Trademarks and Mommybloggers: More Serious Than You'd Think

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

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 ( http://www.971talk.com/dana/index.aspx )
( http://www.mamalogues.com )

Mamalogues.com ( http://www.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.)

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

Surrender, Dorothy ( http://surrenderdorothy.typepad.com )- When I was your age, we just let them ride in the back window.

( http://www.momologue.com )

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.

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 ( http://www.parentopia.net/blog )

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 ( http://surrenderdorothy.typepad.com )- When I was your age, we just let them ride in the back window.

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 ( http://backpackingdad.blogspot.com/ )

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 "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 ( http://www.mamalogues.com )

on KFTK 97.1 FM/Fox News Radio ( http://www.971talk.com/dana/index.aspx ) ( http://www.stltoday.com/mamalogues )

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 ( http://www.parentopia.net/blog )

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 ( http://www.parentopia.net/blog )

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 ( http://www.rocksinmydryer.net/ )
BlogHer Contributing Editor, Mommy and Family 

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

PunditMom ( http://punditmom1.blogspot.com ), Contributing Editor, Politics & News ( http://www.blogher.com/blog/punditmom )

Also at MOMocrats  ( http://momocrats.typepad.com )

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 ( http://www.parentopia.net/blog )

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 ( http://surrenderdorothy.typepad.com )- When I was your age, we just let them ride in the back window.

Aviva and I are the holder of two trademarks, Parentopia and Mommy Guilt.  There have been a few times where we have had to notify folks of infringement.  However, there isn't just one way to protect a trademark, it varies depending upon how the trademark is being used, why it is being used and how the use may or may not impact the owner's rights or infringe on the trademark.

 For example, we own the trademark to "Mommy Guilt" it's the title of our book, it's the title of our parenting workshop, etc. But it also happens to be a widely used term in the lexicon of parenting.  Our registration spells out the conditions that must be present in order for us to have a right to defend our mark.

 When we came across a blogger using the term in her blog name. Did we whip off a  she cease and desist? No. We decided she had been blogging with that name for a long time and we ( the blogger and us) came up with a solution that made her happy and us happy. All she had to do was put a prominent link with an explanation on her blog letting her readers know where Aviva and I can be found if they want to read our book or learn more about Mommy Guilt from us.  This left no room for confusion if someone came across her blog and thought they were coming across Aviva and me. Taking the confusion out of the picture, worked for all of us. So problem was solved.

When we defend Parentopia however, that is a different ball game because it is the name of our consulting firm,  as well as our blog.  So having another blog named "Parentopia" would be something we could not compromise on as it would infringe on our trademark and confuse possible clients.  When we had someone who had registered the domain name Parentopia, I picked up the phone and called her. Turns out she misunderstood the law, and thought she had certain rights which she in fact did not. Sometimes people act in a particular way because they have been told they are within their right to act like that, they've gotten bad legal advice,or they had a friend tell them something that sounded right, but ended up being dead wrong. You live and learn.  We merely had to send a copy of the law to her, and she agreed to take down her site and not use the domain name. In this case, she didn't realize she was not within her right to use it. It wasn't as if she was trying to do anything bad, she just didn't know. With a little patience and education, it all worked out.

I feel for both parties in this situation, because I understand where each is coming from and I'm not going to armchair quarterback what happened between Dana and Genevieve.  Having been in that position myself, I can only say we all need to be aware of our rights and responsibilities in a community and beyond.  Email is wonderful, but when it comes to these kind of problems, I prefer to pick up the phone and call. It may be "old school" but I'v found folks are far more receptive when I do it this way.  Of course your mileage may vary and I am in no way suggesting everyone do it like I do, just file it under "This worked for someone, so maybe I could give it a whirl."

Party on,

Parentopia.net/blog ( http://www.parentopia.net/blog )

That's very interesting - totally news to me so I can't comment really about it.

But do you remember the Lexus - Lexis debacle before the car came out?

Granted, they aren't in the same industry, so maybe that's part of why there's no problem. I can see how two bloggers writing about the same stuff have a lot in common and so the brand identity or whatever it is called is critical.

Very unfortunate. :(  But - there ARE billions of people who use the Internet now - if they produce what people want, the name shouldn't matter (emphasis on shouldn't, knowing how naive that is!).  

Jill
Writes Like She Talks ( http://www.writeslikeshetalks.com )