Well, we can all just be glad we have places like this to discuss all of the agencies freely - without anyone locking threads

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s e l l p h o t o s . t k

Top Sellers ? Shutterstock ? Fotolia ? Dreamstime ? BigStock ? StockXpert ? FeaturePics ? MostPhotos ?

the more complete answer to why sites don't let you talk about their competitors is liability. lawsuits can be and have been threatened if one site's forum says "on istock sucks" on the ss forum - Jon used to let us post about anything we wanted. that's changed, and it's legal, not "business" as much. that's the way I understand it - you dont want to be responsible for someone trashing the competition on your site.

I see. So if it's an independent site like this one, there is no legal liability? Just when the site is operated as a competitive agency?

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openpathdesign.com Microstock - A Crash Course

Well I'm not really going to get into too much legal specificity for this topic but let's put it this way - you're allowed to criticize someone. You're allowed to critique their services and review what you saw or got from them. That's why amazon, ebay, etc. have review systems in place. That's more like this site - open talk, review and education.

When you put that information on a competitor's server, what you *could* argue legally (whether you'd win or not is debatable and more about the lawyer's skills and the judge's disposition then the actual legality) - but if I were running ABC Stock and there was a post about me on the Istock forum, I'd argue if any post was incorrect in any way that Istock was encouraging libel about my services and could even be posting it themselves as a way to lie and harm my business.

Anyone can sue anyone for anything - whether they can win is another story. But would you, as Jon, want Istock suing you over what someone said in the forum about Istock's approval rate or whatnot?

There's also the issue of trademark & trade names. If you have a registered Trademark, the use of that trademark can be strictly controlled legally. If you don't have permission to use a trademark in a way that affects the legal rights of the TM holder, you can get sued for that as well.

Trademark dilution is a concept forbidding the use of a trademark in a way that lessens its uniqueness or value. Can you imagine the arguments Istock could put forward on the lessened value of their mark if everyone on SS forums talked about why IS sucked or why they left IS? Nightmares!

"A nonowner may also use a trademark nominatively?to refer to the actual trademarked product or its source. In addition to protecting product criticism and analysis, United States law actually encourages nominative usage by competitors in the form of comparative advertising." Fair use (US trademark law - Wikipedia, the free encyclopedia)

For us, we have the ability to fall back on fair use - educational fair use, trademark fair use, etc. While not foolproof, it helps a lot.

HTH and this is not legal advice blahblahblah

~Matt

Interesting read. Thanks, Matt.

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openpathdesign.com Microstock - A Crash Course

You seem to know something about trademark law, but I question your interpretation of the concept of dilution. When a person is talking about iStock on SS site, you are not diluting iStock as a trademark, because you are talking about iStock per se. Dilution happens when a third party uses a trademark on unrelated goods and services. If you want to apply the concept of unfair competition, probably it's arguable.

I guess the example I had in my head never made it to the forum which would make what you said 100% true on my example of dilution. Let's try it this way though and see if you still think my idea of dilution is wrong.

Let's say you make a post about Istock on the Shutterstock forum.

Now let's say someone Google's Istock and winds up on a post on Shutterstock which says Istock sucks.

Shutterstock.com is making use of the Istock name to gather traffic that would have otherwise been looking specifically for Istock.

That's what I meant by shutterstock's "use" of Istock. I'd argue that Istock would lose value because of the use of its trade name on the Shutterstock.com site.

Again, same thing would apply here if we didn't have rights that superceded theirs. Fair use, education, criticism all apply because we're not a competitor using their name for our own benefit.

(Yahoo search for Istock forums brings up this: istock forums - Yahoo! Search Results)

Interesting argument. Are you creating the new interpreation for the court or do you know any US courts have interpreted the concept of dilution that way?

Some interesting thoughts.

Here's my take and it's much more basic.

I own a business (yes I really do) and since the 70s I've been sending customers to competitors when I don't sell what a customer needs or they are trying to buy something that doesn't match their needs, but the competitors line of products will work better. I have a smart ass friend who is a manager at one of those places (or was, because they are gone now) who said I was one of their best salesmen.

More important, I never badmouth the competition when I'm with clients or customers. There's no reason to start a pissing match with the competition or get into a war of words, which makes everyone look foolish in the end.

It's much easier to get along and beat each other to a pulp, in a business sense, with a better product, better service, better price or something that's attractive to customers, than it is to waste time running down the competition or mud-slinging.

With that, if a website says no discussing the competition, it's avoiding a whole load of negative baggage, some which may bounce back. More than that, it's the high road and makes your site look better and have more integrity, instead of being a dumping ground for verbal toxic waste.

Simple enough? It's bad business practice to waste your energy running down the competition, when that time could be spend promoting your own benefits. Same goes for the website, which is associated with your business.

Sing along with me now...

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I quit the whole law thing awhile ago. I don't know that when I quit any court had actually had a case by then regarding web traffic theft via trade name. I do know that there's a whole LOT of them coming with people using their competitors names in their Google Adwords etc. If you do a search for Vistaprints, you get ads for all sorts of stuff. That only happens because the competitors are using that exact word in their Google ads - which would seem to me to be dilution.

The basic idea is sound. Let's put it this way, I know that Istock COULD sue on this ground. I don't know who would win - again, that's a question for how good the lawyers are and the judge's political bent. If the judge favors IP protection, Istock could win, IMHO. Hopefully they don't bother - but it's always possible if sites let these conversations happen.

edit: my new interpretation isn't new:

A US judge refused to dismiss a lawsuit against Google that charges the web search leader's adwords program abuses trademarks.
In making his decision to allow the case to move forward, US District Court Judge Jeremy Fogel ruled the public has an interest in whether adwords, the company's popular pay-per-click advertising system, violates US trademark law.

American Blind & Wallpaper Factory, the top US reseller of window blinds, charged in its lawsuit that Google abuses trademarks by allowing rivals of a company to buy ads that appear when consumers search the web for information on that business.

Lots of legal references for the discussion here: Baker Botts LLP | Google v. American Blinds: Internet Giant Finds Itself in Court Battle Over Sponsored Links Program

SOOOoooooo yes there's definitely an argument to be made on both sides.