On The Web 2.0 Flap

by Robert Cooper

Tim says:
O'Reilly also values its trademarks -- as do other companies and individuals aligned with the values of openness and sharing. (I'll note that Linux is a trademark of Linus Torvalds, that Apache is a trademark of the Apache Software Foundation, Mozilla and Firefox are trademarks of the Mozilla Foundation, Wikipedia is a trademark of the Wikimedia Foundation, and so on.

and
I don't believe that the arguments about prior use of the term, or about "genericization" have a legal -- or even a moral -- basis. No one was using the term "Web 2.0" with its current meaning before we launched the Web 2.0 conference in October 2004, and the subsequent widespread use of the term Web 2.0 to describe the phenomenon itself is outside the scope of the trademark.


I feed compelled to point out, that in the US Microsoft's use of the word "Windows" failed to stand up to the "Generic use" in the 9th Circuit court. He would be hard pressed to convince me that "Web 2.0" or for that matter "Water 2.0" or "Human 6.1" could hold much more sway than Windows. I am no lawyer, but I think that it is safe to say that "Web" for the "World Wide Web" and the standard software version number are definitely MORE generic than the use of Windows to describe GUI elements, and even the latter couldn't stand up in court when Lindows came around. I also think, out of the examples provided, only Apache really represents a generic word. Indeed, if they had stuck with Apatchy they would have a very clear cut case, but I highly doubt they would find it easy to get a court to uphold their exclusive use of the term for much at all, if anything.

For the sake of getting the lawyers off our backs, though, I would like to offer up "W3 2.0" or "W3 R2" as Creative Commons Attribution 2.0 licensed terms. :)

9 Comments

Reedo
2006-06-01 05:46:41
I am no lawyer either, but it seems to me that for trademarks the combination of words is what matters, so the generic quality of individual words may have no bearing on how generic the combination is. If someone sells a Power Plunger(tm), someone else shouldn't be able to make a knockoff with the same name, no matter how common the words "power" and "plunger" are.


On the other hand, using the term "Web" as part of a trademark irks me because the Web is an openly documented technology to which anyone should have access. And I don't think it helps the cause of "Web 2.0" that its definition is so broad...

aodhan
2006-06-01 07:55:24
You know, I really think that O'Reilly has the right idea. It may seem silly to trademark any name. ( Bob(tm) ). However, the purpose here is to avoid confusion regarding content, attribution, and liability. If O'Reilly identifies 'Web 2.0' as a technology movement that will hopefully improve the usability and functionality of the world wide web, and organizes forums for that end, they become at least in a small way inextrictably linked to the term.


If then someone else starts up organized forums that refers to 'Web 2.0', and something happens that adds only confusion, or bitterness, or changes the idea to something different ( say, evolving from an open standards forum to a focused free software advocacy forum ). The possibility exists that such an event could catch the focus of the community, and divert attention away from the originally promoted ideas.


O'Reilly would be unwillingly dragged along by association. With lost of control, the investment O'Reilly puts into the effort becomes endangered. Not just the profit margin, but the ideas O'Reilly were advocating would be shelved until after the dust settled.


I can easily see the purpose of protecting this trademark as being in the best interests of not just O'Reilly as a company, but the web developer community as a whole.


Sun won it's Java lawsuit against Microsoft, why should this be different?

kebernet
2006-06-01 08:03:31
mmm. Not sure. There is definitely a big difference between forking a technology (Java) and trademarking a nebulous and poorly defined set of ideas. I mean, it is not like I am ever going to take my "Web 2.0 application" and try and run it on another platform only to find out it isn't "really Web 2.0 compatible." The "Java" trademark, like the "POSIX" trademark is used as a certification of compatibility. I am not sure there is a real comparison there.
Steve
2006-06-01 10:25:57
Gary's take on the Web 2.0 conference service mark
http://ablog.apress.com/?p=1121
Bill Burke
2006-06-02 05:18:22
I think we need Rickard Oberg to write a "The OReilly Issue" blog on how evil O'Reilly is for protecting their trademark.
Charlie Collins
2006-06-04 06:58:48
I do not think I would call O'Reilly "evil" for protecting a legitimate trademark - but I would call them dumb for trying to protecting something as "generic" as Web 2.0.


Though for that matter I would use the same description to describe most people that use that term as well.

M. David Peterson
2006-06-04 08:16:37
No one is trying to suggest that no one but O'Reilly can use the term Web 2.0 in every day living... From Blog titles through web applications and everything in between, as long as you don't attempt to use the term for a web development conference, then you're fine. Before the "Web 2.0" meme became popular, how many companies were building a web conference market around this term?


Just one as far as I know, and for this reason O'Reilly can justifiably suggest that "we have invested into this term as a mark of the trade in which we do business... We are invesing money into this term as it relates to web-related development conferences. As such, by trade marking this term, no one else can come along, start up a web development conference, and use this name as the title of that conference."


Beyond web development conferences, use the term all you want... Nobody is going to care. But when you market a product, in this case a conference, trademarks do matter... In fact, in many ways, they're ALL THAT MATTERS.


An Apple is just an Apple right?


Wrong.


When you are Apple Computers, and Apple is your trademark in the computer industry, then you should be able to continue using the term "Apple" and expect that no one else can come along and call themselves "Apple" if they are in the same general area of business. Allowing such things would be WAY TOO CONFUSING if "Apple MicroComputers" and "Apple Computers" were two different companies who competed in the same space. The fact that one is MicroComputers and the other Computers is not what matters... What matters is the term Apple.


Apple Computers and Apple Corps have been fighting for their respective rights to use the term "Apple" as it relates to the music industry. No one is suggesting that either of them should be forced to give up their name, and instead that Apple Computers shouldn't be able to enter the music business using the term Apple because Apple Corps was in the music business long before Apple Computers decided to get involved. And yet Apple Corps wound up losing their battle to keep Apple Computers out of the music business. Why? > http://news.bbc.co.uk/2/hi/entertainment/4983796.stm <


"... Mr Justice Anthony Mann ruled that the computer company used the Apple logo in association with its store, not the music, and so was not in breach."


Don't lose sight of the fact that a trade mark has a direct connection to the specific trade of your business. The Apple vs. Apple saga has nothing to do with two different companies attempting to suggest that they are the one and only true owner of the term "Apple" -- Obviously an apple in and of itself is just that, an
Apple.


"Apple Computers" and "The Washington State Apple" are two well known trade marks. Both use the term "Apple" and both can continue as such without fear that the other can come along and claim they own the term "Apple" and the other has to "Cease and Desist" from using the term "Apple" for their respective marketing campaigns because the two are not easily confused by consumers as being one in the same thing.


It's quite obvious that Tim O'Reilly coined and began using the term "Web 2.0" LONG before anyone else decided to jump on board with the Web 2.0 meme. He began investing money into this term, using this as the name of a web development conference. For justifiable reasons, Tim should be able to expect that because he,


1 - Coined the term "Web 2.0",
2 - Titled a web development conference using this term.
3 - Began investing money into marketing campaigns that promoted this term as the title of this mentioned web development conference.


That he should be able to continue forward using this term as the title of his web development conference and expect that no one else should be able to come along and use this same name for their own web development conference. Obviously development conferences are pretty unique in and of themselves as they focus their marketing efforts on geeks like you and me, who in and of ourselves are few and far between in our "unique geek 'qualities'".


While Apple Computers and Apple Corps might be in two different areas of the music business, and therefore can not be easily confused by the average consumer as being one in the same, web development conferences are not in two different areas of the web development conference business. Therefore it can easily be seen that one company, say Company A, who uses the term "Web 2.0" as their web conference title, and another company, say Company B, uses a similar variation of the term "Web 2.0" for their web conference title could easily be confused as being one in the same.


What happens if the second company who uses this term upsets the wrong media outlet, and the next day their conference name is being broadcast around the world as the "Root of ALL evil!" Company A, no matter how hard they try to fix the damage, is going to be just that... Damaged because of the association.


Or what if that doesn't happen, but the 2 million dollars I've just invested into using the term Web 2.0 as my conference title is now providing direct benefit to my direct competitor who decides "I like that term... I think I will use it myself and let my competitor over there foot the marketing bill for me, and then call them 'EVIL!' if they complain... Ha ha ha ha"


Haaaaa....


Sorry folks... You couldn't even find a trade mark judge in Australia who's going to buy into this one.


M. David Peterson
2006-06-04 12:42:51
>> Sorry folks... You couldn't even find a trade mark judge in Australia who's going to buy into this one. <<


Errr.... That should be the other way round... What this should say is "you wouldn't need to go to Australia to get a trade mark judge to buy into this one" but at this stage, I think its just a tad bit too late to try and fix...


Hopefully somewhere in there those of you that read this understood what I was meaning to suggest by this, although I obviously didn't quite deliver it quite the way I should have...

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2006-10-12 01:57:25
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