Oct 19 2010

Cease and Desist Trademark Craziness

Let me first state that I am not a legal scholar but that doesn’t stop me from having my own opinions of legal case study, especially when it doesn’t make any common sense. That said, I think there is a lot of value in trademarks, just like there is some intrinsic value in copyrights and patents. But the use of trademarks, copyrights, and patents are a common good and like most common goods it falls victim to the tragedy of the commons. The tragedy of patents are it’s patent trolls. The tragedy of copyrights are these perpetual copyrights for works that were original derived from public works. The tragedy of trademarks is that you can say one sentence without infringement on someones trademark, or at least that is what the lawyers want you to think.

One of the most heavy handed and ill conceived use of trademark law was by Microsoft against Mike Rowe, a 12th grade student that owned and operated MikeRoweSoft.com. Microsoft based their 2004 trademark case in that MikeRoweSoft sounds like Microsoft and that this might confused consumers, maybe blind consumers.

More recently there have been too many unfounded trademark suits filed by large corporate entities against operators of small website operators. One recent case pits Facebook who filed suit against Teachbook.com, an online forum for teachers, for “misappropriating the distinctive BOOK portion of the Facebook’s trademark.” This makes no sense at all. Facebook has trademarked the term facebook, not book, but they claim that the book portion of the name is distinctive enough that they can sue another company that uses the term book in their domain name. This is a clear example of an overreaching use of trademarks. This also indicates that Facebook CEO Mark Zuckerborg intends to claim any domain of the form [\w|\d]*book. Teachbook is an online forum for teachers, not for FarmVille addicts. Teachbook does not in any direct way compete in the commercial space with Facebook.

Perhaps following Facebook’s legal precedent, it has been reported that eBay has issued a cease-to-exist to a website operator because the domain name ends with bay. The owner of theplayersbay.com posted the cease-to-exist, go kill yourself, which reads in part, “Arbitrary use of the word BAY in a domain is problematic if the connected website is used in association with a business making use of eBay or operating in the same sphere of business as eBay.” Again, some law firm is protecting consumers because thepalayersbay.com is confusingly similar to the giant auction website eBay.

Another similar case that grabbed my attention was of Matt Cooper, owner of Addroid.com. Which company would you think sent Mr. Cooper a cease and desist? No, not Google the maker of the Android mobile platform. No, not Motorola, the maker of the Droid branded phone. Yes, you guessed it, Lucas Arts! You see, George Lucas owns the trademark to Droid, a pay on the word android. From what I understand from his defense Mr. Cooper claims that the term Addroid is a plan on the general term Android, and does not infringe on Lucas Arts trademark droid.

I want to trademark the ampersand (&) symbol so that I could file a trademark infringement to all law firms with names of the form Dumb Dumber & Dumbest. That said, I have to acknowledge that there is value in protecting your trademarks, as well as copyrights and patents. But the legal cases listed here are not executed in good faith of trademark laws. I believe that trademark laws, much like any legal code, is a public good that if abused by loopholes, bullying tactics, or partiality hurt people’s faith in those laws.