The Web 2.0 Service Mark Controversy
In the fifty-plus years since the first service mark was registered, few registered service marks have stirred up as much controversy as “Web 2.0.”
According to lore, the phrase “Web 2.0″ was coined in 2003 by Tim O’Reilly and the staff of CMP Media as a title for a conference they were planning to hold in 2004. As is standard business practice, CMP Media in 2003 filed for registration of the conference name as a service mark. No one predicted that the term Web 2.0 would ultimately become everyone’s popular catchphrase for the next incarnation of the Internet.
To put that popularity in perspective, the following are the number of Google search results for several well-known trademarks:
- Microsoft: 909 million hits
- Web 2.0: 411 million hits
- Intel: 361 million hits
- Coca Cola: 32.3 million hits
- Apple Computer: 15.5 million hits
- Budweiser: 9.3 million hits
Though the term is hugely popular, it wasn’t until a nonprofit industry group in Ireland – IT@cork – announced in 2006 it was holding a Web 2.0 conference of its own that the brouhaha erupted.
CMP Media was legally required to object because if it didn’t, it would lose its rights to the Web 2.0 service mark. Although a cease and desist letter is the standard format for notifying others of your objection to their using your registered mark, it was in hindsight not the best notification format in this circumstance. Tom Raftery, a conference organizer at IT@cork, posted the letter on his blog declaring it to be “anathema to the whole philosophy of 2.0, which is about sharing,” and bloggers around the globe reacted.
Responding instinctively, the blogosphere quickly unleashed a wave of hostility toward CMP and, ironically, toward Tim O’Reilly who is arguably the world’s leading proponent of openness on the Internet. In fact, O’Reilly had been invited to speak at the conference, but CMP’s legal department was not aware of this because O’Reilly was vacationing where he couldn’t be reached when the incident erupted.
In retrospect, O’Reilly Media vice president Sara Winge wished they had phoned the Irish group instead of sending the legal letter. In the end, CMP Media calmed the furor by granting IT@cork permission to use the registered mark “this time,” with future use to be negotiated.
The Heart of the Issue
Though the incident stirred a lot of passion for industry insiders - and amusement for industry outsiders - the real issue involved was not, “Can you register Web 2.0 as a service mark?” because the answer to that is settled and it is “Yes.”
The real issue is that trademark owners cannot allow their trademarks to become popular terms for anything other than their branded product or service. This is the battle that Coke and Kleenex fight every day. If a mark becomes a generic term, a court can rule that it is no longer eligible for trademark registration and the original owner loses the rights to the mark. That is what CMP was attempting to prevent.
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