BlogHer - Trademarks and Mommybloggers: More Serious Than You'd Think - Comments

I am not saying anything

Mamalogues — Wed, 30 Apr 2008 01:00:45 -0500

I am not saying anything further other than to ask why no one ever asked how a person is expected to feel when they were the first to use their mark, when they followed the rules and protected their intellectual property, and someone comes along afterwards and uses such which could constitute as a diminishment? Is that not backed into a corner?

I still have never received a private, personal response. I DM'ed my email address and heard nothing. I wanted nothing but an amicable end but was forced into protecting my mark and then essentially name-called on television for it - I cannot describe how awful that felt. I won't discuss this further in a public forum as it isn't the place. I am and have always been able to be reached at Mamalogues at yahoo dot com.

Dana

on KFTK 97.1 FM/Fox News Radio

Mamalogues.com

(*Updated to add: honestly, hard feelings - feelings altogether - are irrelevant when discussing the law. I appreciate the support but feelings should be left out of it, if that makes any sense? It may not. I'm needing sleep. Thanks.)

"communication malfunction"

leaustin — Wed, 30 Apr 2008 00:37:19 -0500

Sounds like things could have been solved amicably awhile ago, but because of the "communication malfunction" and now the embarassment of the unpleasant media exposure, there are hard feelings. Unfortunately, the media loves to twist things to make a provocative story. Dana's fun Mamalogues have been featured regularly in at least one big midwest newspaper, so I can definitely see her need to diligently protect her trademark. Hope the two ladies can work this out after a little cooling off time.

Linda http://www.moonbridgebooks.com http://moonbridgeblog.blogspot.com

thanks to both of you for sharing

Rita Arens — Tue, 29 Apr 2008 09:28:31 -0500

It sounds like you guys are coming to a place of compromise. I wish you both the best of luck.

Surrender, Dorothy - When I was your age, we just let them ride in the back window.

Back in March, when I

Genevieve — Tue, 29 Apr 2008 02:28:14 -0500

Back in March, when I added @Mamalogues as a Twitter friend,
I never imagined I’d find myself in this type of conflict. I thought we may
have some things in common and it would be interesting to read her tweets.

Yes, it’s true she did direct message me on Twitter.

It is also true I did respond.

To clarify – I never meant to imply Ms. Loesch didn’t know
how to use Twitter. I only meant that I
don’t believe she got my messages. It might be a function of Twitter itself not
to allow someone to send direct messages to someone else who isn’t following
them. Whether this is the case or not – I don’t know. It’s the only thing I
could think of as to why she didn’t receive my responses.

At first I thought, why is this woman messaging me about her
trademark? Frankly, I didn’t have a clue as to why it applied to me. I did not
run a business, I was a mommy blogger. There weren’t even any Google Sense ads
on my site to generate revenue from.

When I received the second message I contacted the free
legal services that were available through a work resource. My advice was not
to worry about it. We were in different parts of the country and our names
weren’t exact. The other was to apply for a trademark on my blog name so I didn’t
have any future issues. So I followed both pieces of advice.

After that I didn’t receive any more messages from Ms.
Loesch. I’m not saying she didn’t send them – only I didn’t get them or any
emails.

The next communication I received was a cease-and-desist
letter. When I opened it and read the contents, it scared the hell out of me.

There were very specific items, including a large sum of
money, I had to agree to abide by almost immediately or be sued for even more
money.

On top of it, I also thought this meant she got to keep my
content as well. The cease-and-desist left no room for negotiation. Yes, I felt
bullied.

I asked everyone I knew about a lawyer who understood this and
then hired one.

Yes, I talked to a reporter.

I was backed into a corner, scared and mad.

Who was this person coming to yank the rug out from under me
after three years of blogging at this name? I had barely heard of her for the
first time in March.

This hasn’t been an easy process. I haven’t always used a
clear head and made the best choices.

Mommy blogging isn’t just a journal – it’s our lives, our
kids, our writing all wrapped up into this new generation of publishing. It’s
personal. Some of us make money at it and build businesses off of it too.

I can respect that.

My lawyer has explained that my content is still mine to
keep and that I can fight this to keep my blog name.

I let my lawyer know I was willing to put a disclaimer on
the site with a link to Mamalogues.com to avoid confusion. He sent a letter
stating that.

As of last Wednesday that wasn’t an acceptable solution.

I’m okay with that.

What was mentioned during a phone call was a redirect for a
period of time to transition to a new blog and domain name and to drop the fees.
I don’t know if this was something Ms. Loesch had in mind or something her
lawyer was going to ask her about.

The last communication I had with my lawyer was we were
expecting a response letter similar to that conversation.

In online time, it feels like a hundred years since that
last communication. In real world time, it’s only been four business days.

My apologies to Ms. Loesch if she felt like I was bashing
her – I did not mean it to be that way. I only meant to tell my side of the story.

At this point it has come to some serious soul searching. What’s
more important to me, my blog name or to write?

I choose to write.

My hope is we can reach an agreeable solution to this
conflict.

This has been a hard, unexpected lesson to learn about trademarks and blogs.

I'll be the first to admit, we were lucky

Devra Renner — Mon, 28 Apr 2008 21:56:18 -0500

In both situations where Avivaand I had to deal with an issue concerningour trademark, we were fortunate in dealing with either someone who understood how brand confusion plays into protecting a trademark (as Backpackingdad stated) or even if they didn't get it at first, it didn't take long for em to understand we weren't being "mean" we were doing what we legally had to do. What I think is very unfortunate inthe mama/momo situation is it sounds like Dana made several attempts to resolve the issue and the other person chose to go to the press instead of to Dana. Which brought another diimension to the conflict.

And then there was how the reporter in Bakersfield then handled the story, which in my opinion, amounts to nothing short of irresponsible journalism.

Parentopia.net/blog

Well, isn't this handy?

Rita Arens — Mon, 28 Apr 2008 21:35:06 -0500

I'm so pleased one half of the dispute showed up to comment. I hope Genevieve joins us peacefully, as well.

Regardless of how it plays out, I think the mama/momo issue brings the trademark issue to light. I'm sorry that both of you have to go through the pain of this dispute, but I do know that you're bringing to light important aspects of the law.

And also how happy one of our bloggers is married to a trademark lawyer. I'm sure she's got good job security in our space.

Surrender, Dorothy - When I was your age, we just let them ride in the back window.

As someone who is married to a trademark attorney

Backpacking Dad — Mon, 28 Apr 2008 20:49:36 -0500

let me just say that I love that her world and mine are meeting in this way. "So nice to see you, Trademark Law." "Oh, very nice to see you too, blogging parent."

One important difference between trademarks and patents and copyrights is that Trademarks are viewed by the USPTO and by the court as primarily source identifiers for the purpose of protecting consumers, not owners. That is, the courts and USPTO want to ensure that a consumer will not be confused about who is responsible for the goods and services being offered by the owner of the mark or by the infringers. So, when looking into resolving trademark disputes it is not as cut and dried as "she owns the mark, she gets to use it." There are often mark cancellations, and some of the most successful occur when it is argued that a mark is just descriptive. I'm really amazed that the USPTO let "Mommy Guilt" through, although I suppose it may have been argued on the application that no one was actually selling or offering 'guilt', from moms or otherwise :}

So if you are looking to trademark your name it won't be enough to just get there first. You will have to look at the services you are offering and whether or not your mark is descriptive of those services. This is where you want a trademark attorney and not just a marketing consultant on board from the get-go.

And even if you have a mark, you will have to work hard to prevent it from becoming diluted. For instance, people say "I'm going to go Xerox this" so often that Xerox, which owns the mark, has a hard time keeping their mark from being ruled "diluted". A diluted mark does not identify its source. If you own a mark, then just like Dana did you have to enforce it otherwise you are going to be out of luck.

And so will your consumers, customers, and visitors.

BTW. One way to get away with a totally descriptive mark is to show that it has secondary meaning; that is, that consumers identify YOU with that mark no matter how descriptive it is. One way to establish secondary meaning of a descriptive mark is to do business with a web page that displays that mark, and then argue that most people associate it with you.

Which is why I went ahead and registered my website, even though I'm not using it for anything yet and it is just about as descriptive a name as you can get. :}

http://backpackingdad.blogspot.com

Timely! Thanks!

Diana — Mon, 28 Apr 2008 20:44:14 -0500

I have been following this closely lately and like you, Rita I can't possibly trademark what I've built over the past two years (as humble as it is, anyway). In a way this is bittersweet because I feel very connected to my current blog, but am torn because in the future as traffic grows (here I am, assuming it will - Hello, my name is Diana and I'm a typical MommyBlogger!) I feel that I might, ok will, want something trademarkable. Tick, tock, tick, tock. The clock is not moving any slower for those of us in this position, yet I find myself, normally creative enough, out of ideas entirely for anything remotely brand worthy. *sigh*

Isn't is so weird that this

Mamalogues — Mon, 28 Apr 2008 20:32:41 -0500

Isn't is so weird that this "time" has finally arrived?

It wasn't that I trademarked mine first - I was the first to use it, commercially (and non), period. The USPTO agreed. It is unfortunate that I was forced to get legal but I wasn't left with any alternative as the other party did not respond to my contacts, even when I sent my publicly-published email address. I and others do much research and go through considerable expense before the USPTO grants us our trademarks. I wish others would do a bit of research first as it would save time and heartache in the future.

If you are planning to use your title commercially in any respect, you need to invest in trademarking your brand.

Dana

Mamalogues.com

on KFTK 97.1 FM/Fox News Radio

I'm not an attorney and don't play one on the Internet so...

Devra Renner — Mon, 28 Apr 2008 16:42:21 -0500

Speaking from my own experience of having registered/own a couple of marks there is a lot ot be learned about it, so it may be worth the couple of hundred to meet with an atty. Some law schools have students who do will research trademarks and their rates are far less expensive.Parentopia.net/blog

It's not that expensive to trademark

Devra Renner — Mon, 28 Apr 2008 16:31:49 -0500

It really wasn't that expensive to register our trademarks. The cost of registration depends on how much research is needed and that is the part of the atty's fees that can be pricey. The actual trademark registration isn't that expensive, I think for a new trademark it is less than $400.00. So in the long run, you just need to decide if your "brand" is worth the cost of registering the trademark and any related legal fees that might accompany having to enforce/protect your mark.

Parentopia.net/blog

It (sort of) happened to me.

rocksinmydryer — Mon, 28 Apr 2008 15:31:31 -0500

Someone is blogging under my blog's name (Rocks In My Dryer) at Blogger (mine is a Typepad blog). Really frustrating, and there's not much I can do about it, unless I trademark. But there aren't many writers that can justify the expense of lawyer fees.

Shannon @ Rocks In My Dryer
www.rocksinmydryer.net
BlogHer Contributing Editor, Mommy and Family

Timely topic

PunditMom — Mon, 28 Apr 2008 13:17:02 -0500

Thanks for all this. This has been on my mind and I have started to take steps to protect what I can.

PunditMom, Contributing Editor, Politics & News

Also at MOMocrats

Clarification goes a long way, wish the media had thought of it

Devra Renner — Mon, 28 Apr 2008 11:38:28 -0500

Rita,

I agree with you completely. Having seen the piece from ABC23 in Bakersfield, I was stunned that the station chose to air this segment as a "cat fight" instead of using the situaion as an opportunity to educate their viewership about Intellectual Property laws. Given that so many peole are posting personal pictures, blogs and video on the Internet, the station had a nice opportunity to educate and inform, but instead they went for the jugular and played it mom v. mom. 'tis a pity!

Parentopia.net/blog

The lack of maliciousness is a good point.

Rita Arens — Mon, 28 Apr 2008 11:33:16 -0500

I think we're going to see a lot more of this coming up in the next few years as "all the good names get taken." Names ARE important, and so I think we're going to see people defending their turf more forcefully.

Thanks, Devra, for sharing how your team dealt with that situation. I do think it is more an issue of confusion than anything else, and I'll bet most problems can be solved with clarification for the public.

Surrender, Dorothy - When I was your age, we just let them ride in the back window.

Trademarks and Mommybloggers: More Serious Than You'd Think

Rita Arens — Mon, 28 Apr 2008 09:14:19 -0500

When I started blogging at Surrender, Dorothy, I knew trying to trademark my site name would be impossible. I stole the phrase from the sky, for one thing (although mine, with a comma, insists Dorothy surrender rather than be surrendered, which I think is an important point, ahem). For another thing, there is already a Surrender, Dorothy band, a movie, a book, you name it. We can’t all be suing each other. So I never thought much about the other Surrender, Dorothy bloggers out there, and there are many – I see them in my Google alerts. No big deal, I think. As long as I differentiate my writing style and include my photo, people will always know who I am. However, that said, I totally respect the right of anyone to trademark an idea. Trademarking is totally different than copyrighting.

From the U.S. Copyright Office’s Web site:

How is a copyright different from a patent or a trademark?

Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

Recently there’s been a public fight between Dana of Mamalogues and Genevieve of Momologue. From what I can tell, Dana sent Genevieve a cease-and-desist letter because she has trademarked the “Mamalogue” name and Genevieve was using it and has been using it for a long time. Genevieve went to the Bakersfield news with the story.

Dana’s position:

I never tried to prevent anyone's speech, but rather act to protect my proprietary interest in my URL. I've never told anyone that they couldn't blog, but rather am asserting my right to my trademark which identifies my website. That's why companies protect their trademarks.

Genevieve’s position (from the news coverage):

While Hinson said she can understand wanting to protect a trademark, she added “I’ve been blogging here for three years. And I feel like it’s my Internet home. To me it feels like someone is trying to come in and evict me. And not only take my house, but take the car and the furniture. And then make me pay them on top of that in order to do it. It’s not a great feeling.”

What to do, what to do.

Legally, I have to give it to Dana. If it were me, I’d probably live and let live. But legally, Dana has every right to protect her trademark, and so, sorry, Genevieve, I totally understand how you feel, but if Dana wants to push it (and she does), she has the law on her side. You should've trademarked it first. Would I be upset if another blogger showed up and claimed he or she had trademarked my blog title? YES. But, if it could be proved, I'd be out of luck. (I'm sure I've now tempted the Internet gods and a letter will be showing up in my mail at any minute.) That said, I'm aware that other bloggers are out there using that title, and I really don't care.

This isn’t the first time I’ve heard about trademark wars in the mommyblogging world. I remember last year Melissa of Suburban Bliss was up in arms over a morning TV show (featuring her) using her trademarked momtini (martini glass with a pacifier in it – I’ve always thought it was quite clever) design without giving her any credit or money. This is what she had to say when the noise died down:

I guess there is a gray area where influence and copying overlap. I wonder if, since I have been able to procure a US trademark for the momtini logo without issue, perhaps someone at Eckler's publishing house was inspired to put a martini glass with a binky around the stem because of my logo.
It remains I don't own the rights to all pacifier and martini glass imagery.

Trademarks are different from copyrights in that you have to really defend them. Copyrights come into being the instant you write down the idea, and though registering them is a good idea, you really don’t have to if you can prove you wrote it down first. Which isn’t that hard to do on the time-stamped Internet. They also apply to photos. Remember Trumangate from Sweetney? That happened with Fox News swiped a photo of her dog from her blog and used it on the air. The Washington Post got in on the action when they heard what had happened, and all hell broke loose.

Sweetney wrote this at the time:

Basically I'd just like some kind of acknowledgment that a mistake was made and that my photo was used without permission, and then whatever the appropriate monetary compensation is for use of similar images during an NFL broadcast on FOX. That's it, honestly.
The larger issue for me is about making sure people -- private individuals as well as corporations -- understand that images put on the web or on the photo sharing site flickr aren't necessarily “fair game” and that laws regarding copyright and ownership still apply on the web.

I think Sweetney makes an excellent point in that people’s photos and words are not to be used by anyone just because they are out there. Unfortunately, it’s very easy to thieve on the Internet, and it’s sometimes impossible to know if someone’s swiped your stuff.

So have we entered a new era of blogging where everyone will suddenly trademark their URLs and lock down their Flickr accounts? Copyright and trademark infringement are certainly not new news. How do they apply to us?