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Bill Abel <[log in to unmask]>
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"Jared M. Spool" <[log in to unmask]>
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On Jun 7, 2006, at 11:27 PM, Jared M. Spool wrote:

> It turns out Pepsi (and Coca Cola too) hires college students by  
> the droves, sends them to restuarants that serve Pepsi, and pays  
> them to order a "coke." If the staff doesn't ask the question, they  
> report it to Pepsi's legal team who sends out a stern letter  
> warning the restaurant to defend the trademark.

Actually, Coke is a unique name which refers to a product. Unique  
names are very easily protected by trademark law. Furthermore, Coca- 
Cola protected the name from the start. It was never used by Coca- 
Cola as a synonym for a soft drink.

In contrast, Web 2.0 has been used as a generic term to describe any  
websites using certain technology. It does not refer to a product or  
service.


> In order to prevent losing a trademark, you have to diligently  
> protect it. That means sending out stern letters. Aspirin was once  
> a trademark of Bayer. Tissues were once a trademark of Kleenex  
> Corporation. Floppy Disk was once a trademark of IBM. All were lost  
> because the trademark owners weren't diligent.

These are good examples and there are many others. Once a name, even  
a unique name, becomes a common term, then it loses all protection  
under trademark law. This is why I think O'Reilly has a problem. They  
haven't protected the term Web 2.0 which is the truly unique name.


> O'Reilly has not trademarked "Web 2.0." They've only trademarked  
> "The Web 2.0 Conference." As I mentioned before, you or anyone else  
> can hold a conference about web 2.0 concepts. You just can't call  
> it what O'Reilly calls it. (Being that I run a conference called  
> the "User Interface Conference," this notion of trademark falls  
> very near and dear to my heart.)

While the name The Web 2.0 Conference would have some protection  
under trademark law, it would be hard to keep someone else from  
describing their conference as "a Web 2.0 conference", just as it  
would be difficult to keep someone from describing a conference as "a  
user interface conference". That's the problem with using common  
terms and words as names. If you don't like that, then you shouldn't  
use such a generic name.


> It seems you have the chronology wrong: O'Reilly created the Web  
> 2.0 Conference before the term was a "general description." One  
> could argue that it became general because the conference series  
> was such a success. Should O'Reilly be punished and lose the  
> ability to control its own properties just because they had a  
> successful idea?

Given this, the term Web 2.0 could have been protected, but I  
seriously doubt a court would believe O'Reilly ever meant to protect  
the term Web 2.0 given the way it has been used by them. It's been  
used as a technical term to describe a new use of technology - not a  
product or service  - which is what trademarks protect.

I've been reading about 'Web 2.0' for a long time now and this  
discussion is the first I've ran across where the name was claimed as  
a trademark. There obviously is no effort to protect the name Web 2.0.


> Do you feel O'Reilly also shouldn't own trademarks on their "Where  
> 2.0 Conference" or their "Telephony 2.0 Conference"? At what point  
> does something go from obviously being a trademark to when it is "a  
> general description"?
>

I think any company should own trademarks as long as they treat them  
as such. However, if Coca-cola started referring to all soft drinks  
as 'coke' in their advertising, and corporate culture, I doubt a  
court would take them seriously if they changed their mind later and  
wanted to protect the term as a trademark. I wouldn't.



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