my freeware has the same name as a dating site

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adrieberg

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My jurisdiction is: Las Palmas, Spain

I am the author of a freeware software called DatePad (exisits since 2001). This software is for recording texts which are related to a date. A kind of notepad, mixed with a calendar.

There exists a dating site, also called Datepad (registered since 2008 i believe). The owner of this site send me this mail:
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I am the owner of Datepad Inc. which holds the international trademark rights to "Datepad". We have learned that you also distribute a piece of software using the same trademarked name, http://leiden365.nl/datepad which in most Google search results shows up below our site links.

The last thing I am looking to do is become involved in a legal dispute over this trademark infringement, what I would like at this time in order to avoid legal proceedings is to ask that you add a link to our site at the top of the http://leiden365.nl/datepad page. Simply stating "for Datepad Internet Dating" please click here.
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I would prefer not to add a link to this dating site, because it will not change the socalled infringement, and even worth, it will add my website also to dating related search results in google.

My DatePad is clearly different to the dating site, but since the software is freeware I did not register the name in any place. Am i at risk of procecution? I would appreciate any advice you can give me.
 
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First of all, I have no idea if this newly registered site really does own any rights. Second, when you file a trademark, you must make representations of not knowing that there is prior usage. Considering you have been using that name for your software for 8 years and all this person did was use Google to find you, I'd have to say their trademark search was lousy. It would seem to me that if all he wants is a link to their site, they probably don't have the rights that they say they do. If you challenge their rights and state the above to them... might they be afraid that you can challenge their trademark? I can't tell you what to do but my feeling is that they aren't looking for a lawsuit any more than you and they probably know they likely do not have a case. These are just my thoughts.
 
What if you were to put in a link on your site. But be a little devious about it.

You could put the link somewhere that is almost impossible to detect?
Or you could make the colour of the link the same colour as (or similar colour to) the background, making it invisible, but present.

You could get an email from the same person who emailed you regarding the trademark infringement and suggest to them, "I am happy to add a link to your site, however, I want a guarantee that once I put the link to your site, on my site, that this will be the end of the matter and that no legal proceedings will be issued."

Once you have an email confirming the above, put the link in (in the same colour as the background of your website).

When they get back to you, stating that you havent added the link, tell them you have and show it to them (ie. its there, but its invisible).

Now, you will have the email which clearly states that by putting the link in you were promised that no legal proceedings would be brought against you, providing you put a link to their website, which you have.

If they issue legal proceedings, you can print out the emails (as your defence) and highlight that you have complied with their original wishes.

Would this work?
 
Great comments. I must have answered quickly. Perhaps you can state that you are glad to add a link while you can or something else, and I wouldn't do it in bad faith by highlighting the link as the same color as the background. That reeks of bad faith. For a period of time you might put up a link for an unrelated item until you decide it isn't feasible any more. You've done your end and that's all. You also want to make sure that it's noted that making an accommodation is in now way an admission that a valid mark or claim exists. Feel out th situation. They aren't looking for a lawsuit. All of this presumes you are even in the same TM class, which you might not be.
 
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