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  1. #1
    Join Date
    Jan 2007
    Posts
    2

    Default Your Analysis Needed: Trademark Infringement? Proactiv Solution vs Propassiv Solution

    New York State

    Just briefly on my case:
    I used the acne skin care system, Proactiv Solution, a product of Guthy-Renker, in June 2005 and over the next several months, I suffered severe outbreaks of skin lesions that I had never experienced before. When inquiring about these severe outbreaks, Guthy-Renker’s unlicensed medical support representatives advised me to continue using Proactiv and even sold me additional products that only worsened the situation. Ultimately, I ended up getting professional help from a dermatologist who cleared my acne, although I have been left with permanent facial scars and discoloration on my face.

    During this time, I suffered anguish and depression, which still hits me today. I feel very strongly about what happened to me. Therefore, I have created a website called propassiv.com to share my experience with others so that what happened to me does not happen to anyone else.

    Recently, I have gotten an email from my domain handler stating that Guthy-Renker's trademark lawyers said that I am violating trademark laws and that if I do not contact them, my domain would be cancelled. I don't agree for the following reasons: a) I'm not advertising or profitting from my site, b) I'm simply sharing my experience with Proactiv with others and using a derivative of Proactiv's images to reference them, c) any rational person coming to my site would not confuse it as being run or sponsored by Proactiv.

    Questions:
    I understand that Proactiv is a billion dollar company with good lawyers, but I do not wish to shut down or modify my website until I am certain that I have violated trademark laws, as I feel the public should know the possible depressing damages Proactiv can cause. Apparently Proactiv's trademark lawyers disagree with me, so I would like for you, the experts, to visit both proactiv.com and propassiv.com and give me your professional opinions and analysis on what you think of this case - violation of trademark laws or not?

    And while we're at it, with the information provided, do you feel that my situation warrants a case?

    All opinions welcome.

    Thank you,

    Chris

  2. #2
    Join Date
    Nov 2006
    Location
    Texas
    Posts
    354

    Default Re: Your Analysis Needed: Trademark Infringement? Proactiv Solution vs Propassiv Solu

    I do not feel your situation warrants a case against Proactiv, but I believe your website may be actionable against you. You have no proof that the use of Proactiv caused your worsened skin condition. It could have been merely coincidental that you began using the product at the same time as you developed a severe bacterial infection in your system. I experienced a similiar problem and, after 1 year of medical treatments, the cause of the infection was a previously undiscovered dental issue....once that was corrected, my cystic infections cleared up quickly.

    I use Proactiv now and my skin is more clear than it has been in years. My teen daughter also successfully uses the product. We were referred to it by friends who had success using the product, rather than the celebrity endorsements.

    All topical solutions and medicines warn against possible allergic reactions or other sensitivities that may occur, depending on the individual. In fact, in my mid thirties, I suddenly developed an allergy to penicillin causing me to be seriously ill and covered head to toe in hives, even though I had never before had a problem with penicillin. The solution? I can no longer use penicillin to treat infections, I have to use alternatives. That does not entitle me to create a website to warn others against using penicillin.

  3. #3
    Join Date
    Jan 2007
    Posts
    2

    Default Re: Your Analysis Needed: Trademark Infringement? Proactiv Solution vs Propassiv Solu

    Just Breath,

    Thanks for your reply.

    As on my website, the issue is NOT whether Proactiv Solution works or not, but the fact that Proactiv's support representatives consistently advised me to continue using the product telling me that results vary by person and that my face would get better if I use it for several months. In fact, they even sold me additional products. Whether it was Proactiv or coincidental, I don't believe that Proactiv is dismissed as a possibility of the cause of my injuries.

    You seem to think that I have violated trademark laws, but have not given any reasons upon which your thinking relies. You're simply arguiiing that it may not be Proactiv - in fact, you speak as though you're sure that it's not Proactiv because it has worked for you or your "similar" experiences...hmmm.

    What's very objective in your comment is:

    "...That does not entitle me to create a website to warn others against using penicillin."

    What happened to the first amendment, freedom of speech? Just for your information, since my website, I have gotten a number of emails from viewers stating that the same exact reaction happened to them. Was that also a coincidence? Some even said they never thought it was Proactiv that caused it and dismissed it as a possibility...now it makes them wonder. I simply created the website to share my experience with Proactiv Solution with others. I never said that it does not work!

  4. #4
    Join Date
    Nov 2006
    Location
    Texas
    Posts
    354

    Default Re: Your Analysis Needed: Trademark Infringement? Proactiv Solution vs Propassiv Solu

    Unless your statements are "true", Proactiv may have a slander case against you. Since you have no proof that Proactiv caused you harm, you cannot prove your statements are true. My best guess on the trademark infringement issue is that you are using a similiar name on an image resembling Proactiv's packaging of its product. I'm certainly not an expert on these issues, just giving you my opinion.

    If Proactiv's customer support encouraged you to continue using the product, then that implies to me that they have no knowledge of such hazards occuring with the use of their product. If they had any reason to fear their product could be responsible, they would surely suggest you discontinue use.

  5. #5
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Your Analysis Needed: Trademark Infringement? Proactiv Solution vs Propassiv Solu

    There is some case law on this type of website - here's a brief summary of a case dealing with some "sucks" sites - "[trademark]sucks.com":
    Quote Quoting Sixth Circuit Supports Sucks Sites
    "We find that Miskoff's use of Taubman's mark in the domain name 'taubmansucks.com' is purely an exhibition of Free Speech, and the Lanham Act is not invoked. And although economic damage might be an intended effect of Mishkoff's expression, the First Amendment protects critical commentary when there is no confusion as to source, even when it involves the criticism of a business. Such use is not subject to scrutiny under the Lanham Act. In fact, Taubman concedes that Mishkoff is "free to shout 'Taubman Sucks!' from the rooftops....Essentially, this is what he has done in his domain name. The rooftops of our past have evolved into the internet domain names of our present. We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it."

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