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Saturday, July 02, 2016

Club Mahindra's legal notice on my blog post!

This is two week old news. I deliberated a bit if I should make this public. After serious considerations, decided that other bloggers and general public should be kept informed of the developments and hence this post.

Two weeks ago, while I was in Shatabdi Express heading towards BLR for my weekend trip, I received an email, which was sent by a lawyer who identified himself as legal counsel for Mahindra Holidays and Resorts Pvt Ltd (popularly known as Club Mahindra). The email was a legal notice that claimed my blog is wrongly using logo of Club Mahindra and the 6 year old post I had written, in which timeshare buyers and sellers can discover each other is not approved by Club Mahindra and be taken down.

Long term readers of my blog will know my blog posts related to timeshare. The first post was written in 2007 in which I provided a detailed analysis of time share membership and highlighted multiple drawbacks in the process. This post has received 500+  comments mostly by customers of timeshare who felt they got trapped buying a membership that doesn’t look as nice as the picture painted to them during sales pitch. During subsequent years, I have interacted/worked with officials of Club Mahindra on multiple instances- I was invited to visit two of their resorts, had done an email interview of a senior official and few more minor interactions. Past 2-3 years I have not written anything new about Club Mahindra. I would have responded even to a normal mail from club mahindra, so I found the sudden legal notice little surprising.

The long legal notice tried to establish high reputation carried by Club Mahindra and claimed that I have got two things wrong

-          That I am illegally using Club Mahindra’s logo and other artwork which is intellectual property of Club Mahindra
-          That one of the posts in my blog [link here] in which timeshare owners/prospective customers can discover each other, by filling an online form, is illegal as it is not approved by Club Mahindra

Notice commanded that I comply with following demands immediately

-          Remove all club Mahindra logos and artwork from my blog
-          Remove the post in which timeshare buyers and sellers can discover each other.

(In the interest of your reading time, I have only included key essence of the notice. Entire notice has lots more text, don't see any need to make entire notice and its reply public at this point)

I was given one week to respond or else face further legal action.

This was my first legal notice. As a law abiding citizen, I am duty bound to respond to the notice. I could have responded myself. But I felt like taking some advise from experts in this matter. I wanted to know my rights, obligations and worst case scenarios. I made a facebook update seeking if there’re any lawyer friends- many kind people responded with references. I connected with Raja Selvam, who runs a law firm Selvam and Selvam, who offered to help me in responding to the legal notice.

Below are the ground realities related to the two claims made in the notice:

-          The logo used in the blog was supplied by an agency hired by Club Mahindra during their re-branding exercise few years ago. I was explicitly asked to replace the post with these logos and I complied in good faith. Having their logo doesn’t serve any purpose on my blog and I may not have any concern in removing it. Instead of checking facts internally or at least asking me through a normal mail, Club Mahindra suddenly preferred to slap a notice, which I feel was unnecessary and total waste of time and effort on both sides.

-          The blog post in which timeshare buyers and sellers discover each other is a non-commercial one. As per the timeshare agreement (as I was aware, unless something has changed recently) someone who buys a timeshare product from Club Mahindra is free to transfer it to anyone else. (Just like how a car owner is free to sell his car to someone else). For a 25 year commitment involving several lakhs of rupees, Club Mahindra gives only 10 days of cancellation time, which is too little for anyone to experience (like do a booking n stay) and realize if the membership is worth or not. By the time timeshare customers realize it is not really worth, they can’t cancel it anymore or seek any partial/prorated refund for unused duration. If my understanding is correct, Club Mahindra doesn’t provide any platform on its own where members can put up their membership for sale in an attempt to recover part of their money. So their customers ('owners' of timeshare product) are forced to look for a buyer outside in public domain. Today there are many platforms like OLX, Quikr, facebook groups etc for anyone to sell/buy anything, so my post is not really that important at present. My post was created years ago when these tools were not present and members desperately needed a platform. My post only helps buyers and sellers discover each other and doesn’t facilitate any transaction- actual transaction happens at the doorsteps of Club Mahindra, at their own discretion. I am not a party to any transaction or disputes and adequate disclaimers already exist on the post to this effect. If a timeshare membership can't be sold once purchased, what is the point in using the term "ownership"?

-          Mahindra Group itself runs a platform called FirstChoice.com in which car owners can buy/sell cars of different brands. If my post that connects timeshare buyers/sellers is wrong and violation of Club Mahindra’s IPR, how is Firstchoice.com right when it lists all competition brands?(by extension of that, all used car business becomes illegal)
With help from Raja Selvam and his team, who represented me, the notice was formally responded to within the stipulated time. The response counters the claims made in original notice and explains why I am not at fault, while expressing full respect for Club Mahindra’s IP and willingness to discuss/cooperate on any concern the brand may have. It has been more than a week since we responded to the notice. I was expecting some kind of acknowledgment or counter arguments- there has not been any as of now.

I have taken following actions on the posts

-          Though the Club Mahindra logo was supplied by their own agency with request to use them in the post, I fully respect CM’s IP on this. While I complied with their request earlier (to use the logo supplied by them) in good faith, now I understand that CM has changed its stand. Having their logo doesn’t serve any explicit purpose for my readers, so I have removed them.

-          The said blog post stays for now, unless Club Mahindra reverts to our response with specific concerns explaining what is wrong with this. I have refined the disclaimers further so that everyone is very clear about my position. I am not a party to the transaction or dispute and the post is merely a discovery mechanism for buyers/sellers. All actual transfer of membership or payment etc happens outside.

-          If there are any more concerns or requests from Club Mahindra I am open to discuss or work with them. I would expect and appreciate a mutually respectful interaction and logical/fact based discussions on the concerns.            

Lessons learnt:

1.       Logos, trademarks etc are property of respective brands. If you are using them in a blog post, have some evidence that you are authorized to use them. Always add disclaimer that brand names, logos etc are owned by respective brands

2.       Be extra cautious while working with super large brands. One department may not have an idea what is happening in another department. Particularly if your writing doesn’t praise the brand much or highlights drawbacks/limitations in their product/services. Employees of the organization (with whom you might have worked), management policies and approach may change over time, so what is assumed correct today, someone else may argue the opposite few years from now. Keep email evidence for key actions/decisions.

3.       As an individual we have rights to write about a product or service. As long as it is fact based and represents truth, there is no need to fear. A brand cannot insist “Do not write anything about my brand in your blog”. But they can always ask you to remove their logo or other such IP items or if there are factual errors in the content they can always pursue it to get it corrected.

4.       Legal notices can be responded to professionally. If you haven’t done anything wrong, there is no need to panic. Taking help from an experienced lawyer helps, as they can respond in a professional and legally correct way. If I had responded myself, my reply might have probably sounded more amateurish and unprofessional. I am thankful to Selvam and Selvam team, who helped refine my response and responded to the notice in a perfect way. It is the same effect as trying to fix the broken pipe yourself vs hiring an experienced plumber. I am glad I sought help.

As there has not been any response our reply for over a week, I am assuming Club Mahindra is satisfied with our response to their notice and the matter resolved for now. However, there is always a possibility that some more surprises may spring up in future. At this moment I do not need any help on this matter. Will keep you posted. Thanks for your support as always.

July 7th Update: Another week has passed and there's been no further response. I am thankful to the wholehearted support received from the blogging community in this matter.

Similar: Indian Techie vs Airtel * Fake court case calls from Delhi

21 comments :

Mridula said...

Good that you responded and took legal help. Anything that I can do, you just have to let me know.

Shrinidhi Hande said...

Thanks Mridula. Assuming CM is fine with my response as of now, given that they've not reverted since a week. If more surprises come up and if I can't handle it, then I will seek help.

Maniparna Sengupta Majumder said...

A legal help is must in this case. Also, I think it's important to find out the credibility of the person who had sent the email.

Shrinidhi Hande said...

@Maniparna

Right. We found the email legitimate.

The wild said...

Excellent response based on well informed decisions.Its the nature of big companies ,why even burka dutt duly silenced a blogger this way.I think more than anything CM should have been happy and paying you for providing a platform to keep their customers happy.Intimiditating seems to be the only intention I can say

Shrinidhi Hande said...

@The Wild- Thank you

Tomichan Matheikal said...

Club Mahindra loves cheap popularity, it seems 😀

Aravind Balakrishnan said...

Good Havens!!! Its about time to be grateful,feel obligated,isn't that a good reason for CM, rather than resort to drama like this? & owe you an apology & I am glad you did respond with attention to detail "Careful preparation" is the most important thing! #blogging101

Aravind Balakrishnan said...

Good Havens!!! Its about time to be grateful,feel obligated,isn't that a good reason for CM, rather than resort to drama like this? & owe you an apology & I am glad you did respond with attention to detail "Careful preparation" is the most important thing! #blogging101

Sankara Subramanian said...

Well done Shrinidhi. Right approach taken. There is no need to back down.

Shrinidhi Hande said...

@Sankara- thanks for your support.

@Aravind: Thanks.

@Tomichan - No comments.

Prasad Np said...

Classic case of Right Hand not knowing what the left hand is doing. Even now as I type this there are travel bloggers at Club Mahindra resort, and they expect a blogger known for his " honest and accurate" views should take down a blog post.... ?

Shrinidhi Hande said...

Thanks for your support. Their resorts are great- no doubt. Most concerns are with various aspects of timeshare model- unless bloggers study that aspect, they will only write how great the resort is, while ignoring other aspects

Kiran Acharya said...

You have taken the right approach Shrinidhi. But, I have a doubt. I thought that use of copyrighted material was allowed as an exception in case of reviews, criticism, and news reporting under Indian Copyright Law. Then, doesn't a blog review come under the fair use exception?

Shrinidhi Hande said...

@Kiran

From what I learnt, blog reviews are perfectly fine- we can always write our reviews/analysis or a brand or its product/services using names. But Logo, trademark and such copy righted materials can't be used if brand objects. Most brands do not mind bloggers using their logo as it helps publicity. Problem comes only when blog posts are critical of a product/service or not in favor of the brand. TV channels and print media often uses brand logos etc and brands usually never question them.

Anupam Chakraborty said...

I completely agree with what you have summarized at the end of your post. But wait for some more time as it would be too early to draw a conclusion that the issue has been settled as of now. However, I wish it gets resolved soon. I am sure your lawyer has stated in the reply about the removal of or intention to remove their Logo from the blog. That is indeed required to let CM know about your compliance with their Notice.

Shrinidhi Hande said...

@Anupam - yes, there is always a possibility of delayed response. Let us see.

Anonymous said...

Maybe you should have also added a clause that if you don't hear back from them you would assume the matter is closed and CM is satisfied with your reply (just like they did).

Ajay said...

Very well handled Shrinidhi. There is lot to learn from your post.

R Niranjan Das said...

That's the right way. No need to panic as long as you have done things ethically.

Shrinidhi Hande said...

Thanks Niranjan, Ajay

@Anon-It is fine.