Newspapers, The Recording Industry And A Misplaced Sense Of Entitlement

Lesson For Companies Being Over-Aggressive In Trademark Protection: Look At Twitter

from the think-about-it... dept

Mon, Apr 27th 2009 8:40am — Mike Masnick

We've definitely seen how companies and their lawyers are often over-aggressive in trying to "protect" their trademarks, often not realizing how much more damage it does to their brand. Take, for example, the story of Monster Cable who has created an army of people who will never do business with the company due to its incredibly aggressive nature when it comes to over protecting its trademarks. With Wikipedia now entering the fray with trademark bullying, it's interesting to see a lot of Wikipedia-hatred come out in our comments as well.

With all that happening, Rob Hyndman recently wondered if Twitter's much more "laissez-faire attitude towards its trademarks has helped it grow fast," noting that "there's just no question that people feel more warmth towards the brand because of its openness." And, it's true, there are a number of services built off of Twitter that the company could potentially go after if it were feeling legalistic. Twitpic? Stocktwits? But the company has (at least for now) taken an approach of letting those services move forward (often promoting them itself). And, as Rob notes, that's part of Twitter's success as a brand.

This is a key lesson that big companies and trademark lawyers really should pay attention to. As people always like to point out, trademark law requires you to "protect" your mark to keep it from being declared generic, but that does not (as many assume) mean that you absolutely have to sue or threaten anyone who makes use of your mark. Especially in cases where it's clearly not making the brand generic, but simply building off of the brand, it can be a much smarter move to let it live on. People (often lawyers) seem to think that just because you can block a business for using a trademark, that it's a good business decision to do so. But, seeing how much damage has been done to Monster's brand (and now Wikipedia's brand) for taking the legal stance, in addition to the positive way in which people view Twitter's brand, these examples should (hopefully) make some of those trademark protectionists think twice.

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Filed Under: aggressiveness, trademark
Companies: twitter, wikipedia

23 Comments

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Anonymous Coward, 27 Apr 2009 @ 9:21am

wikimedia art = infringement
There's nothing wrong with what wikipedia is doing. Wikipedia sets up their quality control guidelines (the crux of trademark law), says "we don't want these kinds of articles associated with our brand", they enforced the quality control against these "artists", and these "artists" attempted to circumvent these guidelines while still using the wikipedia brand. WA bought a domain name with "wikipedia" in it, installed wikimedia's open source wiki software, and put the same page back up with an incredibly similar icon as the wikimedia foundation's icon.

And the fact that WA isn't selling anything (or using ads) doesn't matter. The infringer must merely be in the same commercial channel. There are dozens of website cases where the infringer wasn't actually selling anything or using ads.

Game over wikipedia art.
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:Lobo Santo, 27 Apr 2009 @ 9:25am

Re: wikimedia art = infringement
Hey coward, what is the value of a person's good will?
How about the good will of many people?

Think the answer might be something along the lines of "priceless" or can you not think?
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Anonymous Coward, 27 Apr 2009 @ 9:26am

Re: wikimedia art = infringement
There are dozens of website cases where the infringer wasn't actually selling anything or using ads.

Links?
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Weird Harolds #2 Fan, 27 Apr 2009 @ 9:35am

Re: wikimedia art = infringement
Hey! This guy is right! Infringement is theft!

You wouldn't inject insulin into your goldfish, so don't infringe!
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Tgeigs, 27 Apr 2009 @ 9:37am

Sorry, can't help myself
Silly Masnick, twits are for kids...
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Ryan, 27 Apr 2009 @ 10:08am

Monster
I don't really see anything in the links to indicate that being overaggressive with its name has impacted business all that much for Monster Cable; it already had a fairly poor reputation for selling an expensive product that doesn't really do anything. I would agree that this kind of action would normally fare poorly in a public relations sense, but since Monster's entire business model was already taking advantage of the ignorant...
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Anonymous Coward, 27 Apr 2009 @ 10:14am

Re: Re: wikimedia art = infringement
Look up Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998)

"In December 1995, Panavision attempted to register a web site on the Internet with the domain name Panavision.com. It could not do that, however, because Toeppen had already established a web site using Panavision's trademark as his domain name. Toeppen's web page for this site displayed photographs of the City of Pana, Illinois."

Trademark law is pretty clear on domain name disputes. The problem is exercising jurisdiction over a defendant based solely on a web presence.
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Felix Pleșoianu, 27 Apr 2009 @ 10:19am

What Twitter has accomplished by not defending their trademark is a superior kind of brand recognition - their name is turning into a common noun, much like Xerox in the 1970es. I use identi.ca because it features a different kind of openness (open source, open content etc.), but whenever I want to talk about microblogging in general, I find myself saying "Twitter" because it's shorter and more memorable. And what about the term "re-tweet"? Over at identi.ca, we didn't even try to find a replacement. That alone speaks volumes.
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Osno, 27 Apr 2009 @ 10:20am

On Monster: I think the fact that they sell overpriced products that do nothing was raised by engadget a few years ago, mainly because they didn't like their corporate bullying.

On Twitter: IMHO, twitter is about to become a generic for microblogging (much like coke is generic for cola beverages). I really don't understand how that's a bad thing.
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Rob R., 27 Apr 2009 @ 10:22am

Refreshing, actually
I think it's rather refreshing to hear of the Chewbacca Defense being modified to the Chewbacca Offense. Way to go, Wikipedia and Monster!

(FYI - for those that don't know, it's a South Park reference that is applicable)
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Anonymous Coward, 27 Apr 2009 @ 10:30am

Keep in mind that lawyers have to keep working. If they didn't continue to bring lawsuits like these, we would suddenly find that we had way too many lawyers with no way to make money.
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Hulser, 27 Apr 2009 @ 10:41am

Trust Continuum
I see a parallel between Twitter's approach to its trademark and the more modern view that you don't turn off critical thinking just because you see something in print.

In Twitter's case, they know that most of their target market is savvy enough to know what services are being provided by Twitter themselves and what services are being provided by other third parties. This is in line the the more modern view that belief in what you read, hear, or see lies on a "trust continuum" rather than just a binary "I trust this completely" or "I don't trust this completely".

For example, the newspapers bemoan the popularity of blogs, saying that blogs can't be trusted. Disregarding for a moment the failures in trust by the newspapers in recent history, what they don't get is that it's just natural for people who grew up with the Internet to view blogs or anything else online using their critical thinking skills. In other words, just because we see something in print, it doesn't mean we automatically trust it like our parents or grandparents tended to do.

This is what freaks out the lawyers of the newspapers and the lawyers of companies, unlike Twitter, who believe that any unauthorized reference to their company name will render potential customers into a state of catatonic confusion. They basically think you're too stupid to make a judgement for yourself.
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DJ, 27 Apr 2009 @ 11:12am

Re:
"...way too many lawyers with no way to make money."

Which would cause those lawyers to not be lawyers anymore.... Why would that be a bad thing?
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Mike (profile), 27 Apr 2009 @ 12:13pm

Re: wikimedia art = infringement
There's nothing wrong with what wikipedia is doing.

You seem to have missed the entire point.

I'll spell it out: Even if they have every *legal* right to do so (and I disagree with you in saying that's the case), it's often smarter NOT to do so, because of the goodwill generated by being open and nice with partners, rather than obnoxious.
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batch, 27 Apr 2009 @ 1:32pm

Re: Re: wikimedia art = infringement
"You wouldn't inject insulin into your goldfish, so don't infringe!"

Comment of the day material!
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Clovis, 27 Apr 2009 @ 1:50pm

Monster Brand Damaged?
How much damage has been done to Monster's brand? Does anyone know if Monster's overzealous brand protection has resulted in loss of sales; any hard data out there? By the way, I think Monster have been entirely obnoxious, but I'm not in the market for expensive cabling.

Depressingly, these tactics could work in Monster's favour too - people see a Monster cable in a shop, remember they've heard of the brand somewhere, can't remember where or why, but the vague recollection nudges them to buy.
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Anonymous Coward, 27 Apr 2009 @ 6:39pm

Re: Re: wikimedia art = infringement
This is silly. People complain that wikipedia doesn't have enough quality control, and when they try to enforce that quality control, you say that's somehow damaging their brand? Of course not. Prohibiting crappy non-compliant articles is good for the wikipedia brand. Letting wankers who violate the guidelines set up their own sites (using wikipedia software nonetheless) on sites with virtually the same name skirts the quality controls of wikipedia, which are already the number one complaint of the site.

If everyone who wanted to set up one of these sites, it'd be only a week before you saw wikipediaporn.com actually hosting porn rather than just an ad-search placeholder.

If you're really offended by wikipedia enforcing their quality control guidelines, and following up with the legal support that allows them to do so, then maybe it is you who misses the point.
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chaosnet3, 27 Apr 2009 @ 9:33pm

Chicken and egg dilemma - lawyers and lawsuits dilemma
by Anonymous Coward - Apr 27th, 2009 @ 10:30am

"Keep in mind that lawyers have to keep working. If they didn't continue to bring lawsuits like these, we would suddenly find that we had way too many lawyers with no way to make money."

Is that a chicken and egg situation or dilemma. Lawyers and lawsuits, over-aggressiveness, trademark protection. The chickens, the lawyers and the eggs the lawsuits and all the other stuff.

Is there any real reason i.e. a good business decision, that a lawsuit, a trademark protect, should be brought forth or because there are lots of lawyers and necessity demands that should not be left idle, let hatch more eggs, more lawsuits and etc.,

Clearly, as the host points out

" ... seeing how much damage has been done to Monster's brand (and now Wikipedia's brand) for taking the legal stance, in addition to the positive way in which people view Twitter's brand, these examples should (hopefully) make some of those trademark protectionists think twice."

... damage caused to lawsuiting companies, it is not a good business decision, or the only good about it, is the business lawyers get and the profits they make.

But apart from good or bad business decisions for any of these individuals, their acts are noising up people's lives and especially distract, disorient all those fine lawsuit-raising individuals, from their actual duties, that the main purpose of their companies mere existence, is not the monies they'll put in their pockets, that's the least of the worries of any of the rest of us, but instead the betterment of their service or product for the people to enjoy.

Nah, the societies can do without lawyers and lawsuits. Whatever has been created should be freely available for all to enjoy
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Felix Pleșoianu, 27 Apr 2009 @ 10:06pm

"They basically think you're too stupid to make a judgement for yourself."

No, Hulser, they want you to be stupid. How else are they going to make you pay them for screwing you up?
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Anonymous Coward, 27 Apr 2009 @ 11:19pm

I totally agree.

I dropped buying from Sony, RIAA, MPAA, Metallica, Prince and many others because of their actions on over-protection.

The whole world is watching, and it seems, FINALLY acting.
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injection molding, 1 May 2009 @ 7:01am

good idea!!
good ideas!!!
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Busted Keys, 12 Aug 2009 @ 5:43pm

Ownership Culture Versus
copyrights, trademarks, and patents are mostly administrative tags on creations and don't necessarily spur economic output. it's the value that consumers put on the product or service that generates that. and certainly a focus on filing the respective paperwork could retard actual progress in development. for Twitter not to go gangbusters like ASCAP (please see my article: http://bustedkeys.com/ascap-at-it-again-on-the-attacks) in the music industry is a smart way to go since they realize the social aspect of its app. administration and monetization can come later since the potential is clearly there. the old school has yet to be fully hip to this game but that will change in time as they understand such concepts as open source, crowdsourcing, et al.
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Nightrain1, 2 Dec 2009 @ 1:59pm

What about art/design portfolios with brand art samples?
The legal department of a major corporation his issued a warning to one of my clients, who has used products of this company to demonstrate his own product. I did the artwork on his projects, samples of which are displayed in my portfolio web site. In fact, all of my illustration & graphic design samples contain product illustrations.
Under present intellectual property protections in the U.S., would I be legally required to take out all of these art & design samples?
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