Jeff Clavier's Software Only

More thoughts about the "Web 2.0 service mark" controversy

Well, saying that the blogosphere has been busy “commenting” on the “Web 2.0 service mark” affair is an understatement. It has been on top of TechMeme for over 24 hours, it has been /.’ed, dugg, linked to 300 times, and commented upon thousands of times in aggregate, etc. After the initial admission of involvement from O’Reilly’s Corporate Communication, we have gathered that Tim is on a boat and therefore out of reach until after the week-end, so we all look forward to his thoughts on this mess situation.

John Battelle, O’Reilly’s partner in the organization of the Web 2.0 conference, has chimed in a few times on his blog to comment on the situation and confirm that letting the lawyers loose on an Irish non profit was a mistake:

As I said, as they said, as we all said, sending the Bigfoot letter to the non profit was a mistake. We're SORRY. Tim and I did not know it was happening. This was done by the legal departments and business folks at CMP and O'Reilly. I was not in the loop - I run the program, not the business. Clearly it shoudl not have been done, and from what I'm told, it has been worked out with the folks in Ireland. And we apologized. As we should have.

Now that we have that bit out of the way, it would be constructive to understand if the right Creative Commons license slapped on “Web 2.0 <event>” would do the trick for O’Reilly and CMP, instead or on top of a service mark (and I am no lawyer so I don’t know if that makes sense). 

Finally, and as usual, there has been a bit too much exaggeration (like mixing a cease and desist letter and a lawsuit) and name calling around.  This unfortunately led observers to look at us as a lynch mob, as opposed to a mob that expressed a profound disagreement related to a community matter. And it shows how quickly things snowball when a brand or a business does not have his/her spokesperson at hand to engage in the discussion.

On that note, I wish you all a relaxing Memorial Day week-end.

The O'Reilly Web 2.0 legal blunder - or leave my Irish buddies alone!

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!

The USPTO and Internet search engines disagree as to who "œowns" the term €"Social Search"

Try finding "€œSocial Search"€ on Google, Yahoo and MSN Search. They will all point to articles related to Yahoo (MyWeb) or Eurekster. I would actually have expected that Social Search would be a common name by now, referring to user influenced result sets. It turns out that the term "€œSocial Search"€ is now a trademark from Judy's Book - a site containing user generated yellow pages. The USPTO just granted the trademark to the company that filed for the application two years ago.

However bizarre the fact that the application was granted (and I am no trademark lawyer, so I won't comment any further), the challenge for Judy's Book is to have its newly granted trademark enforced. As the company explains it on its blog, it sounds like they tried - most likely engaging discussions with Yahoo since they are using social search prominently - and did not go very far in getting the search giant to change their messaging. Judy's Book has (very sensibly IMHO) decided not to pick a legal fight and focus on building value for their users - with the cash invested by my friend Brad Feld:

And it goes without saying that -- if we chose to pick a legal fight -- this competitor could bury our little company in legal bills quicker than you can say 'motion for summary judgement'.

So I guess it comes down to this: we're justifiably proud of our Social Search® capability, and we're pleased that the USPTO has certified our claim to the idea.  But as long as we live in the real world, it looks like our best defense (apart from a steady stream of "€œcease and desist"€ letters) will be to keep delivering on our Social Search promise and let the customer decide.

The one thing I was sort of surprised of is that the term "€œSocial Search"€ was only used in one press release of the company,  and that it does not even appear on its About page.

Anyway, hats off for being sensible on this one. It sort of shows that there is a difference between owning IP rights, and being able to enforce these rights in David vs. Goliath situation. Chris deVore actually says it best when responding to a question:

The real point of the post was to share our little schoolyard lesson: when you're a little company going up against a much larger one, that USPTO letter is worth about as much as the paper it's printed on.

PS: Has anybody trademarked "€œWeb 2.0"€ ? Cause sending C&D notices to everyone infringing the trademark would be... expensive.

Update: Danny Sullivan seems to agree that Social Search is now “out there” as a common term:

Here's a mention of "œsocial search"€ from 2001 by someone else, so I'm hardly the creator of that term. I'm sure there's plenty of prior usage before the trademark was filed. Again, no idea of the impact that might have on trademark usage. But it seems to me that the term doesn't really belong to Judy's Book any more than Yahoo. But that's just my unlegal opinion on things.

Supreme Court clears way for online wine sales

As a wine lover, I could not help but notice CNET's report on Supreme Court clears way for online wine sales. The 5-4 ruling basically means that states like New-York, Michigan and 22 others can not prevent out-of-state wineries from shipping directly to consumers, whilst allowing in-state wineries to do so.

This is good news for consumers in these states because they will finally have access to more affordable prices, either from wine e-tailers or wineries, as well as a much a larger inventory. This is also good news for wineries, especially smaller ones, that could not afford wholesale distribution.

However, some states could still decide to comply with the Supreme Court ruling by forbidding all direct shipping of wines to consumers, therefore getting rid of the discrimination, as it is already the case with a few of them.

WineSpectator provides some background related to the current situation, and the implications of the ruling (sub req'd). Here is an excerpt:

The battle over direct shipping of wine has been going on since the 1980s, when California became the first state to allow direct shipments, and heated up in the 1990s, when consumers became used to the convenience of ordering via the Internet.

On one side are consumers, who want to be able to join winery mailing lists and order hard-to-find wines no matter where they live. [...] Consolidation has swept across alcohol-beverage wholesalers in recent years, leaving fewer, and larger, distributors. At the same time, the number of wineries, particularly small, family-owned producers, has increased, to more than 3,500, according to the San Francisco-based Wine Institute.

On the other side are the wholesalers, through whom the majority of wine in this country must pass. They have teamed up with state liquor authorities to argue that the existing three-tier systems are essential to collect state taxes and prevent minors from buying alcohol. Many of their anti-shipping campaigns have focused on the supposed ease with which teenagers could order wine online.

Retailers may fall into either camp. Many wine stores--particularly the larger ones or those who specialize in certain collectible wines--want to take advantage of direct shipping to do business with consumers across the country. Others, particularly smaller stores that can't compete on a national scale, fear that direct shipping will cut into their sales.

Through the 1980s and '90s, winery trade organizations worked with state legislatures, encouraging them to pass laws that would allow home delivery of wine, with protections in place. The industry's current "model" bill limits the amount that can be shipped to an individual consumer each month, provides for the collection of state taxes and requires the package carrier to obtain the signature of an adult upon delivery.

The Wine & Spirits Wholesalers of America and local wholesaler organizations, which are powerful lobbying groups, countered by trying to convince states to make it a felony to ship wine to residents. They also got the U.S. Congress to pass a law allowing states to turn to the federal court to prosecute violators.

Cheers!

Microsoft launches its Intellectual Property Ventures

Just got an email announcing the official launch of Microsoft Intellectual Property Ventures, whose goal is reportedly to find ways of licensing and monetizing the IP produced by Microsoft Research Labs. From the site's about page:

Leveraging great ideas. It’s the way to get ahead — and stay out front. And now, through Microsoft IP Ventures, we’re giving small, VC-backed companies a whole new way to bring innovations to market quicker and with less risk. It’s a smarter way to partner. And the fast track to success.

Microsoft invests billions of dollars annually into research and development. Our computer science research organization, Microsoft Research, employs more than 700 of the brightest software engineers and researchers in six labs across the globe—some of the world’s most renowned and talented computer scientists, sociologists, psychologists, mathematicians, physicists, and engineers. And our product development teams continuously design breakthrough building blocks and generate internal business applications that have a wide range of commercial uses.

The result is a large portfolio of innovations, some of which have significant commercial possibilities. IP Ventures licenses and spins out these leading-edge technologies to entrepreneurs, startups, and corporations as a way to both recoup a portion of our R & D investments and to encourage new business investments and economic development.

Every technology possesses a clear and specific application for fast commercialization and for quick ROI — whether it addresses a specific need in an existing market or makes possible an entirely new product category. IP is available across a large range of technologies:

artificial intelligence

usability

graphics hardware

cryptography

digital rights management

security

gaming

multimedia

databases

The list of technology/IP available for licensing is here. Of note are:

Conference XP: Distance Conferencing, Instruction, and Collaboration Environment Published 4/26/2005 6:38:39 PM

ConferenceXP integrates recent advances in high-performance audio, video, and network technologies to seamlessly connect multiple distant participants in a rich immersive environment for distance conferencing, instruction and collaboration.

LaunchTile: Seamless UI Metaphor for Small Footprint Devices Published 4/26/2005 6:57:45 PM

Launch Tile is a seamless metaphor for navigation and input for mobile devices. It allows you to browse information, documents and applications easily with one hand while on the go!

Microsoft Portrait:  Mobile Video Communication Published 4/27/2005 2:03:17 PM

Microsoft Portrait is a technology for optimizing video conferencing on mobile devices. It dynamically adjusts the image resolution based on the available bandwidth.

MobiPicture: Intelligent Mobile Browsing of Large Images Published 4/27/2005 2:16:36 PM

MobiPicture is a technology which defines a set of novel features to aid or automate common image browsing tasks such as viewing thumbnails, zooming, and scrolling based on image features.

This is not a major scoop per se, since Microsoft has announced in December 2003 that they intended to monetize their IP portfolio, essentially copying IBM's licensing efforts that produce $B of royalties per year. And they hired Marshall Phelps, the man who put together the program for IBM, from retirement to spearhead the effort. Hewlett Packard has also started a similar effort about a year ago, and has been busy licensing its IP ever since.

More: PaidContent and ZDNet have more on the topic.