You guys may remember a post on TechCrunch yesterday about a trademark spat between an entrepreneur named Brian Hamachek, who built an app called Who’s Near Me Live, and a Lightbank-backed startup called myRete, who built an app called WhosHere, strikingly similar in both functionality and name. The story unfolded that Hamachek had been bullied by WhosHere in the legal realm, despite the fact that WhosHere was built two years earlier, but there are at least two sides to every story.
Hamachek’s side of the story was written by Rip yesterday, but the main points you should know are these: Hamachek changed the name of his app to WNM in most (but not all) instances of its appearance after being hit with a C&D from WhosHere over a year ago. But the spat was revived after WNM got some traction on TechCrunch in March (this is where it gets really good).
This apparently led WhosHere to hit Hamachek with a federal lawsuit, alleging trademark infringement, unfair competition, cybersquatting, and breach of contract. But what Rip likely didn’t know is that WhosHere has a relationship with John and I. We met with Bryant Harris and Stephen Smith in DC before the mini-meetup (and various times thereafter), and we thought it highly unlikely that they would whip out a legal team based solely on a competitor getting TechCrunch coverage.
Hamachek paints himself as the victim here, but there’s another side to the story: he borderline-copied an app that was already on the market, right down to the name.
Here’s the other side to that story from myRete, addressing Hamachek’s points about the timeline, the name, how the legal docs got served, and the offer the parties had already discussed.
In an email sent to us, Smith and Harris state the following:
We are not patent trolls, we are entrepreneurs and developers, and here’s what we’re struggling with.
We founded WhosHere in 2008. Mr. Hamachek approached us in 2010 to integrate his idea for a Windows Mobile version into WhosHere. At that point, we had built a successful app on iOS with just us two founders doing everything from coding to customer service. We had to make a decision on where to put our resources and declined his offer.
We bootstrapped WhosHere for 3 years, through 4 million users and into a profitable company when we met with and ultimately took an investment from Lightbank last summer. We were exceptionally proud of everything we had built including our brand name.
After we declined the opportunity to integrate a yet-to-be-built Windows Mobile version, Mr. Hamachek said he was going to go ahead and develop his own app. Our only response was, ‘fine, but please don’t trade on our brand name. We’ve invested a lot into WhosHere and our trademark.’
We felt that it would be unfair competition (and bad for the strength of our trademark) if we let another app in the space have a name that sounded very similar to WhosHere. We then politely asked him to rebrand. He agreed. When the original brand name came back this spring we felt sucker punched. Despite a lot of correspondence with Mr. Hamachek, we have arrived at this unfortunate point.
To all the other entrepreneurs and developers out there, this is the bottom line for the two of us. We literally bet our life savings on this and years of zero vacations to bring WhosHere to where it is. We were both down to a week or two of savings when we turned WhosHere into a profitable company. Would you protect your company and its name?
In Sarah’s post, the one covering WNM, Hamachek’s app is first referenced by its Christian name, Who’s Near Me Live. I believe this is what myRete is referencing in that second-to-last paragraph of their statement.
But there are some other points to consider when looking at this from the side of WhosHere.
First of all, Hamachek alleged that WhosHere withheld certain deadline information, and as a result, he missed the deadline to file a response in the lawsuit. Apparently, this can be a standard practice among IP lawyers who are looking to take advantage of defendants unfamiliar with the system. But WhosHere rebuts:
We did not withhold any court documents from Mr. Hamachek. The documents filed with the court confirm that WhosHere has served Mr. Hamachek with all relevant documents.
From a more objective viewpoint, it seems as though WhosHere didn’t withhold any info, but they probably weren’t as forward as they could have been.
Then there’s also the matter of cooperation. Hamachek claimed that he approached Smith two years ago to build out a Windows Mobile version of WhosHere for them. Hamachek says that Smith rejected the offer and suggested Hamachek build it himself and see what kind of traction he could get. Based on that, WhosHere would decide whether or not to bring him on. From there, Hamachek’s story dives straight into the original C&D sent to him.
But myRete says that they actually made Hamachek an offer:
Just a few weeks ago, we offered to partner with Mr. Hamachek. We offered to integrate his Windows Mobile work into WhosHere and offered a revenue share deal for $100,000, plus fees, for ongoing development (that is where the license agreement that Mr. Hamachek references comes into play, but he left this upside out of his blog post). We truly expected a counter offer. But, when he rejected the offer outright, we asked him what he thought was fair. We never received a response.
It’s clear that both parties have invested a great deal of time and energy (and undoubtedly money) into these efforts. And there’s no question that the apps are a huge part of these founders lives — hell, Bryant Harris met his wife using his own app, WhosHere.
MyRete had the idea first, Hamachek then followed up with his own version in an area they hadn’t been focused on. Everyone involved has worked hard and created something valuable for users. Sure, it’s understandable why Hamachek feels like the victim here, but it’s equally understandable why MyRete does too — and thus decided to take this to court.
Only time, and the courts, can decide who’s right.