"Hear Me" is one woman's rallying cry. It's also the name adopted by an
Welcome to a modern-day David and Goliath story, in which a woman can't
hear and a multimillion dollar dot-com is choosing not to.
Faye D'Alessio is 55 and a San Francisco resident. She was born hard of
hearing, so when she started a nonprofit organization called Hear Me & Co.
(HMC) to help hard-of-hearing children, she was fulfilling a dream. HMC's goal
is to create a bridge between the hearing and hearing-impaired communities by
building a coalition among educators, health care providers, families and hard-
of-hearing youth in order to supply information, facilitate understanding and
"I believe that a lot of children fall through the cracks. A lot are of
color, and their parents are on welfare," D'Alessio says. "I'm a firm believer
that a lot of times children are having problems in school is because they
can't hear, and if they can't hear, they can't learn."
HOW IT ALL STARTED
In creating her organization, D'Alessio did everything right: She filed the
name with the state and got her corporate certificate.
Then the company formerly known as Mpath Interactive Inc., moved to
Mountain View. The company develops, operates and licenses technology that
enables real-time Internet communication and communities. That includes voice
and music technology.
D'Alessio and her lawyers believe that the company adopted the name Hear Me
without first doing a corporate name search. When they found out the name
already existed, they contacted D'Alessio and asked her to give up the name.
Despite that, D'Alessio says, they blocked all the possible Internet domain
names, then began using one of them. They even tacked on a word to the name
they wanted, registering with the state as HearMe Technologies (HMT). But for
all intents and purposes, the company identifies itself as HearMe.
D'Alessio claims HMT has badgered her to give up the rights to the name. At
first, she didn't realize that they already had a Web site HearMe.com. HMT
made D'Alessio an initial offer of $5,000 compensation, then upped the offer
to $15,000. At the time of the first offer, D'Alessio realized she was being
chased. She decided to find out more about this company, then hired a lawyer.
"What was shocking to me was that even after my office helped Faye send
(HMT) a letter demanding that they stop using her name, they then had a press
conference and announced in the Business section in the San Francisco
Chronicle that they were changing the company name to the same name as Faye's
organization," says D'Alessio's attorney, Paul Melbostad, of the San Francisco
firm of Goldstein, Gellman, Melbostad, Gibson & Harris.
For a company that made close to $14 million last year, the $15,000
offering is so little that it is considered an insult, says Cynthia Seymour,
67, president of HMC's board of directors.
WHAT THE LAW SAYS
According to Melbostad, HMT is violating the California Business and
Professions Code, which prohibits one corporation from using another
corporation's name. D'Alessio has exclusive rights to use the name, so HMT
should be unable to use it without her permission.
To bolster her case, D'Alessio filed for federal trademark protection, but
so has HMT. Both have been approved. Because D'Alessio had the name registered
in California first, she has filed an opposition against HMT's trademark.
The law is on her side, says a Julianne Bochinsky, a trademark lawyer with
the American Trademark Co. who was hired by D'Alessio.
"In the U.S., our legal system recognizes common laws to trademarks,
Bochinsky said. "So even if HMT files an application before Faye, the fact is
she really was the first to use the mark. Really and truly, they should have
recognized this, and they should have realized this in conducting the search
for trademark before they applied."
But if HMC and HMT are using the same name differently, doesn't this
matter? No, says Bochinsky.
"The dominant portion of both those names is Hear Me. The words Co. and
Technologies are descriptive and are really inconsequential to the issues of
trademark and infringement. The dominant portion is what consumers remember."
Consumers also remember advertisements, and that is where HMT has an
advantage. D'Alessio has received phone calls from people asking if the ads
were for her organization.
Melbostad wrote in a letter to Joanne Scully, opposing counsel with the
firm of Wilson, Sonsini, Goodrich & Rosati in Mountain View: "Whereas the
technologically sophisticated client base of HMT probably will not confuse
that company with a nonprofit, the client base of HMC is not necessarily
sophisticated and will confuse HMT's advertising campaigns with HMC."
Through Scully, HMT has declined to comment for this story.
LIFETIME OF EFFORT
In the meantime, HMC is struggling to survive. As a nonprofit organization,
it needs funding. D'Alessio works full time as a case manager for Baker Place
in San Francisco to pay the bills.
So why take the time, effort and expense to fight the name infringement?
It's simply a matter of principle, she says. D'Alessio has worked hard to
build the reputation of her organization's name, and consideres the name a
part of who she is.
"I've been discriminated against because of my color, and the moment people
find out I have a hearing impairment, my intelligence goes out the window,"
D'Alessio says. "I'd always had a dream about wanting to start a company to
work with children."
D'Alessio's goal from the start has been to target children 6 to 18 years
old. In this age group, 14.9 percent have a measurable hearing loss in one or
both ears, according to the Alexander Graham Bell Association for the Deaf and
Hard of Hearing.
D'Alessio's mission is to raise awareness that there are many people born
with hearing loss. "There's a feeling of loneliness that you can't explain,"
she says. "When I talk to people like myself, I learn so much more when I find
out they feel the same way I do. It makes me more able to keep going. It
validates my feelings and what (HMC) is trying to do."
WHERE TO GO FROM HERE?
Even though both sides are legally entrenched and determined, a few
mutually beneficial possible solutions can be worked out. If HMT agrees to
give D'Alessio a large settlement to support her nonprofit, she might give up
the use of the name. The way things are going, however, that scenario is
unlikely, Melbostad says.
Another option is for both sides to agree as to how each of them can use
the name -- limiting respective uses to specific services or products, as well
as to a geographic area, and agreeing on what rights each would have to
license the use of the name to others.
Melbostad disputes HMT's defense that their products are different and
unlikely to cause confusion. After all, both companies involve hearing. He
says, "We have contended that in a broad sense, one of the products is
interactive voice technologies for elderly, shut-in people, which overlaps
with hearing-impaired individuals. It is frustrating because they seem to be
taking advantage (of the fact) that it is difficult for a nonprofit
organization to prove monetary advantage.
"In my opinion, they just can't disregard her because (HMC) is small, and
they know it will be difficult to prove damages. What does not make sense to
me is that you can just disregard someone else's name if you are a bigger
Stanford professor Margaret Jane Radin, who teaches patent law and
electronic commerce, points to deeper problems.
"Trademark rights have gone too far. The corporations that own them have
been able to get legislation and court decisions that I feel are over-reaching,
that are too oppressive against free speech," she says.
The bottom line is D'Alessio believes that HMT doesn't understand what she
and her organization are about.
D'Alessio speaks for underdogs everywhere when she says forcefully, "It
makes me mad that they can come in, take something from you, something you
want, and probably get away with it. There's something wrong with giving your
own name back to you."
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