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Andrew Fife

In regards to trademarks used in different context there couldn't be a more appropriate example than O'Reilly Media, Inc. and O'Reilly Auto Parts (NASDAQ: ORLY).

In regards to enforcing the trademark, does anyone know if CMP filed to protect the mark in Europe? If not their C&D letter wouldn't mean much at all.

Tom Fragala

As CEO of a tiny tech company that got attacked by a huge public company over trademark (company name), I may add some worthwhile advice. It's so simple but it seems to rarely happen:

Pick up the phone and call a human being.

It would have solved this Web 2.0 problem instantly. Call IT@Cork and in a friendly way say,"We love your conference idea. However, we're advised that we shold protect its use in conferences. Do you have any ideas on how we can work out a solution?"

Why do smart, savvy businesspeople think that sending a brutish letter from an attorney is good business? It's stupid. Even if the person is wrong, when they get a nasty letter it's just human nature to react negatively. They'll never want to help you no matter what.

By the way, it took six difficult months of negotiation, but I managed to avoid any repercussions with the public company. We signed a very favorable agreement that protected them and gave me a great, easy solution. How did I do it: I called their general counsel and talked man to man with him. I asked him to help me to find a solution. I am sure he appreciates it to this day.

ENTIRE LEGAL COST TO ME: $0 (ZERO). I didn't even call a lawyer. They spent all the money and wrote up an agreement built around a friendly informal framework I worked out with the general counsel.

Simon  Olson

Great post!

I read through all 400 or so comments posted on the O'Reilly blog and yours definitely ranks among the best!

You really did an excellent job parsing through the legal issues and highlighting the maddening vagary of trademark law.

One other interesting thing worth mentioning is that, although the controversy owes its origins to the law, it has very little to do with the law.

Reading between the lines, it seems that many people seemed to feel personally betrayed for reasons having nothing to do with the merits of O'Reilly's claim.

Constant memes were that O'Reilly's stance is not consistent with Web 2.0 values and that they hold O'Reilly to a higher standard.

By promoting the term 'Web 2.0' and then later claiming it as their own, albeit in this limited capacity, without first publicly disclosing the fact that they were retaining some rights, people seemed to feel like O'Reilly pulled a 'bait and switch' on them.

It was like when Microsoft started deleting messages from Hotmail accounts over a certain size in order to get people to buy more space: you introduce something to the market, people come to rely on it, and then you take it away.

I don't think that this is what O'Reilly did but I think that this is what people think that they did.

This was compounded by the fact that everyone associates Tim with Web 2.0 and the values that it represents.

It is sad because it seems like a big misunderstanding brought on by (a) O'Reilly's failure to disclose that it was retaining some rights to the name, (b) a bungled enforcement effort, (c) the inability to reach Tim, which allowed the fire to gain strength, (d) innocent but misguided efforts by O'Reilly staff to manage the situation, and (d) Tim's response which, while very good, still managed to somehow miss the heart of the issue.

Anyway, I agree with you, this is not a hanging offense and hope to see things at O'Reilly return to normal.


Sorry, but it seems it's you who hasn't followed the controversy:

1. The term wasn't coined by anyone connected with O'Reilly

2. O'Reilly has added meaning to the term but O'Reilly is not claiming the service mark

3.CMP has been falsely and misleadingly indicating the service mark was for 'Web 2.0 Conference' - see the 2006 website

4. There was no service mark covering Eire

5. Many conferences had occurred / are planned which have been ignored by CMP. Mesh Canada's Web 2.0 Conference, for example. CMP has clearly not been trying to assert its supposed service mark over anyone who can afford a lawyer

6. Web 2.0 is clearly generic

Jason M. Lemkin

Core trademarks are of course very important but secondary stuff like Web 2.0 is rather petty.

It reminds me back in the day when we at asked to stop advertising their baby products as "BabyCenter". We had a registered trademark in "BabyCenter" which of course was the core of the company. Their reponse? "BabyCenter is too generic". That coming from ;)

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