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Why Those Cease-and-Desist Letters Aren't All Bad

In a weird way, William Gilligan and Mike Ferneman figure, attention from lawyers means they have hit the big time.
But...But... For Mike Ferneman (left) and William Gilligan, the oddest thing was being denied the right to use their own names on their products.

In 2007, longtime friends William Gilligan and Mike Ferneman co-founded an e-commerce network selling temperature-regulating bedding and other products. Soon, they attracted notice—which was a mixed blessing. As told to Judith Ohikuare.

William Gilligan: One day, out of the blue, we get this letter from the Federal Trade Commission telling us to cease and desist on using the word bamboo on one of our sites, because the bamboo in our products had been chemically treated. DriBamboo.com was one of 78 companies listed, along with Kmart, Target, Amazon, and Sears—all of the top names. We thought we'd made the big time!

Mike Ferneman: Our first thoughts were a combination of freaking out and feeling really good. We were scared, because if we didn't comply, there could be a $16,000 fine for each violation—and there were hundreds of them. We just had to say, "OK, we will do what you say. No problem," and change the descriptions of our products from bamboo to bamboo viscose or bamboo rayon.

WG: Then we heard from Target. In the process of branding our products, Mike and I thought it would be smart to protect our company name, so we started the process of a trademark on Gilligan & Ferneman. Well, we got a cease-and-desist letter from Target, who said that we were infringing on their Gilligan & O'Malley products. We said, No, these are our names!

MF: It's ridiculous. I'm Ferneman, he's Gilligan, and we're selling bedding. Gilligan & O'Malley is a name for women's underwear. How can you mistake a mattress pad for sexy underwear? We didn't have the money to pursue it then, but it was kind of disheartening.

WG: We started to learn that sometimes it's just the nature of the game. A large mattress maker recently sent us another letter after we mentioned on our website that customers love their products but call us for solutions since their memory-foam beds sleep hot. Now we can mention them on the sites, just more generically. We're a couple of little entrepreneurs who have to learn as we go. But if we're on the radar of the Federal Trade Commission and all these other companies, we must be doing something right.

MF: I'd say the same. We've gotten calls from Oprah. We got one from Dr. Oz, who asked us to do a giveaway on his show. When the episode aired, we couldn't watch it live, because we had to monitor traffic on the website. We sat there, waiting, because we knew approximately what minute of the hour it was on. And in two or three seconds, traffic went from maybe 20 people to about 1,400. It was totally awesome. We have the ability to do so much more in the future because people have noticed us. We do have to ask ourselves, "How do we do this right and legally?" But that's something we wouldn't trade for the world.

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