This past Friday, the 1st of December, I received a letter from a lawyer representing Telstra and Sensis. You might be wondering why on Earth an individual such as myself would be receiving letters from such a person, but to be perfectly honest it wasn’t completely out of the blue, since my husband had suggested to me a letter of its nature might be on the cards a few months ago. Why? Because Telstra and Sensis attack anyone who might use the words “yellow pages,” no matter what the context is. One example my husband gave was when they made Sun Microsystems change the name of one of their products that used the words “yellow pages” in a context that had nothing to do with what they had registered the trademark for.
Okay, so if you’re unfamiliar with my main web site, you might now be wondering where or why I’ve used “yellow pages.” For the past 7 years, I have had a section on ComedyDownUnder.com called the “comedian yellow pages,” which is basically an encyclopaedic index of Australian comedians (the international comedians are listed under the title of “international index.”) It took Telstra/Sensis seven years to attack me for a possible intellectual property infringement. Why did it take them so long? I don’t have an answer for that. I suspect it has something to do with the gaining popularity of my site in the past few months, but I’m still a sole operator, rather than the organisation they thought of me as. I make no money from listing any of the comedians on my web site so they wouldn’t really get anything out of me if they decide to sue me because of my refusal to remove the words “yellow pages” from the site.
And why would a single person like me be confident that she can go up against a national corporation like Telstra/Sensis rather than just do as they ask and remove the words? Because I know a thing or two about IP (and I think I have a greater respect for it than most people I know, which is why I will not copy any extract from the letter they sent me here for “copyright” reasons), and I’m married to a lawyer who knows even more than I do about IP.
Honestly, though, I might have been more forthcoming if the lawyer had done a bit more research. The letter said I had 14 days to comply with their request. It was dated November 20th, 2006. As I mentioned above, I only received the letter on December 1st. This would have given me only four days to comply. I was not satisfied. Why did it take so long for me to receive the letter? Because instead of using any of my contact details supplied on my actual Web site, they chose to look up the details I used to register my domain with. I renewed my domain nearly two years ago and my contact details have changed drastically since then, not to mention married and changed my surname (yes, they addressed the letter to Dominica Corless, not Dominica Malcolm).
Their far-fetched excuse that people might think I had any association with their business was probably the most laughable. Having managed the “comedian yellow pages” for seven years, I’ve never once had anyone say to me they thought I was affiliated with the telephone/business directory. In fact after I got the letter, I did a Google search for “yellow pages” and gave up after I couldn’t find my site within the first ten pages of results. I have, however, had people try (and succeed) to locate my site by searching for “comedian yellow pages” – clearly people who had been to the site before but didn’t bookmark it and couldn’t remember the URL. I am the first result for that search, and quite rightly so since I’m the only person who uses those words in that order. Telstra/Sensis’ directory has nothing to do with comedians, so there’s no reason I shouldn’t be able to use those words. If they still believe anyone might think I have any sort of affiliation with them, I’m more than happy to add a disclaimer to my site to say I don’t, but not so willing to remove the words entirely. As I said, having used them for the past seven years, they have built up a reputation on their own amongst comedy fans (and I really don’t think anyone else visits my site).
Naturally, with only four days left to comply, I had my husband respond to the letter immediately by e-mail with my reasons for not complying. We have yet to hear back from them.
This blog entry is brought to you by the disclaimer my husband wrote at the end of his e-mail to the lawyer, “Please note however that Mrs Malcolm reserves the right to post copies of communications between us on this issue to her Web site and/or to other public fora for the interest of activists in the areas of online freedom of expression, intellectual property reform, restrictive trade practices, and corporate oppression of youth and alternative culture.”