Huh? Someone wants my king Evil spot?

Rick Segal says I appreciate CMP and Tim O'Reilly taking over my "King Evil" spot — by trademarking, and defending such, the words "Web 2.0" in a cease-and-desist letter to Tom Raftery.

Um, no. I want that spot all to myself! I hate it when people try to steal my evil. :-)

Seriously, this news was discussed by Shel Israel, my coauthor, and a bunch of other people over on Memeorandum.

This brings about memories of when a competitor to Fawcette Technical Publication's conference series would copy everything we did (down to the format of the brochure). So, I understand some sensitivity on behalf of conference producers to brands and trademarks.

That said, all this does is give IT@Cork a bunch of free publicity. All Tom has to do is change it to "Future of the Web Workshop" and the lawyers don't have a case and they get all this free publicity.

It looks like O'Reilly is claiming a service mark on "web 2.0 conference" if you visit their conference Web site. IT@Cork's site says "Web 2.0 Half Day Conference." That could, possibly, be confusing to people, so CMP and O'Reilly probably does have a legal case. But, probably not if they change the name to "Web 2.0 Half Day Symposium" or something like that.

Either way, I don't think it's confusing enough to warrant the lawyers and the impending bad PR for CMP and O'Reilly.

Update: O'Reilly responds here.

Comments

  1. Screw the Patent, Move on to Web 4.0…

    From Tom Raftery’s IT Views:

    “IT@Cork is a not-for-profit networking organisation for IT professionals. IT@Cork organises regular information and networking events which are free for its members.
    One of these events – the upcoming Web 2.0…

  2. Tim O’Reilly’s Web 2.0 Heresy…

    From TechMeme and many other places comes the news that O’Reilly has trademarked the term “Web 2.0″ and has sent a cease-and-desist letter to IT@Cork, a small non-profit networking organization for IT professionals, which has been pla…

  3. The words “Web” and “2.0″ would seem mighty generic to me.

    So are “Windows” and “95″, but it isn’t surprising that Microsoft defends that trademark.

    That said, there’s no way they should be able to have “Web 2.0″ service/trademarked. That’s absurd.

  4. The words “Web” and “2.0″ would seem mighty generic to me.

    So are “Windows” and “95″, but it isn’t surprising that Microsoft defends that trademark.

    That said, there’s no way they should be able to have “Web 2.0″ service/trademarked. That’s absurd.

  5. Robert,

    There are many things that you can accurately be called–I’ve probably already called many of them. But Evil? Jeesh, your just a big Teddy Bear.

  6. Robert,

    There are many things that you can accurately be called–I’ve probably already called many of them. But Evil? Jeesh, your just a big Teddy Bear.

  7. This is CMP’s blunder, not O’Reilly’s. Almost none of the bloggers on this story have read the actual letter from the lawyer, which is right there in the original post! See my blog for more…

  8. This is CMP’s blunder, not O’Reilly’s. Almost none of the bloggers on this story have read the actual letter from the lawyer, which is right there in the original post! See my blog for more…

  9. The post on the O’Reilly blog says it all “You’d be hearing from Tim, but he’s off the grid, on a (rare) vacation” My guess is it happened whilst he was away

  10. The post on the O’Reilly blog says it all “You’d be hearing from Tim, but he’s off the grid, on a (rare) vacation” My guess is it happened whilst he was away

  11. Trashing your reputation in two easy steps

    Trashing your reputation is a two-step process:

    Build a good reputation
    Trash it by saying or doing something dumb (for example, kicking cute animals, coming to the support of dictators or picking on the little guy).  Step 2 doesn’t have to …

  12. Robert, the mark is “Web 2.0″, not “Web 2.0 Conferences”. Moreover, it’s a USPTO registration, which doesn’t apply in Ireland and/or Europe. Moreover, it’s pending, not registered.

    http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=78322306

    CMP/O’Reilly might have a case were Tom in the US and the mark actually registered, but is that really the issue here? The issue, imho, is both CMP and O’Reilly’s woeful handling of the situation. And O’Reilly just made it worse:

    http://www.tomrafteryit.net/oreillys-mean-spirited-response/

    Did they really think Tom wasn’t going to publish that? Talk about dumb.

  13. Robert, the mark is “Web 2.0″, not “Web 2.0 Conferences”. Moreover, it’s a USPTO registration, which doesn’t apply in Ireland and/or Europe. Moreover, it’s pending, not registered.

    http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=78322306

    CMP/O’Reilly might have a case were Tom in the US and the mark actually registered, but is that really the issue here? The issue, imho, is both CMP and O’Reilly’s woeful handling of the situation. And O’Reilly just made it worse:

    http://www.tomrafteryit.net/oreillys-mean-spirited-response/

    Did they really think Tom wasn’t going to publish that? Talk about dumb.

  14. Well, for what it’s worth, I don’t recall anyone using the term “ecosystem” to describe the software industry before I started using it in 1999 … then that’s all you hear from Bill Gates ….

    I could’ve got all uptight, like Microsoft’s lawyers over “lindows” instead, I laugh … what Bill Gates appears to know about ecosystems in general could be bundled up in a nanothimble for a Tom Nanothumb and his Nanothumbelina bride.

    Trademarks are a mark of absurdity unless applied with care, like gentian violet.

  15. Well, for what it’s worth, I don’t recall anyone using the term “ecosystem” to describe the software industry before I started using it in 1999 … then that’s all you hear from Bill Gates ….

    I could’ve got all uptight, like Microsoft’s lawyers over “lindows” instead, I laugh … what Bill Gates appears to know about ecosystems in general could be bundled up in a nanothimble for a Tom Nanothumb and his Nanothumbelina bride.

    Trademarks are a mark of absurdity unless applied with care, like gentian violet.

  16. [...] The Web 2.0 Trademark Debacle There has been a bit of controversy over O’Reilly’s “Web 2.0″ service mark cease-and-desist letter and their subsequent “we had to” response. I’d say Mike Arrington correctly predicted the lynching, though some are defending O’Reilly. (Scoble is just upset he’s no longer the King of Evil). Fortunately, the issue has been resolved, but not before the PR damage was done.  We’re not claiming exclusive use of “Web 2.0″ in all contexts. Our service mark applies only to “Web 2.0″ when used in the *title* of “live events” such as conferences and tradeshows. Rob Hyndmann wrote exactly what I was thinking, especially the first and last points. First, there’s the effort (without any trace of irony, it appears) to restrict and monopolize the use of the term in connection with events held to educate and evangelize … a set of technologies that are about collaboration, sharing and open access to information. Next, there’s the threat against a non-profit, of all things, innocently trying to do nothing more than make the world a better place. Then there’s the attempt to put the toothpaste back in the tube with a strong dose of deceptive corporate-speak that is the very antithesis of Web 2.0. Next, there is the effort to portray themselves as an innocent victim by claiming they are legally required to issue a cease-and-desist (the “pity me, I have no choice but to be evil” defence), deceptively ignoring the fact that it was their initial choice to register the mark, intending when they registered it to later protect it and send cease-and-desist letters in defence of it, that brought them to this moment. Their choice, mind, a choice for which they bear responsibility that they are now seeking to avoid. And finally, as Paul notes, there’s the original effort to monopolize the use of a term that is clearly generic and descriptive (whether or not it was first coined five years ago). The O’Reilly folks gamely try to deflect this one by claiming that what they are doing is a ’standard business practice’. Bleh – another attempt to avoid taking responsibility for the decision to monopolize use of a descriptive, generic term. PR blunders aside, I have a few additional comments to add as far as the legal issues here. The whole point of trademark is to protect symbolic information – names, logos, and slogans that indicate source.  Unlike the explicitly granted powers for copyright and patent, trademark is rooted in the Commerce Clause and the government interest for protection is to prevent consumer confusion. Indeed, the traditional test for trademark infringement is likelihood of confusion, and even dilution theory is rooted in protecting the distictiveness of a mark.  If a mark becomes generic, even if it was once worthy of protection, it ceases to be protected because the mark is no longer associated with a single source. To use the classic example, when someone says “aspirin” today they are referring to a type of product, not a specific product from a specific source – even though, at one point, the source and provider were one and the same.  The symbolic link is so weak that no one would reasonably assume that the aspirin came from a particular manufacturer. Policing the mark – even internationally, as is the case here – is a necessary step to prevent death by genericism. The only problem – one that seems to have eluded CMP and O’Reilly – is that you have to prevent it BEFORE the mark becomes generic.  You can’t encourage everyone to use your buzzword and then claim it’s unique and distinctive and worthy of protection. O’Reilly is policing the use of the term narrowly (i.e., allowing others to use Web 2.0 freely, except as the name of a conference). Someone can’t claim a mark in “Aspirin” by having an event named “Aspirin Conference”.  They may get protection in the latter, assuming the term has acquired secondary meaning and can overcome its generic & descriptive nature. Oh, and assuming that O’Reilly did receive protection for the mark, it still isn’t likely to satisfy the likelihood of confusion test either. Their event is clearly branded as the it@cork Web 2.0 Half Day Conference. The use might constitute dilution by blurring, but that depends on the strength and fame of the mark (moreso under the pending Trademark Dilution Revision Act). Maybe some good will come out of this, though. I’ve said in the past I hate buzzwords like Web 2.0, and maybe this will be enough to get us to collectively abandon the Web 2.0 meme. Web 3.0 – because 2.0 was so 2005. Update: As Marty put it, “f you coin and promulgate a term, you can sell it as a buzzword or you can sell it as a brand, but under trademark law, it’s virtually impossible to do both.” Tags: web2.0, web20 Published Friday, May 26, 2006 12:23 PM by Tim Filed Under: Technology, Intellectual Property, Other Ramblings, Syndication, Trademark [...]

  17. I wouldn’t worry about it. “Web 2.0″ will be a stupid term of yesterday in another week anyway. Every time I heard O’Reilly say it at Mix06 I wanted to barf. :)

  18. I wouldn’t worry about it. “Web 2.0″ will be a stupid term of yesterday in another week anyway. Every time I heard O’Reilly say it at Mix06 I wanted to barf. :)

  19. The trademark application isn’t for ‘Web 2.0 Conference’. It’s for the phrase ‘Web 2.0′ in the context of a live event.

    So if the trademark stands (and it won’t) your suggestion of a name change to ‘Web 2.0 Half Day Symposium’ wouldn’t work, I’m afraid.

  20. The trademark application isn’t for ‘Web 2.0 Conference’. It’s for the phrase ‘Web 2.0′ in the context of a live event.

    So if the trademark stands (and it won’t) your suggestion of a name change to ‘Web 2.0 Half Day Symposium’ wouldn’t work, I’m afraid.

  21. Has O’Reilly gone over to the Dark side?

    Mixed feelings on this one: on one hand I write / blog for O’Reilly and find them good guys to work with. On the other hand, they’re threating to send in the legal heavies for the use of the Web 2.0 tag in a forthcoming Irish conference. To…