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Despair Suing 7,000,000 Email Users Over :-(
Calle Ballz writes "According to an article on Despair's Website, they are suing 7,000,000 email users over trademark infringment for using the :-( 'emoticon'. I can't tell if it is a joke or not, I would like for it to be. The trademark registration is valid and is listed here. *sigh*" I would just like to say that our use of :-) is covered by fair usage. And that this is the funniest thing I've seen in a long time.Update: 01/26 04:18 PM by H :Check out the press release about it - that's one of the best pieces of satire I've seen in a while. Kudos to Despair for making a mockery of trademarks. Update: 01/29 04:52 PM by CT : Apparently a bunch of retarded Slashdot readers couldn't discern that this was parody and mailed despair to complain. Little itchy on the flaming finger guys? Here's the NY Times story
They own a trademark, not a patent. Trademarks are limited to one field of use, so we have Apple Computer and Apple Records, Sun Microsystems and Sun Oil Company. What the trademark means is that no other company can use :-( as their corporate logo, and that's all.
This is completely legitimate.
The reason that we are now having such trouble over trademarks is that trademark owners are trying to leverage their limited control over the use of a word (in a specific business) to an unlimited control (use in unrelated fields, like domain names of businesses in a completely different line of work). The ICANN is headed for a legal fall Real Soon Now because of this (their attempt to expand trademark law even though they have no right to do so).
In this case, the generic use of emoticons greatly predates the trademark (allegedly applied for in 1998): According to ESR's _The New Hacker Dictionary_, 2nd Ed (1993),
So: invalid, indefensible trademark-- already in use as a generic even before the trademark application."My opinions are my own, and I've got *lots* of them!"
As much as I enjoy the humor involved, it does show what's right with trademark registration. Notice that they have a fairly narrow mandate for using their trademark -- "Printed matter namely, greeting cards, posters and art prints." So, no one else can use :-( to sell posters. Patents may have their problems, but trademarks have been fairly limited, especially since the Apple (Records/Compter) lawsuit.
Yes, I know, it's all just a matter of time . . .
Geoff
I think I see a trend here. Maybe for them it really would be easier to muzzle the entire internet than to produce p
[shrug] Maybe not "or" but "and". So?
(Was this an insightful comment by me, or a cynical attempt to get moderated up?)
or the power of large people in stupid groups :-(
oops...
Vidi, Vici, Veni
could that person really not tell this was a joke?
:, -, (,
that's sad, as in
:-(
Vidi, Vici, Veni
Some of my co-workers seem to suffer from a lack of the intelligence needed to realize this is satire.
Check out This insane patent which is referenced in the press release. I almost burst a gut!
--
While it is nice to be cynical about things, the falsehood (that is, the satirical nature) of the report was apparent on its face. Do the editors truly think that this story was on the level?
Be real.
While there are those who would be pleased to make that claim, that "the current state of intellectual property law is so egregious that intelligent people might actually believe," that's hokum -- sheer demagoguery. No well-educated and intelligent person could buy this story on its face.
While it is "politically correct" in this forum to be anti-IP, and to make things laughable, it is critical to recall that hysteria is one of the traits most effectively used by the pro-strong-IP forces to marginalize and discredit critics of overreaching.
Simply put, it is not really a great idea to try to fight an intellectual war where you are weakest. There are strong anti-IP arguments. This isn't one of them.
Anyone who pretends otherwise is selling something.
Very true - it makes me wonder if it would be possible to file a "counter patent" by "innovating" with a "visible beam", or get the patent overturned because of validity due to the fact that laser beams are visible...
You are right - the filer is an idiot...
Worldcom - Generation Duh!
Reason is the Path to God - Anon
Coming back a little late on this (was on vacation, no net connection - but it actually was quite nice)...
Anyhow, thank you for correcting me - I was thinking a CO2 type laser setup, forgetting the IR lasers used in CD players and such...
Sometimes dumb thoughts come out of me...
Worldcom - Generation Duh!
Reason is the Path to God - Anon
I'm not sure if it has ever been noticed before in earlier postings about this patent on /. - but did you notice the line in the patent that reads:
A method for inducing cats to exercise consists of directing a beam of invisible light produced by a hand-held laser...
Invisible light? Is this the innovation in the patent?
Note that most typical laser pointers project visible light, generally 635 or 670nm, which is a bright red. For a laser pointer to generate invisible light, it would have to be a UV or IR laser.
Does anyone know where I could get a UV or IR laser, in a sleek pen form factor?
Ok, I am being sarcastic (these types of lasers tend to be on the large side of things) - but I have to wonder about the wording of this patent. It really seems absurd...
Worldcom - Generation Duh!
Reason is the Path to God - Anon
>The Onion may be the premier parody newspaper,
>but Despair, Inc is a corperation...they're not
>supposed to rip on people like Microsoft, Apple,
>and Fry's Electronics. That wouldn't be
>Politically Correct of them!
We should all give a tip o' the hat to despair.com: they put "Windows 95 officially debuts (1995)" on their 1999 calendar August 24 entry.
For those who don't know, despair.com calendars have a variety of tidbits put in some of the days of each month, chronicling something bad that happened that day in history.
Slashdot: Failed Car Analogies. Amateur Lawyering. Anecdote Battles.
ha ha
It's 10 PM. Do you know if you're un-American?
although they are making fun of it...they really do (or will soon) own the trademark for it...
/. (tm)
:| maybe?
just like
it's pretty sad and funny. it's
In Soviet Russia...michael would be rotting in Siberia!
When I called it "beautiful" I was not being sarcastic.
Thanks for the clarification. And for what it's worth, I'm a tad pissed off, as well.
------------------------------
Hey, thanks! Now I can stop feeling irate about my submission of this story getting rejected three days ago... You're the deserving one, not I. Though perhaps it was my including of that actual trademark page that confused them. Too much information to check out.
(Though that's not the record...I submitted the "sugar eating Robot" thing last September, but those in charge didn't find an acceptable version until January.)
The cake is a pie
What, you think I care?
Now THAT is funny...
The cake is a pie
Consider this: if CmdrTaco had posted it with the foot icon and said, "boy is this a real funny joke!" he would have spoiled it. The enjoyment of satire comes in part from the discovery that it isn't true. Some people never attain that level of satisfaction, unfortunately.
I don't know if that's what he was thinking, but I think I should get a "No Prize" for it. I like to read the occasional Slashdot post that serves more as a link than a pre-packaged, categorized, analyzed news blurb. Then I form my own judgement and proceed to bore myself to tears reading what all of the hysterical ACs have to say about it.
By the way, have you ever noticed that the people most likely to say, "Jeezus you moron, why don't you think a little before you post," are also the quickest to misjudge in exactly the same way? Funny.
Aww, I missed first post. :-(
There is a real Trademark, and it is quite reasonable. You can not use the frowny emoticon as representing your trade in business cards and artwork. ... I can't create a printing house and use the frowning logo.
That is not how Intellectual Property law works. You can use the trademark all you want. You can paint it on your house, you can sell posters on it. A registered trademark just means that the holder can sue you for it, and collect damages.
In this case, while they HAVE acquired :-( as a registered trademark, they are NOT using Carnivore to find infringers, they are NOT likely to care about your use of :-( at all. If ever, they'd only care about an egregious use of :-( as an identity mark to divert or confuse THEIR customers.
[
I like the bit about how they're using Carnivore to catch infringing users.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
From http://www.gseis.ucla.edu/~howard/Papers/copyright 99.html:
There is a real Trademark, and it is quite reasonable. You can not use the frowny emoticon as representing your trade in business cards and artwork. It is questionable if you can use it as an image in a poster, but I would imagine that prior art covers it.
However, they have that logo. I can't create a printing house and use the frowning logo.
I like there logo, and I thought the page was hysterical.
You mean to tell me they're not really going to make every one of the defendants write out ":-( is a registered trademark of Despair, Inc." a thousand times by hand?
:-(® about."
Poop. I would have liked to see that.
I have to confess that I was a _tiny_ bit suspicious when I read, "Whether you are a 4th grade nothing using your momma's AOL account, or you are Time Magazine's "Man of the Year", we are going to hunt you down, and when we do, we're really going to give you something to
Ah well. I'll have to get my amusement elsewhere I guess.
"People who do stupid things with hazardous materials often die." -- Jim Davidson on alt.folklore.urban
An obvious hoax. C'mon, why do you think they call it a TRADEmark? You can't take a generally used word or symbol out of the public domain; you can only enjoin a specific and limited use. I can use the words hallmark and paramount, for example, even capitalizing them if I choose, and if it doesn't give a false impression to consumers I can't be successfully sued. Additionally, you generally can't have classes of unrelated defendants in a suit. That should have tipped you off. Even if you didn't know law, wouldn't you wonder how they got a list of millions of e-mail users who used the emoticon? Did they lease Carnivore? A little cogitation goes a long way, guys.
But to be a valid trademark, the mark need not be inherently distinctive. Rather, it can acquire distinctiveness through use. This is why Coca-Cola can be a trademark despite being merely descriptive of the ingredients of the drink.
"Despair has also petitioned the court to require defendants to submit a handwritten letter which repeats the phrase ":-( is a registered trademark of Despair, Inc." one-thousand times. A ruling on the petition is expected within a week."
The trademark is real. It is probably even enforable on "Printed matter namely, greeting cards, posters and art prints", and for commercial purposes... The rest of the article is fake.
ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
Read the following line:
Despair has also petitioned the court to require defendants to submit a handwritten letter which repeats the phrase ":-( is a registered trademark of Despair, Inc." one-thousand times.
Or how about the following? I think real lawyers would know the difference between a trademark and a patent...
What is certain, however, is that it appears that someone has finally bested patent 5443036 for most ridiculous intellectual property filing in history."
But I think this one is probably the funniest:
he had personally taken Jeff Bezos and his wife to dinner, to congratulate him on his willingness to "take a innovative stand against innovation", and also to inform him that Bezos was amongst the 7,000,000 who had violated Despair's trademark.
Then why did he reject the exact same story when I submitted it a week ago?
This hypocrisy bothers me. It would be one thing if he changed his mind and decided to post it, but to put it on the front page...
My legal education, in nifty podcast format
With the current state of the US legal system nothing would surprise me. Why would suing 7 million e-mail users be more unbelievable than some of the utterly stupid lawsuits we have come to see as natural in the last few years?
--- oops
Of course not. It's not a public performance.
What about a movie it was sung in?
MOST CERTAINLY. In fact, that's why that song is made up because at the time they were filming they didn't have the rights to use "Happy Birthday" in video, only the version released to so valuable (in terms of publishing rights). When they filmed the movie "Big" the crew had to film the birthday scene twice, once with "Happy Birthday" and once with some crappy song they had theatres.
If you don't have anything nice to say, say it often.
- Ed the Sock
First, the form a company around the idea of making really depressing versions of those inspirational new-agey posters...
Then they advertize on Slashdot, the most popular geek website, and turn the Slash editors into shameless publicity whores for their company!
Next, I'm sure they will hire Jon Katz to write a book about Despair, hailing them as representative of a wave of "New Media" or "Open Poster-Making" or maybe even "Post-Columbine Virtual Community Chickclickers" or something.
Way to go, Despair! Keep fighting the bad fight.
Information wants to be anthropomorphized.
"Everything that can be invented has been invented."
--I assume full responsibility for my actions, except the ones that are someone else's fault.
...is that they apparently have an actual patent on the :-(. Go to their page, they have a link to the uspto.org patent server, and they have registered it. So much for those who think the patent system isn't broken.
If it ain't broke, you need more software.
:-)
# debian/rules
The ( is not the same charactor as ). Look it up in any ASCII table. That upside down would be (-:
The truth shall set you free!
Fine we can just quit using :-(
:(
:P....
There are many other wonderful ways to express sadness such as
I think I should trademark
I want my rights back. I was actually using them when our government stole them after 9/11.
I submitted this story during an extended period of time where I did not sleep. I was at work. I skimmed over the article, I thought it was a joke, but I didn't see the line that said it was a joke. I've noticed the flames, here is my response. With all of the similar lawsuits happening, it's hard to tell which stories are fake, and which ones are real. I thought that the pillsbury vs. sun was a joke until I read the article. It's too damn scary anymore.
Well, I guess I'll have to sue despair.com then, cause I used that emoticon back in 1979 in a copyrighted work that was transmitted over the Internet, when I was a student at SFU in Burnaby, B.C.
Luckily for me I registered it with both the Library of Congress and the Canadian version thereof (even have the reg papers in a box in the attic).
Interesting aside - maybe I should read through my published articles and journals and see if I have any more prior art I can use to deny MSFT and other baddies their key patents, since I have prior claim due to usage?
--- Will in Seattle - What are you doing to fight the War?
The Register carried this story several days ago. There have been numerous references to it in slashdot posts over the last few days. Yawn.
"moo" - cow 3, 1906
Great article!
-m
:-(
... rather than read the whole page I went to lexis-nexis to see if despair had in fact filed any suits in U.S. District court. They hadn't.
better watch out, or they'll sue you for that too!
i smell a segfault article on this.....
Need a Catering Connection
The truly scary part to *me* is that they *DID* grant a patent to two people from Arlington VA for a "method to exercise a cat" using a laser pointer.
Which brings me to my next question.. if they can patent an action, can I patent masturbation? Think of the money maker there!
Maeryk
Feminine Protection? What is that? A chartreuse flame thrower?
Damn, and here I was getting ready to put the frowny on T-shirts and use the T-shirts as free speech argument to defend myself in court!
Mmmm.. Donuts
The trademark *is* real. The lawsuit is not. I could tell that much from reading the bit on the front page of /. The key to the whole joke is that the trademark is real and while they don't work at Despair there are people out there who if they had thought of it would do the lawsuit. In fact I would not be surprised to see a similar but real thing in the near future.
Cypherpunks: Civil Liberty Through Complex Mathematics. Those who live by the sword die by the arrow.
Oh, someone did.
But I think it's another joke.
"In order to be inherently distinctive, the trade dress must be either arbitrary or suggestive..."
(Cmdr)Taco Cabana Int'l, Inc. v. Two Pesos, Inc.
932 F.2d 1113 (5th Cir. 1991)
I have just registered the trademark "Anonymous Coward." All who wish to post to Slashdot using that name should send US$1 to me for each use. Pay pal accepted.
Some people don't seem to get this is a joke. According to today's SJ Mercury, some people have been writing hate mail to Despair about it.
Here's the link (see bottom of page)
http://www0.mercurycenter.com/svtech/reports/gmsv/
[An email from Despair follows]
John
Thanks for your recent mention of our :-( trademark story in your "Good Morning Silicon Valley" column.
It is somewhat unclear to me from reading your recent write-up whether or not you were aware that the article regarding the frown emoticon was a parody story. If you were aware of this, please forgive me for this email.
Your article does state that we are satirists -- but afterwards seems to treat the matter of the lawsuit as though it were not a satirical gag. This seems to have created some confusion amongst the readership of your column, some of whom have contacted us in outrage asking passionately for their names to be added to the list of those we intend to sue. Heroic gestures, to be sure, but ultimately as futile as grabbing the family shotgun to fend off a Martian invasion being reported by Orson Wells.
Best regards,
Justin Sewell, CEO
Despair, Inc.
He registered for and recieved copyright on all the emoticons.
I sent him a copy of the story, but the sarcasm must have whizzed over his head. He sent this cease and decist letter to despair:
Pathetic, isn't it?
No intelligent people ever believed that the trademark holder was going to sue 7,000,000 email users. Only people with a mental deficiency (the inability to recognize even the most blatantly obvious heavy-handed satire as such unless they literally read the words "this is satire") are fooled by such things.
Unfortunately several of the Slashdot editors suffer from said mental deficiency, as do way too many Slashdot readers.
See for your selves.
:-(
On a separate note...
I am AMAZED at how many idiots there are that don't seem to be able to realize that this story is MAKING FUN OF FRIVILOUS LAWSUITS by PRETENDING TO BE ONE.
I have to revise my opinion of the average intelligence of the readership of slashdot WAAAAAY down.
Ask yourself, outraged nimrods, if you really believe the following things are TRUE.
1) A company that sells PARODY products is actually working with the FBI to MONITOR YOUR EMAIL.
2) The PARODY company in question is SERIOUSLY planning to sue 7,000,000 people.
3) The founder of that company is SERIOUSLY CONSIDERING changing his name to
4) The SAME person also is suing JEFF BEZOS for infringing on a trademark.
5) The DISCLAIMER at the bottom of the story is actually NOT TRUE.
Did you read any of the OTHER STORIES on the website?
Do you REALLY believe they are partnering with Yahoo to create BOOHOO.COM- a portal for miserable people?
Do you REALLY believe Noah Wylie is the interim CEO of FUTURE POWER
The only story on their entire site that I might ACTUALLY believe is the one about selling 5000 Apathy posters to Fry's. That I believe.
From the writeup, "I can't tell if this is a joke or not."
From the page itself, Articles and items appearing in our "Recent Spin" are satirical and are not intended to be an accurate portrayal of the persons, companies or events depicted within them.
This is SATIRE. Put on your thinking caps, people, or geez, read the whole thing! The CEO also claims he's considering changing his legal name to the frowney emoticon. Yeah right.
[
Yeah, it's funny, until you realize that the current state of intellectual property law is so egregious that intelligent people might actually believe a trademark would be granted for the emoticon, and that the trademark holder might actually sue 7,000,000 email users.