(courtesy of L. W.)
In general, unfair competition refers to the economic injury that a business may sustain by reason of the deceptive business practices of others. This may consist in acts which confuse the public as to the origin of the product or in "unfair trade practices" which includes among others, false advertising, trade libel and false representation of products and services.
False advertising is clearly defined by the Lanham Act as "any advertising or promotion that misrepresents the nature, characteristics, qualities or geographic origin of goods, services or commercial activities." There are three acts which constitute 'false advertising' namely, "a) failure to disclose, b) flawed and insignificant research and c) product disparagement." There is false advertising when a representation that is made is not true because it results from the failure to disclose a material fact. Thus, the falsity consists in the statements that falsely gives account or are stated incorrectly and those statements which are only to some extent correct.
Flawed and insignificant research refers to claims made which are unsubstantiated by any authoritative research or "which are contradicted by a prevailing authority or research" (§ 43(a) of the Lanham Act) while product disparagement refers to an act of creating disbelief in the product of a competitor.
In order for a case for false advertising to prosper the plaintiff must prove that the challenged statement is virtually false or if not virtually false, the statement is likely to result in the deception or confusion of the customers. Moreover, the plaintiff must establish that the false statement or representation made by the defendant is essential and material. It is deemed to be material if it affects the decision of the consumers to purchase the product or avail of the services.
"Passing off" may also constitute unfair competition. Lanham Act prohibits "false or misleading description of fact, or false or misleading representation of fact" in commerce, which "is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person . . ."
With the advent of advanced technology and the development of new ways and means of marketing products and services, there are higher risks for unscrupulous use of the marketing strategies and devices. The internet for instance has been a fertile breeding ground for numerous term paper mills and custom essay writing websites that cater to students who need relief from the stress of researching and writing academic requirements and tasks.These websites claim to be companies when they are not incorporated or registered at all or where one entity incorporates or registers and all other entities owned by it are made 'affiliates' without necessary documentation or registration as well. They claim to be located in the U.S. territory and/or UK as specified on their websites when after verification their offices in those places specified are non existent.
These websites also claim that their papers are written by native speakers of the English language with PhD's and Ma's when a Google search would reveal that majority if not all of the complaining writers are non-native English speakers, i.e. from India, Pakistan and the Philippines. They use American domain-name registrars and American hosting companies. There are a few instances as shown by evidence that modifications of their websites were done with a foreign Internet Protocol (IP) address in Ukraine. These websites cause press releases to be issued to sway the mind of the public that they truly are located in the U.S. specified address by announcing seminars, symposium, and award giving events as having been conducted in several hotels when upon verification and inquiry, none of any of the events transpired.
For instance,
SuperiorPapers dot com announced in September that it would launch its First Term Paper Symposium on 7-8 of November 2008 at the Sheraton Reston Hotel. An inquiry was made after said dates and the Complex Director of Revenue Management of the Sheraton Reston Hotel denied having had any symposium or event of SuperiorPapers (with documentary evidence consisting in correspondences).
Another Press Release article was released on 27 September 2008 announced that BestDissertation dot com will hold its 5th Annual Writing Convention on 26-28 September 2008 at the Sheraton Crystal City Hotel. The hotel officials, upon inquiry also denied having hosted the event at their Hotel(with documentary evidence consisting in correspondences).
The worst so far of the PR materials released is one which drags San Diego City College as supporting the use of term paper mills, specifically BestEssays dot com. The
PR article dated 23 December 2008 claimed that San Diego City College partnered with BestEssays dot com in a one day seminar which allegedly concluded in the promotion of the essay writing website. It further alleged, "At the end of the seminar, San Diego College acknowledged the valuable partnership of www.bestessays.com by helping promote the site to the participants." The President of San Diego City College (SDCC) upon being informed of this vehemently denied that the institution is supporting the use of term paper mills. He also said that no event as presented in the article took place in the City College (with documentary evidence consisting in correspondences). In fact, the website of SDCC contains a section for Press Releases and Events but there was no such event ever happening within the College as described in the press article written by 'Lula Williams' of BestEssays.
Sometime in the early part of December 2008, I noticed that on the website of SuperiorPapers dot com and specifically on the extreme lower right were logos under the heading 'As Seen on' of TimesOnline, PittsburgLive dot com, New York Times, Information Computer Sciences (www.ics.heacademy.ac.uk), GEOS7 and PlagiarismAdvice dot org as shown in
Figure 1 (Please note that I 'whited out' the actual logos of these companies notwithstanding the fact that some of these companies had given their assent for me to post the image. I felt that displaying their logos even when authorized would be taking advantage of their stature and prestige).
A site displays a thumbnail for 2008-10-09 but with a superimposed image of 'TN PRO' (software designated as Terrain Pro) at the bottom right corner to cover the logos. A part of two of the logos, "Times" and below it "Pittsburgh" are still evident. (The original copies of the webscreen shots taken on 03 December 2008 and 09 January 2008 are preserved for evidentiary purposes). The officers for these companies after having been informed of the use of their respective logos and after viewing for themselves the website of SuperiorPapers denied having anything to do with the website or any term paper mill for that matter. They demanded from SuperiorPapers to 'take down' their respective logos as its display and use on its website was NOT authorized and permitted.
Figure 1
The Service Director of
PlagiarismAdvice Dot Org and representative of Northumbria Learning of UK, Mr. Will Murray had initially demanded the 'take down' of their logo sometime early this month and sometime on the 9th of January 2009 we noticed that SuperiorPapers took down only the logo of PlagiarismAdvice.org. Another logo used by Superior Papers without permission and authority was that of Information and Computer Sciences. According to Dr. Giuseppe Trombino MIET of
Information and Computer Science Subject Centre, Higher Education Academy,"The Company is using our logo without our permission and we do not support their practice in any way." On the 14th of January 2009, I noticed that SuperiorPapers took down all the other 5 remaining logos.
Mr. Peter Butterworth, an e-business consultant of the National 2B2 Centre explains that logos and branding are protected by Trademark Laws. The association of these logos without permission to one's company is seen as done for the purpose of benefitting one's stature and credibility of which the trademark-registered company has no knowledge or control. One can venture a logical assumption as to the reasons for the unauthorized use of the logos of reputable and established companies and institutions or of claiming to have inaugurated events in hotels and in an educational institution when there were none—these were all done so that they can portray to the consumers/public that they have physical presence in the United States of America and the inclusion of the logos of established companies in their website is sought to establish legitimacy, stability and endorsement by these established companies of the services offered by SuperiorPapers. The website's "battle song" is to produce complete and "professional" research papers. I have some reservations about applying the word "professional" or "professionalism" after what I had witnessed from the foregoing.
These alleged websites are condemned and disparaged to be sham and scam sites not only on account of the above cited reasons but also of complaints of customers for plagiarized written papers and of their inferior quality and similarly, of complaints of numerous writers who were not paid the fees they already earned. Although majority of these websites vow unlimited revisions as requested by their customers or a refund of what has been paid, an equitable resolution is still not achieved.
Writers are accepted as mere agents of the websites and not as employees thereof. They are paid their fees either on bi-weekly or monthly arrangements. Orders or projects finished within the first fifteen days of the month are paid out within the first three days of the succeeding month and for work done within the sixteenth day until the end of the month will be paid out within three days from the fifteenth of the (same) succeeding month. It sounds like a neat arrangement but it is not. An issue or complaint regarding a completed order or project from the website or the customer (which is almost impossible to verify if it is real) will cause your entire earnings for that pay period to be pushed to the next pay period. When the issue is threshed out and resolved without finding fault on your part (which again is almost an improbability because the essay website will always find some reason to impose fines) your fees for the entire pay period as delayed and pushed back to the subsequent period will no longer be reinstated to its original pay period for the flimsy reason—a ran-down line of "We cannot do anything about that because it is our website system." A cheap euphemism for "we still want to hold onto your money and not pay you." I recall a writer who cried his heart out in a forum and related how the staff of one of these websites treated him. His evidence consisted of an email from the website saying, "We will not pay you! We are having a feast on your money!" The manner of payment of fees is done by PayPal, bank wire transfer or xoom.com and so on. Writers are not spared from being further mulcted of their fees because the websites still earn from this by imposing 'transfer charges/fees' every time they send out the fees of writers twice a month. These transfer fees are exorbitant for the simple reason that they still make money out of the writers' earned fees. Contrary to what is specified on their websites where writers are promised to be paid as high as $16 per page, this is nothing but another deception because writers only earn $1 to $3 on low season and $5-$7 on a peak season and if it involves higher levels of specialized fields of science, computer technology and social science.These websites are on a spree of hiring non-native English speakers because these writers are all too eager to take orders for writing due to a relatively high foreign exchange rate of the U.S. dollar in their respective countries. Another source of 'profit' for these websites is from the offense of writers known as plagiarism. This means that chunks of texts are copied from references without proper acknowledgement of its source. Plagiarism software identifies and detects all the copied material from the written work of a writer. Figure 2 is a web screen shot showing an actual plagiarism report of a writer of one of the websites. The texts are 'whited out' to prevent identification but the colored highlights of where texts are found are shown as those allegedly copied and plagiarized. Upon close scrutiny the bibliographical entries with a heading--'References" are highlighted in color and are identified as plagiarized. Any college student or for that matter, a high school student who is worth his lot knows that bibliographical entries and citations of references follow strict rules of form. Clearly, if we follow the 'software' of this website then all bibliographical entries is most likely to show as copied. The writer who escapes fines imposed due to this is like finding a needle in a hay stack. To evade the imposition of the fine, the writer must go through qualitative analysis of the entire written work, i.e. line-by-line in order to justify each highlighted group of texts. Although the website takes pride in having a Quality Assurance Department, its function is alleged to be limited only to running the written work through the plagiarism software and thereafter forward it to the writer's account so that an automatic penalty is imposed. This function is not regularly observed since only lengthy written works of over seven (7) pages are checked through the software during the peak season or when the writer quits working for them. The writer who quits would only receive whatever is left of his earnings after three (3) months.
Figure 2
There are written policies on fines as incorporated with the writer's account in the website; this is not followed because the staff and management of these websites are the very ones who fail to observe them. Fines imposed are most often 2/3 of the total amount of compensation for the writer for that particular work. The Support staff would not even know how to justify such penalty when asked by the writer. Besides not being able to understand and speak English fluently (previously their Support staff are Ukrainians), the impositions of fines are often whimsical depending on the need or shall I say, greed level of those running it.
It is quite evident that these websites have various means of mulcting 'profit' using unorthodox strategies. They make money from the customers because of the papers written by their writers, they make money out of their writers from their alleged extortion in the form of fines and penalties, or their non payment of fees, as well as their business schemes in padding most of the writers' transfer charges in case of wire transfer to the banks.
In a recently decided case,
Axact (Pvt.) Ltd. v. Student Network Resources, Inc., Student Network Resources LLC, Ross Cohen and John Derit, 2008 WL 4754907 (D. N.J. Oct. 22, 2008), the Court in an
Order in default dated October 21, 2008 page 9 thereof, aside from imposing pecuniary penalties for the violation of the Lanham Act,
enjoined the complainant including internet search engines, web hosts and domain-name registrars
"(i) from falsely advertising and misrepresenting the nature, characteristics, qualities or geographical origin of the complainant's goods and services in violation of the Lanham Act or common law . . ." Defendant in its answer alleged that "
although Axact's complaint (at paragraph 3) asserts that it is "a Pakistani corporation with place of business in Karachi, Pakistan," statements on the Axact.com website from at least April 21, 2004 to the present claim that "Axact is based in the US," and/or that its "front office operations" 9 (are) in the US and that Axact maintains only a 'production facility' in Pakistan" (Paragraph
24 of the Answer).
Judgment in default was entered against the complainant who chose to litigate in its own country. According to a
Pakistan blog, complainant was also able to secure a site stoppage of one of the websites of the defendants --essayfraud.org--a known watchdog organization for essay scams was owned and operated by the defendant and where it was claimed that it was used as a medium through which the complainant was defamed. Both
parties won in their respective countries with AXACT for $6 million and SNR for $694,750 but it is claimed that the lack of treaty between both countries barred the enforcement of the respective judgments. (According to the letter of cease and desist, the presentation of facts make it appear as if the allegations are true "Which, otherwise, is completely false as evident from the fact that the said judgment was not based on merits but rather passed in default.")
For some people, essayfraud.org was organized to fight the competitors or the foreign sites.
According to a blog, "Essay Fraud does not itself sell services to American students or have foreign competitors, but it appears to represent the interests of companies that do so." Personally, I have some reservations about the defunct site of having maintained its independence after an admission that it was operated and managed also by a 'competitor' term paper mill. With a clear conflict of interest having been present and the lack of disclosure or transparency at the outset, an appearance of impropriety was created which may perhaps, have undermined any disinterested and objective person's confidence in the website.
There are forums that still exist which deal with the exposition of scams however the integrity of the same will depend on a number of factors, i.e. the purpose for which it was created, its policies or terms of use, the members/posters, implementation of the site's policy and other related reasons.
From its initial launch on 10 February 2006, EssayScam.org similarly sought to expose the fraudulent practices of term paper websites as well as unethical business practices of companies. There were claims later on that this site and essayfraud are allegedly working together for the benefit of the 'protected websites.' Other claims were that posts conveniently disappeared if they were detrimental and prejudicial to the interests of the 'protected sites.' I personally witnessed a few disappearances and alterations myself more than a year ago when I chanced upon it. On 26 June 2007, a DMCA subpoena was issued for Essayscam in a case filed at the Illinois Northern District Court docketed as
Case No. 1:2007cv03597. Soon after, the site decided to re-organize its forum. There were changes and one of which was a poster/member thereof who had been allegedly identified to be a staunch supporter/employee of one of those 'protected websites' is labeled now as 'guest' when all other members have a different format showing "reg., posts and profile" signifying date of registration, number of posts and profile (in hyperlink text). I was surprised to see several posts of this member when in fact there were hundreds before. I recall this member who was in the habit of getting into "verbal" warfare with some other members and she would easily post the IP addresses of the members she was against and in heavy discussion with on the forum. Be that as it may,
in its recent Press Release of 12 December 2008 it claims that the forum is beneficial to both students and freelance writers. It seeks to identify the websites or companies that should be avoided and those legitimate sites which can help them. However, in its Disclaimer and Privacy Policy, it clearly states that it "does not guarantee the correctness or the truthfulness of the posts of the members. The readers and other posters are requested still to use judgment after conducting their own research." Moreover in its press release, Essayscam.org guarantees that users will not be subjected to threatening language. Sad to say, one has only to read some of the 2007 posts where posters label others, 'buffoon,' I will kill you slowly,' 'dumbass,' 'FU.' Some of which were unsolicited. There are a few professional 'taunters' and hecklers at the website who would follow you at every thread, heckle and badger you until your last ounce of patience. If one compares the older posts with the new ones, the newer ones are subdued. Perhaps, it is now under a new management or moderator. There are a few who even go to the far extent of identifying themselves as legal professionals but who would, sad to say display an apparent lack of basic legal know-how which leads one to believe that they are but impostors. Whether these members are posing to be such or are genuine legal professionals—the conduct expressed in the manner of written posts exhibit the seeming lack of nobility and the lack of conventional decorum befitting those in the legal profession. This matter had been raised and brought before the appropriate legal disciplinary bodies for proper investigation. Whether these people are real legal professionals or misrepresenting themselves, the probable result of disgracing the profession should be averted. I easily got the impression that some of the posters/members may be representatives of certain companies and with scripts. One group represents a few legitimately created websites or companies; the other group, those other foreign sites which are allegedly labeled to be fraudulent and of course, the minorities. There is a turf war out there. Some of each group's members would deplorably try to expose each other's shenanigans and unscrupulous practices hoping to get their hands on each other's respective markets in the name of profit. Oh yes, of course for the benefit of the consumers. There are also very few that are motivated by a deep desire to help the victims and expose the fraud and unethical business practices but who in time, would just leave because of disillusionment. The professional 'taunters' will instigate, enflame and incite any person to lose his patience. No one can with certainty say that the members are genuine and true or that they have the truest and purest intentions to expose the alleged fraud because the website itself declares and advices the readers to still make their own research as the website does not guarantee the truthfulness of the information posted by the members albeit it believes that the information posted are gathered to the best of abilities of the posters. Moreover, it also contains a disclaimer that the information posted therein is not verified by independent sources. If truly there are consumer advocates at the forum, seeking to protect the consumers this is only limited to informational purposes. And even that, one still has to go beyond the true motivations of a person behind the forum handle and which can initially be seen from the manner by which the poster posted the information. Personally, I find the information 'slanted' in one direction and the suggested action to be taken against the alleged scam essay writing websites are purely commercial or one that surely guarantees economic/financial injury to the business of a competitor. A slant in one direction is not all together bad but the
lack of balance can at times be suspect. What I find amusing is the fact that one is made to feel
that the entire turf of exposing the alleged fraud of the foreign essay writing websites, is the sole and exclusive domain of a few 'ruling' members who reign and lord it over. What I find even more amusing is the fact that once a writer identifies himself as writing for one of those alleged fraudulent websites and a non-native English speaker or an ESL, he is immediately heckled if he decides to pursue and take his chances with the website. He is ridiculed and stigmatized as one who is as "criminal" as the owners of the alleged fraudulent essay writing website by the self- declared consumer advocates. I was constrained to think that these members are but ones who have affiliated interest in the competitor essay writing websites.
For how can one say that he is there to expose the alleged scams and help the consumers while at the same time and with the same force insult and humiliate another equally important vicitmized segment of the industry. Absit invidia! The point that I need to underscore is the fact that the alleged existence of the scam and fraud of those which are claimed to be illegitimate essay writing websites do not detract from the fact that there are deceptive and unethical business practices committed by a few legitimately incorporated and created companies or essay writing websites because both can exist and co-exist. At times, I am led to believe that there may even be an unintentional 'parasitic' dependence between both as one "advertises" the other.
It is like a medical student and a doctor. The medical student advertises that he is a medical expert and falsifies certificates of training abroad while the doctor sets up a social work group for the victims of the medical student to discuss their grief and anger. Doctor sees that the victims are not enough to create an impact considering that he is already losing his patients over the medical student who only charges very minimal fees. The sympathizers of the doctor-- his nurse, his secretary and his friends join the social work group to gather information and to encourage others not to patronize the services of the medical student. And perhaps use information they gather to their own advantage. Both doctor and medical student perform surgery on two different patients. The doctor leaves gauze inside the stomach of the patient. The medical student leaves a scalpel inside his patient's stomach. Does the liability of the medical student lessen the liability of the doctor? It does not. But are they on equal footing? No they are not. Similarly, the legitimate U.S. companies and other legitimately organized and created foreign essay writing websites all conduct business on the same level playing field. A level playing field where IDEALLY they fairly compete with each other based on the legal rudiments of fair competition--where government regulation and oversight agencies exist to afford a venue as a means to vindicate and redress the trampled rights of their employees, the consumers, and their writers.
We cannot say that it is the same way for the alleged illegitimate websites especially when their physical location and identities are covered by layers of lies and deception. So going back to the analogy, one may ask why the doctor failed to report the fact that the medical student was illegally practicing medicine OR if there truly are victims of the medical students, why would the doctor not assist or guide them to seek redress. The answer is simple; I would leave that to you. Clearly, they are both on equal footing in terms of the insatiable desire for profit. Applying the legal pronouncements to the issues, if or when it is proven that the goods and services of these websites are not really written by PhD and MA native speakers of the English language as it has claimed and advertised it to be; if or when it is proven that the origin of these goods and services is not in the U.S. as it has claimed and specified on the websites; there is in my opinion evident misrepresentation constituting false advertising violative of the provisions of the Lanham Act. The press releases of these websites containing lies can therefore be considered as a means to further mold the mind of the consuming public towards such misrepresentation. The alleged unauthorizec use of the logos may perhaps be constituting infringement of the copyright and trademark of the registered owners. On the other hand and with the same strength, it must also investigate and penalize those legitimately created companies and entities which are found to have committed deceptive acts and trade libel.
Unless the respective state governments and the federal government intervene and properly take cognizance of the sad state of the essay writing industry; it may continue to wreak havoc and injustice to the public. I personally know that most of these have been brought to the attention of the authorities. Who shall we expect to express their formal complaints? The students who availed of the services of these essay writing websites (regardless of whether they are legitimately incorporated or created) using these essays or term papers and passing it as their own in their schools and universities? Definitely not because expulsion is a severe penalty.. The writers whose amounts of earnings which were unlawfully withheld are not even enough to hire the services of counsel? Of course not. The pseudo consumer advocates? Of course not because they only have their own affiliation interests to protect. The government must step in.
The Federal Trade Commission is the body that is tasked to protect the consumers from "unfair methods of competition" and "unfair or deceptive acts or practices" in the marketplace [15 U.S.C. 45(1)]. "The Commission discharges this function through its law enforcement powers of investigation and prosecution. The Commission also investigates possible deceptive practices which may harm or mislead the consumers because of false claims. Substantiation and proof is oftentimes demanded by the Commission and should there be a finding of violation, it is immediately referred to the Department of Justice for the imposition of stiff civil penalties."
A friend of mine asked once before, what kind of government that spent billions of dollars of taxpayers money on education would support specifically an industry that promotes and encourages students to cheat by paying others to write their academic written requirements? Are we not defeating the very purpose of one of the roles of government? I personally feel that the first and foremost primordial consideration that any government should take is to protect the public from harm and injury whether it is bodily injury or economic injury. There is just so much of disinformation generated by an unhealthy kind of competition and feeding on the general public especially the younger populace and the established business enterprises. It is time for government to intervene and take decisive action for alleged violations of state laws and federal laws. Thereafter, everyone can hope that the lawmakers can enact laws either to discourage services that are believed to promote cheating and irresponsibility in the student populace or define and draw guidelines and restrictions for this industry. It is earnestly desired that the academic institutions as well as non-governmental organizations committed to learning and educating to make a collective and firm stand.
The call of the Federal Trade Commission is clear. We need to educate ourselves about the future because rapid developments in technology present new consumer issues. Educating ourselves would be empowerment to assist us in avoiding the pitfalls of possible scams and deceptive practices. However, we should always be mindful that there exists disinformation and genuine information both used to the advantage of unscrupulous business establishments to mislead the public into patronizing their services over their competitors.
(Disclaimer: The tradenames of the respective companies and trademark are the property of the registered owners. The author does not claim ownership nor intends to profit out of its display in Figure 1 hereof. Please note that I 'whited out' the actual logos of these companies notwithstanding the fact that some of these companies had given their assent for me to post the image. I felt that displaying their logos even when authorized would be taking advantage of their stature and prestige. The original copies of the webscreen shots taken on 03 December 2008 and 09 January 2008 are preserved for evidentiary purposes. The author is motivated by the desire to recognize the right of the public to know the unexpurgated truth and what this industry wants to tell.)
References:
1) "Unfair Competition" Legal Information Institute, Cornell University Law School.
2) Lanham Act of 1946 or 15 U.S.C.A. § 1051 et seq.
3) 15 U.S.C. 45(1)
4) Axact(Pvt.) Ltd.v. Student Network Resources, 2008 WL 4754907 (D. N.J. Oct. 22, 2008)
6) Speech of former Commissioner Janet D. Steiger, FTA delivered at the Practicing Law Institute in New York on 17 September 1996.
7) All statements herein made by the author are supported by documentary and other evidence which were all previously submitted formally.
