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Frugalista! Frugalista! Frugalista! Now... Where's My Cease And Desist?

from the this-is-getting-silly dept

Wed, Sep 23rd 2009 8:38am — Mike Masnick

The term "frugalista" is apparently quite popular, such that the word has even been defined by the Oxford English Dictionary. There are a bunch of bloggers who write about "frugal living" who refer to themselves as "frugalistas." It was a nice little community... until a trademark claim entered into the mess. William alerts us to the news that a blogger (who established her blog long after the word was in common usage) has trademarked the term and is having her lawyer send cease-and-desist letters to other bloggers who refer to themselves as frugalistas. A US News reporter asked the woman's lawyer how it could possibly make sense that she could go after people who used the term before her client did, and the lawyer's response was:

"they all have to stop now."

Except... no. That's not quite how trademark works. But, once again, in a society where people think they get to claim ownership of whatever they want, we end up in silly situations like this. Hopefully the threatened bloggers are able to stand up to the bullying frugalista. Who knew that living the frugalista lifestyle included trademark infringement suits?

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Filed Under: blogging, frugalista, trademark

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GeneralEmergency (profile), 23 Sep 2009 @ 8:55am

Natalie P. McNeal is no longer a "Frugalista"!
She is now more like a "Cease-and-Desista"!

And if she keeps this crap up, she graduates to "AssHatista".
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Idleby, 23 Sep 2009 @ 9:04am

I heard the term in a Sears commercial just last night while I was using a Kleenex to apply Vaseline to a scrape before I covered it with a Bandaid.
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Call me Al, 23 Sep 2009 @ 9:08am

I find this kind of behaviour quite disgusting really. They have not coined the term, they have very limited responsibility for its use and, at the end of the day, it is just a word. Words should be available for everyone to use and should not be trademarked.

If words are not used then they will not be in common circulation and will not be understood, if they are not understood then they are pointless.

In short she is the kind of person who makes me want to scream "Get lost you stupid woman!" from the rooftops.
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william (profile), 23 Sep 2009 @ 9:09am

unfortunately, the blogger in question does want to spend the money fighting this claim, apparently would cost $600 to contest). That's not exactly frugal now isn't it.

She's changing her domain to something else on Oct 1...
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Esahc (profile), 23 Sep 2009 @ 9:10am

Re:
nice
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Frugalista, 23 Sep 2009 @ 9:15am

frugalista
frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista, frugalista.
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Dark Helmet (profile), 23 Sep 2009 @ 9:20am

Dear Frugalista:
From: http://ka.uvuvideo.org/service/displayFullRss.kickAction?type=AS&quantity=25&mediaType=BLOG& amp;as=86294 (See how I did that, Lily? That is called a "link". No, no, no, not like the card you'll be using soon when your label drops you. It's an internets thing, yo...)

"Hello! My name is Natalie “Frugalista” McNeal, and I’m the editor of a special new project of the Nightly Business Report called “Riding Out The Storm.” Our team wants you to submit a video to uVu of any questions, feelings or views that you have about this tricky economy. We would love to know how this economy is impacting your life. Have you found a job? Are you looking for work? Is your unemployment running out? Are you working in a new career because of the job market? Were you able to get a great deal on a home because of the economy? Also, if you have any questions about what to do with your finances, please ask us in a video and we will have a top financial advisor answer you in a video for FREE! [image] In my other life, I blog about frugal and fabulous living at The Frugalista Files. See, I’m trying to make this economy work for me, too! Please submit your videos early and often! I don’t bite (hard)! xo, Frugalista"

Well, Ms. Frugalista, maybe you can give me some advice. You see, I decided to start a blog about how to live a frugal lifestyle. In doing so, I utilized a word that is in the Oxford dictionary to describe myself. In the process, some horrible cunt came along and had the balls, which is ironic, to TRADEMARK A WORD THAT IS NOW IN THE FUCKING ENGLISH LANGUAGE AND COMMON USE. I am now in the market for several high powered weapons and explosives, but am unsure of the most frugal way to go about attaining them. Any suggestions? (FYI, please oh pretty please don't unmask The Helmet, I was just KIDDING, for christ's sake!)

Idiot.
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Overcast (profile), 23 Sep 2009 @ 9:30am

just... LOL

Is that this woman's claim to fame?
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Kevin (profile), 23 Sep 2009 @ 9:39am

In the words of Al Swearengen :

"OK, I'm going to trademark "douchebagalista". That is a person who uses their douchebagginess to ruin the lives of other people for no apparent reason."

I would exchange the word ruin with meddle as I do not believe that this is going to ruin any ones life. I do hope though that there is someone who will stand up to this individual (you may use which ever expletive you like) and has her trademark taken away.
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Ima Fish (profile), 23 Sep 2009 @ 9:52am

McDowell (the blogger's attorney) emphasizes that other writers can still use the word "frugalista" in their stories—which may seem obvious, given the fact that it is a commonly used word—but that they cannot identify themselves as a "frugalista."

There's a couple things wrong here. First, what market is supposed to be protected by the use of the trademark "frugalista"? The trademark "Apple" protects the market of various consumer electronic devices. What is "frugalista" protecting?

Secondly, identifying myself as "frugalista" could never violate a trademark. A person is rarely a product in a market. For example, I can freely identify myself as a Apple lover or Apple-head to show my love of Apple's products. That could not be a trademark violation because no one could ever confuse me with an iPod or an operating system. Plus the simple fact that I'm not a product in commerce.

Lastly, trademarks cannot be merely descriptive. If "frugalista" means a person who practices a frugal lifestyle, there is simply no way someone could trademark the term to keep people from using it to describe a frugal lifestyle.

Think of it this way, Apple was able to use the term "apple" as a trademark, because it is not in the apple business. However, if I had an orchard I could not trademark the word "apple" and keep others from referring to apples as apples.

I'm assuming her lawyer knows nothing about trademark law.
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zaven (profile), 23 Sep 2009 @ 9:52am

Three-peat and 12th Man
This kind of reminds me of Pat Riley and his trademark on the term three-peat. I remember it being a big deal a few years back when USC "won" 3 national championships in football and they had t-shirts that said Three-pete (after their coach, Pete Carroll). I recall something on sportscenter about Pat Riley wanting his cut.

Also, Texas A&M trademarked "the 12th man" (refers to the crowd, 11 people on the field + the crowd = ...) and sued the Seattle Seahawks regarding it.
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zaven (profile), 23 Sep 2009 @ 9:55am

Trademark on Streissand Effect
Hey Mike, have you trademarked the "Streissand Effect" yet? Otherwise better get on it before someone else does and sues you, even though you created the term.
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R. Miles (profile), 23 Sep 2009 @ 9:56am

Posts of the Day to...
GeneralEmergency and Dark Helmet.

Expect to receive my medical bills for having to bite my tongue to keep from laughing out loud, jerks.

It's been a while having a good laugh like this.

Now, on topic...

... oh, forget it. Other replies pretty much take care of this for me.
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Anonymous Coward, 23 Sep 2009 @ 10:13am

Re:
You should be applying NEOSPORIN® with a Q-Tip®.
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The Baker, 23 Sep 2009 @ 10:21am

A couple of years ago, I worked with a guy that was genuinely upset that everyone stole his idea of twisting a length of two wires together using a electric drill and was angry with the lawyers who he contacted because they would not take his case.

This guy was in his early 20s.
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Valkor, 23 Sep 2009 @ 10:30am

Re:
Best response:
1) Say "So sue me", wait for papers to be served.
2) Point out that "The Frugalista" and "The Frugalista Files" is tradmarkable, but "frugalista" is not.
3) Hope that the judge is not a moron in a hurry and can tell one blog from another.
4) Countersue for damages.
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roxanneadams (profile), 23 Sep 2009 @ 10:43am

I am a Frugalista Bitch. I am THE Frugalista Bitch. Come up and see my Frugalista Files, cowboy. Is that your Frugalista Blog, or are you just happy to see me?
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roxanneadams (profile), 23 Sep 2009 @ 10:54am

This letter serves as formal notice that your use of the Mark in the blog xx Frugalista is confusingly similar and exactly the same to our client's Mark and unfairly capitalizes on the goodwill and reputation embodied in our client's use of the Mark. The Mark is a strong brand associated with our client's professional reputation and livelihood in the field of online journalism and has garnered local, national and international recognition. Your continued unauthorized use of the Mark is likely to confuse and mislead the consuming public and suggests an affiliation with our client's business and dealings with the public.
Dumb Frugalista bitch.
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AC, 23 Sep 2009 @ 10:57am

redefine
Perhaps we could all use the word "frugalista" in a different context. Then, over time, the word will take on a new meaning. For example: "That person driving in two lanes, talking on the phone, with their blinker on, is such a stupid frugalista."
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kingstu, 23 Sep 2009 @ 11:11am

I just filed a trademark on "living la vida frugalista" so I got that going for me...which is nice.

Have you considered changing your usage to "frugalisto" which would certainly apply to the masculine form of "frugalista."

Possibly, you could use a "latinized" version...something like "homo frugalisticus" which sounds a bit gay perhaps but you have to compromise to aviod this lawsuit.
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Matt (profile), 23 Sep 2009 @ 11:24am

Re:
Haven't looked, but it may be a service mark issue (not a trademark,) in which case the marketable service is presumably reporting and counseling.

If "frugalista" is used as an adjective, I agree with you as to its use as a descriptive word. If it is used as a title, I disagree. "I am the Frugalista!" does not make "frugalista" descriptive. The trouble, here, is that "frugalista" is clearly _generic_. Generic words cannot be trade- or service-marks.

Incidentally, descriptive words _can_ be trademarks, once they acquire secondary meaning. Think of it this way: Blue Jean Babies might be a line of stuffed dolls made from denim. "Blue Jean Babies" is merely descriptive of the dolls - they are blue denim depictions of babies. But if the manufacturer is able to infuse that with secondary meaning, so people associate "Blue Jean Babies" with a particular source or origin, then they can register the mark.

Misdescriptive words often cannot, and deceptively misdescriptive words never can be registered. There is a (mostly funny) argument that "frugalista" is deceptively misdescriptive of anyone who would pay what it costs (generally around $3500+) to obtain a trademark registration on a generic word.
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Matt (profile), 23 Sep 2009 @ 11:27am

Re:
Tragic, but not unexpected. One of many tragedies of our "justice" system is that the costs of defense are so high, many suits settle just to avoid the expense and nuisance (even if, as here, the victory is legally certain). Another of the tragedies is that a legally certain victory is not actually certain, because a judge's upset stomach or a jury's sympathy or confusion may lead to an incorrect result. As a result, fighting "on principle" is incredibly expensive, and usually impractical.
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roxanneadams (profile), 23 Sep 2009 @ 11:32am

Those shiftless Frugalistas

Illegal alien Frugalistas

Lazy Frugalistas

Damned foreign Frugalistas

Ex-con Frugalistas

Meagan's Law Frugalistas

Long-haired hippie pot smoking Frugalistas

Wife-swapping, pill-popping Frugalistas

Commie-loving Frugalistas

Fugitive Frugalistas

Hey this is fun.
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JacksonFrugalista, 23 Sep 2009 @ 11:51am

Re:
Hi! I am the blogger in question, Amy Marquez. I live in Jackson, Mississippi, a tiny-little town that could never, ever be confused with Miami.

This WHOLE THING has been nuts. I did the blog for me and my friends so we could share tips about shoe sales, consignment stores, and the like. The word "frugalista" struck me funny -- it's one of them "new-fangled" words. Plus, I am about the lest "ista" a person can get.

My blog had gotten MAYBE 40 views before I got my cease and desist letter. Now, I am around 4000.

I posted the letter, http://jacksonfrugalista.wordpress.com/cease-and-desist-letter-to-jacksonfrugalista/, my arguments against the trademarks (there are 2), http://jacksonfrugalista.wordpress.com/argument-against-trademark-of-frugalista/, and my email response to the attorney and Ms. McNeal, http://jacksonfrugalista.wordpress.com/response-to-cease-and-desist-letter/, on my blog. Check them out -- it's every bit as ridiculous as it seems.

As far as fighting it -- I have had many people encourage me to fight, going so far as to offering me donations to help fund appeals. I feel REALLY WEIRD about accpeting money from people, even for a justified fight. I didn't set my blog up to generate income and I frankly worry about somehow getting in trouble for accepting any donations.

That said, $600 is a chunk of change I can't spare. I post under the name "Frugal Gal" -- and I'm frugal for a reason.

I have added a post asking people to give me their input on what my next steps should be -- change the name and leave it all alone, change the name and keep fighting, don't change the name and see what happens, or don't change the name and accept money to fund a fight. I would appreciate any thoughtful comments anyone might have to add -- http://jacksonfrugalista.wordpress.com/.

I am not wed to the word "frugalista," but I AM wed to my rights of expression. Not to be melodramatic, but if it's OK for someone to own that word, what other words will be taken away from me/us?
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WoWGuy, 23 Sep 2009 @ 12:05pm

Why does the lawyer have a license? He's an idiot for accepting the case.
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JustMe, 23 Sep 2009 @ 12:43pm

Frugilista on Failblog?
Someone should submit the C&D.
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Anonymous1, 23 Sep 2009 @ 1:02pm

I think the way to after this is for the rival newspapers (the one's that don't employ the woman for a blogger)
to go off in their op-ed pages on this. Also I think that her (the woman who had the cease-and desist letter sent) employer should be questioned over this. She does blog for a newspaper after all. Maybe this is just more newspaper against blog bashing then anything else......
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Avatar28 (profile), 23 Sep 2009 @ 5:03pm

Re: douchebagalista
Sorry, Kevin, but I believe that Kanye West already has the trademark on that one.
:)
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Avatar28 (profile), 23 Sep 2009 @ 5:08pm

Chilling Effects?
Would this be a good submission for the EFF's Chilling Effects database?
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ChurchHatesTucker (profile), 23 Sep 2009 @ 6:38pm

Re: Re:
"As far as fighting it -- I have had many people encourage me to fight, going so far as to offering me donations to help fund appeals. I feel REALLY WEIRD about accpeting money from people, even for a justified fight. "

Do it. The reason this shit happens is that often enough the C&D is enough. If people are willing to donate (and I'd be one of those) then that's right, justified, and frugal.
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PrometheeFeu (profile), 23 Sep 2009 @ 6:55pm

I thought part of the point of hiring a lawyer is that they can tell you to stop and not take stupid legal action.
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roxanneadams (profile), 23 Sep 2009 @ 7:45pm

Re: Re:
I am not wed to the word "frugalista," but I AM wed to my rights of expression. Not to be melodramatic, but if it's OK for someone to own that word, what other words will be taken away from me/us
I'd say take whatever legal help - and financial help - that you're offered. Issues like this - that seem kind of dumb at first - are actually very important, for the exact reasons that you suggest.

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JD, 23 Sep 2009 @ 11:31pm

A LEGAL VIEWPOINT==THIS IS A LEGALLY REGISTERED TM
Why are you all harrassing a person who popularized the term, filed a Trademark Application, took it through the legal process and received registration? Where were you other so called "Frugalistas" during the trademark "notice period" . The trademark notice period is the time to raise objections. Raising complaint for a personal agenda on this a blog is completely without merit. McNeal is exercising her legal rights and protecting a term that has been distinctive to her since 2008. McNeal is well established as the Frugalista. When she appears on TV, she is called The Frugalista. When you Google, Frugalista, her blog appears at the top of the search engine rankings. The others protesting here used the term after Ms. McNeal registered it. She has used the term Frugalista to describe her blog and has used it distinctively. This is why she was GRANTED a Trademark by the Patent & Trademark office! Everyone can a have blog, but they should not call their blog Frugalista as that term has become distinctive to McNeal. Do a simple online Trademark search before putting a product into the market. Target is using McNeal's Trademark in an ad campaign, without license or permission. Target filed for use of Frugalista Fashionista (this is a matter of public record, look it up), which is the two words used together. So, how do they now infringe on McNeal's mark by running an ad campaign which does not use the mark they have filed for registration of, but rather use McNeal's mark, the one work, Frugalista.

In this case, Frugalista applies distinctively to Ms. McNeal's blog, The Frugalista Files. Moreover, she is the person who she writes about in her blog who is living a frugal lifestyle.

What is wrong with big business today, Target, and copy cat bloggers taking the trademark of another and misappropriating it and then whining about it on a blog to pressure a small business owner like Natalie McNeal who is merely exercising her legal rights as they have been granted by the US Trademark office? Have you looked any of this up in the PTO RECORDS? Your reporting is biased. Frugalista is # 3532912 in the US Trademark Database. Did you check your facts prior to publishing this rot? This reads like a personal attack on someone who had an innovative idea and sought to legally protect it.
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Valkor, 24 Sep 2009 @ 3:23am

Re: A LEGAL VIEWPOINT==THIS IS A LEGALLY REGISTERED TM
Yay for fail!
"...distinctive to her since 2008." Unfortunately for your thesis, the New York Times article on the 2008 word of the year points out that the word was coined in 2005 and in public use since then. Incidentally, that NYT article is now the #1 Google result for "frugalista". So much for using Google rankings as evidence for the validity of a trademark. You do a great job using the PTO issuance of the trademark as evidence for supporting ... wait for it... the validity of the PTO issuance of the trademark. Yay for circular logic!

On the September 10 blog entry in The Frugalista Files, "The Frugalista" addresses advice from a stylist to other "Frugalistas". Apparently, by securing the trademark on Frugalista, she now gets to call herself and others frugalistas, but no one else can identify themselves as part of that group. Does that make *any* sense?
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JD, 24 Sep 2009 @ 7:58am

A LEGAL VIEWPOINT==THIS IS A LEGALLY REGISTERED TM by Valkor
Valkor,
What the NY Times writes about a word does not change the fact of trademark registration for a distinctive blog. The PTO granted the TM registration to McNeal, that is not circular logic.

I am amazed by the cyber bullying going on here.
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Anonymous1, 24 Sep 2009 @ 9:03am

@JD: STFU and get your facts straight. The word has been in common usage since 2005. The word is in common usage. There was no possibility of confusion. No one else was using the name "The Frugalista Files". She didn't try to trade mark that phrase. She trademarked the word. She may have done it "legally" but the granting of the trademark is highly questionable, according to many opinions, and points (which you conveniently ignore) on this blog. What is going on here is called 1ST AMENDMENT FREE EXPRESSION. GO STFU.
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Anonymous1, 24 Sep 2009 @ 10:05am

Yes, BTW, I realize the irony of expounding on free expression, whilst telling JD to kindly STFU. The point is his characterization of free speech as "cyber-bullying", leaves him no leg to stand on. Absurd, obscene, and outrageously false, are my responses to that lawyerly take on the "cyber-bulling" going on here. Hey JD post your full REAL first and last name, and contact info. I'm sure you have no vested interest in the case, and are just the internet's version of under-dog, saving polly pure-heart from the dastardly clutches of free speech. A$$HOLE.
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william (profile), 24 Sep 2009 @ 10:58am

Re: A LEGAL VIEWPOINT==THIS IS A LEGALLY REGISTERED TM by Valkor
PTO may grant the TM registration to McNeal, for now. They can also revoke it once proven that McNeal has no right to register for this word. The registration is not definite.

The fact that you are allowed to register it doesn't make you right. In the past there are numerous examples in which a registered mark is revoked because it was confusing to ANOTHER trademark. According to your logic, those who got revoked should have argued that the fact PTO allowed them to register before means that it's not confusing to another trademark and thus PTO cannot revoke what itself has allowed in the past. Does this actually sound right? As Volkor has point out, this IS indeed circular logic.

And your argument about the "notice period" is laughable. Who in their right mind checks PTO's site everyday to try to find out what has been trademarked recently. Unless you are a trademark troll hired by some troll company to check it everyday so you can sue for big money. Even large business only check the trademarks after they though of a new product line to check if it conflicts with another.

BTW, McNeal, whom I have absolute no respect for, is not innovative. You have conveniently left out the fact that SHE DID NOT INVENT THE WORD. She just took someone's idea and word and trademarked it for herself. That's a thief, a robber, not a innovator.

Hey McNeal, if you happens to read this blog, let it be known that you are neither innovator, or a frugalista. You are just a lowly COMMON THIEF. You are no different then all those pirated goods from China. The only difference is that your style is actually low enough to try to BULLY OTHERS by legal means.

Just watch, you are going to suffer from this unbelievably idiotic move.
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Anonymous1, 24 Sep 2009 @ 2:12pm

@Mike Masnick: Just thought I would add this comment from the "Frugalista Files" Blog. It was a comment from one of the site's readers in response to a previous post:

"I am so thrilled to hear about your fall line up. I whish I could be there to chant “Yeah Frugalista!” I spotted a Target ad that said “Frugalista” and thought about your blog. Hey Frugalista FUN is catching on."

Posted by: Nicki Mayo | September 17, 2009 at 04:32 PM

The irony! Other people's use of the term may actually HELP her not HARM her. I had to LOL...oh the fun is "catching on" all right. It involves cease and desist letters. If you end up broke from defending a frivilous law suit, I bet it makes it easier to be a "frugalista"! LOL...
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JacksonFrugalista, 25 Sep 2009 @ 9:16am

good grief
Apparently, the reach of this trademark goes to an English-speaking blog in Dubai -- read the post I am linking and then the single comment at the end.

http://www.csprgroup.com/make-way-for-the-frugalista/
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wvhillbilly (profile), 25 Sep 2009 @ 9:16pm

Re: Call me Al
Ever heard of Monster Cable? For years they went around suing everybody and his dog for using the word "monster" in any commercial context. So I have read, they even sued Disney for using the word in the title of their movie, "Monsters, Inc."

In a similar case a US shoe manufacturer trademarked the word "Ugg" as in ugg boots, then turned around and sued a bunch of Aussie shoemakers who had been using the word in a generic sense for some thirty years before the US co. grabbed it, for the inside-out sheepskin boots they had been making all that time.

Microsoft sued Lindows for using a word that resembled "Windows", the name of their operating system, then backed down and paid Lindows a big bunch of money when they realized the court might invalidate their "Windows" TM.

If I recall correctly, you cannot legally make a trademark of a commonly used word. But people do it anyway and get by with it. So I guess "Frugalista" is just another case of the same.
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JacksonFrugalGal, 4 Oct 2009 @ 4:39pm

Update
I am now the Artist Formerly Known as Jackson Frugalista.

I caved and changed the name — my “buy cool stuff cheap” blog is now http://frugalmississippi.blogspot.com. I ma looking forward to posting info about garage sales in Pelahatchie, MS, without the threat of a lawsuit.

THAT SAID — I am not willing to let the issue die. So I created a second new blog, “Really Dumb Trademarks.” Its address is http://reallydumbtrademark.blogspot.com.

I CAN’T believe I am the only person this has happened to — other people have had their online freedom of speech cut off because of some ridiculous trademark filing. I’d like us all to have a place to go and vent.

I also want to post resources for site visitors who wish to fight the fight.

Ideally, this new blog will catch the attention of some organization that works to protect individuals’ rights online. If I can get someone like that interested, I’d like to see all the people who offered ME money to help in a fight against Trademark Girl in Miami direct those funds to a larger effort to make trademarks work fairly for everyone.

Those of you who have spoken out on the plain craziness of this trademark, I hope you’ll stay interested in the topic. Maybe we can continue to make some noise, get some things changed, and then I CAN CHANGE MY NAME BACK. And laugh maniacally towards the general direction of Miami.
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Lauren, 12 Jan 2010 @ 3:47pm

Here's what we can do
1. Google "Frugalista"
2. Click on every other link than her's.
3. All the other sites will get more hits and her ranking will go down on Google.
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Alicia, 3 Mar 2010 @ 5:56am

Redefining
I love the idea of redefining the term however it appears she's doing an effective job of making it quite odious all by herself.
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