The O’Reilly Web 2.0 legal blunder – or leave my Irish buddies alone!

Published on May 26th, 2006 by Jeff Clavier Law & IP, Thoughts, Web 2.0

Yo O’Reilly’s, before sending bullshit cease and desist letters to a bunch of bloggers/podcasters whose only sin is to evangelize Web 2.0 in their Irish province as a non-profit, why don’t you guys read this post I wrote 4 months ago about Judy’s Book when they were awarded a trademark on “social search”. Hint: they publicly announced that they would not do such a thing as trying to enforce their trademark because it would be silly and a waste of money.

Now google “Web 2.0 conference” and you will find dozens of references to conferences in Canada, Spain, Ireland (that I keynoted), France, etc etc. Isn’t it a bit too late for asserting (pending) rights ? One could argue that going after a US conference organizer that would be using “the Web 2.0 Conference” might make (some) sense, but going after the Irish ? Hello ? And even, isn’t Web 2.0 a common term now ?

Finally has anyone done a trade-off analysis between the (questionable) impact on your business of someone else using “Web 2.0 Conference” (given that everyone knows you created the whole concept), and the hit your brand is going to suffer from because what you have just done is sooooo opposite to the values associated with O’Reilly. Some bloggers even took your defense suggesting that CMP led the charge until, well, it was confirmed you were also behind it.

Come on guys, seriously, you are better than this. If anything, “Web 2.0” should be a Community Mark. So let’s have a quick apology to everyone, “we really did not mean that”, “piece, love, unity 2.0”, etc. and we can all go back to our blogging and genuine anticipation of the Web 2.0 Conference 2006.

Otherwise, you can monitor the “shitstorm” on TechMeme and the pounding on the official explanation. Or as Liam says in the comments of this post on CrunchNotes: "Let the mob convene".

Rick Segal was in good form last night:

Finally, an exercise for the reader. For some fun and homework, grab the list of O’Reilly conference speakers and friends of O’Reilly campers found around the internet. Cross reference those people’s blogs via Ice Rocket, to see how many of them step up and smack O’Reilly over this rather aggressive IP protection move. You won’t find many. You won’t find tons of people boycotting O’Reilly books or conferences. The reason? Brand. Tim has personally been the true good guy face of his company and you can be sure that he is no dummy. Barring a massive overdose of stupid pills, Tim will step up own it and give an apology/explanation that will calm people down. In my view, a bunch of overeager corporate types will get a WTF, wet noodle beating and the rest of us will see a smart business owner take responsibility for this, oopsie. I would expect nothing less.

Hope the vacation was relaxing, Tim.

Ouch!

http://www.zoliblog.com/blog/_archives/2006/5/25/1985350.html Zoli’s Blog

Screw the Trademark, Move on to Web 4.0

From Tom Raftery’s IT Views:
“IT@Cork is a not-for-profi…
http://web2dot5.blogspot.com/ Liam @ Web 2.5 Blog

Thanks for the link-love and quote, Jeff. We meet on the square at midnight, and I’ll have a pitchfork for you.
http://paulfallon.com/2006/05/26/OReillys+Meanspirited+Response+And+Web+Dooh.aspx Paul Fallon’s Blog

O’Reilly’s mean-spirited response and “Web do.oh”!
http://www.hansomli.com/ Hans Omli

An Open Letter to Tim O’Reilly

May 26, 2006

Borrowing the words you once wrote to Jeff Bezos, we now write to you in strikingly similar fashion to request that O’Reilly Media, Inc. cease all attempts to prevent others from using the term “Web 2.0″ for any purpose including “arranging and conducting live events, namely, trade shows, expositions and business conferences in various fields, namely, computers, communications, and information technology” and “organizing and conducting educational conferences, tutorials and workshops in the fields of computers, communication and information technology.” It is our belief that this trademark application should and will not be accepted by the United States Patent and Trademark Office, and further, that even were it ultimately found valid, such trademarks serve only to hold back further innovation in this industry.

Web 2.0 is a clever marketing slogan. However, the trademark application fails to meet even the most rudimentary tests of genericity. Web 2.0 has clearly become generic, as evidenced by the more than 79 million search results found via Google for the term in question. It is clear that in the minds of a substantial majority of the public, the term �Web 2.0� denotes a broad genus or type of product and not a specific source or manufacturer as was claimed in the cease-and-desist letter sent to IT@Cork.

We believe that the rapid innovation on the World Wide Web and Internet platform that has created so much new value for the public (as well as for O’Reilly Media, Inc and its shareholders) will be choked off if companies that the short-sighted rout of claiming trademarks on terms that have become commonly accepted as generic in nature in an attempt to keep competitors from using them. Ill-advised trademarks and other attempts to limit the use of generic web terms for private advantage have put the whole software development and standards process into a precarious state.

We urgently request that you clarify your intentions with regard to trademarks, and avoid any attempts to limit the further development of what has become known as Web 2.0 applications or any part of the industries surrounding them.

Hans Omli

Note: While I don’t intend to ask others to sign a petition at this point, I expect you will agree that 10,000 would be an easy milestone given the tremendous outcry across the blogsphere. Suffice it to say, I would expect much less than five days. We look forward to your open conversation with the community.
http://altaide.typepad.com/jacques_froissant_altade/2006/05/nutilisez_plus_.html Jacques FROISSANT Altaïde

N’utilisez plus le terme “Web 2.0″…

… c’est une marque déposée !!Il fallait oser, ils l’ont fait ! Voir explications chez Jeff et Richard (entre
http://theheadlemur.typepad.com alan herrell – the head lemur

Here is a tip for Tim O’Reilly:
Pull back the covers, get out of the bed, put the money on the dresser, and get the hell out of the motel room.
http://theheadlemur.typepad.com/ravinglunacy/2006/05/web_20_and_stan.html
http://paulmwatson.com/journal/ Paul Watson

Thanks for the support, Jeff. We’ll be going to the conference in support too.
http://web2dot5.blogspot.com/2006/05/oreilly-get-real.html Web 2.5 : The Always-On-You Web

O’Reilly, Get Real

Seriously, would anyone be willing to help organize and/or speak at a Web 2.X Conference in the Bay Area for this fall?
http://tomicic.de/BlogDavidAgainstGoliath20AndHisLawyers.aspx Damir Tomicic : ein Tag in der Community

[Blog] David Against Goliath 2.0 And His Lawyers
http://southerncrossventures.com Daniel Nerezov

lol
Either way, the only thing this controversy does is sell more conference tickets and page views.
Hardly a public relations mistake, I wouldn’t be surprised if this cease and desist letter is a ploy.
It is strange to hear such vivid commentary, from so many learned commentators, when this whole thing is a textbook example for how to get by on an involuntary sales force.
Kal

If you are correct about the existence of other non-O’Reilly-affiliated Web 2.0 conferences, then yes, it is a bit too late for O’Reilly and crew to start enforcing their legal rights to the Web 2.0 service mark. Now, I firmly believe that everyone has the right to protect his intellectual property. But it appears that O’Reilly may not have protected his (at least early enough). A genericized trademark is “a trademark or brand name which is often used as the colloquial description for a particular type of product or service as a result of widespread popular or cultural usage.” http://en.wikipedia.org/wiki/Genericized_trademark
Since O’Reilly and gang did not previously enforce their rights and send Cease & Desist letters to previous Web 2.0 conference organizers, it seems to me that “Web 2.0” has been allowed to become a genericized trademark. Hence, trademark rights may no longer be enforceable or at least it may be difficult for O’Reilly and crew to now legally enforce their rights. A long list of other genericized trademarks: http://en.wikipedia.org/wiki/List_of_generic_and_genericized_trademarks
Also, see the very brief opinion of The Trademark Blog on this topic: http://www.schwimmerlegal.com/2006/05/web_20_v_web_20.html
Kal

To Daniel Nerezov: “involuntary sales force”?! Gasp! My good man, have you been reading any of the other blogs on the internet?! Thanks for the contrarian opinion (required in every blog comment thread) but I don’t think so. People are saying they’ll never buy another O’Reilly book again and never attend another O’Reilly conference again, EVEN IF O’Reilly apologizes and retracts. There’s good buzz and there’s bad buzz. This is quite clearly bad buzz. EVEN IF O’Reilly does a full 180, people will never again trust his intentions. No, my friend, this is a textbook example of how to tarnish one’s hard established reputation. “It takes many good deeds to build a good reputation, and only one bad deed to lose it.” –Benjamin Franklin.