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Next entry: Everything is culture war Previous entry: Goodbye, dachshund

Lame

EconomyElitismTechnology

Yesterday, for obvious reasons, I was in a crappy mood all day.  So I turned to my favorite resource for lightening a sour mood, which is Regretsy.  After reading a few pages of it until I was all caught up, I looked up at the links at the top and decided to check them out.  I found People of Walmart to be unfunny, since most of the “humor” comes from poking fun at people for being ugly, fat, or unable to afford better-fitting clothes.  But Lamebook is another story entirely.  Lamebook is funny because it, like Regretsy, gets its humor straight from the goofier aspects of human nature.  I particularly like all the posts involving parents interacting with their children on Facebook.  Facebook is great, but it was only until moms started to join Facebook that it really became the centerpiece of the new American renaissance, I say.

The site cheered me up immensely, which is why I was sad to see a link at the top of the page asking for money for their legal fund.  They’re in some legal shit with Facebook over copyright quarreling, they say.  A little googling showed that this is indeed true, and Facebook’s rationale is as poor and mean-spirited as you could imagine:

In response to the complaint, Facebook deemed it “unfortunate” that Lamebook had turned to litigation after “months of working with Lamebook to amicably resolve what we believe is an improper attempt to build a brand that trades off Facebook’s popularity and fame”.

Facebook is claiming that the site can’t hide behind satire, which is funny, because I personally laughed my ass off for hours.  Human nature might be the main target of Lamebook, but the way that Facebook has drawn out certain tendencies in people is definitely part of that.  But what really annoyed me was that Facebook expressed petulant anger that someone else out there is OMG building off their popularity and fame.  Which in no way, shape or form takes jack shit away from Facebook.  If anything, Lamebook probably just makes readers want to use Facebook even more, since it highlights some of the best reasons to waste hours on Facebook (such as laughing at the way people can be).  I know it had that effect on me.  I’m trying to imagine if creative artists reacted to each other in this way.  Can you imagine, say, Dr. Dre being so stupid as to not work with Eminem because he doesn’t want anyone to benefit from his pre-existing reputation? 

This entire situation is a great demonstration of why the ready assumption that businesspeople are motivated mainly be a rational desire to increase profits is a really dumb one.  But you see that assumption all the time!  You see it with libertarians, who argue that we don’t need regulation because the profit motive makes markets self-correcting, as if they were mindless machines that aren’t influenced by some of the more irrational thinking of actual human beings.  And you see it with liberals, who make the opposite assumption—-they believe that business is solely motivated by profit, and that means businesspeople are bound to make harmful choices if that’s how best to make a profit.  The truth is way more complicated.  Yes, profit motive is a big deal, and that sometimes results in good business decisions, as libertarians insist, and it sometimes results in BP spilling unimaginable amounts of oil into the Gulf of Mexico, as liberals insist.  But insisting that businesspeople act mostly out of pure rationality is giving them too much credit.  I think it’s also important to remember how much irrationality impacts business choices.


This is a perfect example.  There’s no rational reason, really, for Facebook to get all legal on Lamebook.  Lamebook does nothing to hurt Facebook’s profits or brand.  They almost surely just improve Facebook’s standing.  The site isn’t about social networking in general.  In fact, it’s Facebook-only structure ends up highlighting some of the benefits of Facebook over other social networking sites. 

It seems Facebook is acting out the long-standing tradition of being butthurt.  Can they really not take a joke over there?  If anything is hurting the Facebook brand, creating the impression that you’re a bunch of humorless prigs masquerading as hip young entrepreneurs will do it.  The best response to Lamebook would have been not to try to shut it down but to use its existence as a marketing opportunity, perhaps by putting out a press release highlighting how you’re honored that Facebook is so popular it provides them with more material to work with than they could ever use. 

The thing to understand when trying to look at how big business works in the world is that big business is run by human beings, and they’re often human beings with giant, easily hurt egos.  As Matt noted recently, one of the biggest problems with this model of business as being a completely rational profit-creation machine is that it obscures the fact that a lot of people in the top echelons of these businesses have more luck than brains.  Peter Thiel of Facebook, for instance, seems like he’s a particularly dim bulb who basically pulled a winning lottery ticket by giving money to Facebook.  There’s a thousand Peter Thiels who gamble and fail for every one that succeeds, but we only look at the successes and therefore draw incorrect conclusions about their rationality and intelligence.  But just because Thiel got really lucky with Facebook doesn’t mean he’s a different person—-he’s still a libertarian douchebag who swims in fantasies of escaping the meanie government by getting into seasteading.

Ego is a major deal in the world of business. A lot of poor decisions stem from the heavy amounts of ego-stroking and egomania amongst the power players in capitalism.  Ego isn’t rational.  If you ever see business mindlessly resisting perfectly reasonable government regulation, and wonder why they care so much even though it’s probably not going to hurt their bottom line that much?  Ego.  A lot of business people give lots of money to groups that promote the message that regulation is a “nanny state” not just because they’re feeding red meat to the plebes in order to make more money.  They also eat that rhetoric up. They like the image that conservatives paint of them, as people who are the smartest and best people in the world, and therefore should be above having to follow laws.  If you ever wonder why some rich assholes prefer to give all their money to libertarian organizations instead of just paying their taxes, that’s your answer.  They enjoy believing they know better than the federal government what to spend money on.  One of the major reasons that conservative arguments that we don’t need a social safety net because people will just give to charity is wrong is because the charities that rich people spend their money on are usually ones that are best prepared to stroke their egos.  Giving to a food bank just creates moral satisfaction.  Writing a giant check to a university so they can build a new building means they name it after you.  Therefore, the latter has an easier time of fund-raising. 

Really, if you think about it, money itself only goes so far.  It’s what money buys you that makes it so attractive.  And one of the biggest things money can buy a person is a relentless ego boost. Which explains why people who already have more money than they could ever hope to spend still will do everything they can, break all sorts of moral rules, to make more money.  The bigger the number in the bank account, the better they feel about themselves.  It’s why it’s not enough to be rich, but also to resent not-rich people who try to make a better life for themselves.  Fabulous wealth looks even better when it’s compared to poverty instead of middle class comfort.  Even the more generous and kind capitalists out there seem to have irrationally large egos, which is why I found it more disturbing than funny that Bill Gates won’t let his kids have iPods.  It’s that kind of thinking that seems to be underlying Lamebook’s legal troubles—-less that Facebook sees a threat to its profits and more that the management at Facebook cannot stand the idea that someone has an irreverent attitude towards their product.

 

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Posted by Amanda Marcotte on 10:56 AM • (111) Comments

people who already have more money than they could ever hope to spend still will do everything they can, break all sorts of moral rules, to make more money.  The bigger the number in the bank account, the better they feel about themselves.  It’s why it’s not enough to be rich, but also to resent not-rich people who try to make a better life for themselves.

I think the role and power of great wealth in America today really transcends mere ego by a wide margin. It’s got to the point where it’s about being a different order of being. Humans have what seems to be an innate (because so widespread) desire to divide other people up into elite and preterite, saved and damned. This exists to the extent that in the bad old days there were different laws—privilege, Latin for “private law”—for the two classes. Or separate drinking fountains. It’s not just about ego puffery, or who has the biggest number: it’s about this fundamental desire many people have to create a class of people who Are Not Human. Now that we’ve dispensed with or driven underground the traditional markers of elite and preterite—religion, racism, birth, gender—people have to come up with another way to create this division, and accumulated wealth is still an acceptable way to do this. We, due largely to the influence of propaganda, still regard very wealthy people as admirable, when in fact they’re either trust-fund parasites or sociopathic assholes. Or both.

When “People of Wal-Mart” is at its worst, it reinforces this tendency: look at the poor people! They’re not even human. When it’s at its best, it’s very funny, because its humor lies not in making fun of people because they can’t afford better, but because they clearly spent time and effort making themselves look a particular way and thus by implication had to think it looked good.

Comment #1: felagund  on  11/15  at  12:31 PM

I’m guessing you’ve read this, re: people of Wal-Mart? http://www.prospect.org/cs/articles?article=virtuality_bites

Lamebook is considerably better, although occasionally, it seems like it has people who go to reconfirm their racism/sexism.  Luckily, I think that the moderators try to focus on things that are generally funny, rather than publishing everything that fulfills negative racial stereotypes.

Comment #2: Loch Ness Monster  on  11/15  at  12:48 PM

“This entire situation is a great demonstration of why the ready assumption that businesspeople are motivated mainly be a rational desire to increase profits is a really dumb one.”

Hell, any given businessperson can be 100% motivated by a rational desire to increase profits, but still be attempting to achieve that goal while operating under a flawed understanding of economics and/or consumer psychology.  Or with an erroneous or incomplete set of data.  Assuming that the market is a platonic machine perfectly tuned to eventually produce the perfect balance of profit-turning gears means ignoring a whole lot of messy reality.

Comment #3: preying mantis  on  11/15  at  01:06 PM

You see it with libertarians, who argue that we don’t need regulation because the profit motive makes markets self-correcting, as if they were mindless machines that aren’t influenced by some of the more irrational thinking of actual human beings.

Of course, Libertarians are the first to turn to the big bad ol’ government the moment they feel their intellectual property is being infringed upon. Why they don’t trust the good old Invisible Hand that they go on and on about to solve their problem is a mystery for the ages.

The best response to Lamebook would have been not to try to shut it down but to use its existence as a marketing opportunity, perhaps by putting out a press release highlighting how you’re honored that Facebook is so popular it provides them with more material to work with than they could ever use.

Of course this is the best response. However, once you get a critical mass of MBAs and JDs working within an organisation, every single opportunity like this is seen as a threat.

Yesterday, for obvious reasons, I was in a crappy mood all day.  So I turned to my favorite resource for lightening a sour mood, which is Regretsy.

If you need more cheering up, check out the following YouTube video:

Richard Dawkins Reads His Hate Mail

Comment #4: Gracchus.  on  11/15  at  01:14 PM

It sort of falls into the same category as NFL going after websites that review games, or whatever it was they were doing, doesn’t it? Or Anne Rice going after fanfic. You’d think that fan-created online communities and the content they produce, be it fanfic/fanart, forums, or even satire, would be something that’s good for any business, but especially entertainment.  It’s interesting, too, that we’ve seen the major entertainment industries (film, music, publishing) completely misunderstand what the Internet/digital distribution can do to/for them. You’d think that an internet-based social networking company would have a better understanding of how they can be perceived if they get too lawsuit happy on the internets, as well as a better understanding of internet/meme culture but nope, there goes the point, whooshing straight over Facebook’s head. I don’t get it, so your explanation is as good as any for me.

I haven’t seen Regretsy before, and it is quite awesome! I’m a knitter, so I can’t mock my fellow crafters’ efforts…oh, hell, YES I CAN. Although if someone really does make a Star Trek buttplug with “To boldly go…” on it, I don’t know if I would be able to resist. Talk about a conversation piece! smile

Comment #5: elena  on  11/15  at  01:17 PM

Why is Thiel running, crying to the Nanny State when he gets butt-hurt by someone making his product better?  After all if Thiel lived on a Libertarian Island Paradise, he’d have no Big Government to run to with their socialist copyright laws and trademark infringement.

Theil, stopping letting those leeches live off of the sweat of your brow and go Galt!!!

Comment #6: cynickal  on  11/15  at  01:17 PM

No, Loch Ness, but I will.  I promise I’m all about coming to the rather obvious conclusion about The People of Walmart all on my own. wink

That article looks interesting.  Honestly, I’m just disappointed that sites as funny as Lamebook and Regretsy lined up with it.  Regretsy, especially, has a lot of heart underneath the often vicious humor.  She’s drawn to making fun of people, for instance, whose own egos make them impervious to their own callousness.  Such as people who fetishize 9/11, for instance.

Comment #7: Amanda Marcotte  on  11/15  at  01:19 PM

The libertarian argument is supposed to be more nuanced than that. They say that people who don’t perfectly rationally pursue profit would just get trampled by The Market, if only they didn’t get all these government subsidies that socialize their bad decisions and make every one of us have to pay for their mistakes. Even if all of that was true, that would make it a process (like evolution), not a done deal. Most libertarians use these arguments as a club to attack welfare programs so they don’t care about nuance. It doesn’t matter to them that welfare programs are a million times less influential on the economy than corporate subsidies but that they are denounced a million times more by libertarians than said subsidies (which they only pay lip service to protesting, if ever, and then only as some sort of caveat to show their hatred of welfare is somehow internally consistent).

Comment #8: BlackBloc  on  11/15  at  01:19 PM

Hell, any given businessperson can be 100% motivated by a rational desire to increase profits, but still be attempting to achieve that goal while operating under a flawed understanding of economics and/or consumer psychology.

This is a really good point.  The company that I work for refuses to pay small amounts to save or earn more in the future.  They won’t pay for employee training unless our customer explicitly requests it, because they just don’t see that training is an investment.  It’s like pulling teeth to get them to pay for proper waste disposal, because they only see the $500 and not the potential millions that they would be fined if they got caught breaking the law.  Most people won’t even take the 10 seconds to put away a screwdriver, even though it costs them 20 minutes to find it the next time they need to use it.  It should come as no surprise that most of these people are hardcore Republicans, and “fiscally conservative”.  They’re so worried about the $500 now that they completely ignore the millions 5 years from now.  They’re absolutely greedy and obsessed with money, but they just completely lack any ability to see beyond the next month or year.

Comment #9: bananacat  on  11/15  at  01:34 PM

Lamebook is considerably better, although occasionally, it seems like it has people who go to reconfirm their racism/sexism

This is why I prefer failbook.com.

Comment #10: Siobhan  on  11/15  at  01:35 PM

The irony to me in all of this is that the same irrationally egotistical businessmen, to large extent (depending on the business), depend on their customers acting irrationally.

No one “needs” a car that costs hundreds-of-thousands of dollars.  No one “needs” some ridiculously expensive designer dress, or a yacht, or a helicopter, or a private jet, or more homes than you can remember (see John McCain), each of which is large enough to house dozens of people but with only 2 or 3 in them (if they aren’t sitting empty), etc. 

(See also most personal electronics, basically any form of entertainment, any food more than a little rice and some vegetables, any house better than a tin-roofed shack, any transportation better than a bicycle, etc.)  Seeking and obtaining anything more than the bare necessities involves (at least some amount of) ego, which is by definition irrational.

And thank god for it.  While the rich often buy obscenely priced baubles, the rest of us want things a little better than X, a little nicer-looking than Y, a little tastier, a little more comfortable, a little classier than Z.  And our whole economic system would collapse without that (irrational but quintessentially human) desire for a little more.  Businesses are usually started and operated to take advantage of these human (and irrational) desires.  And make a lot of money from them.

But those same Randian Supermen (it’s almost always men, isn’t it?) who wax rhapsodically about The Free Market and Unrestrained Capitalism and the Invisible Hand of the Marketplace can’t see the irrationality they display themselves on a regular basis.

We should pity them.  They need us, the unwashed masses, to save them from themselves.  Like children, they want to get what they want, no matter what, all the time, whether it’s good for them or not.  We must give them the discipline they reject so strongly, and limit the harm they cause others in their irrational quest for ego-strokes.

The solution to all this is obvious.  We, the Proles, must set our revulsion aside and eat the rich…

Comment #11: MikeEss  on  11/15  at  01:40 PM

The one thing that Libertarians always forget about or conveniently ignore is Marketing.  Advertising and other types of marketing make people buy inferior products or even things that are outright dangerous for them.  If companies are completely rational and profit-driven, they will but the vast majority of their money into marketing and as little as possible into making their product or service better.  No matter how rational corporations are, consumers never will be completely rational.  People just don’t work that way.  That’s why we need regulations to keep the most harmful stuff out.

Comment #12: bananacat  on  11/15  at  01:40 PM

Trademark owners are required to police their marks in order to prove that they are maintaining control to prevent the mark from becoming generic, i.e. part of the common vernacular.  For example, Xerox has put massive amounts of money into ad campaigns asking people to not use their mark as a verb “I’m going to xerox this paper using the copier” or “I need to Google that term.”  Did you know that escalator used to be a trademark for moving stairs?  They didn’t properly police their mark so now it’s used by the public.

Facebook is arguably not trying to obtain addition profits but is rather trying to police the use of their mark.  They have gone after other companies using a variant of [x]book for the same reason.

I’m not arguing that this is not a clear use of satire because it is.  See Northern Face v. SouthButt.  I’m just saying that there is a legal reason for behaving this way.

Comment #13: LizSpigot  on  11/15  at  01:46 PM

As noted by Liz above, this is trademark, Amanda, not copyright.  Different rules apply.  Thare are certainly rational legal reasons for Facebook to be taking steps to defend their trademark, which makes your rant about butthurt a bit unwarranted.

Comment #14: Theaetetus  on  11/15  at  01:56 PM

I’m a huge ninny and am horrified by mean-spirited humor, but I generally find Lamebook pretty funny. Sometimes there are posts that cater to racist or sexist stereotypes but not often. I actually find regretsy too sad to enjoy; I keep imagine fragile-hearted craftsters finding their wares on there and getting misty-eyed about it. I like stfuparents though! It’s a tumblr, I think.

Comment #15: Jenny Dreadful  on  11/15  at  01:57 PM

BlackBloc @ 8

They also assume that everything exists in a state of competition, when in fact taht is a rare condition only met by select commodity goods. The vast majority of businesses have some sort of monopoly power, which gives them slack to be irrational and not be crushed by market pressures.

Comment #16: alysia  on  11/15  at  02:09 PM

Even if Facebook is trying to protect their tradmark, [X]book is far too general to be trademarked, IMO.  There are already other companies out there that have that formula in their name, and I don’t want to have a society where an entire word can be trademark protected.

Comment #17: bananacat  on  11/15  at  02:12 PM

17: Okay, I should be more specific.  Facebook has sued other companies that use a variant of Facebook in class 42, i.e. software services.  For example Facebook sued Faceporn, which was an x-rated social networking site.  Facebook also sued Teachbook, which is a social network site designed for teachers.

The legal test is whether a consumer would believe that the two different marks were produced by the same manufacturer.

I’m not arguing that Facebook is going to sue companies for any variant of [x]book.  There are nearly 10,000 marks filed with the Patent and Trademark Office that use “book” in the mark.

Comment #18: LizSpigot  on  11/15  at  02:20 PM

“As noted by Liz above, this is trademark, Amanda, not copyright.  Different rules apply.  Thare are certainly rational legal reasons for Facebook to be taking steps to defend their trademark, which makes your rant about butthurt a bit unwarranted.”

Layperson, not a lawyer, blah, blah, but I have heard of this issue. Riddle me this, if Facebook was smart, they’d conclude some kind of license agreement letting these folks be lamebook for $1 a year or something, no? That way, they protect their trademark and don’t get into lawsuits that make them look stupid. Isn’t that what a completely rational business person would do?

I remember someone suggesting this approach to the University of Florida when they were coming down a high school for using a similar Gator logo.

Comment #19: witless chum  on  11/15  at  02:21 PM

Catgirl, [x]book is far too general to be trademarked on its own. However, it is possible for them to get rights on it as a family mark.  The best example is McDonald’s - they won cases against McSleep and McDental even though McDonald’s didn’t have registration of those marks (or even use of them).  Instead, the family mark “Mc[x]” was strong enough that there was trademark protection.

Second, we already have a society where an entire word can be trademark protected.  That’s fine - it doesn’t impact free speech one bit, because trademarks only apply to uses in commerce.  I can say “Apple Computers” or “Microsoft” or “Facebook” all I want, without ever once infringing a trademark… But when I start selling a “McIntosh” computer, or an “iPod” storage pod for electronics, then I’m on shaky ground.

Comment #20: Theaetetus  on  11/15  at  02:28 PM

Witless, it’s a good idea, but it takes two parties to agree… When Facebook calls up Lamebook and says “we’ll give you a license to use our mark for $1 a year,” Lamebook responds, “yeah, right. We’re satire. Go suck an egg.”
So, Facebook files suit, then the parties get together, and eventually Lamebook agrees to license.  That’s what happened in North Face v. South Butt.

Comment #21: Theaetetus  on  11/15  at  02:31 PM

So how come they’re not suing Failbook? That makes no sense to me.

Also, have you heard that Zuckerberg head-hunted Google’s resident chef? Truly, The Social Network keeps sounding more realistic all the time.

Comment #22: MarinaS  on  11/15  at  02:38 PM

McDonald’s shouldn’t have won cases against McSleep or McDental.  I just don’t agree with that.  That’s not the type of system that I want for my society.  I realize that there’s nothing I can legally do about it, but I still think it’s wrong.  Millions, maybe tens of millions of people in our country have names that start with Mc.  There shouldn’t be some protection that you can only use that if you prove it’s because of a family name and not an infringement on McDonald’s.  Similarly, I definitely don’t think that failbook, lamebook should be off-limits when Redbook isn’t.  If we’re gonna go far enough to protect [x]book, then Redbook should sue Facebook.

Comment #23: bananacat  on  11/15  at  02:40 PM

I appear to be unable to focus today as my thoughts related to this, so far, are:
I use Facebook for almost all of my communication with my mother so that I have time to think and/or cool down before I respond to her and quite a bit with my daughter to allow for us to have conversations over hours (or days).
The University of Idaho and BSU had a huge food drive connected to their big rivalry game last week.  They collected something on the order of 35K lbs of food (34K+ by UI which has “won” this for the last 3 years running and included it in their regular alumni newsletter).
Temp cheap licensing, as suggested by witless chum, would make Facebook look kinda cool (or have no impact whatsoever) rather than look like humorless idiots.

Comment #24: helen w. h.  on  11/15  at  02:40 PM

Agree with catgirl re Redbook.  And what about McCalls re McDonalds?

Comment #25: helen w. h.  on  11/15  at  02:43 PM

Mindlessly policing your trademark by picking on little people to prove a point doesn’t strike as rational, I’m sorry. Expending resources to be a bully is highly irrational.

Comment #26: Amanda Marcotte  on  11/15  at  02:43 PM

Unless you can prove Facebookmhas a reason to believe that people are going to stop typing their name into a URL bar. Seriously, now. Calling something “legal” doesn’t provide all purpose cover to be mindless.

Comment #27: Amanda Marcotte  on  11/15  at  02:45 PM

Don’t y’all get it?  You’re protesting stuff that can’t ever possibly happen because every time that it does happen the market immediately corrects it eventually.  And if the market doesn’t correct it, who are we to doubt its Panglossian wisdom?

Comment #28: sacundim  on  11/15  at  02:46 PM

@MikeEss: If you want an examination of a society which has gotten enormous success based on focusing more or less exclusively on “needs,” check out the Indian state of Kerala.  They have France-level demographics, with India-level incomes.  It’s a sort of a total proof of concept: everything which we view as basically good—life expectancies, literacy, access to basic medical care—is far more efficiently provided by the public sector than by the private.

Their story has strongly influenced my understanding of how human beings get the things they “want” and “need.”

Comment #29: Punditus Maximus  on  11/15  at  02:49 PM

People of Walmart is funny when it mocks people who put enormous effort (and money) into looking Like That.  It’s somewhat cathartic but not funny when it gets into mocking some of the astonishing obesity which characterizes our Red State brethren.  It’s unpleasant when it gets into outright class nastiness.

Comment #30: Punditus Maximus  on  11/15  at  02:50 PM

Witless, it’s a good idea, but it takes two parties to agree… When Facebook calls up Lamebook and says “we’ll give you a license to use our mark for $1 a year,” Lamebook responds, “yeah, right. We’re satire. Go suck an egg.”

What’s more, if Lamebook refuses to become a licensed subsidiary of Facebook (and really, why would they?*), Facebook then HAS to sue them and win, because they’ve just indicated that they’re aware of the potential trademark violation, and if they do nothing they can lose their trademark.

If Failbook hasn’t been issued a C&D;, it’s probably because it’s smaller and less visible than Lamebook.

However mean-spirited toward smaller companies Facebook may or may not be, this is mostly about the bass-ackwards way that intellectual property rights are set up in the U.S.  That said, some companies are definitely more aggressive in protecting their trademarks than others.  Google seems to have accepted that its name has become a public-domain verb, for instance.


*Okay, one case where they might do it: licensing the Lamebook name to Facebook so that Facebook can use it for books or other media.  The Garfield people recently did a “Garfield Minus Garfield” book, for instance.  But doing a book of people’s Facebook posts would open up a whole other legal can of worms.

Comment #31: Shaenon  on  11/15  at  02:51 PM

19: As Theaetetus mentions, Lamebook might not agree to the license because Facebook would have to establish CONTROL over the mark.  If I were Lamebook’s attorney, there is no way that I would agree to Facebook being able to police how my client used the mark. 

23: Okay, there are several REDBOOK trademarks so I’m going to use one I arbitrarily selected as an example.  REDBOOK is trademarked in class 35 for “clearing house services rendered to florists.”  This mark is owned by Nat’l Florist Directory.

Nat’l Florist Directory would not win a trademark infringement lawsuit against Facebook because the test is whether a consumer would believe that a single source created both marks.  Because REDBOOK is in the florist industry and FACEBOOK is being used for computer software, a consumer would not be confused.

Similarly, up until a few years ago, Apple computers was able to have an Apple trademark for computers even though Apple records had an earlier trademark because the first mark was for computers and the second mark was for music.  Only with the creation of iPods and iTunes did a problem develop.

Comment #32: LizSpigot  on  11/15  at  02:53 PM

My favorite example of corporate irrationality is what The Phone Company (as it used to be known before the court-ordered breakup in 1984) did with consumer marketing.  Any idiot could figure out as early as 1920 that you’d make a lot of money bringing the telephone into the home and encouraging people to use it to keep in touch with friends and loved ones. 

For decades, however, the company resisted.  They thought it would be effeminate to foster chitchat. With women on their instrument, no less.  Ew, cooties.  Better to maintain that terse telegraph-speak:  Roger!  Over and out!  Business historians estimate that being pseudo-macho, white-collar fools cost the phone company millions of dollars in easy revenue.

Comment #33: Unree  on  11/15  at  02:53 PM

@Shaenon

Failbook is part of the Cheezburger Network.  If Facebook hasn’t gone after them (yet?), it is not because they are small.  (It could be because they are less visible, but I’d be surprised if the difference between the two was truly significant.)

Comment #34: Atheist, A Feminist  on  11/15  at  02:56 PM

Mindlessly policing your trademark by picking on little people to prove a point doesn’t strike as rational, I’m sorry. Expending resources to be a bully is highly irrational.

I’m sorry, too, Amanda. For a change, you’re going to have to accept that some people know more about a subject than you with just your gut instincts, since you’ve never apparently done any research on it. For a start, you could acknowledge that this isn’t “copyright quarreling,” as you say.

If Facebook did not “pick on the little people”, then they would lose rights in their mark.  And then the big people would take it.  Which is more rational - spending a couple hundred dollars to police your mark, or spending several tens of million in a failed attempt to get it back, after there’s “Yahoo Facebook”, “Google Facebook”, “Microsoft Facebook Brought To You Via MSN”, etc.?

Calling something “legal” doesn’t provide all purpose cover to be mindless.

If your complaint is with the law that you’ve never researched, then criticize the law.  Why criticize the people who are following the law?  Do you think it’s more rational for them to give up their rights in some sort of vain protest?

Comment #35: Theaetetus  on  11/15  at  03:05 PM

Catgirl, re: the McSleep/McDental cases, in both of those, the infringers didn’t have anyone named “Mc” anything on staff. Instead, there were internal documents about how they specifically chose the names to capitalize on the McDonald’s brand.  It’s a bit tough to claim someone’s merely innocently exercising their free speech right when there’s a memo saying, “hey, if we call ourselves Mc-something, then we can hop on their free advertising. We’ll even call ourselves the ‘fast food of dental centers’ and have an extra value menu!”

Comment #36: Theaetetus  on  11/15  at  03:08 PM

Great post Amanda!

Comment #37: Albert Cirrus  on  11/15  at  03:11 PM

Really, if you think about it, money itself only goes so far.  It’s what money buys you that makes it so attractive.

But the thing is that once you have enormous amounts of money, you start to slam up against things that money CAN’T buy: respect of the public, peace of mind, social esteem, and control over the various things about life that aren’t in our control. Most of us without obscene amounts of money are more at peace with that: our lack of money means that we are used to there being things we can’t have, but the wealthy are going to keep seeking after not just money but a host of other things they are making demands about for themselves.

Comment #38: Tyro  on  11/15  at  03:20 PM

Similarly, up until a few years ago, Apple computers was able to have an Apple trademark for computers even though Apple records had an earlier trademark because the first mark was for computers and the second mark was for music.  Only with the creation of iPods and iTunes did a problem develop.

Nope.  Apple Corp. sued them right away, but the suit failed b/c computers at the time were so primitive.  Nonetheless, Macs had MIDI.  The lawsuit was one reason why Apple moved to the Macintosh brand.  Instead of Apple Computers upgrading each new item into a “Granny Smith” “Jonathan”, or “Honeycrisp” they became more attached to “Macintosh” and “Mac-this” and “Mac-that” and promoted the “Apple” name less. 

With Ipods and ITunes, a second lawsuit was started b/c Apple had definitely crossed into music.  Apple settled with Apple

The case that pisses me off is over Nissan.com.  A man named Nissan owned a computer company and registered the domain name and used it for his company.  Nissan, once they discovered the internet, wanted the domain.  Nissan didn’t want to give it up, especially since it was being used.  He was accused of cybersquatting, and eventually the idiot judge decided NO ONE can use the website.

B/c that’s all Solomon-like and wise.

Comment #39: Caren-Sun-blocking Creator of Animorphic Pancakes  on  11/15  at  03:22 PM

@Amanda: sadly, Facebook is legally obligated to at least make the effort, or else they will simply lose their trademark in general.  This is a function of crazy trademark law that doesn’t differentiate between scales of violation, not of Facebook in particular.

Facebook has almost certainly contacted Failbook, and Failbook’s status has almost certainly been legally established.

In a general sense, our law is handling poorly our transition from a free market economy to a natural monopoly economy.  This is also known as the move from Scarcity to Abundance.  The essential problem is that for goods, the cost of making one good is a lot like the average cost of making all the goods—that the fixed or capital costs are amortized across many goods.  The problem is that for a Natural Monopoly, it doesn’t matter how many you make, it still won’t be so.  The classic example is that of a software program; it costs three cents to stamp a CD, and another dollar or so to ship it and put it on shelves.  But it can cost hundreds of millions of dollars to develop the program.  Even if you sell ten million copies, you’d still need a 10:1 markup from the marginal cost of production to make it worth doing.

Intellectual property law is supposed to bridge this gap by providing companies the assurances they need that if they do pump in $100 million (or $10 million, or whatever) into a product, that they’ll be able to sell it at the markup necessary to make this a winning proposition.

This is not anything resembling a trivial problem.  It’s the main problem driving, for example, public utilities.  It’s why cable-stealing isn’t really a victimless crime.  It’s just that with the explosion of information based value, the sector of the economy for which this is relevant keeps getting larger and larger.

Comment #40: Punditus Maximus  on  11/15  at  03:24 PM

39: I didn’t say that there wasn’t a lawsuit.  I said they were able to use the mark.  Which they were, by your own admission.  And what do you mean “because computers were so primitive.”  Where is that test in the Lanham Act?

Comment #41: LizSpigot  on  11/15  at  03:30 PM

@Theaetetus and LizSpigot and Punditus Maximus

One question that all of you seem to be avoiding: Do you think Facebook actually has much of a case?  You are talking a lot about how necessary this is and that the law requires it, but (I am not a lawyer) I highly doubt the law requires frivolous and un-winnable lawsuits.  I assume that means that you all think Facebook has a really compelling case.  Maybe if you explain that, people like me might think that your criticisms of Amanda’s (not a lawyer and not pretending to be) analysis would make more sense.  To me (not a lawyer), y’all sound like you are saying “Well, Disney totally has to sue the Daytona International Speedway because they go by DIS.  If Disney didn’t, then Disney could become generic and before you know it Six Flags would start opening Disney theme parks, and Dreamworks would start releasing Disney movies.”  Maybe if you explain a little better (to all of us non-lawyers) you will feel less like you are hitting your heads against a wall and we will all feel less like you are missing the point entirely.

Attempts to crackdown on satire just tend to encourage people to satirize.  Failbook and Lamebook are just like a MAD magazine feature except they run for longer and depend on users for content.  As I see it (not a lawyer), attempting to stop it has nothing to do with honestly defending trademarks (especially in terms of consumer/public reaction).  If either Failbook or Lamebook offered opportunities to post status updates, share pictures, network, or play games then Facebook might have a point.  As it is, Failbook and Lamebook are much more in competition and in the same category of products with the Redbook website (reading and talking about what you’ve read) than they are with Facebook.  If Redbook doesn’t have a case (which seems laughable) then neither does Facebook.

Looking at past examples, though, this sort of lawsuit doesn’t seem to make much of a difference in terms of how the average person uses the term.  To me, all copiers make xeroxes or copies interchangeably.  When I sneeze, I reach for kleenex (although I do not buy that brand).  When I cut my finger, I grab a band-aid (although I buy generic).  I have friends that drink coke (although they purchase and consume Pepsi).  This isn’t really in that category though (although Facebook appears to be losing that one to a certain extent and there isn’t anything they can do about it).

Here’s the thing though, this lawsuit (legally justified/necessary or no) hurts the Facebook brand.  The issue, I suppose, is does it hurt more than it helps.  That is a decision that Facebook has to make, although certainly they may make the wrong call. 

I use Facebook, but really don’t like it for a number of reasons.  This doesn’t make me like them more.  Brand loyalty and a good opinion of a brand is worth protecting even more than a trademark because if you sacrifice that (too often) to protect your name, then the name itself becomes worthless.

Comment #42: Atheist, A Feminist  on  11/15  at  03:44 PM

Liz, I think Caren was referring to the settlement in which Apple Comp. agreed to not sell music (which eventually led to the system chimes being named ‘sosumi’ or “so, sue me”).  At the time it wasn’t a big deal, since with 8 bit sound, you were pretty much limited to primitive beeps and boops.  In other words, the argument was that there was no likelihood of confusion since they weren’t in the same industry, and Apple is at best an arbitrary mark.

Comment #43: Theaetetus  on  11/15  at  03:44 PM

Catgirl, re: the McSleep/McDental cases, in both of those, the infringers didn’t have anyone named “Mc” anything on staff.

Yes, I realize that.  You completely missed my point.  I think the laws shouldn’t have protected the “Mc” in the first place.  There are a million and one reasons why someone would want to use that.  Nobody should have to prove that they have a legitimate reason to use such a generic prefix.

And to those of you who are explaining how the law works, I already understand it.  I know how it works but I don’t think it should work that way.  Way to miss the point!

I realize that things are legal, but I don’t think that they should be.

Comment #44: bananacat  on  11/15  at  03:45 PM

The legal test is whether a consumer would believe that the two different marks were produced by the same manufacturer.

Correct. “Faceporn” and “Teachbook” might be erroneously considered by consumers to specialty sub-brands of Facebook, especially if the same typefaces and colours were used. It would be a stretch to consider “Failbook” and “Lamebook” as anything other than satiric sites—sites that have the added benefit of driving traffic to Facebook. However, Facebook is obliged to send the lawyer’s letter out.

What happens next is what’s open to interpretation. From a business point of view, there are more constructive ways to deal with the situation than using a boilerplate C&D;to harass someone who’s helping you right out of business.

Riddle me this, if Facebook was smart, they’d conclude some kind of license agreement letting these folks be lamebook for $1 a year or something, no? That way, they protect their trademark and don’t get into lawsuits that make them look stupid. Isn’t that what a completely rational business person would do?

Again, we’re talking about an organisation whose senior management is now dominated by graduates of business and law schools. These are not entrepreneurs or creative business types—despite their high salaries they’re highly risk-averse drones who will choose “CYA” over “extend the brand” every time. It’s not bullying, but it’s not smart business either.

Comment #45: Gracchus.  on  11/15  at  03:56 PM

42: They would lose, no question.  This is clearly satire.  I’m not a litigator so I shouldn’t speculate about whether it would trigger sanctions against Facebook.  In this case the issue of sanctions is moot, though, since Lamebook sued Facebook for a declaratory action. 

Companies want to straddle a fine line where everyone associates their trademark with the product (Kleenex) while still being aware that it’s not the name of the product (tissue) because then you’re more likely to buy their product.  I would buy a Kleenex because I know it’s a good product, whereas I just don’t know about this other company that merely sells tissues.

43: I wasn’t familiar with that.  Very clever!

Comment #46: LizSpigot  on  11/15  at  03:59 PM

@Gracchus

However, Facebook is obliged to send the lawyer’s letter out.

It seems to me (as I said above and I am not a lawyer) that they are only obligated to send a lawyer’s letter out if they think they have a case they can win.  What is so winnable about this case in particular?  If I am not mistaken, sending out cease and desist letters when the recipient of the letters is doing nothing wrong is becoming an increasingly big no-no (in large part because of user-submitted content to sites like You Tube).  How am I wrong?

Comment #47: Atheist, A Feminist  on  11/15  at  03:59 PM

@LizSpigot

Companies want to straddle a fine line where everyone associates their trademark with the product (Kleenex) while still being aware that it’s not the name of the product (tissue) because then you’re more likely to buy their product.

I get that, especially from all my lay reading when Google became a household word and everyone was arguing the good and bad of that.  That is purely a marketing issue, really, though.  You can’t sue people out of using language pretty much however they want in private.  It sure sucks for some companies, but that is one of the hazards of selling stuff to irrational people.

Comment #48: Atheist, A Feminist  on  11/15  at  04:03 PM

The irony to me in all of this is that the same irrationally egotistical businessmen, to large extent (depending on the business), depend on their customers acting irrationally.

Yup.  This Myth Of The Rational Customer/Firm has done serious damage to our economy, and to our general understanding of economics.  It’s the equivalent of the sacking of Rome (except here the Visigoths are well-funded plutocrats).

Even if you claim that people/firms are irrational, but markets “self-correct” because the “best” solutions make more money and get adopted, you would need an infinite number of firms to try different things to get the “best” solution, and since sectors tend to conglomerate into a handful of firms, you get away from that “ideal” situation pretty quickly.

It’s darkly ironic that Liberals get painted as overprotective:  If we had a truly secure social safety net, wouldn’t that encourage people to take more risks, some of them paying off spectacularly and benefiting us all?

Comment #49: NY Expat  on  11/15  at  04:10 PM

It seems to me (as I said above and I am not a lawyer) that they are only obligated to send a lawyer’s letter out if they think they have a case they can win.

They have to make at least a token effort to protect the mark, and the C&D;letter is the usual means if there’s even the slightest hint of a case—which there is here. Lamebook uses a parodic variation on Facebook’s mark (typeface, colours, layout), posts screen grabs from Facebook, and (like many other third party sites) uses Facebook’s “Like” button. It’s not a lot, but it’s enough to wind up the crank on the back of JD Drone, esq and have him churn out a letter.

As I noted, it’s the follow-up that counts. In situations like this, the C&D;can be a way to open up communications and negotiation. Instead it seems they’re pushing through a lawsuit—technically they can do this once the letter is sent, even if the case sucks.

I don’t know what corporate genius thought that pursuing a legal case here instead of, say, reaching a reasonable and mutually beneficial accommodation with Lamebook was a good idea. I can guarantee you that said genius cares not a whit about marketing, PR or social networking technology.

Comment #50: Gracchus.  on  11/15  at  04:14 PM

I think the role and power of great wealth in America today really transcends mere ego by a wide margin. It’s got to the point where it’s about being a different order of being.

They had that in the Roman Empire as well - the top dogs got deified.

I’ll give you a FREE idea which might make you a multi-millionaire - figure out a way to sell the idea that the rich are closer to God than other people. Perhaps predicate a heavenly hierarchy based on how much you give down here on Earth.  Angel wings, measured in cold cash.

I’d do it myself, but I don’t have enough hypocrisy to do it without vomiting, grabbing an axe, and running amok among my client base.

Comment #51: Phoenician in a time of Romans  on  11/15  at  04:15 PM

In response to the complaint, Facebook deemed it “unfortunate” that Lamebook had turned to litigation after “months of working with Lamebook to amicably resolve what we believe is an improper attempt to build a brand that trades off Facebook’s popularity and fame”.

I’m always impressed at the extent to which Americans have internalized fallacious understandings of trademark and copyright law. It’s a bit like the kid in grade school who insisted that you’d go to jail if you tore a dollar bill in half because it’s federal property. Well, it’s different from that, I suppose, in that the government doesn’t rely on people believing this bullshit in order to bully them into paying out settlement money in order to prevent lawsuits the defendant would obviously win.

Trademark law makes it illegal to market a product that is intended to / likely to be confused with a different product, and be purchased by consumers who had been intending to buy the established product. This does NOT mean that it is illegal to profit from the existence of a product whose production rights you do not own. Many books are available explaining why The DaVinci Code is not a valid historical source. It is unclear what kind of market would exist for these books had The DaVinci Code not been published. Yet Dan Brown or his publishers did not need to give permission or receive payment for this to happen, because these books were not marketed as either a) The DaVinci Code itself, or b) a new work within the DaVinci Code brand, which is owned by the publishers (and probably the author, although I am not privy to such details).

Trading on the “popularity and fame” of a product you do not own is entirely legal. Many people seem to believe this is not the case. The lawsuit against Franken’s Lies etc. operated along these lines, and the judge’s decision basically said that unless Fox’s lawyers were willing to claim that they expected their customers were so utterly stupid as to assume that a small picture of Bill O’Reilly, on a book that notes on its front and back cover that it is highly critical of Bill O’Reilly, was written or authorized by O’Reilly, it was not possible to have a trademark infringement. O’Reilly’s fame certainly mattered, or he wouldn’t have been on the cover. Fox News’ entire existence, in fact, was a necessary component for that book’s existence. But you are not entitled to every single dollar that might change hands in the future as the result of your product’s existence.[i/]

The lawyers working on Facebook’s behalf are seeking to bully Failbook into conceding early to avoid the substantial costs of a lawsuit. Were the lawsuit to make it to court, Facebook would be bringing a nail file to a gunfight. But the threat’s still pretty scary if you aren’t certain you can afford to wait until the precedings are over to recoup legal fees, or if you’re worried you might be dicked out of said legal fees, or if you believe the ridiculous things so many people seem to believe about trademark law.

Comment #52: Byronic Commando  on  11/15  at  04:18 PM

Shit. Sorry.

Comment #53: Byronic Commando  on  11/15  at  04:19 PM

I’ll give you a FREE idea which might make you a multi-millionaire - figure out a way to sell the idea that the rich are closer to God than other people.

Already done: Prosperity Gospel. Oral Roberts and his ilk didn’t become multi-millionaires by going with that “meek shall inherit the Earth” nonsense, after all.

Comment #54: Gracchus.  on  11/15  at  04:21 PM

@Gracchus

Not that this is probably particularly relevant to the legal merits of the C & D/lawsuit, but Facebook has acknowledged that its design is purposefully a “lack of presence”.  The article describes it this way: “The trademark no-caps font of the ‘facebook’ logo is so generic, so nearly characterless, that it could as easily say ‘instafund” or ‘pharmaweb.’”

Since Facebook itself apparently intentionally wanted to look like nothing, it seems strange (although, yeah, legally whatever) that they care so much about looking like something special after the fact.

Comment #55: Atheist, A Feminist  on  11/15  at  04:26 PM

In response to the complaint, Facebook deemed it “unfortunate” that Lamebook had turned to litigation after “months of working with Lamebook to amicably resolve what we believe is an improper attempt to build a brand that trades off Facebook’s popularity and fame”.

Given the nature and scale of the Lamebook site and the nature of American BigCorps, I can imagine the “amicable” terms and conditions Facebook’s lawyers attempted to impose on Lamebook during those months.

Comment #56: Gracchus.  on  11/15  at  04:27 PM

Another irrelevant (but funny) bit of info about the Facebook vs. Lamebook thing: Lamebook has a Facebook page.

Comment #57: Atheist, A Feminist  on  11/15  at  04:31 PM

Since Facebook itself apparently intentionally wanted to look like nothing, it seems strange (although, yeah, legally whatever) that they care so much about looking like something special after the fact.

That’s beauty of being a corporate executive in modern America—the system is extremely forgiving when one wants to eat one’s cake and have it, too.

The facts you raise are relevant to the defendant’s case. Unfortunately, Lamebook will likely be bankrupted by legal fees or forced to alter their business mission to the point where its unrecognisable before they can be presented in a courtroom—another “feature” of the American system, assuming you’re a large incumbent corporate entity

Comment #58: Gracchus.  on  11/15  at  04:33 PM

@Gracchus

Sadly, you may be right about the result.  The <strike>idiots</strike> brilliant legal strategists behind this will no doubt be shocked to learn that getting that result will probably result in Facebook itself being referred to as “Lamebook” often enough that the argument that the two will be confused might retroactively have merit.  One of these days, enough companies will hopefully figure out that all swinging a big corporate dick around gets ‘em is more people figuring that the company (and its dick) is so amusing/worthless/horrible that stealing the company’s products or ripping off their image is not really much of a big deal.

IP is certainly important (although much of the legal stuff needs to be updated/tweaked), but I bet if you put it up to a vote, it would be in very real danger of being arbitrarily ended.  If companies had been smarter about dealing with little guys, that probably wouldn’t be the case.  (I am sure it will never actually be put to a vote, but it is still a really stupid place for companies to have gotten themselves into.)

Comment #59: Atheist, A Feminist  on  11/15  at  04:53 PM

“I’ll give you a FREE idea which might make you a multi-millionaire - figure out a way to sell the idea that the rich are closer to God than other people.”

I have it on good authority that George Bush Jr. was right on the verge of declaring himself the reincarnation of <strike>Zeus</strike> Jesus, right after he put on the famous bulging flight-suit in 2003, but Darth Cheney reined him in just in time.  The only reason he didn’t appoint a horse as a Senator is that he’s afraid of ‘em.

He secretly admired Caligula, even though he couldn’t successfully pronounce his name…

***

Seriously, this is one of the reasons Social Darwinism (concept if not name) is coming back into vogue.  Gotta have some reason to explain why it’s correct and just that the Top 1% own or control just about everything, and us proles should just suck it. 

They’re on the top because they’re more intelligent, more savvy, more gifted in the ways of business (because of proper breeding, of course), and just plain more deserving, so naturally they are at the top of the food-chain.  Obviously this is what god wants!

(The fact the French Royalty and their hangers-on felt exactly the same way, just before their heads were removed during the French Revolution, is probably just an interesting historical coincidence…)

Comment #60: MikeEss  on  11/15  at  05:05 PM

I understand that most people who read and submit to People of Walmart are laughing at the freaks.  I was drawn to the site originally for that, but I found myself developing a soft spot for those weirdos.  They’re America, in all its silly, freaky, inappropriate glory.

Comment #61: keshmeshi  on  11/15  at  05:25 PM

(I am not a lawyer) I highly doubt the law requires frivolous and un-winnable lawsuits.

From what I understand, the law requires exactly that, in the absence of winnable lawsuits.  In order to uncontroversially keep your trademark, you have to show that you consistently defended it and that there were no exceptions to your decision to defend it.  Which is why there are cars roaming the Indonesian countryside, looking for Disney IP violations.  I kid you not.

Again, the law is insane in this area.

Comment #62: Punditus Maximus  on  11/15  at  05:26 PM

@keshmeshi: I find myself totally down with the freaks, but I want to commit violence on the Neo-Nazis.

Comment #63: Punditus Maximus  on  11/15  at  05:31 PM

@Punditus Maximus

It requires them and allows for punishing those who bring them?  That really is insane.  I’m willing to buy that maybe the C & D letter was required as a token “maybe what you are doing is bad and if it is you should stop,” as Gracchus noted at #50, but a lawsuit is quite a bit different than that.

Disney would be insane regardless of what the law actually required.  It is practically as much a part of their brand-identity as the mouse.

Comment #64: Atheist, A Feminist  on  11/15  at  05:48 PM

Lawyer speaking, although my main area of knowledge is immigration law, but frivolous means something a little different in the legal realm than it does in ordinary people realm. To ordinary people, Disney tracking down IP/trademark violators in remote rural areas in the Indonesian archipelago seems frivolous because the violators aren’t going to stop or even if they could one, another violator will spring up. Its seen as frivolous because its seen as pointless. However, legally its not frivolous at all because what Disney is doing has a basis in the law and thats all that matters. A frivolous law suit is one without a legal basis, not a lawsuit that is trivial and pointless.

Comment #65: Lee  on  11/15  at  06:00 PM

(The fact the French Royalty and their hangers-on felt exactly the same way, just before their heads were removed during the French Revolution, is probably just an interesting historical coincidence…)

And isn’t itinteresting that the US is filled with heavily armed hotheads, many with military training?

Perhaps the vilification of “liberals” is necessary to stop the elites feeling nervous about people with rifles looking for scapegoats.

Comment #66: Phoenician in a time of Romans  on  11/15  at  06:00 PM

“In order to uncontroversially keep your trademark, you have to show that you consistently defended it and that there were no exceptions to your decision to defend it.  Which is why there are cars roaming the Indonesian countryside, looking for Disney IP violations.”

“...This is not Mickey Mouse, it’s Randy Rodent!  Any school-age Indonesian child knows and loves Randy Rodent, his faithful canine companion Bruto, and his one and only true love Rhonda Rodent.

And if you Disney people try to steal our lovable Randy Rodent, we’ll sue you for billions!...”

Comment #67: MikeEss  on  11/15  at  06:02 PM

@Lee

The frivolous wasn’t in reference to Disney, it was in reference to the Facebook one against Lamebook.  I could be wrong (not a lawyer), but that one seems pretty legally-definition frivolous.

Comment #68: Atheist, A Feminist  on  11/15  at  06:16 PM

“I’ll give you a FREE idea which might make you a multi-millionaire - figure out a way to sell the idea that the rich are closer to God than other people.”

Prosperity Theology.

Comment #69: Sarcastro  on  11/15  at  06:18 PM

68: It if helps you feel better, Lamebook was the one to sue Facebook.  Basically, Lamebook said that they thought Facebook was so likely to bring an action against them, that they wanted the issue to be decided.  This is called a declaratory judgment action.

The things that are sufficient to trigger a DJ action are pretty low, though, so it wasn’t like it was absolutely guaranteed that FB was going to sue Lamebook.  Lamebook just wanted to have the upper hand by starting the lawsuit process (for example you can select the state where the lawsuit occurs this way).

Comment #70: LizSpigot  on  11/15  at  06:43 PM

@LizSpigot

Hopefully that will be good for Lamebook.  I still think the going around threatening legal action (even if the law requires it) is probably not the best way for companies to behave.  The claim from Facebook that this is after “months of working with Lamebook to amicably resolve what we believe is an improper attempt to build a brand that trades off Facebook’s popularity and fame,” makes me think that Facebook was more bullying to Lamebook than whatever the law strictly requires.  Even though they are the defendant, they aren’t a victim of Lamebook.

Comment #71: Atheist, A Feminist  on  11/15  at  06:59 PM

Byronic @ 52,

I imagine there are entire segments of the legal profession who do nothing but threaten lawsuits that would be laughed out of court if they ever made that far.  And I’m sure the tactic works often enough to be quite profitable.

Comment #72: Captain Bathrobe  on  11/15  at  07:35 PM

Wow. LizSpigot (who I’m guessing is an IP lawyer) is trying to explain why there’s a lawsuit by Lamebook and why Facebook is doing what it does, and she’s getting criticism because the legal explanation doesn’t match our Plucky Satirist Abused By Big Internet narrative. She lacks truthiness!

The bottom line is that this is a lot more complicated than that simple, emotionally satisfying narrative. Copyright exists whether or not you sue copycats (which is why so many authors happily turn a blind eye to fanfic); trademark is very different. If you think this sucks, feel free to lean on your Congressperson.

Gracchus @50: it takes two to reach a reasonable and mutually beneficial accommodation.

Captain Bathrobe @72: Some former lawyers have had an imagination like yours, too, and found out the hard way that they were not exempt from laws about extortion.

Comment #73: mythago  on  11/15  at  07:44 PM

@Mythago 73

I’m not entirely clear; are you suggesting that fanfic is technically illegal, but goes unprosecuted because it’s considered unimportant? Or that if copyright required active protection on the part of its holder (as does trademark), that Joss Whedon would be engaged in similar frivolous, unwinnable lawsuits to prevent people from writing about his characters and distributing the stories for free?

Comment #74: Byronic Commando  on  11/15  at  08:08 PM

Prosperity Theology.

Hallelujah!  I have found JESUS and will now spend my time preaching the B- oh, fuck it.  Pass me my axe.

Comment #75: Phoenician in a time of Romans  on  11/15  at  08:16 PM

Gracchus @50: it takes two to reach a reasonable and mutually beneficial accommodation.

My point exactly—Facebook opened the game by sending a boilerplate C&D;on extremely shaky premises, as is the wont of corporate attorneys who can’t tell the difference between parody and the real thing.

Lamebook probably responds by saying “ok, we’re doing parody, but what can we do to make this work? Want us to say on every page that we’re not sponsored by or affiliated with Facebook? Done. Want us to put Like buttons on our posts to drive more traffic to you guys? No problem. Want us to stay away from criticising Zuckerberg or your privacy policies? Fine, it’s not what we’re mocking anyhow.” Etc.

Months follow as Facebook’s attorneys likely make demands that render the entire Lamebook concept unworkable and/or expect the Lamebook founders’ firstborn children as tribute for the privilege of continuing to operate.

Lamebook finally realises that they’ve found themselves on the wrong end of a one-sided pissing contest and, per LizSpigot, files for a DJ to get some control over the situation. They attack the basis of the original C&D;via a First Amendment argument.

Facebook lawyers shrug and say “fine, you won’t kow-tow to our brilliance, sue us—we’ll bankrupt you.” And before you know it, Facebook ends up looking like a bullying idiot in places like TechCrunch and follow-on media like HuffPo, Bloomberg and the WSJ.

This has been lesson 75495 in “Why You Should Never Give Attorneys Final Decision-Making Powers in your Company.”

Comment #76: Gracchus.  on  11/15  at  08:17 PM

MikeEss wrote:

No one “needs” a….., basically any form of entertainment, any food more than a little rice and some vegetables,.....

That’s a fucked up view of humanity you got there.  Entertainment IS a need—- look at the lengths people will go to get it.  ‘Even’ animals need entertainment, and last time I checked we are animals.

Comment #77: Eric_RoM  on  11/15  at  08:23 PM

I believe I remember reading some venerable old historian’s take on Greek Society which basically came down to when then Athenians put down their elaborate system of honor, obligation, and Tradition (and all the wars, feuds, and stabbings in dark alleys that that encompassed…) in order to invent democracy, they funneled all that energy into the legal system instead. They sued each other constantly over the dumbest stuff too but it made for less lengthy blood feuds. I suppose it’s a more civilized system but there’s a part of me that wouldn’t mind watching Zuckerburg facing off a room full of assassins.

Comment #78: scrumby  on  11/15  at  08:35 PM

“That’s a fucked up view of humanity you got there.  Entertainment IS a need—- look at the lengths people will go to get it.  ‘Even’ animals need entertainment, and last time I checked we are animals.”

I agree.  In fact, I think the human <strike>need</strike> desire for entertainment is underrated as a driving force in the invention and improvement of technology.

But it isn’t a need like breathing, or eating.  I was trying to put “needs” at the most basic level.

If you have a GameBoy, you don’t “need” an XBox, right?  You may want it, you may have been propagandized into feeling you need it, but in actual fact you can live without it.

If you have normal, average food available, you don’t “need” Wolfgang Puck to cook for you, right?

If you have a functioning Toyota, you don’t “need” a Lamborghini, right?

Question:  Does Paris Hilton “need” a Porsche and a mansion?  And if so, can you compare that to the normal need to breath and eat, have a roof to keep out the rain, and have a way to get to work?...

Comment #79: MikeEss  on  11/15  at  09:02 PM

@Gracchus

On thinking about it more, I’m not sure that I understand why, in this instance, even a boilerplate C & D was necessary.  I mean, I understand Facebook choosing to be overly cautious, but to pretend that their extreme caution was absolutely legally required and so probably not bullying in so many words as opposed to extreme caution at the expense of the little guy and so probably a bit bullying seems off.

I assume that IMDB still holds their trademark despite SomethingAwful’s Awful Movie Databse, which as far as I can tell uses some of IMDB’s trademarks in a satiric way.  IMDB hasn’t sent them a C & D (unless for some reason, SomethingAwful declined to post it with others in their Legal Threats section).

Also, according to page through Harvard Law and the International Trademark Association, Facebook is in danger of losing nothing from either Failbook or Lamebook even if they failed to send out a C & D.

From the Harvard page:

The rights to a trademark can be lost through abandonment, improper licensing or assignment, or genericity. A trademark is abandoned when its use is discontinued with an intent not to resume its use.

The only thing that threatening Lamebook might be good for is to maybe help protect Facebook from becoming generic (although that would be weighed against all of its consumers’ thoughts on the word to a certain extent).  If we all started a successful movement where all social networking was referred to as “facebooking,” then they’d probably be screwed anyway.  (And that would be yet another reason to not piss off the people that you need in many, many different ways to like you.)

In deciding whether a term is generic, courts will often look to dictionary definitions, the use of the term in newspapers and magazines, and any evidence of attempts by the trademark owner to police its mark.

From the INTA:

Can a Trademark owner lose rights in its Trademark?
Yes, it is possible for a trademark, even a registered trademark, to lose its capacity to function as a trademark identifying a particular source, such as when a trademark owner permanently stops using its mark, intentionally abandons its mark, or, in some jurisdictions, fails to renew a registration within the specified period after the expiration of the term of registration, or the trademark owner allows others to use a mark as a generic term for a product or service

A generic term is a word or phrase that is (or has come to be understood as) the common term associated with the category of goods or services to which it relates. For example, “clock” is a generic term for timepieces. Generic designations do not function as indicators of origin and are therefore not registrable or protectable as trademarks.

Comment #80: Atheist, A Feminist  on  11/15  at  09:17 PM

Or that if copyright required active protection on the part of its holder (as does trademark), that Joss Whedon would be engaged in similar frivolous, unwinnable lawsuits to prevent people from writing about his characters and distributing the stories for free?

This latter suggestion is how I understood it. And, well, didn’t J.K. Rowling already have a bit of a problem with this? Someone was legally allowed to publish a book set in her world, using her creations, right? (And didn’t we establish upthread that these lawsuits wouldn’t technically be “frivolous” even if they might be silly or petty seeming?)

Comment #81: Bagelsan  on  11/15  at  09:23 PM

I mean, godforbid I Joss-block anyone’s Whedon-gasm, but surely he wants to retain some control over his creations just like most other artists? If legal attempts at shutting down fandom (even weak ones) became required for this, I can’t imagine him and all the other beloved nerdly creators tacking themselves to a cross and giving up all rights to everything just to please the fic writers, yanno?

Comment #82: Bagelsan  on  11/15  at  09:27 PM

On thinking about it more, I’m not sure that I understand why, in this instance, even a boilerplate C & D was necessary.

It’s not legally required but, for a certain type of corporate attorney, it may as well be. And hey, making six-figures a year for filling in the blanks on form letters and bragging about how you’re the first and last line of defence for the company is nice work if you can get it.

The only thing that threatening Lamebook might be good for is to maybe help protect Facebook from becoming generic

And what a horror that would be, especially with them owning the “facebook.com” domain and all.

The fact is, they’d be even less “screwed” if the “facebook” went generic than Bayer or Kimberly-Clark were in regard to their products. Of course, an attorney isn’t thinking in terms of ICANN namespaces or co-marketing opportunities or the sort of kaizen that keeps a brand on top despite its generic status. He’s busy looking over his shoulder and making sure his fundament is properly draped.

Comment #83: Gracchus.  on  11/15  at  09:30 PM

@Bagelsan

The J. K. Rowling thing, despite her claims, was not because she encouraged websites.  They were not allowed to publish the reference guide she had big problems with, and she won about $7K and in response, the author and publisher added some original commentary stuff which made that version okay to publish.  (There are lots of unauthorized guides to copyrighted things, though. They are okay under fair use and no amount of sending out C & Ds will make fair use not okay, but it might bully someone doing nothing wrong into stopping.) 

The problem with what mythago seemed to say is that most fanfic (which the Rowling thing wasn’t) is unchallenged because it is non-profit.  Fanfic’s legality is a bit trickier than that (in large part because it often includes trademarked characters).  Wikipedia has an entire article on the legality of fanfic here.

Comment #84: Atheist, A Feminist  on  11/15  at  09:45 PM

@Gracchus

And hey, making six-figures a year for filling in the blanks on form letters and bragging about how you’re the first and last line of defence for the company is nice work if you can get it.

Sure, I’d take it.  Definitely bullying, though, I would think.

Comment #85: Atheist, A Feminist  on  11/15  at  09:46 PM

And what a horror that would be, especially with them owning the “facebook.com” domain and all.

The fact is, they’d be even less “screwed” if the “facebook” went generic than Bayer or Kimberly-Clark were in regard to their products. Of course, an attorney isn’t thinking in terms of ICANN namespaces or co-marketing opportunities or the sort of kaizen that keeps a brand on top despite its generic status.

Actually, Gracchus, you’re completely wrong.  If Facebook lost their trademark, then they cannot defend against cybersquatters or typosquatters - anyone could take over facbook.com, facebook.org, facebook.net, facebok.com, etc.  And if they ever miss renewing facebook.com and someone else jumps in, they would have no way of getting it back.
Look, you know about ICANN… Do a bit of research on the UDRP, which ICANN enforces.

Comment #86: Theaetetus  on  11/15  at  10:13 PM

@Theaetetus

I realize that the way things work now is not on my side in this, but if Facebook wants to keep the facebook.com domain (and facebook.org, which they have) then they should have to pay attention to renewing it.  If they miss that, then I think it would be more than fair (which the law should be) to take that as evidence that they didn’t care enough about it.  If they care about facebook.net, they should have it now.  Facebook is a company, not a small child.  If it can’t take care of itself, too damn bad.  (If I forget to renew my lease, the fact that this is where everyone expects to find me is irrelevant.  If I cared about living here, I’d have remembered to renew the thing.)

Typosquatters suck for me because some of them are unsavory, but I think it is more important that laws address them trying to take advantage of my computer.  Unless internet companies really want to take the position that all of their users are barely intelligent enough to find the power button on their PCs, typosquatters in general shouldn’t concern them at all.  If they are concerned about specific, really easy to make-and-not-realize-it typos, then they should get those and keep them registered as well.

Comment #87: Atheist, A Feminist  on  11/15  at  10:39 PM

comment #79

I like this. Apparently, human beings have survived 100 years ago, 1000 years ago, even 10,000 years ago. We don’t need anything more than what was used by our ancestors 10,000 years ago. This is good, because this is where we’re headed.

Comment #88: faiimuden  on  11/15  at  10:46 PM

Actually, Gracchus, you’re completely wrong.  If Facebook lost their trademark, then they cannot defend against cybersquatters or typosquatters

First, I didn’t say anything about losing a trademark. To do that you have to basically not use it at all for 5 year or miss the various renewal dates and grace periods. That’s one of the areas where lawyers who can fill in forms come in handy.

I’ve been registering both domains and trademarks in tandem since 1994, and know the rules. You have to maintain both the mark and the domains (including the various TLDs and obvious typos) simultaneously. You’re not going to catch all the typo domains, and not even the biggest brands attempt to sweep them all up.

If you’re running a business, you then focus on both renewing the domains and maintaining the trademark, and protecting them in cases where it makes sense to the business—for the most part blatant cases of misrepresentation or similar products/services carrying variants of the mark that lead to consumer confusion. Those last are cases of enforcement, rather than maintenance.

Going “generic,” on the other hand, is an informal process, more often working like “kleenex” or “xerox” than like “aspirin” (where the trademark was stripped in certain countries after WWI). The trademark isn’t necessarily lost or even, assuming the quality of the product or service is maintained and improved, diluted when it goes generic. The only people in a company who worry about dilution are those for whom marketing and product management are minor concerns, and who think that the registered mark alone will magically conquer all.

If you’re a smart media brand manager (on-line included), you will bloody kill to get your brand genericised because the trade name is fundamentally integrated into that type of product.  Imagine that the chemical process needed to create the soft facial tissue product also happened to imprint the Kimberly-Clark logo on it—think that the company would see the term “kleenex” going generic as a plus or minus? That’s what would go on with Facebook if it went generic: free word-of-mouth marketing for the core brand. That’s precisely what goes on with Google, which still owns the mark to that term.

IP lawyers, even the overly aggressive ones, have an important role in protecting a company’s brand. But they’re best treated like attack dogs and kept on a short leash lest they bite those they protect in the arse.

Comment #89: Gracchus.  on  11/16  at  09:51 AM

The trademark isn’t necessarily lost or even, assuming the quality of the product or service is maintained and improved, diluted when it goes generic.

Uh, no, sorry, Gracchus.  This is completely and entirely incorrect.

Imagine that the chemical process needed to create the soft facial tissue product also happened to imprint the Kimberly-Clark logo on it

... and if so, the mark would be functional, and would therefore be unprotectable.  There would be no protection whatsoever, and competitors making sandpaper-like facial tissue could put the Kimberly-Clark logo on their product, and Kimberly-Clark could do nothing about it, even as customers were calling them daily to complain about their sandpaper tissue.

Frankly, Gracchus, there is nothing you’ve said here that has any relationship to reality or the law.  And since you’re attempting to describe the current state of the law, you can’t fall back on a “you misunderstand, I’m arguing how the law *should* be” defense.

Comment #90: Theaetetus  on  11/16  at  01:59 PM

Uh, no, sorry, Gracchus.  This is completely and entirely incorrect.

So you’re saying that the Kleenex trade mark, as currently held by K-C, is diluted because people have used the term generically for decades? That K-C in no way benefits as much as, if not more than, it loses from the generic status of the name? That K-C make no effort to differentiate their product from other tissue products on the basis of quality, and promotes that difference?

If so, like Facebook’s lawyers you may be spending too much time in legal realities and not enough time in business ones.

... and if so, the mark would be functional, and would therefore be unprotectable.

And the Facebook mark isn’t functional? How about Google, which is rapidly being genericised? When you’re dealing with on-line trademarks and their interconnection with the functional realities of domain names, they become something more than names and identity.

By your argument, the marks “Facebook” and “Google” are unprotectable because they’re functional. While I think Facebook’s lawyers are being overzealous in this case, I think they’d disagree with that interpretation, and rightly so.

Comment #91: Gracchus.  on  11/16  at  02:36 PM

1) Kleenex is not yet legally generic, and they’ve fought very hard to ensure that competitors refer to their products only as “tissues”.

2) No, neither the marks of “Facebook” nor “Google” are functional.  Under your inane hypothetical, the K-C mark appeared on the product due to the chemical process - i.e. if you want to use the chemical process, you end up with the mark.  Because the chemical process is functional to make the product and the mark is an inherent result of the functional process, it too is functional, and therefore is unprotectable.
Go on, tell us how “Facebook” is functional, in that it’s literally impossible to have a social network site that doesn’t include that word.  Same thing for “Google”.  Good luck explaining the existence of Bing, Yahoo, Alta Vista, Ask Jeeves, Wolfram-Alpha, AOL, etc.  We’ll wait.

In summary:
/facepalm

Comment #92: Theaetetus  on  11/16  at  02:56 PM

No, Chet, you see, it’s just that none of those corporations understand business! They don’t have smart media brand managers! Gracchus knows, because he’s registered a domain name.

Comment #93: Theaetetus  on  11/16  at  03:15 PM

1) Kleenex is not yet legally generic, and they’ve fought very hard to ensure that competitors refer to their products only as “tissues”.

Again, I’m not talking about legally generic, which may be the point of disconnect here. The competitors certainly can’t use the mark, but consumers use it generically.

2) No, neither the marks of “Facebook” nor “Google” are functional.

Guess they can dump their domain names then, and give everyone their IP addresses instead.

Go on, tell us how “Facebook” is functional, in that it’s literally impossible to have a social network site that doesn’t include that word.

“facebook” is a functional trademark because, when one wants to go to that particular social network, that’s the critical part of what’s typed into the browser address bar. Same thing for Google in regard to that particular search engine.

Now, stay with me: if I tell someone “let me google that for you” in the generic sense, I may or may not actually be using Google. But if I type “google.com” into the address bar (note that “google” bit), I will indeed see the (legally trademarked) Google logo come up in the browser window—due to the functionality of the trade name “google.”

Well, that certainly explains the record-setting profits last year of Frisbee Pies and the Yo-Yo Manufacturing Company, doesn’t it!

I doubt that Duncan Toys and Wham-O are suffering with those product lines. And this depsite the fact that they certainly don’t go after every single manufacturer or distributor of flying disc or spool-and-string toys for trademark violations even though their products are also generically requested by consumers as “frisbees” and “yo-yos.”

Comment #94: Gracchus.  on  11/16  at  03:19 PM

Gracchus, it’s clear you’re not talking about legally “anything”.  Your statements show a clear lack of understanding of the legal terms “generic”, “functional”, and even “trademark”.  Your naive, gut-based truthiness interpretation of the terms and your arguments about “well, consumers use it generically,” would be laughable, if they weren’t such excellent examples of willful ignorance.  As is, your earlier rants about smart business managers and IP lawyers are more than a bit pitiful and come off as mere sour grapes.

Comment #95: Theaetetus  on  11/16  at  03:25 PM

A full 3/4ths of the ads are admonishments from Kimberly-Clark, 3M, Georgia-Pacific, and Hostess (etc), reminding authors not to violate the law and say “tissue”, “self-adhesive note”, “paper cup”, and “snack cake” instead of “kleenex”, “post-it”, “dixie cup”, and “twinkie.”

That’s legal maintenance of the brand, and is perfectly reasonable in the context of the law. But if you’re telling me that anyone outside of Kimberly-Clark’s legal department is crying when a John Grisham character says “hand me a kleenex” instead of “hand me a tissue,” or that they’ll go after his publisher because it wasn’t rendered as “hand me a Kleenex™” you’re living in the same reality as Theaetetus.

And it’s not that I’ve only registered domain names, Theaetetus, I’ve researched and registered more than a dozen trademarks as well. Which leads to a good understanding of the deep interconnection between the two.

Comment #96: Gracchus.  on  11/16  at  03:27 PM

Gracchus, it’s clear you’re not talking about legally “anything”.

Thanks for finally noticing. Sheesh!

As is, your earlier rants about smart business managers and IP lawyers are more than a bit pitiful and come off as mere sour grapes.

Is that what’s upsetting you? Look, there are plenty of successful CEOs who have JD degrees, but we don’t call them “great lawyers,” we call them “great businessmen.”

Comment #97: Gracchus.  on  11/16  at  03:31 PM

@Chet

I guess you have to have tried to sell some writing, at some point, to have flipped through writing market magazines and have seen the ads in the back. A full 3/4ths of the ads are admonishments from Kimberly-Clark, 3M, Georgia-Pacific, and Hostess (etc), reminding authors not to violate the law and say “tissue”, “self-adhesive note”, “paper cup”, and “snack cake” instead of “kleenex”, “post-it”, “dixie cup”, and “twinkie.”

They are lying.  None of those things are against the law.  If I write up an interview and the interviewee ate a twinkie, I am completely allowed to refer to it as such.  If I write up my morning and I jotted down a note on a post-it, I am certainly allowed to refer to it as such.  If I write a short story and I want the main character to have killed herself with a kleenex, I can say that.

From the links I posted above:

Nominative use occurs when use of a term is necessary for purposes of identifying another producer’s product, not the user’s own product. For example, in a recent case, the newspaper USA Today ran a telephone poll, asking its readers to vote for their favorite member of the music group New Kids on the Block. The New Kids on the Block sued USA Today for trademark infringement. The court held that the use of the trademark “New Kids on the Block” was a privileged nominative use because: (1) the group was not readily identifiable without using the mark; (2) USA Today used only so much of the mark as reasonably necessary to identify it; and (3) there was no suggestion of endorsement or sponsorship by the group. The basic idea is that use of a trademark is sometimes necessary to identify and talk about another party’s products and services. When the above conditions are met, such a use will be privileged. New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th Cir. 1992).

When can I use another person’s or company’s Trademark without the owner’s consent?
It is permissible to use another company’s trademark when referring to that company’s product in text, where it is being used to truthfully refer to that a product or service affiliated with that trademark. It may not be used in a way that might mislead others as to that company’s affiliation, sponsorship or endorsement of your company, products or services, e.g., using a logo instead of simply the text form of a trademark, or using the trademark more prominently or frequently than necessary.

Finally:

Finally, certain parodies of trademarks may be permissible if they are not too directly tied to commercial use. The basic idea here is that artistic and editorial parodies of trademarks serve a valuable critical function, and that this critical function is entitled to some degree of First Amendment protection. The courts have adopted different ways of incorporating such First Amendment interests into the analysis. For example, some courts have applied the general “likelihood of confusion” analysis, using the First Amendment as a factor in the analysis. Other courts have expressly balanced First Amendment considerations against the degree of likely confusion. Still other courts have held that the First Amendment effectively trumps trademark law, under certain circumstances. In general, however, the courts appear to be more sympathetic to the extent that parodies are less commercial, and less sympathetic to the extent that parodies involve commercial use of the mark.

Writing of any kind (and media more generally) is most likely to fall under the less commercial use (parodic or otherwise) because you sell the text, which includes a trademark, not a product bearing the trademark in some way.  If the product you are selling depends upon its use of the trademark for its value (like, from the links, Gucchie Goo diaper bags or a poster parodying Coca-Cola) that is much less likely to be okay.  To tie this back into the general discussion, this Dennis the Menace comic most likely did not ask permission to refer to Facebook and certainly did not have to.  Trademarks do not confer the rights that you say they do.  Similarly, when Rory on Gilmore Girls went on and on about which colleges she wanted to attend (all trademarks), they didn’t have to get permission at all.  The show only had to start talking to Yale when they wanted help/permission to recreate the school on a soundstage.  When the companies claim that they have rights they do not have in an effort to get the behavior they want from those they cannot control, they are bullying pure and simple.

Comment #98: Atheist, A Feminist  on  11/16  at  05:06 PM

@Chet

That’s what happens when you don’t protect your trademarks - someone else comes in and outcompetes you with your own invention. That’s eventually supposed to happen, yes; but the marketplace where it happens instantly is one where there’s little to no incentive for invention.
The yo-yo, specifically, is a pretty good example of how much money you stand to lose if you don’t protect your trademarks.

Wow, you are an idiot sometimes.

From Wikipedia:

Webster’s Collegiate Dictionary states that the word “yo-yo” derives from the northern Philippine Ilokano language word “yóyo” [...] James L. Haven and Charles Hettrick of Cincinnati, Ohio, USA, received the first United States patent on “...an improved construction of the toy, commonly called a bandelore…” in 1866.
However, the yo-yo would remain in relative obscurity until 1928 when a Filipino American named Pedro Flores opened the Yo-yo Manufacturing Company in Santa Barbara, California. The business started with a dozen handmade toys; by November 1929, Flores was operating two additional factories in Los Angeles and Hollywood, which altogether employed 600 workers and produced 300,000 units daily.  Shortly thereafter (ca. 1929), an entrepreneur named Donald Duncan recognized the potential of this new fad and purchased the Flores Yo-yo Corporation and all its assets, including the Flores name, which was transferred to the new company in 1932. Duncan’s first yo-yo thereafter was the Duncan O-BOY. Duncan is reputed to have paid more than $250,000, a fortune by depression era standards. It turned out to be a sound investment, making many times this amount in the years to follow. [...] Declining sales after the Second World War prompted Duncan to launch a comeback campaign for his trademarked “Yo-Yo” in 1962 with a series of television advertisements. The media blitz was met with unprecedented success; thanks in great part to the introduction of the Duncan Butterfly, the yo-yo was more accessible to the beginner than ever. This success would be short-lived, however, and in a landmark trademark case in 1965, a federal court’s appeals ruled in favor of the Royal Tops Company, determining that yo-yo had become a part of common speech and that Duncan no longer had exclusive rights to the term. As a result of the expenses incurred by this legal battle as well as other financial pressures, the Duncan family sold the company name and associated trademarks in 1968 to Flambeau, Inc, who had manufactured Duncan’s plastic models since 1955. As of 2010, Flambeau Plastics continues to run the company.

Duncan’s problems seem mostly to be about refusing to accept that their trademark had become generic than because the word had actually become so.  In other words, they lost a great deal of money trying to protect their trademark.  (Given the origins of the word itself, they would have probably lost that fight sooner or later anyway.)  When you talk about invention, it is important to mention PATENTS since that is really what they are for.  TRADEMARKS, OTOH, are not, technically speaking.

Right. And why do they maintain those terms?
Because they don’t want them to become generic. That’s why the ads all admonish writers not to use the terms as though they’re generics.

You are still being wrong.

Comment #99: Atheist, A Feminist  on  11/16  at  05:42 PM

Wham-O didn’t invent the frisbee and Duncan didn’t invent the yo-yo. Nor did they invent those trademarks. That’s what happens when you don’t protect your trademarks - someone else comes in and outcompetes you with your own invention

Duncan bought the Yo-Yo Corporation, so there was no issue of protection there. “Frisbee” was applied by Wham-O to a flying disc, not a pie plate—an issue of usage and functionality, so no issue of failure to protect a trade name. If Wham-O had gone into the pie business, you might have a point.

Right. And why do they maintain those terms?

To maintain the legal right to their brand names and keep them from legal (as opposed to colloquial) generic status. A token effort of notice isn’t the same thing as draconian enforcement of said status—if it was the courts would be even more backed up than they are.

Who gives a shit about anybody outside of Kimberly-Clark’s legal department?

In a discussion about successful business strategies (such as not getting into legal pissing contests with companies that want to help you, and looking like a bully in the process), it would be more accurate to ask who cares about what happens inside a company’s legal department. Kimberly-Clark’s seems to have some perspective and sticks to its knitting (e.g. renewing notices in writers’ magazines).

Jesus. You really do have no idea what you’re talking about, do you?

I’d take that statement more seriously if the examples that “proved your point” had actually, y’know, proved it.

Comment #100: Gracchus.  on  11/16  at  06:01 PM

@Gracchus

Right. And why do they maintain those terms?
To maintain the legal right to their brand names and keep them from legal (as opposed to colloquial) generic status. A token effort of notice isn’t the same thing as draconian enforcement of said status—if it was the courts would be even more backed up than they are.

I would add that they also try to maintain those terms because companies are not always rational in their behavior.  Whether or not a legal generic status would actually hurt their profits, companies try to maintain them because they believe - rationally or not - that they should.

Comment #101: Atheist, A Feminist  on  11/16  at  06:20 PM

Google is a generic term these days because people use it generically. That may or may not have a legal analogue, but when I tell you to “google that” you know what that means. It’s become perfectly generic as far as everyday conversations go.

Comment #102: Jerry Vinokurov  on  11/16  at  06:26 PM

Whether or not a legal generic status would actually hurt their profits, companies try to maintain them because they believe - rationally or not - that they should.

How would generic status help a company’s profits?  It seems like it would just mean a lot of marketing effort down the toilet—if my brand name is associated with all like products, then when I advertise my brand I am also advertising my competitor’s brand.  That doesn’t help me.

Comment #103: mamram  on  11/16  at  06:50 PM

I guess what I am saying is, there

Comment #104: mamram  on  11/16  at  06:54 PM

*I guess what I am saying is, there is a reason that Coca-cola didn’t advise thirsty people to “have a refreshing cola,” and I don’t think it’s because the company is run by irrationality.

Comment #105: mamram  on  11/16  at  06:57 PM

I decided to check out this comment thread, under the assumption that there’d be a massive derail about ableism thanks to the post title.  Amazing, there isn’t… there’s a far more boring derail instead.  Lawyers really hate it when people who haven’t been to law school dare to have opinions on legal issues, I guess.

Comment #106: Dustin L  on  11/16  at  07:05 PM

@mamram

It depends on the advertising campaign used originally/most recently and other trademarks in play and the product.  Logos are really important to most brand identities.  If all sneakers could be called Nikes, it doesn’t mean they all get to use the “swoosh.”  That would count for something.  If Hershey lost exclusive rights to their “Kisses,” the Hershey name would still count for a lot.  You might pick up a bag of Cadbury Kisses, but you probably would still be aware it wasn’t a Hershey Kiss.

In the case of the internet, it is a bit different in any event.  If I (theoretically) went on Twitter and facebooked and went to MySpace and facebooked and then visited OkCupid and facebooked, Facebook really hasn’t lost a lot as long as they still have the domain facebook.com and pay to advertise on search engines (or, theoretically, googlers).  MySpace can advertise that it has a facebooking service, but so will everyone else.  Facebook doesn’t really have a lot to lose there, IMO.

Obviously, lots of companies act rationally, but to pretend they always do so and so a particular claim or course of action must be correct is different.

Comment #107: Atheist, A Feminist  on  11/16  at  07:43 PM

but to pretend they always do so and so a particular claim or course of action must be correct is different.

I am definitely with you on this; I see examples of it at my own company all the time.  But some people (maybe not you) have been implying that generic-ing of brands specifically is actually good for companies, and that the only reason companies defend their trademarks is because they are acting irrationally.  I don’t really see the case for that.  I agree that the damage done by losing the specificity of a brand, or one aspect of a brand, varies depending on the particulars, but I don’t see how it could be beneficial.

Comment #108: mamram  on  11/16  at  11:04 PM

@mamram

I don’t have links because it was so long ago (in internet time), but when google became an official verb, there was a lot of debate over the consequences of that for the company.  Of course there are losses and damage, but there are benefits in so much as the specific product (Google Search, Kleenex, Xerox, etc.) becomes the standard for all products, the Platonic ideal of the products.  You can’t really buy that kind of advertising. 

I had a discussion a few years back with Scott Donaton when he was the publisher of Ad Age about the way companies attempt to control their brand, image, etc.  Basically, companies really want to control as much of their brand (and so by extension the use of their trademark in non-commercial, completely legal ways) as possible.  They are unwilling to accept how little control they have and their efforts to exert control often are not in the best interests of the brand itself.  Exerting that control particularly over the consumers of the product (and its advertising, image, etc.) harms companies, images, and products far more than just letting the consumers have their say.

To apply that to this discussion, letting a brand go generic might be much better than the only other alternative of (most likely fruitlessly) fighting it.  So, even if it is a bad option (generic) and a worse option (trying to keep it non-generic), that bad option is beneficial for the company simply by being in its best interest.  (This would be true for both lay-person generic and for legal-person generic.)

The point in this thread, I think, is that Facebook has nothing to fear (regarding losing its trademark) from Lamebook or Failbook.  Even if those two websites were actually infringing upon Facebook’s rights, Facebook doesn’t have to do anything about it.  Since the websites aren’t infringing upon Facebook’s rights, Facebook shouldn’t have done anything about it.  The argument is that doing so provides no benefit and causes a great deal of harm.  The generic issue is an offshoot of the no benefit claim since, technically, were Facebook to maybe become generic in the future, their attempts to “defend” the trademark (which the C & D to Lamebook might be considered) would be one of the things considered in court.  If so, then the actions against Lamebook would have a small potential benefit* and a large potential harm.
 

*This is where the argument was most recently, I think: The small potential benefit is only even a small potential benefit if, in the event that Facebook in the future goes generic, it would be worth it for Facebook to fight that generic-ing at the time.  I think the position of Gracchus and myself is that the answer is probably not, thus it would be silly for Facebook to attempt to argue against it period, let alone to be issuing C & Ds against not-actually-infringing websites to create a history of defending the trademark for that silly purpose.

Comment #109: Atheist, A Feminist  on  11/16  at  11:42 PM

tl; dr version:

If a product looks like it is going generic (which is good and bad), there are 2 options: fight it or deal with it.  Fighting it is probably always bad.  Dealing with it means you get the good and the bad, but not more bad.  Thus, it is the option with the most benefits and fewest harms or (possibly sloppy language-y) beneficial.

Comment #110: Atheist, A Feminist  on  11/16  at  11:46 PM

Fighting it is probably always bad.  Dealing with it means you get the good and the bad, but not more bad.

This makes sense.  I see your point.

Comment #111: mamram  on  11/16  at  11:59 PM
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