Why Atomic Grow Sucks!

[Mischka]

Originally Posted by Webmaster Email: Rec'd 6/22/2011

June 22, 2011

VIA ONLINE MESSAGE

Mitschka
Commerce Holdings, LLC
www.tomatoville.com

RE: Jim Shellenback v. Commerce Holdings, LLC; Notice of Infringement

Dear Mitschka:

We represent Mr. Shellenback in this current trademark matter.

Mr. Shellenback is the owner of United States Federal Trademark Application Serial No. 85231672 for the word mark ATOMIC GROW. Mr. Shellenback uses this mark in con★★★★★★★★ with his proprietary crop growth products. A copy of the federal trademark application data can be found at the following link:

http://tarr.uspto.gov/tarr?regser=se...Request+Status

Also note that Mr. Shellenback has used and promoted the name ATOMIC GROW in connection with his crop growth products for over 3 years, involving significant investments in time, effort, and financial resources. Mr. Shellenback owns the domain name www.atomicgrow.com, which is operating a live commercial website.

It has recently come to our attention that your company Commerce Holdings, LLC (“Commerce Holdings”), is publicly hosting a “stickied” thread entitled “Why Atomic Grow Sucks!” on its website www.tomatoville.com. On its face, it is clear that the forum thread refers directly to Mr. Shellenback’s products. Furthermore, a review of this thread reveals numerous unverifiable comments which attempt to make “factual” testimonials regarding Mr. Shellenback’s products. Therefore, for this reason, your usage of the mark ATOMIC GROW in connection with this forum thread is likely to cause confusion among the public and constitute a false representation that your company is somehow affiliated with or authorized to speak on behalf of Mr. Shellenback.

It is clear that such usage directly conflicts with Mr. Shellenback’s rights and usage to the mark ATOMIC GROW. This activity is actionable under federal law and may constitute unfair competition, intentional trademark infringement, trademark dilution, and false designation of origin.

In addition, because many of the negative comments geared toward Mr. Shellenback’s products contain purported “factual” testimonials that cannot be verified, such material may constitute defamatory statements entitling Mr. Shellenback to possible state and federal damages. In fact, entitling the forum “Why Atomic Grow Sucks!” actively invites visitors to submit potentially defamatory content and opens your company to possible contributory liability.

Given the above circumstances, we request that your company immediately: 1) take down the “Why Atomic Grow Sucks!” forum thread from www.tomatoville.com; and 2) cease and desist any and all use of ATOMIC GROWTM in connection with crop growth products.

We believe it is in our mutual best interests to communicate openly about the matter and thereby avoid future conflict and expense. It is our client’s intent to reach an amicable resolution to this matter as expeditiously as possible. Therefore, we require that you respond to this letter no later than Friday, July 8, 2011 at 5PM PST, alerting us of your intent to comply with the provisions of this letter. If we do not hear from you, we will proceed accordingly and initiate whatever legal action is necessary to assert our client’s rights.

This letter is written in the interest of confidential settlement. Nothing contained in this letter is intended to, nor shall it constitute, a waiver or relinquishment of any rights, claims, or positions possessed by Mr. Shellenback, all of which are expressly reserved.

Very truly yours,

RAJ ABHYANKER, PC
Attorneys for Mr. Shellenback

--------------------------------

Referring Page: http://www.tomatoville.com/
IP Address: 99.38.183.38
User Name: Unregistered
User ID: 0

HAHAHAHAHAHAHAHAHAHAHA!

Dear Raj Abhyanker,

It is clearly my opinion and the opinion of many members here that the product sold and marketed by the company High Yield Industries, under the name "Atomic Grow" sucks.

Please commence litigation at your earliest convenience.

That is all.

p.s. - the thread stays.

[sfmathews]

Sit on it!! And
Good for you Craig!!

[lurley]

ROFL! Can't breathe! Can't breathe! Whew, gosh darnoodley that's funny!

[arivaraci]

Wow! Suspense and legal drama... Just Wow!

[Dunollieman64]

As Charlie chan would say " Very interesting thread here." Obviously Shellenbeck knows he's been put on the spot lol.

[jgaleota]

Originally Posted by Mischka

HAHAHAHAHAHAHAHAHAHAHA!

Dear Raj Abhyanker,

It is clearly my opinion and the opinion of many members here that the product sold and marketed by the company High Yield Industries, under the name "Atomic Grow" sucks.

Please commence litigation at your earliest convenience.

That is all.

p.s. - the thread stays.

Too funny! I'll bet you are shaking in your boots! Any updates?

[mrdoitall]

HA!HA!HA! Do you guys know that Atomic Grow Sucks!!! They got the Name right! It made my tomato plants look like they were hit by an ATOMIC BOMB!!! Now take me to court!!!!
The forum needs to file a Class Action Lawsuit against Atomic Grow for producing a product that DOESN'T WORK!!! One that killed our plants!!!

[To-MAH-to]

Frankly the ONLY thing Ive ever used has been Miracle Gro.
No reason to change. Usually I have so many tomatoes I cant keep up with them.

[To-MAH-to]

" Therefore, for this reason, your usage of the mark ATOMIC GROW in connection with this forum thread is likely to cause confusion among the public and constitute a false representation that your company is somehow affiliated with or authorized to speak on behalf of Mr. Shellenback.

What a load of garbage.
Telling why a product sucks doesnt have a thing to do with trying to represent the company that puts out the crappy product.
Seems like the poster who was pushing the product is ticked off that he was banned.
There isnt a thing they can do about us remarking about the ineffectiveness of any product.

[kevinrs]

It might be good to take the letter to a lawyer anyway, as there is no competing product being sold here, there is no competition, so that part of their case falls apart. The "numerous unverifiable comments which attempt to make “factual” testimonials" could be applied to their site as well, where do they get that it's implied that this site is affiliated or authorized by Mr. Shellenback?

It seems to me that these lawyers are attempting to use scare tactics to restrict free speech. It's possible that you might have a case of some sort against them for harassment or a first amendment case or something.

[Raffles]

Originally Posted by Mischka

HAHAHAHAHAHAHAHAHAHAHA!

Dear Raj Abhyanker,

It is clearly my opinion and the opinion of many members here that the product sold and marketed by the company High Yield Industries, under the name "Atomic Grow" sucks.

Please commence litigation at your earliest convenience.

That is all.

p.s. - the thread stays.

I ran the IP address the message was sent from, 99.38.183.38. It comes up as being:

SBC Internet Services, Inc.
3300 West Esplande
Metairie, LA 70003

Maybe someone else already mentioned this but wouldn't you expect an attorney to send a threat by registered letter rather than a comment on a website?

Have you checked to see if Raj's firm (http://www.rajpatent.com/) has even heard of this guy? If not he might be highly unamused to have someone playing games with his name.

[ScottinAtlanta]

This Shellenback guy poses on internet fora as an expert to promote his products, while the questions to him have all the characteristics of a shill. He works alongside someone called Kathy Crowley. Both of them recommend Atomic Grow in response to almost every problem. Kathy Crowley works at Crowley Nursery which "is the exclusive distributor of this groundbreaking product." (Atomic Grow). She does not reveal this financial interest in her responses on internet fora.

Look at this volunteer experts site - allexperts.com. There are 551 recommendations to use Atomic Grow, almost all of them from Kathy, a relentless promoter masquerading as a neutral expert. Shellenback has done the same thing.

http://en.allexperts.com/q/Plant-Dis...5/red-acer.htm
http://en.allexperts.com/q/Plant-Dis...5/index_58.htm

Kathy even suggests that all other products are "poison":

"Hi Ginger, you could use a product called Atomic Grow that is organic that will make you palms and all your plants healthy so you do not have the problem again. It will clean off the leaves and make them look shiny and beautiful, work it way into the palm or plant and raise the brix which is sugar content, the more sugar the healthier the plant and bugs go elsewhere. It will even make them healthy so the leaves do not turn black. And the best it is organic and made from food. Or else you would have to get a product that would be poison which I know nothing about only that in the long run it can hurt you and the environment as well. kathy"
http://en.allexperts.com/q/Plant-Dis...e-w-sticky.htm

If you go to the atomicgrow.com site, you will find not one but two glowing testimonials from Kathy to Jim. http://www.atomicgrow.info/Testimonials.html. Now, Jim writes on his site: "All content including, without limitation, text, images, media files, videos, software, and source code is subject to copyright protection and may not be used except with the written permission." Relying on the "fair use" limitation and exception to the exclusive rights granted by copyright law to critical reviews (Jim, you might check with your lawyer if this confuses you), I will reproduce here what Kathy writes on the site:

Hey Jim,
Guess you are waiting for a report on my plants. Everything in the greenhouses and outside we sprayed before the long frost. Today Jan 11 I go into my greenhouses and see the hummingbirds zipping from one flower to another sipping nectar. It smells so beautiful with all the flowers still in bloom. Out side that which we sprayed and threw a frost cloth over, as I peek in, I see some top leaf damage where the cloth laid on it for 4 days but under that layer happy peppers are growing. Many plants have lost their leaves but the stems are green and the leaves will come back. The only plants that it did not help were the thin leaf tropicals that always freeze and that I do not protect anyway because they come back. So I have to say Thank you Atomic Grow .... Kathy and the hummingbirds and also had a few butterflies flying around.

Kathy Crowley
Crowley Nursery & Botanical Gardens, Inc.
Sarasota, FL.

Jim, I had a landscaper from Boca Grande, FL. call today and said you know why I am calling right? I said NO? She said “Atomic Grow is fantastic, in one day I noticed a difference and I am sending a customer of mine up to get me more”. They came, and the lady said she walked out of her house the next day and could not believe the difference. So she bought some for herself. The landscaper and news will be getting around down there for sure....She said she had noticed to by keeping the leaves clean it helped the plant survive much better and now with Atomic Grow just step back . . .
Kathy Crowley
Crowley Nursery & Botanical Gardens, Inc.
Sarasota, FL.

Please note that Ms. Crowley is not identified as a distributor of the product. This whole thing is just a poorly organized product promotion in which these two misrepresent their financial interests in hopes of deluding the innocent. This is completely my opinion, and I take full responsibility for it, Mr. Shellenback. Bring it on, son.

[kevinrs]

I went back and looked at the email posted, and looked at the details in the links, he's the owner of an application, that has not been approved, as of May, it needed to be changed to disclaim grow and growth except in the mark, and it needs to be clarified whether it's nutrients or herbicide, if both needs to be filed as such, with more fees paid.
I don't believe as the holder of an unfinalized application he is in a position to take legal action against anyone, though he could warn that once approved legal action may be taken. In any case, even with a trademark, to win any litigation, I believe they would have to prove that the postings here were either invalid and malicious, or biased and trying to promote another product for profit or similar.

[Suze]

This whole thing is a joke, and the email threat Mischka received is just laughable. What it boils down to is whats-his-face is butt hurt because he didn't get his way. He wasn't allowed to spam here to promote his product - which was his purpose in registering an account in the first place as the thread clearly shows - and got banned as a result.

I'm sure he also doesn't like it because people are expressing their honest opinions about the product.

I'm no attorney, nor do I attempt to play one on the Internets, but I do know enough to know that a thread where folks are merely sharing their personal opinions and experiences with a product is not actionable grounds for a successful lawsuit.

[bigbubbacain]

Well said, SUZE!