Misinformation, intrigue and trademark crush, another day at the blog office |
I’m feeling a little dumber after reading Michael Arrington’s chronological breakdown of what happened with Techcrush site not flying under the Crunch network of sites. Arrington explains:
check out the site, note that the name and logo appear very close to techcrunch, and that the content looks very similar to techcrunch. I call my lawyer and say “I love this blog…but do we have a trademark issue?” He says “yes, a big one. when people do this, if you don’t try to stop it, you lose the right to try to stop others in the future.”
I think the attorney side of Arrington got the best of him and his counsel on these concerns. Techcrush won’t be confused by anybody with half a brain to be the same site as TechCrunch and furthermore it serves only to help TechCrunch because it is writing about the content of Crunch, the sites profiled, six months later. How can this do anything but promote not dilute the brand? If TechCrunch wants to do this too, then it immediately puts Techcrush which has a dramatically smaller audience at odds.
It’s like making noise about fan sites. These people are promoting your property! Even the anti-fan sites like paypalsucks or the various anti-blogger sites like Eye on Winer and Battelle’s antagonist, Mr. Bubble. The targets of the scorn should be glad people care passionately enough to give them all that free promotion, even if it’s negative publicity. If anybody reading wants to start Hmmsucks.com, then be my guest. I’m sure tdavidsucks.com is available too. Go to town. Bombs away. I’ll milk that cow all the way to the bank.
Back on Tuesday Sterling reviewed the new TechCrush site, writing:
Techcrush seems to be everything [Stowe Boyd] asked for (Stowe is listed among the site’s “Associates” as well). I think the balanced reviews and reader polls may provide a nice complement to the snarkiness of Dead 2.0 and Valleywag in the cause of relieving bubble pressure.
In Arrington’s Crunchnotes post he said in an email Stowe Boyd suggested he buy TechCrush after Stowe “trashed him” on a post.
This is kind of an ironic, but related story. I met Mike Arrington at Search Champs v4 and briefly discussed a concern over a couple posts I did here where I pulled out and linked the sites Techcrunch had profiled. I liked having the sites/services in one place which he now has done with the index. At the time Mike responded positively and liked the idea, wondering if it was automated. He wanted me to get together with him later and discuss making some sort of automated version which never happened, but I definitely remember our exchange positively. I don’t think Mike is against other sites doing a little piggybacking off TechCrunch and his account of the details is fairly accurate here. Like any other human being he’s struggling a bit with the heat lamp being on him all the time. It’s easy to put the lamp on others but more difficult when its shone on you. I’m thinking he’ll do fine.
The story seems to have had a positive ending with the agreement being for Techcrush to add “definitely not affiliated with Techcrunch in any way” to the masthead.
Whatever Stowe Boyd is/was trying to do, seems to have backfired. Why didn’t somebody just pick up the freaking phone (Skype is cheap) and talk about the matter privately? Some things shouldn’t be blogged in the heat of passion and this bizarre drama ranks near the top of the list. Misunderstandings everywhere and the lawyers being called way too prematurely.
The lawyers should be the last option, the last call, not the first. Arrington could have contacted the techcrush webmaster with his concerns instead of his attorney. Then again that’s easy for a non-lawyer to say. In our businesses we typically don’t call the lawyers until the cash register is adversely impacted or if we need to structure contracts so that the cash register isn’t adversely impacted.
I wonder if the often impersonal nature of the internet really is damaging interpersonal communication on some level. If anybody reading this has a serious problem — I mean something that’s keeping you up at nights, not a minor irritation or being miffed — with something I’ve ever said or done (or do in the future), my Skype/phone # is listed prominently on the homepage. Contact me. Let’s talk it through to some sort of resolution.
Life is way too short to be stressed out. Stress kills.
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Hey, thanks for the link, TDavid. With all that’s been going on over here, this is the first I’ve heard about this fiasco, and you did a nice job of covering it. I agree that going straight for the lawyers is like nuking first and asking questions later. But I think Stowe was OK to blog it — it gave him some leverage after the lawyers had already been called by the other side.
Comment by Sterling Camden — September 22, 2006 @ 5:06 pm PST
>>”Techcrush won’t be confused by anybody with half a brain to be the same site as TechCrunch and furthermore it serves only to help…”
The first part of that statement is always unverifiable. The second is probably irrelevant in regard to Arrington’s ability to defend against future trademark violations if he ignores this one. As I understand, the courts want to see a consistent record of trademark defense. Even if the net impact of this one was positive, ignoring it would damage his ability to fight the next one.
Comment by billg — September 22, 2006 @ 6:10 pm PST
Hi sterling
billg - that’s the argument brought every time this subject comes up and it ultimately is up to the courts to determine. That it dilutes the brand so we have to do such and such. Ultimately both sides agreed on the disclaimer in the masthead. I’m not sure why Mike and the Techcrush webmaster couldn’t have had this conversation directly without the need for involving the lawyers.
My point is the lawyers are brought in unnecessarily and prematurely in a growing number of cases and it’s a disturbing trend. Try to talk things out among yourselves first and then if there is no meaningful resolution and it’s going to impact adversely the cash register or infringe upon a trademark, then bring in the legal eagles to deal with things.
Attorneys get paid for their time so naturally they are going to be biased toward action on almost everything. They don’t get paid otherwise.
Comment by TDavid — September 22, 2006 @ 6:55 pm PST
I agree, but if it happened to me, I’d still talk to my attorney first to be certain I didn’t do anything to weaken my position. E.g., I might want to know if/how I should be careful to frame my initial response to the Other Guy, to avoid giving him legal grounds to later claim I’d acquiesced to his actions. After all, there’s no way of knowing if the Other Guy is going to respond magnanimously to my magnanimous proposal.
People frequently behave like bastards. That’s why the law is there. If we all agreed on what is right, and then agreed to always do that, law would be unnecessary.
Comment by billg — September 22, 2006 @ 7:05 pm PST
[…] Make You Go Hmm: » Misinformation, intrigue and trademark crush, another day at the blog office TDavid covers the trademark controversy over Techcrush. (tags: techcrush techcrunch linklove) […]
Pingback by links for 2006-09-23 -- Chip’s Quips — September 22, 2006 @ 9:23 pm PST
Some of the comments here got it. I called my lawyer not to find a way to put them down, but to see if there was a problem. I couldn’t care less personally that they call it techcrush. The issue isn’t what a “person with half a brain” thinks, but rather what the law says. So I called my lawyer and had a private conversation with Lutz. Stowe hyped things up to get traffic to his website, and I believe he had a desire to get a payoff around this as well. I wrote publicly only when it was clear that things were getting out of hand in the blogosphere.
Comment by michael arrington — September 23, 2006 @ 1:27 pm PST
Mike - I guess I don’t understand not contacting the webmaster first, that’s really what I questioned out of the whole thing.
I mean wouldn’t you want somebody with a problem with your site contacting you first to talk it over rather than calling their attorney? I understand attorney-client stuff and if your attorney is also your friend that would be a bit different I think. Is that the case here? Heck, we all consult friends and family on things from time to time, so it makes a lot more sense making that call if it’s a friend.
Again, attorneys get paid on time. You know that. Of course they are going to say something is a problem — or might be a problem — even if they don’t know.
The web would be a better place with better webmaster to webmaster communication (privately) on serious issues first before blogging (as Stowe did) or calling attorneys (as you did).
Comment by TDavid — September 23, 2006 @ 1:36 pm PST
No, you’re still not getting it.
I didn’t have a problem with the site. I called my lawyer to see if he had one. He did. If he didn’t, I never would have contacted them.
Now, if I had asked my lawyer to contact techcrush directly, and send a C&D letter (he wanted to do this), I think you would have a point. But in fact I did exactly what you said I should have done - contacted them informally and directly.
Comment by michael arrington — September 23, 2006 @ 1:43 pm PST
Hey the good news is, you worked it out. I think Techcrush will be a valuable addition to the review of web 2.0, even though TechCrunch does do follow-ups. Another, separate voice. I don’t see it taking anything away from TechCrunch — in fact, it pretty much acknowledges TechCrunch to be the standard-bearer.
Comment by Sterling Camden — September 23, 2006 @ 1:51 pm PST
Of course the attorney wanted to send a C&D, that just reinforces my point.
Actually, I don’t think you are getting my point. Attorneys — and I apologize if this disrespects a former or present profession — get paid by activity and time. Calling an attorney rarely leads to anything but a bill and them saying, I think we should do something. Furthermore, it increases anxiety for the other party when they know you’ve contacted an attorney.
I doubt you would have got an answer from your attorney that there wasn’t a problem if the site was purple and blue and was called weddingcrush. They get paid to represent their client’s interest (you in this case) and the courts with a judge presiding determine what is actually a violation of the trademark (you know this, of course).
Any time an attorney doesn’t know or is unsure, he has to say: “we better check this out.” Sure, he has the experience and as clients we should trust their experience, but there is another human side to this that people sometimes forget about.
Turn the tables for a minute and ask yourself if you would have appreciated a conversation first if you were Lutz and weren’t an attorney? And when you contact someone and they know you are an attorney and that you’ve contacted an attorney — even if it was for a harmless inquiry — it intensifies a situation, don’t you think? Increases the tension? Needlessly? Perhaps.
There is the law and there is human nature, Mike. Try to step away and consider this for a minute from a human nature standpoint.
I don’t think what Stowe did was noble in the slightest, I’m not defending him whatsoever. I agree with you there, Mike.
BTW I know you better than Lutz (who I don’t know at all and have never met or spoken with), and I barely know you at all. I’m trying to be helpful here not cause you problems or anxiety. I’m just suggesting that the next time you have a similar problem, it would probably be best to contact the webmaster first and then ask the webmaster if they think there might be a trademark concern. Explain your background and your concerns and see how they react.
If you did that and the webmaster blew you off or treated you like a jerk, then you can blog about it and get other opinions or call your attorney or whatever. You’ve tried to make the connection and see if something could be resolved or if there even was a question.
Most people, save for attorneys, would not think to call an attorney first in these matters. They would try to talk it out and resolve it (or see if there was even an issue to begin with). That’s all I’m saying and again, I mean this as a third party uninvolved objective business owner opinion.
Comment by TDavid — September 23, 2006 @ 2:01 pm PST
And here is a question on Trademark Law: if you as the owner of the trademark contact a third party about trademark concerns (email, or voice with notes) is that not evidence of enforcement of the trademark? Why would you need the attorney to send the C&D anyway? Just the fact that you are having the conversation and keeping notes seems like it would be evidence of attempts to enforce the trademark.
I dont know the answer here, Im just a layman, but I think you contacting Lutz directly in writing or verbally with notes of the conversation or a recording with both sides approval, is just as valid as a Cease and Desist.
Just a thought from a layman.
Comment by TDavid — September 23, 2006 @ 2:11 pm PST
I think that your essential point is that I was wrong to call my attorney and ask him if there was a problem.
I can live with being attacked daily on whatever comes to mind by people.
I can live with people launching sites with nearly identical names, logos and content as techcrunch.
I can even live with people trashing me for sending C&D letters that I never sent.
But saying I did the wrong thing by calling my attorney just to ask if there was a problem?
That just sucks.
Comment by michael arrington — September 23, 2006 @ 2:12 pm PST
no, it isn’t the same.
I probably lost my ability to enforce techcrunch as a trademark after all of this. But it was either that or deal with unending hate from the blogosphere. I chose to fold. And I’m still a jerk, apparently.
Fuck it.
Comment by michael arrington — September 23, 2006 @ 2:13 pm PST
Really, it is not the same? Now that sucks
Ok, I didn\’t know that one. I thought evidence of enforcement is evidence of enforcement 
Well, that changes my mind then.
Maybe that is how you can fight this one, Mike? Help the rest of us out here (with your attorneys help) to educate what is Trademark Law and what is and is not a violation? Provide links, provide information. Help educate?
I think if you polled 100 regular business people asking if you should have contacted an attorney first before contacting the other webmaster with your trademark concerns/questions, the majority would say no. But then the majority of them don\’t know the law either.
Why wouldnt you trying to deal with something directly and keeping records and notes not be enforcement of the trademark? Why would that not be proof in a court of law?
Comment by TDavid — September 23, 2006 @ 2:22 pm PST
oops I mean trademark, not copyright above — I’ll edit that
Comment by TDavid — September 23, 2006 @ 2:24 pm PST
This whole thing hurt. No seriously, the more I read on this, the more I found myself wincing.
Gosh almighty this whole thing was inane.
Comment by Shelley — September 23, 2006 @ 2:24 pm PST
And your point is … what, Shelley? Just to bash?
Comment by TDavid — September 23, 2006 @ 2:26 pm PST
TDavid, I’ve no stake at all in this, but I have to say it certainly appears as if your opinion is colored by two things:
1. An apparent belief that attorneys always opt for the response that provides the most billable hours. My own experience tells me that’s incorrect. A lot of the time all you want is legal advice, a considered answer to a question that you are unqaulified to answer. And, a lot of the time that’s what you get: just an answer, not a recommendation to gather the legal aides and charge up the courthouse steps.
2. An expectation that people with financial interests in their web sites should not think first of the legal ramifications of their actions, but should instead consider the future of webmaster-to-webmaster relations. There’s nothing peculiar about web technology or the “blogosphere” that requires people to stop looking out for themselves and their business interests. When someone does something that may threaten those interests, contacting an attorney to ask about both the advisability of, and the legal fallout from, the alternative courses of action open to you seems to me a perfectly reasonable, and responsibile, thing to do. Going off on your own, winging it, seems irresponsible.
Comment by billg — September 23, 2006 @ 2:50 pm PST
I agree with Shelley that this whole thing is inane. It’s inane that our system of laws and economics requires all of this bullshit legal action to protect the usage of a word — that isn’t even a word. Visitors from another planet would shake their heads so fast that they tangled both snouts.
Comment by Sterling Camden — September 23, 2006 @ 3:00 pm PST
Actually billg my opinion is colored by real world experience owning and operating business websites for 10+ years plus owning another business offline since 1994.
Our offline business deals with legal contracts daily and in some cases hourly throughout the normal business week. We’ve had to do deal with E&O, lawsuits, conflicts, attorneys and courts, I’ve given many, many taped statements, we’ve had all sorts of different business legal situations arise over the years simply from the nature of our business. I see people get freaked out by this stuff all the time. Weekly I have to step in and deal with some sort of conflict resolution and on bad weeks this happens daily. It is from this experience that my view is colorized.
I don’t think attorneys always opt for the most billable hours, I think they’d have a problem with the bar if they did. I think just as those who are on commission are more easily geared toward commissionable activities as many attorneys are more geared toward billable activities. They won’t pay their bills if they are doing everything pro bono.
It’s not a statement of guilt or that all lawyers are evil or anything dramatic like that, it’s a matter of reality. Yes, they will give you a free consultation/call, plenty of them will do that, but I’m sure you are familiar with retainers. If you go to the well or need to go to the well, that’s their method of keeping the costs in order. Law offices aren’t quite as bad as hospitals for billing, but they are close and many times the clients do most of the heavy lifting.
Not every attorney, not all of them, I’m not making blanket condemnations here, just saying in our experience as a whole on the other side. Your mileage and others reading might vary particularly based upon the amount of involvement you have had with them, but in our businesses it very much has worked out that way. Ask somebody who works regularly with attorneys — and isn’t or hasn’t been one of them — how they feel. Do your own real world poll and then get back to me.
I also have experience in conflict resolution and I can tell you from great experience that human beings react different when the word “lawyer” or “attorney” or “legal” is brought into the discussion. It’s like regular people have this switch that goes into legal mode (more paranoid, usually) once it’s thrown. I don’t have that mode, but I see plenty of others who get uptight, blood pressure rises, etc.
I do see the logic in your point about behaving in a responsible and legal manner regarding approaching another business first but the day one businessowner has to consult an attorney to ask another businessowner a question and have a rational discussion, is the day this country has gone completely tits up. I talk to people all the time regarding conflicts without contacting counsel first. You can’t run a business by always running things past legal first. It’s just not reality, sorry.
Does this mean businessowners will make mistakes sometimes? Of course. Sometimes we should have talked to legal first, but the vast majority of cases we don’t need to and in some cases it can make things even worse because the advice we are given can create extra tension and make it less likely to come to a resolution. I’ve been given bad advice by legal before, both bad legal advice and bad from a contact resolution standpoing.
We check with counsel on things all the time. There is nothing wrong with that and my commentary above shouldn’t suggest that I think a businessowner shouldn’t ever consult an attorney. Quite the opposite, there are situations like with contracts and things where it is necessary as I mentioned in our first exchange above. We used to be able to do more business on a handshake than we can do in this day and age and it’s kind of sad, but that too is a reality
But I have wavered somewhat after this discussion based on the new information provided. My opinion on Mike contacting his attorney first is now shaken after his answer in comment #13. I didn’t realize that the owner of a trademark contacting a possible violator and keeping detailed notes would not be evidence of enforcement in a court in a trademark law case. I’d like to learn more about trademark law regarding evidence of enforcement responsibilities in particular.
Comment by TDavid — September 23, 2006 @ 3:19 pm PST
If that’s what Shelley was referring to, then I totally agree with both of you, Sterling. I am very frustrated with Trademark Law and I’m also very undereducated (obvious) on the topic. I’d like to see attorneys unite and help make it easier for us laymen to understand and follow. I would welcome good non-legelease links from others (including attorneys) so I could learn more. I have enough legalese to read through during the work week that I don’t want to get into it on the weekends too.
Comment by TDavid — September 23, 2006 @ 3:27 pm PST
Sterling, defending a trademark isn’t about language. It’s about money. Like it or not, the law provides a way to obtain exclusive use of a “word”. If it’s not a real word, e.g., iPod, you’re in a much better position to get the trademark than if you try to obtain exclusive rights to a word in common usage. If that “word” is worth a lot of money to you, it is not inane to defend your right to use it. Sure, you might politely ask someone to stop using your trademark, but if they’ve got money on the line, how likely are they to roll over?
Comment by billg — September 23, 2006 @ 4:20 pm PST
“Exclusive use of a “word”" — that’s the part I have a problem with. But I’m not likely to get that changed. It’s just stupid, that’s all.
Comment by Sterling Camden — September 23, 2006 @ 4:28 pm PST
[…] Mike stopped by the comments area here a month or so ago dealing with him calling his attorney over a trademark dispute. He disagreed vehemently with me that he should have contacted the webmaster and work it out and then bring in the attorney if things weren’t going well. As I reread the discussion this morning, I still think what Mike missed in my point was that communication with the parties involved is paramount. The minute you start dropping the word “attorney” into a discussion, non-attorneys especially get more excited. It’s the business equivalent of saying, them’s fighting words. […]
Pingback by Protecting the TechCrunch secret sauce » Make You Go Hmm — November 1, 2006 @ 12:06 pm PST
I guess that interpersonal communication between people is constantly evolving as we progress as a society. Technology will definitely shapes how it evolves in the future.
Comment by Wenbin — July 26, 2008 @ 9:58 am PST