always will send out a C&D for trademark misusage, otherwise they lose legal protection for that trademark.
Actually, I'm pretty sure their request has no trademark law legs to stand on. Trademark infringement first and foremost requires two things: a) commercial use and b) for the goods and services the trademark is registered for.
Now I just checked and Waffle House has registered its trademark for "waffles", for "mugs", for "keychains" and other trinkets and for "restaurant services", but has zero registrations for "providing information online" or similar. So they really had nothing to defend with regard to a website that sells nothing.
Basically, had he just changed the website to use the name in text, they would have had a hard time to even forbid the nominative use of the trademark to refer to the actual waffle house (referring to the actual owner of a trademark in a nominative/descriptive manner is generally allowed).
There may be other areas of law that are more pertinent, but this is no case of good faith trademark defense. There was no "must" here. Looks like BSing someone who does not know better so he backs off. Also looks like using the archaic und expensive US legal system as a tool for coercion. Even if you're right, you need to be able to afford being right...
Actually, I'm pretty sure their request has no trademark law legs to stand on. Trademark infringement first and foremost requires two things: a) commercial use and b) for the goods and services the trademark is registered for.
Now I just checked and Waffle House has registered its trademark for "waffles", for "mugs", for "keychains" and other trinkets and for "restaurant services", but has zero registrations for "providing information online" or similar. So they really had nothing to defend with regard to a website that sells nothing.
Basically, had he just changed the website to use the name in text, they would have had a hard time to even forbid the nominative use of the trademark to refer to the actual waffle house (referring to the actual owner of a trademark in a nominative/descriptive manner is generally allowed).
There may be other areas of law that are more pertinent, but this is no case of good faith trademark defense. There was no "must" here. Looks like BSing someone who does not know better so he backs off. Also looks like using the archaic und expensive US legal system as a tool for coercion. Even if you're right, you need to be able to afford being right...
I think you're missing some nuance in your understanding of trademarks with all due respect.
The core use of trademark protection isn't a commercial use, necessarily. Rather, it's the act of infringing on the trademark holder's commercial use. So, if Waffle House is selling Waffle House t-shirts, and a business next door is giving away free Waffle House t-shirts that they printed - then yes, Waffle House would very likely win a lawsuit against someone giving away waffle house t-shirts.
Basically if someone is giving away or, especially, selling something that causes a confusion against the original trademark, then yes, the trademark "must" be protected.
By "must" I don't mean it's legally required. I just mean you're going to have a harder time in court if you need to pursue legal action against a company or person if there's a precedent you have not actively protected the trademark in other instances.
edit: and in this case, the site was causing confusion, so they sent a C&D. Also as the other commentor mentioned, the logo is trademarked.
The core use of trademark protection isn't a commercial use, necessarily. Rather, it's the act of infringing on the trademark holder's commercial use. So, if Waffle House is selling Waffle House t-shirts, and a business next door is giving away free Waffle House t-shirts that they printed - then yes, Waffle House would very likely win a lawsuit against someone giving away waffle house t-shirts.
Basically if someone is giving away or, especially, selling something that causes a confusion against the original trademark, then yes, the trademark "must" be protected.
By "must" I don't mean it's legally required. I just mean you're going to have a harder time in court if you need to pursue legal action against a company or person if there's a precedent you have not actively protected the trademark in other instances.
edit: and in this case, the site was causing confusion, so they sent a C&D. Also as the other commentor mentioned, the logo is trademarked.
To make it clear: The trademark is the combination of the sign (e.g. the word or logo) and the goods and services it is registered for. If you use the same sign for different goods and services then there is no infringement and no watering down/dilution, thus nothing to defend against.
There is a difference when treating well-known trademarks (say Coca-Cola, Sony, Google), however I doubt Waffle House gets over the threshold set for that for being too local (I counted at least 20 states that do not have one) and not sufficiently known by all demographics (if you want to know more read up on the Lanham Act).
Full disclosure: I am a TM lawyer, but not in the US. YMMV and what I write here is no legal advice ;-) since only gathered from US colleagues' explanations regarding cases clients had in the US.
The notorious/well-know concept is part of an international treaty (Art. 6bis of the Paris Convention) and its interpretation is similar in most western countries, so I'd expect the US interpretation to not be that far off.
There is a difference when treating well-known trademarks (say Coca-Cola, Sony, Google), however I doubt Waffle House gets over the threshold set for that for being too local (I counted at least 20 states that do not have one) and not sufficiently known by all demographics (if you want to know more read up on the Lanham Act).
Full disclosure: I am a TM lawyer, but not in the US. YMMV and what I write here is no legal advice ;-) since only gathered from US colleagues' explanations regarding cases clients had in the US.
The notorious/well-know concept is part of an international treaty (Art. 6bis of the Paris Convention) and its interpretation is similar in most western countries, so I'd expect the US interpretation to not be that far off.
Thanks for explaining and lending your expertise.
Though, I am, again not a lawyer, but I am 99% sure you can't go use the Waffle House logo to sell anything, let alone waffles. I only say that because no one is using, say, the Coca-Cola brand to sell shoes, and if they did, we all know Coca-Cola would prevent that. That goes for any trademark in the US. So perhaps trademark law is different here?
Also, Waffle House are ubiquitous as a brand in the United States - certainly not as well known as Coca-Cola or Sony, but I have no doubt they'd be able to prove national awareness in any demographic.
In this particular case if you look at the C&D, it is for the trademark usage. It's likely that this person could have simply removed the trademark from the page and it would have been fine.
edit: I think the key in other industries would be proof of brand dilution - that is, if you start using the Nike logo to sell waffles, Nike would send a C&D if not a team of lawyers because you are diluting the trademark. So I guess you're technically right, although functionally, brand dilution is easily provable.
Though, I am, again not a lawyer, but I am 99% sure you can't go use the Waffle House logo to sell anything, let alone waffles. I only say that because no one is using, say, the Coca-Cola brand to sell shoes, and if they did, we all know Coca-Cola would prevent that. That goes for any trademark in the US. So perhaps trademark law is different here?
Also, Waffle House are ubiquitous as a brand in the United States - certainly not as well known as Coca-Cola or Sony, but I have no doubt they'd be able to prove national awareness in any demographic.
In this particular case if you look at the C&D, it is for the trademark usage. It's likely that this person could have simply removed the trademark from the page and it would have been fine.
edit: I think the key in other industries would be proof of brand dilution - that is, if you start using the Nike logo to sell waffles, Nike would send a C&D if not a team of lawyers because you are diluting the trademark. So I guess you're technically right, although functionally, brand dilution is easily provable.
No prob. Just some random bits I found looking around for clues whether there already were any decisions from US courts wrt whether Waffle House is a well-known trademark:
Interestingly enough, Waffle House is mentioned in a 2007 article related to a US trademark law reform as an edge case [1].
This does not seem to be the first time that Waffle House appears to be overreaching: [2]. The balls to pull this off with a straight face, kudos to the colleagues.
An article from INTA relating to dilution [3].
[1] https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1864... page 458, last paragraph and footnote [2] https://www.techdirt.com/2011/08/17/waffle-house-says-rap-so... [3] https://www.inta.org/fact-sheets/trademark-dilution-intended...
Interestingly enough, Waffle House is mentioned in a 2007 article related to a US trademark law reform as an edge case [1].
This does not seem to be the first time that Waffle House appears to be overreaching: [2]. The balls to pull this off with a straight face, kudos to the colleagues.
An article from INTA relating to dilution [3].
[1] https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1864... page 458, last paragraph and footnote [2] https://www.techdirt.com/2011/08/17/waffle-house-says-rap-so... [3] https://www.inta.org/fact-sheets/trademark-dilution-intended...
https://commons.wikimedia.org/wiki/File:Waffle_House_Logo.sv...
This logo image consists only of simple geometric shapes or text. It does not meet the threshold of originality needed for copyright protection, and is therefore in the public domain. Although it is free of copyright restrictions, this image may still be subject to other restrictions. See WP:PD § Fonts and typefaces or Template talk:PD-textlogo for more information.
This logo image consists only of simple geometric shapes or text. It does not meet the threshold of originality needed for copyright protection, and is therefore in the public domain. Although it is free of copyright restrictions, this image may still be subject to other restrictions. See WP:PD § Fonts and typefaces or Template talk:PD-textlogo for more information.
You don't trademark for your advertising, commercials, menus, signs, or your website. You trademark for contents.
What do you believe is actually covered by trademark law? Maybe, the name of the website, but clearly the location and open status can't be, that would mean Google and many other map providers are violating trademarks on a massive scale. Or another example those websites with maps of petrol stations and their prices?
Sorry, I do not understand what you mean to say. Could you elaborate?
This is often brought up and almost never true. No reasonable court would dump their trademark over this. It needs to be overwhelmingly out of their hands and in the public conscious. "Frisbee" for example still holds their trademark over the word Frisbee despite the fact that the vast majority of people don't even realize that it's a trademarked term. Businesses have de facto no obligation to defend their trademark to the extent that the internet often thinks they do.
I am not a trademark lawyer. I'm guessing you aren't either or you would have said so. But multiple lawyers on multiple projects with multiple brands have mentioned this to me, and we have sent C&Ds to protect trademarks. With at least two of those lawyers, sure, it might just be more billable hours. But two were pretty decent guys and wouldn't have done it if they didn't think it was necessary.
At least within my corner of the business world (and not just "the internet"), it seems this is common knowledge among lawyers.
My guess is that, sure, would a court throw out a trademark? Maybe not, but the law works on a fine line between actuals (precendent) and hypotheticals, and it's just cheaper to issue a C&D than it is to fight a prologned legal battle about predcedent.
Also, it's interesting you mention Frisbee. There's a term for that: "genericide," and it's the term used to describe that exact scenario. Frisbee is one brand that didn't actively protect against trademark erosion and now we call every flying disc a Frisbee. Retrospectively, Frisbee might have wished they'd sent more C&Ds. Nintendo is one brand that has actively protected brand erosion, which is why we don't call it a Sony Nintendo.
At least within my corner of the business world (and not just "the internet"), it seems this is common knowledge among lawyers.
My guess is that, sure, would a court throw out a trademark? Maybe not, but the law works on a fine line between actuals (precendent) and hypotheticals, and it's just cheaper to issue a C&D than it is to fight a prologned legal battle about predcedent.
Also, it's interesting you mention Frisbee. There's a term for that: "genericide," and it's the term used to describe that exact scenario. Frisbee is one brand that didn't actively protect against trademark erosion and now we call every flying disc a Frisbee. Retrospectively, Frisbee might have wished they'd sent more C&Ds. Nintendo is one brand that has actively protected brand erosion, which is why we don't call it a Sony Nintendo.
Exactly my point: Frisbee is subject to genericide but keeps its trademark status because courts almost never actually take trademarks from businesses. If they don't do it to Frisbee then they won't do it to Waffle House because the courts, as you say, rely on precedent.
> Waffle House (or any other brand) must and 100% always will send out a C&D for trademark misusage, otherwise they lose legal protection for that trademark.
Time to change that braindead law then. Copyright has a "fair use" provision, and trademark law could be adapted similarly.
Time to change that braindead law then. Copyright has a "fair use" provision, and trademark law could be adapted similarly.
You can use a trademark any time you want. How would brand recognition work if people couldn't talk about Mustangs and Corvettes?
What you can't do is claim it's yours. Or let people think it's yours.
What you can't do is claim it's yours. Or let people think it's yours.
> You can use a trademark any time you want.
No, you can't. If you could use it whenever yoh want, we wouldnt have the concept of “nominative fair use” as the exceptional case of when and how you are allowed to use someone else’s mark in commerce without permission.
No, you can't. If you could use it whenever yoh want, we wouldnt have the concept of “nominative fair use” as the exceptional case of when and how you are allowed to use someone else’s mark in commerce without permission.
Mmm. “Anything” is maybe hyperbole.
You can’t represent yourself or product as a brand. But you can write a scathing review about them and use their name and nobody can stop you. That wouldn’t be a trademark situation, it would be defamation, not infringement.
You can’t represent yourself or product as a brand. But you can write a scathing review about them and use their name and nobody can stop you. That wouldn’t be a trademark situation, it would be defamation, not infringement.
[deleted]
To me this whole situation seems to be a pretty good example of what not to do if faced with a copyright claim. It's tempting to see outfits like The Onion or Cards Against Humanity doing this kind of thing and feel like you are bulletproof and can do it too. But it's pretty easy to tell when these 'open letter' responses have not received legal review.
Waffle House had a legitimate claim and acted on their obligation to their trademark.
There is a pretty good argument that Waffle House continues to have a claim.
They probably wont do anything because its, frankly, a waste of time.
This could probably have been avoided entirely if copyrights were correctly respected from the beginning.
Waffle House had a legitimate claim and acted on their obligation to their trademark.
There is a pretty good argument that Waffle House continues to have a claim.
They probably wont do anything because its, frankly, a waste of time.
This could probably have been avoided entirely if copyrights were correctly respected from the beginning.
What exactly is the trademark violation that they are "obliged" to defend? Somebody putting location and opening times of their restaurants on a map?
In this case it was their logo mark. AFAIK that's the only claim that they actually made as well. Reading anything else into this story is ridiculous.
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Websites have been creating, collating and displaying combinations of user generated data and business-provided data for a long time. For example, customer reviews on yelp or google places.
People make decisions on whether to try going to a place or not on this all the time. Sites use company logos in all kinds of ways, not the least of which is display in image SERPs, whether they fit brand guidelines or not.
The difference is this was a small site without the leverage to ignore WH.
The data should be accurate as possible, and if it isn't, the person should take the site down for that reason. But otherwise, they should have just changed the branding and kept it up.
People make decisions on whether to try going to a place or not on this all the time. Sites use company logos in all kinds of ways, not the least of which is display in image SERPs, whether they fit brand guidelines or not.
The difference is this was a small site without the leverage to ignore WH.
The data should be accurate as possible, and if it isn't, the person should take the site down for that reason. But otherwise, they should have just changed the branding and kept it up.
I wonder if they have the bandwidth/expertise at the company to hire him, or at least ink a marketing contract w/ their PR department
They literally have a locations information site, which has a map, and shows if the locations are open or closed. So, they already have a web team capable of doing this because they already have it.
https://locations.wafflehouse.com/
What this person did was summarize this to a single map with red dots and a "% closed" indicator at the top. And tying it to the connotation that it is due to storms/natural disasters with the "index" moniker. Not something Waffle House really needed.
https://locations.wafflehouse.com/
What this person did was summarize this to a single map with red dots and a "% closed" indicator at the top. And tying it to the connotation that it is due to storms/natural disasters with the "index" moniker. Not something Waffle House really needed.
.. maybe not need, but it could have been an easy win for for a viral marketing campaign, as well as feeding that "lore" of the Waffle House index.
Completely valid, but a cease-and-desist? C'mon. You're Waffle House. Give your attorney an undershirt, mullet, and broken whisky bottle and challenge me in the parking lot.
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mickey475778(2)
It's a shame this sort of thing leads to legal threats instead of job offers. Still, I wonder why the author didn't keep it up and just remove the branding - call it the "Waffle Home Index" or something.
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this was massive at the time and imho what the internet was made for. strike while the iron's hot, lawyer up as much as possible fr
With what bankroll?
Cease and desists are the equivalent of asking firmly but nicely in the legal world. They don't hold any legal bearing or obligate you to any sort of response. They are usually hoping you get intimidated into doing what they ask. You can always call their bluff and say 'no,' although I see in comments the OP neglected to mention they also patched/fixed the technique used to get this data so it probably was more of this, I hope.
True. But he was using a variation of the Waffle House logo that their lawyers would argue would "confuse the average consumer", and he was using the "Waffle House" name in a domain. In something that was actually directly related to the real Waffle House. Unfortunately, their lawyers would have an easy time with that lawsuit.
If op had named it something different, and didn't use such a closely inspired logo, he probably could have kept it up. Or at least had a much stronger case of fair use. But this is always the problem with "fan appreciation" and our trademark system. In order for Waffle House to keep their trademark, they must enforce it. They cannot let a fan use/abuse it, or else it can get to the point where a judge can say it is been made generic (ex: escalator).
When I was young, I learned this lesson via a very scary letter from Warner Brothers. The lawyers aren't always trying to be dicks (though some clearly are), but they are paid to protect the brand. And someone registering a site with your brand name, putting up a logo very similar to your real logo.... is always 100% of the time going to get that C&D letter. And eventually a lawsuit if you fail to comply.
If op had named it something different, and didn't use such a closely inspired logo, he probably could have kept it up. Or at least had a much stronger case of fair use. But this is always the problem with "fan appreciation" and our trademark system. In order for Waffle House to keep their trademark, they must enforce it. They cannot let a fan use/abuse it, or else it can get to the point where a judge can say it is been made generic (ex: escalator).
When I was young, I learned this lesson via a very scary letter from Warner Brothers. The lawyers aren't always trying to be dicks (though some clearly are), but they are paid to protect the brand. And someone registering a site with your brand name, putting up a logo very similar to your real logo.... is always 100% of the time going to get that C&D letter. And eventually a lawsuit if you fail to comply.
> But he was using a variation of the Waffle House logo that their lawyers would argue would "confuse the average consumer", and he was using the "Waffle House" name in a domain. In something that was actually directly related to the real Waffle House. Unfortunately, their lawyers would have an easy time with that lawsuit
For this to be trademark infringement, wouldn't he need to be selling products or services that compete with Waffle House? I don't think this is an obvious easy win for the WH lawyers at all, apart from the fact that they would have much greater legal resources.
For this to be trademark infringement, wouldn't he need to be selling products or services that compete with Waffle House? I don't think this is an obvious easy win for the WH lawyers at all, apart from the fact that they would have much greater legal resources.
No, there just has to be a risk that consumers think that this is somehow associated with Waffle House. The point of a trademark isn't directly commercial. It isn't about preventing other people from making money from your brand. It is about protecting the integrity of your trademark so that when users see your name and logo they know it comes from you.
Basically trademarks are like a signature, they "prove" who you are doing business with.
Basically trademarks are like a signature, they "prove" who you are doing business with.
> there just has to be a risk that consumers think that this is somehow associated with Waffle House
More than risk; some of the tweets could be actual evidence of that confusion.
I think if the general branding vibe of the site was more about hurricanes and only made a reference to the "Waffle House index" via NOAA, it might have had better chances of surviving. And also a big disclaimer that there is no affiliation with WH would have also helped.
More than risk; some of the tweets could be actual evidence of that confusion.
I think if the general branding vibe of the site was more about hurricanes and only made a reference to the "Waffle House index" via NOAA, it might have had better chances of surviving. And also a big disclaimer that there is no affiliation with WH would have also helped.
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I am not a lawyer. This is not legal advice.
However, you should always speak to a lawyer if you get any kind of legal notice, but especially of this type. Never assume, thats how things can go sideways, even if you may initially have had standing to dispute the notice.
Always talk to a lawyer before taking any action in situations like this.
However, you should always speak to a lawyer if you get any kind of legal notice, but especially of this type. Never assume, thats how things can go sideways, even if you may initially have had standing to dispute the notice.
Always talk to a lawyer before taking any action in situations like this.
Yes, but… lawyers cost money and you need to decide if the gain is worth the cost.
Disregarding a demand letter can cost far more money than a consultation with an attorney, and you need to decide if the gain from that choice is worth the cost, hence the need for a consultation.
(Though its less likely, complying with such a letter can also have hidden costs, so a consultation may be a good idea even if that is your inclination, but you are usually far more likely to experience adverse consequences beyond those you voluntarily and knowingly undertake from disregarding than from complying wiht such a letter.)
(Though its less likely, complying with such a letter can also have hidden costs, so a consultation may be a good idea even if that is your inclination, but you are usually far more likely to experience adverse consequences beyond those you voluntarily and knowingly undertake from disregarding than from complying wiht such a letter.)
Out of curiosity, what could be the hidden cost of complying?
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anything can be a legal notice if you say it’s a legal notice. what makes a cease and desist lawyer a legal notice? a lawyer signing it? you can find lawyer services online to send these. you can use chatgpt to send a letterhead that looks convincing. It’s not “legal” by any means until it enters a court of law, which is not guaranteed and in the disinterest of both parties usually. which is why these letters are sent.
Is it completely correct to say they have no legal bearing? As I understand things, they can be used to establish a date when someone was made aware of infringement, and that date can be used to start the clock on enhanced damages.
How would they confirm that you received an email or even letter mail? They're not serving you. This is about potentially proving that the owner is trying to protect their IP, which is required for it to be considered enforceable.
I would have handled it better, not with lawyers but with PR people.
my point is that it’s probably a PR person sending a precrafted email or letter like this and you shouldnt take it seriously for a nonprofit hobby project unless it contains a summons. they’re asking nicely before they escalate, but most companies contract out very expensive lawyers to handle these things that bill by the minute and they aren’t going to waste it on a hobby site with even mild pushback or no response. otherwise they’d just sue.
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FYI it is literally required by law that, to maintain a trademark, the company with the trademark must actively enforce it on an ongoing basis. Even if this side-project was benign, Waffle House must send cease-and-desist letters to maintain their trademark generally under US law.
That said, if the author had posted a tracker of Waffle House closures descriptively, without using their marks or branding, that would be fine, in the same way that google maps is fine to list which restaurants are open/closed. The key being that "google maps" is referencing the brand of google, their own trademark, and could not be confused for something authored by any of the restaurants featured on the map. Trademark is designed to avoid anyone being confused with who was the author, it's a "feels like" definition with a rubric, not a specific technical definition.
My suggestion would be to rename a site "disaster indices" and include the waffle index as one index. Even batter (yes) if you add other similar indices, like theme park closures or other.
That said, if the author had posted a tracker of Waffle House closures descriptively, without using their marks or branding, that would be fine, in the same way that google maps is fine to list which restaurants are open/closed. The key being that "google maps" is referencing the brand of google, their own trademark, and could not be confused for something authored by any of the restaurants featured on the map. Trademark is designed to avoid anyone being confused with who was the author, it's a "feels like" definition with a rubric, not a specific technical definition.
My suggestion would be to rename a site "disaster indices" and include the waffle index as one index. Even batter (yes) if you add other similar indices, like theme park closures or other.
> FYI it is literally required by law that, to maintain a trademark, the company with the trademark must actively enforce it on an ongoing basis. Even if this side-project was benign, Waffle House must send cease-and-desist letters to maintain their trademark generally under US law.
That's not the only option available. They can, if they find the use of the trademark to be benign (or even beneficial), offer a license to use it for this purpose.
For example, the Linux trademark has an approval and attribution process: https://www.linuxfoundation.org/legal/the-linux-mark
Folks should consider hiring Jack Daniels' law firm. https://www.abajournal.com/news/article/jack_daniels_cease-a...
> In order to resolve this matter, because you are both a Louisville ‘neighbor’ and a fan of the brand, we simply request that you change the cover design when the book is re-printed. If you would be willing to change the design sooner than that (including on the digital version), we would be willing to contribute a reasonable amount towards the costs of doing so.
That's not the only option available. They can, if they find the use of the trademark to be benign (or even beneficial), offer a license to use it for this purpose.
For example, the Linux trademark has an approval and attribution process: https://www.linuxfoundation.org/legal/the-linux-mark
Folks should consider hiring Jack Daniels' law firm. https://www.abajournal.com/news/article/jack_daniels_cease-a...
> In order to resolve this matter, because you are both a Louisville ‘neighbor’ and a fan of the brand, we simply request that you change the cover design when the book is re-printed. If you would be willing to change the design sooner than that (including on the digital version), we would be willing to contribute a reasonable amount towards the costs of doing so.
> My suggestion would be to rename a site "disaster indices" and include the waffle index as one index. Even batter (yes) if you add other similar indices, like theme park closures or other.
Is it really necessary to go that far though? I think they just need to stop using the visual mark and make clear that it's unofficial. (But I am very much not a lawyer.) You are allowed to identify a product or company by name so long as it's clear it's not you and trademark law can't be used to stop you (e.g., for a bad review). Maybe the site could be renamed "disaster index based on Waffle House closures" or simply "unofficial feed of Waffle House closures"
Is it really necessary to go that far though? I think they just need to stop using the visual mark and make clear that it's unofficial. (But I am very much not a lawyer.) You are allowed to identify a product or company by name so long as it's clear it's not you and trademark law can't be used to stop you (e.g., for a bad review). Maybe the site could be renamed "disaster index based on Waffle House closures" or simply "unofficial feed of Waffle House closures"
Yes you can name a brand name without using their logo.
That's not what the author did here -- he invented a fake logo and chose a domain name and title that include "WaffleHouse." Trademark law is specifically designed to prevent people from creating a fake logo and registering a domain that makes people think it is your own brand. Yes, there is some exception for parodies and criticism, but writing a review / parody sketch is a completely different format than a website that lists information that purports to be official open/closures of your business.
You can't create a product that contains the brand name of another product; I can't invent "Magic Kleenex" or "Better Google," so he similarly can't name something a "Waffle House Index." What he could do is name something "disaster index" or "breakfast restaurant index" where the data happens to be from the waffle house locations.
That's not what the author did here -- he invented a fake logo and chose a domain name and title that include "WaffleHouse." Trademark law is specifically designed to prevent people from creating a fake logo and registering a domain that makes people think it is your own brand. Yes, there is some exception for parodies and criticism, but writing a review / parody sketch is a completely different format than a website that lists information that purports to be official open/closures of your business.
You can't create a product that contains the brand name of another product; I can't invent "Magic Kleenex" or "Better Google," so he similarly can't name something a "Waffle House Index." What he could do is name something "disaster index" or "breakfast restaurant index" where the data happens to be from the waffle house locations.
I think the degree to which the waffle house index is popularized among demographics who make a lot of noise and don't do a lot of spending money at waffle house (an analysis that a BigCo marketing team is more than capable of performing) had something to do with their decision to levy a blank "stop this" rather than something more collaborative.
Yeah, dude copy/pasted the logo with the R and everything. What did he expect to happen?
the blog post made it clear he is a teenager. I don't think he thought about any of this. Hopefully he reads this thread, learns a bit more about trademarks, and tries again in a proper way.
If it's really true that there's no true Waffle House index, that would have some value for the world. Though I also suspect that there is something that exists for that (maybe part of a paid data subscription, e.g. from Bloomberg or something), since it isn't clear that the author did rigorous research for this fun side project.
If it's really true that there's no true Waffle House index, that would have some value for the world. Though I also suspect that there is something that exists for that (maybe part of a paid data subscription, e.g. from Bloomberg or something), since it isn't clear that the author did rigorous research for this fun side project.
Author here - I absolutely do have more to learn about trademarks and appreciate everyones comments :) I was attempting to go for a good faith representation but (obviously) now know that wasn't the best way to go about it.
As far as rigorous research, I looked semi-heavily and couldn't find anything in relation to it. I'm sure it's not a foreign concept to use local area data in this way for disaster planning though!
As far as rigorous research, I looked semi-heavily and couldn't find anything in relation to it. I'm sure it's not a foreign concept to use local area data in this way for disaster planning though!
Couldn't they just draft up a license to give them permission to use it?
It's much cheaper/easier to send the C&D. Licensing would mean a department to handle the licensing. They'd have to accept request for new licenses. They'd have to maintain the service being licensed. They'd have check for compliance with licensing terms. So the legal team rightly said, fuck that, here's a C&D.
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What a missed opportunity on the part of Waffle House. How disappointing (and dumb)!
I would have hoped that if they had the sense to send out a cease and desist (because somebody obviously knew that "the waffle house index" was in the cultural zeitgeist -- heck, it even has its own Wikipedia page: https://en.wikipedia.org/wiki/Waffle_House_Index ) ...
that they would have the good sense to work with somebody on a web page WHICH COSTS THEM NOTHING, and yet can foster a sense of good will for their company??
Well, I guess Waffle House doesn't deserve them.
Good riddance. And I'll definitely be going to IHOP when making my next Hurricane escape.
I would have hoped that if they had the sense to send out a cease and desist (because somebody obviously knew that "the waffle house index" was in the cultural zeitgeist -- heck, it even has its own Wikipedia page: https://en.wikipedia.org/wiki/Waffle_House_Index ) ...
that they would have the good sense to work with somebody on a web page WHICH COSTS THEM NOTHING, and yet can foster a sense of good will for their company??
Well, I guess Waffle House doesn't deserve them.
Good riddance. And I'll definitely be going to IHOP when making my next Hurricane escape.
The issue is moreso that they exclusively control their brand, and by letting someone else - who doesn't work for them and need not listen to them - control part of that, they are indirectly loosening control of their brand and narrative. They probably do not want the additional headache of buying this product, onboarding it, managing it, etc. The easiest but unfortunate solution here, to limit risk and liability, is to shut it down.
If this is the case, then they are truly beholden to their own lawyers (and not the other way around, which is just ridiculous).
Why aren't they insisting that FEMA not use their brand when talking about "the waffle house index"?
Why aren't they insisting that FEMA not use their brand when talking about "the waffle house index"?
IHOP is good too!
If I were Waffle House, I would be thinking "hm. This is a one person project; what are the odds that it will break/go down eventually, and people will assume it was ours and get angry at us? Could write a clause about rights returning to us, get the code in escrow... but then we might wind up maintaining some random project using a stack that isn't part of our core competencies..."
And then I'd try to work something out anyhow, cause this is a cool project. But I sadly get the caution.
If I were Waffle House, I would be thinking "hm. This is a one person project; what are the odds that it will break/go down eventually, and people will assume it was ours and get angry at us? Could write a clause about rights returning to us, get the code in escrow... but then we might wind up maintaining some random project using a stack that isn't part of our core competencies..."
And then I'd try to work something out anyhow, cause this is a cool project. But I sadly get the caution.
It is a cool project but probably imagine they wouldn’t want the escrow idea either, right? I mean they are a restaurant chain, they don’t want to go anywhere near anything that looks at all like providing emergency notification services, right? Even as a joke…
And I mean, do they even want to lean into that reputation to hard? I’m sure they don’t want to have some managers get somebody hurt by not closing a restaurant out of a misplaced sense of pride or bravado based on the reputation (I mean, I know almost nobody would do that, but somebody might!)
And I mean, do they even want to lean into that reputation to hard? I’m sure they don’t want to have some managers get somebody hurt by not closing a restaurant out of a misplaced sense of pride or bravado based on the reputation (I mean, I know almost nobody would do that, but somebody might!)
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Terrible response from Waffle House. After all this time they should know better.
After all of the examples of people protecting their brand, you should know better. Of course this is what they are going to do. Every. Single. Time.
The least dickish example is probably the Jack Daniels incident, but even their first contact to the offender was a C&D.
The least dickish example is probably the Jack Daniels incident, but even their first contact to the offender was a C&D.
After all the examples of brands handling things badly, you should know better. From Bud Light to Peloton, corporate-customer relations is not a new topic. There are different ways to handle this. Waffle House chose a path which now has however many people on Hckrnews making up their minds in both positive, and negative ways. That's not what a company wants.
The least dickish thing to do is to not be a dick.
The least dickish thing to do is to not be a dick.
No, the least dickish thing to do would be to not infringe upon what is clearly someone's trademark. If you think you can use something someone else created as their identity without permission, then you're just a dick.
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As great as Waffle House is, this is a good reminder that they are a corporation, and so must not be trusted.
Maybe I am a bit jaded by life, but I think Trust is a bit foolish. However I have some notes from my International Relations Realist studies:
>Trust is subordinate to anything that can flip Power dynamics. If things will not change the Status Quo of power, trust can be a held as it has benefits in reducing costs. If a power dynamic can be flipped, trust will be broken.
>Trust being broken has implications. After Hitler invaded Czechoslovakia, Britain refused to negotiate with him. Not even minor issues could be resolved and only naked power decided things. Stalin had this issue after enforcing communist parties over Eastern Europe.
>As an alternative to trust: Verification. Verification mechanisms exist. Weapons inspectors are an example of this. If the weapons inspectors are not allowed somewhere, you should not just Trust blindly. Obviously the cost is higher when you need to spend resources on verification.
It feels weird to say, but I don't need much trust. I ensure interests are aligned and have verification for things that are important.
Blind trust that wasnt earned is absurd. Trust when stakes are high is absurd. I genuinely feel bad for children and young people who are taught to blindly trust, as they will get burned.
/unpopular reality.
>Trust is subordinate to anything that can flip Power dynamics. If things will not change the Status Quo of power, trust can be a held as it has benefits in reducing costs. If a power dynamic can be flipped, trust will be broken.
>Trust being broken has implications. After Hitler invaded Czechoslovakia, Britain refused to negotiate with him. Not even minor issues could be resolved and only naked power decided things. Stalin had this issue after enforcing communist parties over Eastern Europe.
>As an alternative to trust: Verification. Verification mechanisms exist. Weapons inspectors are an example of this. If the weapons inspectors are not allowed somewhere, you should not just Trust blindly. Obviously the cost is higher when you need to spend resources on verification.
It feels weird to say, but I don't need much trust. I ensure interests are aligned and have verification for things that are important.
Blind trust that wasnt earned is absurd. Trust when stakes are high is absurd. I genuinely feel bad for children and young people who are taught to blindly trust, as they will get burned.
/unpopular reality.
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phoronixrly(1)
Based af. Wish Waffle House was cool enough to recognize that.
Not a lawyer but I think this could result in a duty of care under tort law if people start to reasonably rely on this information to make decisions. If it can be perceived as semi official information then it’s reasonable to expect people to rely on it.