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27 October, 2004

Copywrong

About a year ago, a major multinational company ran a promotional campaign.  The title of the campaign, and a microsite at the company's website, was a fairly common everyday phrase; for the sake of narrative, let's call it 'Herding Cats', though that isn't the actual term.
I found the campaign interesting, and mentioned it in the blog.  I used the phrase as the entry title, and it's in the URL of the microsite (e.g. www.giantcorp.com/herdingcats/), but the phrase didn't appear even once within the 153-word entry itself (purely by chance; it's so generic I didn't even think about it).

Last night I received an e-mail from a total stranger, an author in the USA (I'm in the UK) who alleges that the phrase is a registered trademark, that anyone would need express permission to use the phrase in a blog or other publication, and that I should remove the phrase from my website within five days or face legal action.

This is utterly ludicrous, in several respects.

It's a common phrase. A quick Google search finds 61,900 results for 'herding cats' and 678,000 results for the real phrase i.e. the real phrase is over ten times more generic than 'herding cats'.

I'm not remotely challenging anyone's copyright/trademark. Had I published a book with that title, or opened a shop with that name, there'd be cause for complaint, but all I'm doing is reporting someone else's promotional campaign. If there's any dispute, it's with the global megacorporation. I'm confident the lawyers of a major multinational would have checked this sort of thing in advance, and evidently decided they're able to use the phrase.

In that Google search, I see that the no.2 result is a book by the alleged trademark owner (though let's remember that I have no proof that such a trademark has really been registered, by the person claiming to have done so, nor that the sender of the e-mail really was that person). The no.3 result is that promotional microsite of the multinational. Yet the number one result is an entirely different book, by a different author, published two years before the complainant's. The no.4 result is an unrelated article using that title, in a UK national newspaper which happens to have a renowned legal team....

At no.13 is my blog entry. At no.14, the complainant's website. I must stress that this is just the way things worked out. I have made no attempt whatsoever to optimise my page for that search term; I used the phrase once in the title, it's in the link URL of the multinational, the blogging software (Movable Type) automatically used the entry title as the html page <title>, and one word of the phrase is used in the text, once, in isolation (the single word gives 24.7 million results at Google), but that's it.

The context is entirely different. If I'd used a trademarked phrase, even an everyday phrase which has become associated with a particular company (e.g. 'where do you want to go today?' or 'because you're worth it') to sell a competing product, okay; that's what trademarks are designed to prevent. I had never even heard of the complainant, the book or the website; their subject area is one in which I have no involvement.

Even if I had used a trademarked term (and I do not agree that I did) in a directly related subject area, even writing about the book itself, that's fair use. I wouldn't be claiming exclusive use of the phrase, it would only be for purposes of comment/review, which is permitted. In this entry, for example, I've name checked Google six times, but don't feel it necessary to have contacted the company for permission.

It seems this is merely an entirely spurious and extremely rude attempt to bully oneself to a higher Google page rank, not by optimising the website or link popularity, but by attempting to force everyone else off the Google database. It doesn't work that way.

The manner of the approach is also an issue. A polite e-mail asking me to modify my page (let's face it, the phrase is of no importance to me) might - might - have received a favourable response, but when the first contact is an threat and demand that I take certain action, I won't even dignify it with a response, other than writing about it here.

Comments

You should name the complainant and the phrase and get in touch with BoingBoing and some of the other sites that like to highlight this sort of idiocy. Normally when the bullying is made public these people scurry back under their rocks.

Posted by Ian at October 27, 2004 10:13 PM

What a plank. Go with what Ian says. Name and Shame. No decent and/or vaguely ethical author would embark on such a mission.

Posted by coffdrop at October 28, 2004 10:27 AM

Aye. I have been in contact with Cory D. at Boing Boing, and will probably name-and-shame if things go further.
The timing's not great, as I'm off to New York tomorrow and wouldn't be able to field any public online hassle. Perhaps next week!

Posted by NRT at October 28, 2004 11:28 AM

This kind of thing is happening more and more as brand owners get more aggressive about "protecting" their intellectual property. As an example, here in Vancouver, businesses with names such as "Olympic" and "Olympia", some of which have been around for decades, are being threatened with legal action if they don't change their names. The perpetrator is the organizing committee for the 2010 Olympic Winter Games, which is being held here. I think it stinks that a small, family-run Greek restaurant that has been called "Olympia" for 15 years or more has to change its name because the Olympics are coming to town.

Another example from this part of the world is a young computer programmer called Mike Rowe, who had a site called mikerowesoft.com. Gates' goons tried to shut him down. I think they failed, but this kind of intellectual property bullying is getting out of hand. More power to you, NRT, if you're going to fight this!

Posted by Jon at October 28, 2004 07:15 PM
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