Facebook Denies Disputed Page To Both Mercks

itwbennett writes "In follow-up to yesterday's story about how Merck in Germany is threatening legal action to take its vanity Facebook URL back from Merck U.S., Facebook apologized for its 'administrative error' in reassigning the URL but said that if the two companies can't play nice, no one will get the URL."

Comments

To which a Merck U.S. representative replied...

[elrous0]

Here, drink this soda and see if you still feel that way.

Re:To which a Merck U.S. representative replied...

[msauve]

Phospho soda, no doubt.

Re:To which a Merck U.S. representative replied...

[Jeng]

I was thinking the old formula for 7-up that included lithium.

Difficult problem

[GameboyRMH]

This is a Mercky issue to wade through...

Re:Difficult problem

[CmdrPony]

I get the joke, but it's actually really easy one. It obviously belongs to the German company that originally registered it on Facebook. Why does US companies think they can thump on everyone else?

Re:Difficult problem

[NotSanguine]

It just goes to show what an agreement with Facebook is worth.

Re:Difficult problem

[Attila Dimedici]

At this point, it does not obviously belong to the German company because we do not know how control ended up in the hands of the U.S. company. It is possible that someone with the German company who had been designated to Facebook as the "administrator" did so. Obviously, it is more likely that someone at Facebook turned administrative control over to the U.S. company (probably because they did not realize there were two pharmaceutical companies with the same name and assumed that the representative of the U.S. company was the representative of the company that originally registered the name--it is even possible that the representative of the U.S. company did not realize that they were taking control from the German company when they did this).

Re:Difficult problem

[forkfail]

Oh, I'm sure that Facebook stuck to the letter of the EULA, which, without doubt, says that Facebook can do whatever they want now, and if you argue about it, they can change the EULA retroactively at will such that there's no question at all about the matter.

Re:Difficult problem

[Gideon Wells]

Under current precedent and what not it is more along the lines it belongs to FaceBook to lease out who whoever. The German company merely requested it first.

Re:Difficult problem

[Cajun Hell]

It obviously belongs to the German company that originally registered it on Facebook

No, it obviously belongs to Facebook (or at least as much as facebook.com belongs to Facebook, except that isn't quite as clear). Whatever Facebook decides to do with it, is defined as the right answer.

Re:Difficult problem

[BasilBrush]

Neither of the Merck companies bought it, so it belongs to FaceBook. And the terms&conditions when registering the name includes provisions for not infringing others trademarks, and for Facebook to take back the URL for breaching the T&Cs.

Facebook is doing the sensible thing here. The company names are distinguishable - Merck KGaA and Merck and Co. Given that neither is called just "Merck", it makes sense to make them use distinguishable pages, probably with their full company name.

Better yet is if Facebook could put a page at FaceBook/Merck with links to both companies new vanity URLs.

Re:Difficult problem

[Surt]

Because facebook is a us company, and merck has a lot of money for lawyers, which is how these things are sorted out.

Re:Difficult problem

[Anonymous Coward]

we were not nazi collaborators?

Re:Difficult problem

[NotSanguine]

Oh, I'm sure that Facebook stuck to the letter of the EULA, which, without doubt, says that Facebook can do whatever they want now, and if you argue about it, they can change the EULA retroactively at will such that there's no question at all about the matter.

Apparently, the German Merck entered into an agreement with FB in March 2010 (cf. Original Story/a)

Re:Difficult problem

[Canazza]

So you're suggesting a Disambiguation page?

Re:Difficult problem

[Anonymous Coward]

Indeed, if anything has come out of this it's the growing realisation that companies attribute real value to owning the name on Facebook. I don't know if Facebook currently charges companies for accounts but this seems like another revenue stream (i.e. selling names off to the highest bidder). I wonder how much Pepsi would pay for Coke's FB.

Re:Difficult problem

[Tanktalus]

Revenue stream, yes. Pepsi pay for a "Coke" vanity URL on FB? Unlikely. Courts have already determined some rights to trademark names in URLs - though Pepsi still has to pay the regular registration fee to use "pepsi.com", a competitor attempting to misuse their trademark would likely lose the domain in a court battle, as has happened in the past.

Their lawyers wouldn't let them even try it.

Re:Difficult problem

[Anonymous Coward]

Perhaps, but I can understand why Facebook isn't inclined to favor the German one considering the whole court filing thing...

Using lawyers is an ineffective way to make friends.

Re:Difficult problem

[babblefrog]

I though Facebook was incorporated in Ireland? EU courts might have something to say about this.

Re:Difficult problem

[Anonymous Coward]

That seems a likely explanation to me. Never try to attribute malice to an action that can best be explained by simple stupidity. Seems that FB needs to learn a thing or two about what a contract is.

Re:Difficult problem

[Baloroth]

This seems quite likely, since the German company doesn't go by Merck in the US, they are called EMD Chemicals. In this case, since Facebook is a US based company it seems like US trademark (which belongs to the US company, I presume) would take precedence, but they already had an agreement with the German company. A large problem with any international Internet site.

Re:Difficult problem

[Anonymous Coward]

At this point, it does not obviously belong to the German company because we do not know how control ended up in the hands of the U.S. company.

Well, technically, the war is over and the US company should be handed back over to the German company it was nationalized away from in the first place.

Re:Difficult problem

[Anonymous Coward]

Once again, Facebook is headquartered in the EU in dublin and operates under European law.

Re:Difficult problem

[Attila Dimedici]

As I pointed out in another post, I believe that Facebook chose to go this route because they did not want to get in the middle of this battle between these two companies. I do not believe that either company can afford to let the other have the Facebook.com/Merck link if there is any legal basis to prevent it (although there may be a way, as another user suggested, to use something like Wikipedia's disambiguation page to allow both companies to share it. Which I would think might be acceptable to both).

Re:Difficult problem

[VGPowerlord]

Once again, Facebook is headquartered in the EU in dublin and operates under European law.

Here's their headquarters mailing address for you:

Facebook, Inc.
1601 S California Ave,
Palo Alto, CA 94304
USA

Re:Difficult problem

[msauve]

The location of their headquarters doesn't mean much. Facebook is legally incorporated in Delaware.

Re:Difficult problem

[xaxa]

When I go to http://www.facebook.com/terms.php?ref=pf I see:
"Company Information

  The website under www.facebook.com and the services on these pages are being offered to you by:

  Facebook Ireland Limited
  Hanover Reach, 5-7 Hanover Quay, Dublin 2 Ireland
http://www.facebook.com/help/contact.php?show_form=impressum_contact or impressum-support@support.facebook.com

  Board of directors: Marc Andreesen, Jim Breyer, Donald Graham, Peter Thiel, Mark Zuckerberg

  The company Facebook, Inc. has been established and registered according to the law of the state of Delaware.
  Registration number: 3835815, Secretary of State, State of Delaware"

There are also these terms that apply only in Germany: http://www.facebook.com/terms/provisions/german/index.php

So it's not as simple as you might think.

Re:Difficult problem

[GNUman]

I don't think that there is a choice here. If one company had the page, then it should be returned to them.

If a valet parking makes a mistake and gives your car keys to someone else, they can't say: "oh, sorry, we made a mistake... however, the new guy really likes your car, so unless you come to an agreement, we won't give the car to either of you".

Re:Difficult problem

[Yvan256]

Seems that FB needs to learn a thing or two about what a contract is.

These days I think all you need is a web page with some text and a submit button.

Re:Difficult problem

[VGPowerlord]

Really? When I go to http://www.facebook.com/terms.php?ref=pf I see things like

You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebook exclusively in a state or federal court located in Santa Clara County. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.

and

If you are a resident of or have your principal place of business in the US or Canada, this Statement is an agreement between you and Facebook, Inc. Otherwise, this Statement is an agreement between you and Facebook Ireland Limited. References to "us," "we," and "our" mean either Facebook, Inc. or Facebook Ireland Limited, as appropriate.

(Smartquotes replaced with regular quotes because /. is stupid)

In fact the part I quoted contains the only two mentions of Ireland on the page as it's displayed to me.

I can only conclude that at least part of what you see on that page is determined by Geolocation or login status (I don't have a Facebook account any more).

Re:Difficult problem

[Attila Dimedici]

Except that there are trademark issues involved. It may be a violation of trademark for Facebook to allow Merck KGaA to use Facebook.com/Merck in the U.S. and Canada AND a trademark violation to allow Merck U.S. to use Facebook.com/Merck in Europe (and other parts of the world). While it is not clearcut as to whether it is a trademark violation, Facebook decided they wanted no part of the legal battle over this.

Re:Difficult problem

[xaxa]

I can only conclude that at least part of what you see on that page is determined by Geolocation or login status (I don't have a Facebook account any more).

I expect so, possibly it knows from my profile, or when I first signed up. The address in Ireland is right at the top of the page I see.

I can see the Californian court term too, but it doesn't necessarily apply to me. I'm not a lawyer, so I don't know if Facebook can make that restriction under Irish/English (no idea which) law. Assuming it's similar to English law, which I did study briefly, if they can't make that restriction all the other terms still stand.

The bit that only applies in Germany replaces that term with a German court.

Re:Difficult problem

[GNUman]

My point is that it was the German Merck's page before Facebook made the mistake. It is apparently this mistake that started the whole problem.

Facebook doesn't want to take part in the legal battle? Well, they should return things to how they were before they messed up, and if there is a trademark issue, then Merck US should file a complaint and try to get the page taken down, erased, whatever. There ARE proper channels for trademark violations.

Re:Difficult problem

[Attila Dimedici]

But if Facebook returns things to the way they were, they will be in the middle of that legal fight and they don't want to be, so they have decided to not allow either of them to use it until the two resolve their legal issues relative to it.

Re:Difficult problem

[Rich0]

Well, this isn't nearly as "The US Is Evil" as you make it out to be. The fact is that both companies have legal restrictions on their use of the name "Merck" in various parts of the world.

Basically once upon a time there was one Merck. Then there was this little incident in Europe where lots of people ended up dead and that caused lots of consequences including German companies losing ownership of their foreign subsidiaries. So, now there are two Mercks.

The final settlement (I have no idea how it was reached), is that the US-based Merck can use the name Merck in North America, and the German one can use the name Merck in the rest of the world. This settlement predates Facebook by decades, so internet domains and such weren't really in scope. No doubt they could litigate it and I suspect the outcome will depend on what court system has more power to make Facebook's life difficult (which is basically how the German Merck lost all its US-based holdings in the first place - they weren't exactly in a position to do anything about it at the time).

Absent litigation I suspect that your point about first claims is the best way to handle this. After all, the US-based Merck got its domain name and a class A subnet in this way.

Re:Difficult problem

[CmdrPony]

If they choose to ignore it, they will be part of the legal fight anyway. Instead of suing each other, the both companies can now choose to sue Facebook. The US company for violating trademark laws, and the german company for violating trademark laws AND their contract with Facebook.

Re:Difficult problem

[meerling]

True, but now that their stupidity is out in the open, rather than admit to it and correct the mistake, they instead tell the people they've been jacking around to shut up and worship me or I will take my ball and go home. That still qualifies as stupidity, but I think corporate malice lies at its root as well.

Re:Difficult problem

[bhcompy]

You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebook exclusively in a state or federal court located in Santa Clara County. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.

This part is really funny, since they seem to be stating that they can usurp jurisdiction statutes. You can sue them in Delaware(where they incorporated), California(where they are headquartered), or where you use Facebook from(assuming a long arm jurisdiction statute exists in that locale).

Re:Difficult problem

[Anonymous Coward]

Iraq, Afganistan, Vietnam, Korea ....

Re:Difficult problem

[bws111]

If Facebook doesn't let either company have the name, how are they going to be sued for violating trademark laws?

I'll bet the contract Facebook has contains terms like 'you can not infringe on someone else's trademarks'. Since the german Merck was infringing on the US trademark, they, not Facebook, have broken the contract.

Re:Difficult problem

[Anonymous Coward]

And here's the address for their international headquarters in Ireland:

Facebook Ireland Ltd
Hanover Reach, 5-7 Hanover Quay
2 Dublin
IRELAND

Significantly the European-based subsidiary operates under EU law and is the legal entity responsible for protecting and maintaining data for EU citizens and EU companies. Indeed anyone outside the US or Canada apparently has a relationship with Facebook Ireland Ltd. and not Facebook Inc. From Facebook's current TOS:

If you are a resident of or have your principal place of business in the US or Canada, this Statement is an agreement between you and Facebook, Inc. Otherwise, this Statement is an agreement between you and Facebook Ireland Limited.

Re:Difficult problem

[Attila Dimedici]

No, they cannot sue Facebook for violating trademark law because Facebook is no longer using (by allowing someone to use) the trademarked term. Depending on their agreement with Merck KGaA, it may be that Merck KGaA can sue them for breach of contract, but I would bet that there is no basis for that.I am quite confident that Facebook's lawyers have a better grasp on the legal implications of this decision than you or I.
I looked at the decision Facebook reached and tried to conjecture why they would make that decision based on the known facts. The best explanation I could come up with was that they did not want to get caught in a battle over trademark. This particular one is difficult because it is one of a handful around the world where competing companies own the same trademark in different parts of the world in a way that until recently was clearly delineated by law. The Internet has introduced a new marketing space that is very difficult to get to respect national boundaries with regard to something like this.

Re:Difficult problem

[Surt]

They might have offices in Ireland, but as far as I can tell Facebook headquarters (where all the money is) is incorporated in the US.

Re:Difficult problem

[Anonymous Coward]

It doesn't belong to Merck, it belongs to Facebook (what's the domain in that URL again?). Merck (German) may have been granted certain rights by Facebook as part of some licensing agreement, but that doesn't change the fact that its a Facebook URL being hosted on Facebook servers.

Re:Difficult problem

[RockDoctor]

Why does US companies think they can thump on everyone else?

Errr, because it's one US company talking to another US company, while the original agreement may well have been between one German company and another German company.

I haven't seen a recent survey ; what proportion of Americans have passports this decade and have travelled to the outside world? What proportion actually know that there is a world outside Gilead? (This is a ha-ha-but-serious point.)

Re:Difficult problem

[AK Marc]

The point is They already are in the middle, as it was their incompetence (or negligence) that started the conflict. They can't bow out of a fight they started by saying "oops, you guys fight it out and let us know."

Re:Difficult problem

[Attila Dimedici]

Actually, yes, they can. As a matter of fact, I would not be surprised to learn that the U.S. trademark issue was why they gave control over to Merck, U.S. (assuming it was someone from Facebook who gave control to Merck, U.S.). As a legal matter, I am pretty sure that they are no longer part of this fight unless their agreement with Merck KGaA was more binding than the impression I have gotten.

Re:Difficult problem

[AK Marc]

As a matter of fact, I would not be surprised to learn that the U.S. trademark issue was why they gave control over to Merck, U.S. (assuming it was someone from Facebook who gave control to Merck, U.S.)

That's not them keeping out of it. That's them making a conscious choice based on their interpretation of trademark law. So they are already in it and have already taken an action. To now claim to be "uninvolved" in the dispute is a lie. They have excused themselves. But its too late to claim impartiality. They made the specific and deliberate action to strip the site from one Merck.

Re:Difficult problem

[Attila Dimedici]

You appear to be talking about PR, while I am talking about the legal issues. If it went to court, their claim would be that when they became aware of the legal issues they withdrew the link from both companies thus, they are no longer involved until the two companies come to an agreement about it.

Re:Difficult problem

[AK Marc]

They were involved in the legal issue when the contracted with one Merk and then broke that contract at the request of a 3rd party. At this point, they have made and broken contracts with both companies. At this point, it's likely at least one of those choices was illegal and actionable, and they are trying to limit the consequences by the PR/legal maneuvering they are doing now.

Re:Difficult problem

[AK Marc]

They were involved in the legal issue when the contracted with one Merk and then broke that contract at the request of a 3rd party. At this point, they have made and broken contracts with both companies. At this point, it's likely at least one of those choices was illegal and actionable, and they are trying to limit the consequences by the PR/legal maneuvering they are doing now.

Re:Difficult problem

[Attila Dimedici]

Well, I suppose it is possible that you have a better understanding of the relevant law than Facebook's lawyers, but I would bet not (considering that neither you nor I have seen the actual contracts that Facebook entered into with either Merck).

Re:Difficult problem

[AK Marc]

You are making the insane assumption that any company with lawyers on retainer would never do anything illegal out of ignorance. If one accepts that, and there is conflict between Mercks, that means Facebook must be liable, as their "error" was deliberate or negligent, since it couldn't have been from ignorance.

Re:Difficult problem

[Attila Dimedici]

If you think that Facebook acted without consulting its lawyers once this case entered the courts, you are an even bigger fool than you appear from your posts.

Re:Difficult problem

[AK Marc]

You are making up shit, then arguing against it. If I did the same, I'd say that you assert that Facebook sends every support email past their lawyers to make sure they aren't getting in the middle.

The timeline seems to be Facebook enters into an agreement with Merck, then breaks it and forms an agreement with another Merck, then realizes there's an issue. I assert that this is the logical place for the lawyers to get involved, as it's the first time they realized there was a serious legal issue, and it also happens to be too late to do anything about the first two agreements or the first contract breach. You assert that the lawyers were consulted before anyone realized there was a legal issue. I'm asserting that the legal team got involved too late and said "just cancel everything with everyone (at that point, only the US Merck) and declare impartiality. Actual impartiality would have resulted in impartiality being declared much earlier.

You are making constant claims that lawyers are consulted prior to any recognized legal issues. Having worked with corporate lawyers for a Fortune 500, they are avoided more than the HR department, and so they are consulted after problems, not before. As Castle put it when presented with a contract he wasn't going to read or send to his lawyer, "I don't pay him to keep me out of trouble, I pay him to get me out of it."

Re:Difficult problem

[Attila Dimedici]

The timeline seems to be Facebook enters into an agreement with Merck, then breaks it and forms an agreement with another Merck, then realizes there's an issue. I assert that this is the logical place for the lawyers to get involved, as it's the first time they realized there was a serious legal issue, and it also happens to be too late to do anything about the first two agreements or the first contract breach.

I don't know about the agreements part, but that is what I said in my first post in this exchange.

Re:Difficult problem

[AK Marc]

So you are ignorant, proud of it, and have never let your ignorance stop you from spreading your unfounded opinion. Got it.

you go FB!

[Thud457]

wise like king Solomon.

No, I can't believe it either.

Re:you go FB!

[DriedClexler]

Solomon's solution would be give one of them the "Mer", and the other one "ck", and then instantly void the deal and give it to whoever doesn't want to see the name split.

Re:you go FB!

[Anonymous Coward]

Why one of them would get the 'r' rather than an other?

Re:you go FB!

[qpqp]

Because 'rck' is more difficult to pronounce than 'Mer.'

Re:you go FB!

[Empiric]

Because, since it is the both companies' unofficial Mission Statement, neither CEO would tolerate letting the other have "Me".

Re:you go FB!

[RivenAleem]

Well the better way would to give one the name Merc and the other Merk or Erck, that way they would each have 80% of the baby. I'd like to see Solomon manage THAT!

Re:you go FB!

[ackthpt]

wise like king Solomon.

  No, I can't believe it either.

They go, not!

Merck Germany had it first so your solution is to not return it to them after an administrative error? Two wrongs don't make a right

King Solomon would have offered to cut it in half, but I'm not quite sure how you'd do that.

Re:you go FB!

[camperdave]

Because 'rck' is more difficult to pronounce than 'Mer.'

The baby ostrich that Foghorn Leghorn adopted seemed to manage it without too much difficulty.

Re:you go FB!

[Anonymous Coward]

wise like king Solomon.

  No, I can't believe it either.

They go, not!

Merck Germany had it first so your solution is to not return it to them after an administrative error? Two wrongs don't make a right

King Solomon would have offered to cut it in half, but I'm not quite sure how you'd do that.

It works just fine. I'm sure the real mother had the child first. The debate was who would be the better mother, not who had it first. They could go by which company was founded first if you want to go by the birth argument over who would be the better mother (which Solomon's solution finds).

It doesn't change the outcome though. There will be a prolonged international court battle over a Facebook name, during which neither company can use that address (if one did, the other would push for an injunction). I wonder if they will just get used to using alternate addresses or if they will deny themselves the presence over a single address.

Re:you go FB!

[Opportunist]

We should be fuckin' happy that the two bitches in the story weren't corporations, or we'd have had to deal with a dead baby and Solomon would be known as the king who ordered a baby to be split in half.

Re:you go FB!

[Opportunist]

Just have marketing declare it a "meh" and see how it pans out.

Re:you go FB!

[Anonymous Coward]

ck would then get complaints from calvin klein

and apparently mer used to be merrill lynch's stock trading symbol

Trademarks?

[Dexter Herbivore]

Fantastic, so now Facebook has the right of determining valid trademarks, on top of all the personal data it collects. I may be cynical here, but I get the feeling that 'playing nice' will involve the largest payment in combination with the best legal team.

Re:Trademarks?

[Anonymous Coward]

Look, if they didn't want their trademarks appropriated they shouldn't have gone to war with us 93 years ago.

Re:Trademarks?

[Hentes]

It's not a trademark issue. Whether they do business with a company is Facebook's choice.

Re:Trademarks?

[Cajun Hell]

Fantastic, so now Facebook has the right of determining valid trademarks, on top of all the personal data it collects

It's is Facebook's namespace (and you can have on too, right now, if you want). They get to decide whether or not trademarks are even relevant within this namespace, let alone top priority at the expense of all other concerns. Why would it be anyone else's decision?

Just because some random arbitrary private namespace out there happens to get popular, doesn't mean the rest of society needs to "officially" recognize it, legitimize it, adopt it, regulate it, or take it seriously. It's just a pathname component in someone's website, and it's their site, just like a hypothetical "Apple" directory on my computer which contains a file called "Disney" is my file in my directory on my computer, and no one else deserves .0000001% say in the matter.

When today's fools finally learn this, then they won't be afraid of new TLDs, BTW.

Re:Trademarks?

[Alwin Henseler]

Makes one wonder what a Facebook account is really worth to a company (or pop group, or artist, whatever). On the one hand, the option of gaining & holding customers, and do lots of PR through the social network, on the other hand the possibility that at any time, if someone with same name (competitor?) creates a dispute about it, Facebook might close the account for no good reason.

Who needs hackers for a DoS attack when Facebook could do the job for you?

Re:Trademarks?

[RJFerret]

"Facemarks"

Re:Trademarks?

[NotSanguine]

Fantastic, so now Facebook has the right of determining valid trademarks, on top of all the personal data it collects. I may be cynical here, but I get the feeling that 'playing nice' will involve the largest payment in combination with the best legal team.

According to the original report:
Merck in Germany said in the filing that it entered into an agreement with Facebook on or about March, 2010 for the exclusive use of the web page. Merck said it assigned administrative rights to the web page to a limited number of people, who are its employees, or its external service provider for registration of domain names and social media user names.

As I said above, it just shows what an agreement with Facebook is worth.

Re:Trademarks?

[Sir_Sri]

This happens a LOT in the software business. Google is trying to sort out which maps to show to which people based on 'official' boundaries (which may or may not reflect actual boundaries, and some boundaries are not filed with the UN publicly so who the hell knows where they are). I worked on a game recently where we were trying to figure out the official border between france and germany at a particular point in time, the area in question has changed hands something like 17 times. 6 guys in a basement were asking very serious questions like the legal status of egypt and sudan under Britian (and how to model that?) the legal status of Taiwan (and whether that meant our game would get banned in China, and whether or not we cared). There are lots of messy legal areas you sometimes have to pick something and role with it.

Facebook only has one facebook.com/yourname url to give out, and honestly, they don't want to be involved in the fight over who is more Merck than the other, that's why they're telling them both to sort it out themselves. Facebook has no idea who has a more valid claim to the name, and, this is of course muddied by them being in separate areas. Facebook might have to oblige the US trademark for the US branch of the company in the US, and the european version in Europe or just have to oblige the US version or, well, who the hell knows? There's no winning answer here. They may have signed a contract, but my suspicion is that the contract would only be valid if Merck (gmbh) was the legal trademark holder, which, depending on the circumstances, it might not be.

Re:Trademarks?

[forkfail]

Ermmmm... no. Sorry. You can have a folder on your computer named Disney; you cannot put up a billboard on your own property using the name Disney to advertise something.

Re:Trademarks?

[Theophany]

Pretty sure lawyers would argue otherwise, along the lines of hampering their ability to maintain brand awareness, do business etc etc.

You're comparing apples and oranges, the page central to the conflict is nothing the same as having a directory of a certain name, many firms are now using Facebook actively as an advertising tool - social business or whatever the latest buzzword for it is. In this sense, there is a very real legal dispute being raised. It's a dull and uninteresting one at face value, but a legitimate one no less.

They're a competing company in the same industry, they have every right to actively pursue their trademark and business interests. Just because it's a Facebook URL rather than a TLD URL doesn't mean that it doesn't matter; on the contrary since Facebook has been openly whoring itself out to corporate interests for a bantha's age now.

Re:Trademarks?

[Gr33nJ3ll0]

It should potentially be regulated because when that private namespace becomes ubiquitous it has much more power than the namespace on your computer, which frustrates just you. For precedences, look at the telephone system, with it's ubiquitous namespace.

Re:Trademarks?

[Hentes]

For precedences, look at the telephone system, with it's ubiquitous namespace.

I didn't know you could trademark a sequence of numbers.

Re:Trademarks?

[Hentes]

You can, unless it interferes with Disney's business. Trademarks are not absolute.

Re:Trademarks?

[Stormy Dragon]

Yes, but you can put up a billboard and refuse to let Disney by space on it. Facebook isn't using the trademark improperly, merely refusing to let either side use it. This makes perfect sense for Facebook. Whichever one it would have sided with, the other would have sued them. If it lets neither use the name, there's nothing they can do.

Re:Trademarks?

[Pi1grim]

Just wait 'till Russia gets a say in this.

Re:Trademarks?

[Khyber]

forkfail just pulled a trademark fail.

Back to school for you.

Re:Trademarks?

[bws111]

US law trumps Facebook. US law says Merck & Co owns the rights to the word 'Merck' as related to pharmaceuticals in the US. Facebook had no right to give that page to Merck in Germany, so the agreement is meaningless. It may well be that German law says Merck in Germany owns that word in Germany. Since there is no way for Facebook to resolve this, they did the sensible thing and said no-one gets that page.

Re:Trademarks?

[paiute]

Merck in Germany said in the filing that it entered into an agreement with Facebook on or about March, 2010 for the exclusive use of the web page. Merck said it assigned administrative rights to the web page to a limited number of people, who are its employees, or its external service provider for registration of domain names and social media user names.

As I said above, it just shows what an agreement with Facebook is worth.

What genius at Merck read Zuckerberg's backstory and said to himself, 'Now here's a guy we can trust!'?

Re:Trademarks?

[Sez Zero]

There's no winning answer here.

Sure there is: the winning answer is to not use Facebook.

Re:Trademarks?

[DrgnDancer]

No, but if I have a directory on my webserver called www.mysite.com/disney, Disney has no say in what I put there. If I start putting their trademark stuff in my directory and sharing it to the world, then they can do something about it... just having the directory doesn't mean anything. Maybe it's my tirade about how much I hate Disney. Now if two companies both own the trademark Disney (which is perfectly legal if they're in different fields or different jurisdictions as is the case here), I can freely rent that space to either Disney and the other one can't do anything about it. This is not me putting up a billboard on my property to advertise myself using the Disney name, this is another company, who also own the trademark to the name, renting the space with that name on my property to advertise themselves.

There are two Mercks. Both have an equal right to use the Trademark. Facebook is well within their rights deciding who gets to have the word in their namespace.

Re:Trademarks?

[forkfail]

And in this day and age, when a lot of people effectively think of the web as being equivalent to Facebook, I'd say that this infringes.

But - it'll be the lawyers who figure it out in the end; whoever throws the most money at the problem will wind up with it.

(PS: Go ahead and try putting up a billboard with the Disney name on it on your own property, and see what happens...)

Re:Trademarks?

[JWW]

If your trademark is part of a URL controlled by Facebook, then that's too bad. Yes, Facebook does have the control here. If Facebook removes the face book.com part, the URL is gonna be pretty useless.

Re:Trademarks?

[Sir_Sri]

Not for either of these two companies. There are 800 million facebook users, 400 million of which are accessed daily. If you want an advertising base, that would be it.

When you're in the customer service business you aim to connect to your customers how *they* want to connect, not how you think they should be connecting to you.

Re:Trademarks?

[reasterling]

Who needs hackers for a DoS attack when Facebook could do the job for you?

So quit relying on other peoples web sites and get your own. Really, we have two pharmaceutical companies fighting over a stupid facebook account. If I was them I would be too embarrassed to even admit that I had a facebook account.

Re:Trademarks?

[JasterBobaMereel]

There is no company that trades under the name "Merck" ...

One is
Merck & Co., Inc/Merck Sharp & Dohme or MSD

One is
Merck KGaA/EMD Chemicals

Both use just the word Merck in their logo ...

They both have equal rights to the name on Facebook: no right to use, trademark right to stop the other ...

Re:Trademarks?

[Opportunist]

Russia? Who cares, but I'd dive for cover if Vietnam should call any time soon.

Re:Trademarks?

[Opportunist]

No, but you can refuse Disney to put up a sign on YOUR webpage.

Re:Trademarks?

[Opportunist]

That "stupid facebook account" has become the equivalent of what a Google listing was around a decade ago.

People are stupid. That's a fact we hopefully don't need to discuss. People get even stupider in the presence of a computer. Anyone who ever had to help an average computer illiterate with his computer woes knows that.

Now combine that with the amount of people who "have to" be on FB. And the time they spend there. In earlier days, most computer illiterate people would spend most of their time on a certain webpage, either chatting or playing games or whatever. Now, that's all rolled into one. Facebook.

I've literally fallen off the radar of some people due to not being available on FB. Not the worst thing that happened to me, not by a longshot (take a wild guess what kind of people suddenly doesn't know how to reach me anymore...), but it gives you an idea how much this "stupid page" affects how people think. It's not on FB, it doesn't exist.

Now, this is of course a lot truer for products and companies targeting a younger audience. But it seems even older people gravitate towards FB. Don't ask me why, I don't get it either, but they do. And whatever Merck isn't on FB will be at a disadvantage. Worse, finding the "wrong" Merck on FB will make people think the other one doesn't even exist anymore, at least not online.

I don't think it's exaggerating. People are really that stupid.

Re:Trademarks?

[AdamWeeden]

You can. Now I have to change the combination to my luggage!

Re:Trademarks?

[Jeng]

Facebook could still be sued because Merck invested time and money into their product at which point that product was given to a competitor.

It was bad that FB handed the account to a competitor, but it was worse when they didn't return it to the rightful owners.

A EULA is not a contract. It does not hold the weight of a contract in court, how much legal weight a EULA holds is in question and could go either way.

Re:Trademarks?

[Anonymous Coward]

They didn't go to war with us.

Re:Trademarks?

[datavirtue]

"That "stupid facebook account" has become the equivalent of what a Google listing was around a decade ago."....oh brother.

Re:Trademarks?

[forkfail]

The difference is that if you go to facebook.com/abcd, there is a reasonable expectation to find company abcd's information there, not some other (let alone a rival's) information.

In the case of your webserver, by virtue of the fact that it is not the de facto social networking site, where vanity URL's are associated with companies, it probably wouldn't be an actionable issue.

With all this said, Facebook seems to claim to respect IP, trademarks and copyright, while at the same time saying they can yank back any name they want, for any reason:

http://www.facebook.com/help/?page=147505728655200

Re:Trademarks?

[forkfail]

If you tell Disney that they can put up a billboard on your property (thus getting people to notice your own store, while advertising theirs), then change the directions on that billboard to send people to Homer's Funhouse and Screen Door Company while leaving the name as Disney, even if Disney didn't pay you monies, they'd have a case against you.

Same goes for your web page. If you invite Disney to put a sign on your webpage, then send that link to a competitor, I'm thinking that the sharks would be all over you.

Re:Trademarks?

[izomiac]

We were neutral until they got caught trying to negotiate (over telegram lines America allowed them to use) for a proxy war using Mexico, as well as planning to sink American ships. At the time, America was happy making money off the war, didn't want to be involved in it, and somewhat disliked Germany for killing Americans on British passenger ships. Germany was the aggressor even if America was the one to declare war (at least according to history, as written by the winners).

Re:Trademarks?

[Rich0]

Yeah, moral culpability for WWI is about as clear as mud - it resembles the kinds of decision-making that led to wars back in the days where some duke liked the view from some count's castle. But, I'm not a scholar on such things so contrary opinions are welcome.

The only thing that is clear from WWI is who the winners and the losers were. And Germany (and its corporations) was DEFINITELY the loser.

Re:Trademarks?

[Anonymous Coward]

s/"gone to"/"lost a"/g

Re:Trademarks?

[LordLucless]

Facebook could be sued because a lawyer had a bad hair day.

Doesn't mean they'd lose.

Re:Trademarks?

[Khyber]

"you cannot put up a billboard on your own property using the name Disney to advertise something."

Common sense, dumbass. I can advertise my land sales as a business named Disney Real Estate. Disney is not in the RE business, thus trademark dilution is not happening, since I am in an totally unrelated industry (real estate versus entertainment/animation.)

Did you fail school?

Re:Trademarks?

[Anonymous Coward]

Find us at AOL keyword crapyoudontneed

Re:Trademarks?

[sjames]

Actually, they don't. That's why they decided to step way back and let the two fight it out amongst themselves to decide who is the "one true Merck" rather than risk getting hit when the lawsuits start flying.

Yes, they can still be sued (because you can sue anyone for anything), but now they're on solid ground because they always reserve the right to refuse anyone service whereas trademark law is like quicksand.

If they had the right to determine trademark, they'd have just flipped a coin and said that's that. More likely, the change from German to U.S. Merck would never have happened because leaving it where it was involves less effort.

That's a rather stupid "solution"

[tomhudson]

So, Facebook screws up, and now it's up to the original URL holder to "play nice" and let someone else squat with them? Keep it up Facebook - you're just giving us yet another reason to show that you don't "get it" on so many levels.

What next - people with their names as facebook urls having to "play nice" with others with the same name who come later?

Re:That's a rather stupid "solution"

[GameboyRMH]

Well it's an improvement. MySpace's policy was to straight up give the URL to the better-monied party.

Re:That's a rather stupid "solution"

[Nemyst]

And what would you do, then? It's not like it can magically decide which of the two companies you want to see when you input the URL.

Re:That's a rather stupid "solution"

[Lord Crc]

And what would you do, then? It's not like it can magically decide which of the two companies you want to see when you input the URL.

I'd do what Wikipedia does, turn it into a disambiguation page, listing all relevant pages.

Re:That's a rather stupid "solution"

[Slyfox696]

So, Facebook screws up, and now it's up to the original URL holder to "play nice" and let someone else squat with them? Keep it up Facebook - you're just giving us yet another reason to show that you don't "get it" on so many levels.

What next - people with their names as facebook urls having to "play nice" with others with the same name who come later?

Here's an idea. Don't use Facebook at all. If you don't like the way Facebook decides who gets what name, create your own website, build your own user base, and then you can name the folders within your website however you wish. Problem solved.

Re:That's a rather stupid "solution"

[Anonymous Coward]

I think so far you are the only one with a better solution than Facebook's one.

Re:That's a rather stupid "solution"

[tepples]

But then who decides which pages are "relevant" and deserve to be on the list, and in what order? Otherwise, Facebook turns into Google, having to somehow rank its results for display ten at a time.

Re:That's a rather stupid "solution"

[Dog-Cow]

Sort alphabetically by company name. That was easy.

Re:That's a rather stupid "solution"

[tepples]

But with hundreds of companies sharing a similar name (e.g. MERCK & CO INC and MERCK KGAA), what's to stop a company in a less-developed country with less-developed trademark law from asking for a spot on the page in the name of MERCK & AARDWOLF AB?

Re:That's a rather stupid "solution"

[Bob9113]

Keep it up Facebook - you're just giving us yet another reason to show that you don't "get it" on so many levels.

Facebook is bad, for sure. But in a perfect world, I think this should really be showing us that entrusting your corporation's identity and goodwill (in this case, embodied in a Facebook path) to an unregulated third party is inherently risky behavior.

Centralizing most identity and relationship management and placing it under the auspices of a single unregulated corporation? What could possibly go wrong? (note that I'm not saying anyone is being forced to be so idiotic, just that some form of mass short-sighted convenience-seeking is occurring)

I suspect that it will take many lessons like this one, over many years, before we begin the process of decentralizing. A process which, by that time, will be very long and very painful.

Re:That's a rather stupid "solution"

[Anonymous Coward]

I'd honor my existing contract and let Merck & Co fight with Merck KGaA if they want the page that the latter legally entered in a contract to own first. At the very least, I'd admit that it was my fuck up that led to the transfer without any notice to the original contracted party.

Or if that's not good enough, mine ICANN for ideas about what to do when two rightholders are in competition for the same name resource.

The last thing I'd do is breach a contract and then try to blame the victims.

This is awesome

[onyxruby]

Two companies have just been bitch slapped for getting uppity about a common name in world market. How many other inane intellectual property disputes could have been resolved or prevented by doing this?

Re:This is awesome

[residieu]

I don't see how this is awesome. Bobby had a toy, Jimmy came along and told the teature. "I want that toy!" The teacher took the toy from Bobby and gave it to Jimmy. Bobby cried "That's my toy! I'm telling Mommy!" The teacher responded by taking the toy away and not giving it to anyone.

So rather than responding by acknowledging that they were wrong in taking the address away from the German Merck, they act like they're in the wrong for complaining.

Re:This is awesome

[Anonymous Coward]

Your analogy is faulty because Merck KGaA never really owned the Facebook vanity URL. In other words, the toy never belonged to Bobby - it was a classroom toy (i.e. school-owned) that Bobby happened to be using. It is a perfectly acceptable solution for the teacher to take the toy away if the kids can't share or get along because THE TOY BELONGS TO THE SCHOOL/TEACHER.

Re:This is awesome

[Anonymous Coward]

More like Bobby existed and then Bobby was born, and since it was too fricken confusing, everybody called the first one Smith and the second one Johnson.

If you read the history of Merck this is more like a family feud then a trademark dispute. It would be more appropriate for Merck (Germany) to be called "Merck KGaA", "Merck Darmstadt" or "EMD Chemicals" (note, EMD Chemicals is their legal name in the USA where Facebook is headquartered).

Merck in the USA should probably be referred to as "Merck & Co.", "Merck Sharp & Dohme" or "MSD". Merck & Co. owns the rights to the name Merck in the USA, which is why Merck KGaA is referred to as EMD Chemicals within North America.

All of this information is taken from the Merck KGaA and Merk & Co. pages on wikipedia.org.

Re:This is awesome

[mr1911]

Your logic and reason have no reason in this argument, regardless of the fact you are correct. This is a conversation about trademarks and Facebook.

Please wave your arms wildly and scream incoherently, just like everyone else.

Re:This is awesome

[pclminion]

So rather than responding by acknowledging that they were wrong in taking the address away from the German Merck, they act like they're in the wrong for complaining.

As parent of a two- and four-year-old, I agree with the strategy. Complaining makes you a baby. I don't care which one of them did it/started it/took it/broke it, they work it out between themselves. When I hear screaming from the other room over a toy that toy is gone for the rest of the day, no questions no interrogations no "getting to the bottom of it." I don't give a shit what happened. Screaming == toys are gone.

Re:This is awesome

[Anonymous Coward]

You must be a horrible parent. Why would you take the toy from the first child and give it to the second, only to then take it from both when the first does what you just rewarded the second for?

Re:This is awesome

[pclminion]

Why would you take the toy from the first child and give it to the second, only to then take it from both when the first does what you just rewarded the second for?

Where did I say I take the toy and give it to the other one?

Re:This is awesome

[residieu]

That was the example, Jimmy cries, teacher gives Bobby's toy to Jimmy. Bobby cries he's being a baby so you take it away from them both.

Re:This is awesome

[Anonymous Coward]

Where did I say I take the toy and give it to the other one?

First sentence, of this posting

Quote: As parent of a two- and four-year-old,I agree with the strategy

Facebook's strategy was doing exactly that. They took the toy from the first to give to the second, and when the first complained, they took it from both of them.

That is what you said you agree with.

You then continued by providing a very similar situation with you as a parent and your two children with their toys, instead of facebook with two companies and their URL.

If you didn't take the toy from the first child to give to the second, only afterwards to take it away from both children... Well why did you even post at all? Those situations would have nothing at all to do with each other.

Re:This is awesome

[pclminion]

If a difference in a single detail makes the two situations completely dissimilar then I guess you're right.

Re:This is awesome

[Anonymous Coward]

all that really encourages is for one child to be a shit to the other.
i.e you got to the toy first and/or its your turn to play with it but i'm going to cause a scene so that the authority figure will come in and take it away from you.
I wont have it but at least I wont have to see you play with it either

Re:This is awesome

[Anonymous Coward]

You're an awful person.

Merck Merger

[Anonymous Coward]

I wonder why these companies didn't merge back together. I understand why they would be sepperate after the world wars. But currently these companies are in the same buisness with the same name.

Re:Merck Merger

[CmdrPony]

Yes, because it makes absolutely sense to merge companies just for the sake of Facebook URL!

Re:Merck Merger

[Anonymous Coward]

Well, they USED to be the same company until their US assets were seized during WW1.

How about:

[Anonymous Coward]

The Merck that had the page first?

Re:How about:

[Issarlk]

Nonsense! That wouldn't be evil to do.

Re:How about:

[Anonymous Coward]

But that would be the non-US Merck. Can't let those filthy foreigners win. USA! USA!

Translation:

[forkfail]

Letting the bidding begin!

I propose...

[PGGreens]

cutting the URL in half! Then we will see who it truly belongs to.

Re:I propose...

[Hentes]

Problem is, with two shorter URLs both companies would win.

What's all this Facebook craze anyway?

[cpghost]

Really, wtf? Both companies have more than enough resources to set up their own domains and webpages where they can do whatever they want, without any kind of interference whatsoever. Why would they need to be on Facebook at all when they can have their very own place on the Net? This Facebook craze is going waaaay too far, IMHO. Individuals who don't want to or can't set up their own domains can go with it, no problems, but big companies?

Re:What's all this Facebook craze anyway?

[Jeng]

Because that is what the marketing firm told them to do.

Re:What's all this Facebook craze anyway?

[Gr33nJ3ll0]

The Facebook craze has a lot of power behind it. Companies respond primarily to power, and spend millions on their public images, so this is hardly surprising.

Re:What's all this Facebook craze anyway?

[forkfail]

For a lot of people, Facebook is the web.

And having someone "like" a company means the opportunity to get them to read several bits of advertisement a day - voluntarily, without the popups that so annoy.

Not saying it's a good thing, just that it's the way things are at this time.

Re:What's all this Facebook craze anyway?

[icebraining]

You can Like any page, not just FB pages. You just put a button on your site.

Re:What's all this Facebook craze anyway?

[Kozz]

For a lot of people, Facebook is the web.

So, what you're saying is that Facebook is the new AOL?

Re:What's all this Facebook craze anyway?

[wzzzzrd]

Facebook really IS the new AOL.

Re:What's all this Facebook craze anyway?

[forkfail]

True, but when you "like" an official Facebook page, you get all the wall posts from that page. And that is a marketeer's dream - to have people ask you to spam them.

ridiculous

[Anonymous Coward]

Facebook is clearly giving precedence to american based companies. This is as retarded as it sounds, of course the original german company has all the rights to it. First you screw up and now you also, as a 'we're sorry' i suppose, give away the vanity name ?

ok...

Re:ridiculous

[0123456]

This is as retarded as it sounds, of course the original german company has all the rights to it.

Why? If two companies own the same trademark in different countries, why should one have the rights to a facebook page and not the other?

Either they work it out themselves or they'll have to go to court to decide who does have the rights. That will probably take years, and by then facebook will probably be the new myspace.

Re:ridiculous

[NatasRevol]

Pretty sure Facebook has all the rights to Facebook.com/*anyname* and always will.

If they want to sell/give it to the highest bidder, or the american branch of a company, or the Mars Rover, they can.

Re:ridiculous

[Attila Dimedici]

Pretty sure Facebook has all the rights to Facebook.com/*anyname* and always will.

If they want to sell/give it to the highest bidder, or the american branch of a company, or the Mars Rover, they can.

I am pretty sure that if Facebook had given it to another pharmaceutical company (say Sanofi-Aventis) there would have been a trademark infringement lawsuit that they would have lost. Which I suspect brings up why Facebook made this decision. In the U.S. and Canada, the trademark "Merck" belongs to Merck, U.S.. In most of the rest of the world, the trademark "Merck" belongs to Merck KGaA. Since Facebook is a U.S. company that operates internationally, their lawyers may have concluded that Facebook could only lose if this became a court battle.
However, since there is something to the point you made, Facebook is perfectly within their rights to say, "This is too complicated for us. We do not want to be caught in the middle. Until the two of you hash this out in a way that will keep us (Facebook) out of the courts, neither one of you can have it." That is something that Facebook can legally, and ethically, do.

Re:ridiculous

[NatasRevol]

So, you're saying that Facebook doesn't have the exclusive rights to do whatever they want under the facebook.com domain? Because I really don't buy that.

If Sanofi wanted Facebook.com/Merck and had a page that said Merck kills babies (with sources), I'm pretty sure that Facebook could allow that, legally. It's their domain, legally. And no one has any rights, legal or otherwise, to facebook.com/*anyname* except Facebook.

Re:ridiculous

[Attila Dimedici]

Perhaps, but if Sanofi had a page at Facebook/Merck that was used to promote pharmaceuticals, it would be a violation of trademark and Facebook could not legally allow that. So, Facebook cannot do whatever they like with Facebook.com/Merck, even though it is their domain.

Re:ridiculous

[NatasRevol]

I still fundamentally disagree with you. They have to do much more than just use it to sell their own pharmaceuticals. They have to try to appear to BE like Merck. I don't believe having a link/page would do enough to cause trademark infringement.
http://www.bitlaw.com/trademark/infringe.html

Sanofi can do what ever they want with facebook.com/Merck, as long as it doesn't look like they're selling Merck products, or endorsed by Merck.

Re:ridiculous

[Attila Dimedici]

I am pretty sure that the lawyers would argue (and I believe successfully) that if Sanofi was promoting pharmaceuticals using Facebook.com/Merck that Sanofi was implying that their pharmaceuticals were Merck pharmaceuticals or were endorsed by Merck, which, as you say, is a violation of trademark.

Re:ridiculous

[NatasRevol]

Workaround:

DISCLAIMER: MERCK IS NOT AFFILIATED WITH THIS WEBPAGE

Buy our drugs: sanofi.com

blahbalhablahbalbhablabhblahbcapsarebadblhablahbalbhablhb

Re:ridiculous

[Anonymous Coward]

Facebook is clearly giving precedence to american based companies

Maybe they should copy-paste from Slashdot the part of the FAQ about it being US-centric. LOL.

Re:ridiculous

[Rich0]

Why don't you try doing that, and see how it works out for you?

Register merckpharma.com or whatever and put a note at the top saying "we're not Merck" and try selling pills on it. Win or lose you'll be broke with your legal bills in a month unless you cave in.

Facebook is going to look at it like this:

1. We get paid $x/month to let some company buy a page from us. Yah!
2. We are very likely to get sued for $x*1000/month because some other company doesn't like it. Ugh.
3. Either way the company suing us has deep pockets and a big team of corporage lawyers. Ugh.
4. After we spend $x*100 fighting in court we might luck out and get a ruling that says that we can keep getting paid $x/month. Whoop-de-doo.
5. At that point there would just be an appeal and we're back at #2. Why are we doing this again?
6. Once we're done resolving this in the US Supreme court and we comply with whatever they hand down, we then get to watch all our subsidiaries get sued as the issue is re-litigated globally. Then we get fined by some court somewhere no matter what we do as they all reach different conclusions.

Or, we could just give up the $x/month for now and tell the companies that they can try to get the courts of half the countries on the planet to agree on something and maybe our great grandkids can make $x/month if there is still a Facebook.

Re:ridiculous

[NatasRevol]

Facebook.com/Merck is not close to merckpharma.com which is my entire point.

Thanks for completely missing it.

Re:ridiculous

[Rich0]

My point is that you were arguing about who was right. The US legal system is more about a process and that process will cost you a fortune regardless of whether you are "right." The only way a case is going to be cheap is if you get a very early dismissal, which you aren't going to get over something like this since there is something to argue here.

However, if it makes you happier, why don't you try registering Merck on Google+ and selling your pills or whatever and see how that goes.

So Facebook is like a parent now?

[NevarMore]

This is EXACTLY like when my brother and I used to fight over a toy. Mom or dad would come in and declare that if we couldn't figure it out nicely, then neither one of us would get it.

I actually commend Facebook for this. They probably don't want to deal with these disputes at all and this is really a good policy to have.

Re:So Facebook is like a parent now?

[Anonymous Coward]

You commend them for agreeing to give one party the name, then screwing up and somehow assigning it to the OTHER party, then taking it away from everyone when the rightful owner sought to have the mistake corrected?

If your parents acted like this you'd probably think they were dicks, and rightfully so.

Re:So Facebook is like a parent now?

[Anonymous Coward]

This is EXACTLY like when my brother and I used to fight over a toy. Mom or dad would come in and declare that if we couldn't figure it out nicely, then neither one of us would get it.

I actually commend Facebook for this. They probably don't want to deal with these disputes at all and this is really a good policy to have.

Excuse me? So if you were playing with a toy for a while, then bro comes in, tries to take it from you, then Mom will take it and none will have it? That's crazy, and your brother will always win: (a) he gets the toy, and can play with it or (b) Mom gets the toy, but that only switches the "someone else" in someone else has it. You, on the other hand, will lose the toy in both cases.

It's obvious the status quo from before the "administrative error" should be re-instated and then both Mercks can settle their differences.

Re:So Facebook is like a parent now?

[icebraining]

There was never any "owner" except Facebook itself. Merck using it was if anything a favor FB was doing it. Of course, that does mean companies should think twice before relying on favors.

A sensible solution to a stupid problem

[janeuner]

In this chapter, we have two private corporations fighting over a subdirectory owned by a third corporation.

All of these "people" are insane.

Re:A sensible solution to a stupid problem

[datavirtue]

I'll roll with that, let's adjourn.

just make a disambiguation page

[Anonymous Coward]

Why can't they just make a wikipedia style disambiguation page? It's the obvious, adult, fair solution that a hoarde of lawyers would never come up with.

Re:just make a disambiguation page

[ThorGod]

Why can't they just make a wikipedia style disambiguation page? It's the obvious, adult, fair solution that a hoarde of lawyers would never come up with.

I agree, though I still like FB's decision. (That feel weird to say to anyone else?)

Re:just make a disambiguation page

[camperdave]

Lawyers would merely fight over who gets top billing on the disambiguity page.

No soup for you!

[Oswald McWeany]

No soup for you Merck!

How about they cut the facebook page in half and give each Merck a half.

Re:No soup for you!

[Anonymous Coward]

How about they cut the facebook page in half and give each Merck a half.

Yes, but Merck wants the upper half. So does Merck.

Facebook Disambiguation Page?

[mistapotta]

How long until Facebook has Disambiguation pages?

Trademarks still exist

[tepples]

Facebook is still subject to national jurisdictions, and trademark law still restricts what Facebook is allowed to do with its own domain. Perhaps the most legally justifiable answer might be to geolocate the IP address, find the correct trademark owner for a given country, and then redirect to MSD's or EMD's Facebook page as appropriate.

Re:Trademarks still exist

[mr1911]

Except that Facebook is still private property. They don't have to let you promote your trademark on their site any more than a company could force you to paint their logo on the side of your house.

Denying both companies access to the name on Facebook is a completely viable and legal means to not infringe on any trademark.

You may also want to brush up on trademarks a bit. It is possible to have the same trademark for different industries, and one does not trump the other. Say for example, I have a registered trademark for Apple toothbrushes. I am free to promote my trademark, even if Apple computers doesn't like it. Granted it does get even murkier when industries are similar across international boundaries, but one trumping the other is still a tough argument to make.

In the end it is very funny that Facebook basically give a timeout to two companies acting like two year old children.

Re:Trademarks still exist

[Anonymous Coward]

In the end it is very funny that Facebook basically give a timeout to two companies acting like two year old children.

It's less funny when you consider that what really happened is that Facebook shifted the blame for it's own breach of contract on its two victims.

Re:Trademarks still exist

[Cajun Hell]

Perhaps the most legally justifiable answer might be to geolocate the IP address, find the correct trademark owner for a given country, and then redirect to MSD's or EMD's Facebook page as appropriate.

Do your website(s) do that? Should all websites scan their own URLs for trademarks, and redirect some of those URLs to other sites, and then give the previous content some other URL that is guaranteed to not look like someone else's name? Maybe all websites should be search engines, with of course the trademark name database being top priority.

Facebook doesn't represent their URL components as being company names, just like your site probably doesn't. In fact, for most of http://facebook.com/$WORD, $WORD is not anyone's trademark.

And God help review sites. If http://example.com/reviews/exodus is required to point to Exodus' site, then example.com has to post their review of Fabulous Disaster at http://example.com/reviews/butthead_astronomer. This is just silly.

If force is being used against Facebook over this, then 1) that's an outrage 2) they did the right thing in response to it: have http://facebook.com/$WORD do a 404 or something like that.

Impacts?

[hawguy]

So will this make companies have second thoughts about setting up a Facebook page? Why would Coke spend hundreds of thousands of dollars maintaining and promoting their Facebook presence if FB can "accidentally" give the page to "Joe's House of Coke" and then refuse to give it back to the Coca Cola company when the mistake is discovered, even after FB admits it was an administrative error on their part?

But that breaks the system.

[Kamiza Ikioi]

Facebook is still subject to national jurisdictions, and trademark law still restricts what Facebook is allowed to do with its own domain. Perhaps the most legally justifiable answer might be to geolocate the IP address, find the correct trademark owner for a given country, and then redirect to MSD's or EMD's Facebook page as appropriate.

Actually, the most legally justifiable answer is exactly what they did in taking it down. Possibly breaking their entire system for a work around might also be legally justifiable, except that it provides no solution for countries other than the US and Germany. What about Italy, is the German company or the US company recognized there or in the EU. What about Japan or Canada, for instance. What about IPs that can't be resolved?

Even if all that was solved, it still breaks the system. If someone in the US likes the page, and someone in the EU reads that and clicks the link, they will go to the wrong page. It may seem inconsequential, but it breaks any kind of trust model for URIs, even if that trust model is superficial.

Better to just tell both companies to piss off and/or change their names to their full corporate names or locations, i.e. facebook.com/MerckUSA

Dilution

[tepples]

Denying both companies access to the name on Facebook is a completely viable and legal means to not infringe on any trademark.

True, but it also costs Facebook money. It denies Facebook the revenue it could realize from geolocated Pages.

It is possible to have the same trademark for different industries, and one does not trump the other.

Not if the mark is famous like the Nike swoosh, the McDonald's arches, the Disney mouse-ear-silhouette, the Olympic rings, or the Red Cross emblem.

Re:Dilution

[mr1911]

Not if the mark is famous [wikipedia.org] like the Nike swoosh, the McDonald's arches, the Disney mouse-ear-silhouette, the Olympic rings, or the Red Cross emblem.

I didn't say it was always possible to have non-competing trademarks. You cite logos, which are much easier to argue for complete exclusivity than names. Even if I had the registered trademark for Apple Toothbrushes, I would not expect to be able to use the Apple's bitten-apple logo for it. As you pointed out, logos are generally more protectable than names -- one would not expect to use Apple's bitten-apple logo for any purpose, regardless of the name or industry. Hence the power and attractiveness of logos.

It may cost Facebook a little bit of money in geolocated pages, but their actions may have saved them a much larger headache and cost by not being drawn into the middle of a trademark dispute.

Your concept for geolocated pages is possible to become the final solution. Expect it to be done quietly and without the fanfare of the current situation.

Facebook's action of denying both parties access to the name has made the geolocated pages concept more attractive to both. Certainly more so than if it would have been Facebook's first offer to remedy the situation.

Re:Dilution

[tepples]

You cite logos, which are much easier to argue for complete exclusivity than names.

I'd imagine "DISNEY", "NIKE", "MCDONALD'S", "OLYMPIC", and "RED CROSS" are likewise famous enough to qualify for dilution protection.

Facebook's action of denying both parties access to the name has made the geolocated pages concept more attractive to both.

Yeah, I'm familiar with the door-in-the-face method.

Re:Dilution

[mr1911]

I'd imagine "DISNEY", "NIKE", "MCDONALD'S", "OLYMPIC", and "RED CROSS" are likewise famous enough to qualify for dilution protection.

Unfortunately for you trademark law doesn't follow your imagination. Any of the trademark holders you listed would have to make a reasonable case for dilution.

McDonald's fast food is going to be hard pressed to show how they are harmed by McDonald's Floral Arts in West Valley, UT. (No plug for the florist is intended - the first McDonald's ! fast food that showed up in a quick search).

Your argument is made easier given the fact you have chosen already famous trademarks. I know a country singer who's real last name was Brooks. Upon his first CD release, he was contacted by Garth Brook's lawyers and wound up taking a stage name. McDonald's fast food may have well lost the argument to the florist if they crossed paths when the fast food company was a single location, although it is most likely each could have gotten trademarks given the differences in industry.

That is why many new trademarks take the fanciful approach. It is hard to argue Google meant anything to anyone before the search company named themselves.

Re:Dilution

[dissy]

That is why many new trademarks take the fanciful approach. It is hard to argue Google meant anything to anyone before the search company named themselves.

While your point remains solid and true, Google might not be the best example there.

Google is a play-on-misspelling of the word 'googol', which is the name of a number (10^100, or a 1 followed by 100 zeros)

Larry and Sergey choose that name (not their first choice of names) to signify the large amounts of information they wanted to provide to people.

Fun-Fact: The original name they picked for the search engine was "Back Rub", a play-on-words due to their rankings using back links to score higher in the results.

I'm not sure if they expected from the start for their search engine name to be used as a verb, but the possibilities for that original name are many and hilarious!

Re:Dilution

[Cajun Hell]

Your concept for geolocated pages is possible to become the final solution. Expect it to be done quietly and without the fanfare of the current situation.

That would be a completely disaster, because there's nothing special about Facebook here, other than the fact that they can afford to do what you discuss and 99% of the rest of Internet can't.

Re: thumping

[macraig]

Why does US companies think they can thump on everyone else?

Quite simply because, as you already seem to know, we in the US hold the copyright on bad corporate behavior and we ain't gonna license it to anyone else!

FB needs to restore German co.'s admin rights

[Anonymous Coward]

'Facebook on Monday apologized for what it described as an "administrative error".'

Facebook messed up the admin rights, apologized for it, and now threatens to yank the URL? WTF?

Jesus, let's make this easy

[Anonymous Coward]

Merck #1 comes up with a dollar figure.

Merck #2 decides whether they would rather have the facebook page and pay dollar amount to Merck 1 or let Merck 1 have the page in exchange for the dollar amount.

This is a variation on the first bargaining trick you learn as a drug dealer, so they should know all about it.

Ehmm, no.

[Ecuador]

The company names are distinguishable - Merck KGaA and Merck and Co. Given that neither is called just "Merck", it makes sense to make them use distinguishable pages, probably with their full company name.

"KGaA" is a German acronym for "Kommanditgesellschaft auf Aktien" which is sort of a "limited company/partnership" or something like that. So, the NAME of the company is just "Merck", with the KGaA designation defining the type of the company. Since you would always say the name of the shoe company is "Nike", when officially they are "Nike, Inc.", I would suggest it is the same with the "German" Merck. Moreover, the "US" Merck's full designation seems to be "Merck and Co., Inc.", you can't be pushing for dropping "Inc"s but keeping "KGaA"s just because in your narrow worldview you recognize the former and not the latter.
So, the German company is the only one that is just "Merck".
Now, what facebook should do or not do about it, I don't know and I really don't care.

Re:Ehmm, no.

[BasilBrush]

just because in your narrow worldview you recognize the former and not the latter.

Talking of narrow world view... I'm European, not American as you assume. So who exactly is the one taking the "narrow wold view" here?

I'm well aware that KGaA is a description of a company type, just as for example AG, Inc, Ltd and PLC are. I'm also aware that the full names of companies do include them.

The only reason I didn't use "Inc." for the American company is that yesterday's Slashdot summary didn't. No more, no less. Take the chip off your shoulder - it's making you think people have an American bias when they are not even American.

By the way, "recognize" is an American spelling not an English one. The English spelling is "recognise". You might ant to change that if you don't want to receive similarly narrow-minded accusations of bias yourself.

Re:Ehmm, no.

[Ecuador]

Hmm, interesting reply.
First of all, the phrase "in your narrow worldview" was actually not referring to you specifically, perhaps having used the word "one" would have been better than "you" in the sense I meant it, but English is not my primary language, plus in the end it does refer to every English speaker, especially those who copy the summary, and when writing that phrase I was thinking mostly of the summary writer (perhaps even the article writer, but of course we don't RTFA).
Anyway, you then go on to say that you do know what KGaA is, which kind of contradicts your argument that the company is not called just "Merck". Unless you are trying to say that "Nike" is not just "Nike", but "Nike, Inc.", etc which also does not follow the logic that you dropped the "Inc" from the other company just because somebody else dropped it first.
Furthermore, I certainly did not assume anyone was being American or even pro-American. At most I accused English speakers in general for not recognizing something that is non-English. Most English speakers are not American.
Lastly, I have to say that your opinion about language is narrow minded. And, yes, right now I am referring to you. What you refer to as "English" is just a flavor of the language usually called "British English" (and it is not even as simple as that), and as there is no such thing as a "proper" or "correct" dialect of a language (unless you ask someone educated in linguistics over 50 years ago), I can certainly use whatever one I like as long as I succeed in communicating. And, yes, I like American English and, no, nobody ever mentioned a problem with it before you did.

Re:Ehmm, no.

[BasilBrush]

Anyway, you then go on to say that you do know what KGaA is, which kind of contradicts your argument that the company is not called just "Merck". Unless you are trying to say that "Nike" is not just "Nike", but "Nike, Inc.", etc which also does not follow the logic that you dropped the "Inc" from the other company just because somebody else dropped it first.

I suggest you re-read my post, as I explained this.

And of course the "proper" version of English is that spoken in England. And no, it's not usually called "British English", unless you get your knowledge from localisation settings in American operating systems.

That said, there is nothing wrong with using American spellings, and I often do myself when communicating with a mostly American audience. I was just parodying the ridiculousness of your parochial complaint.

Re:Ehmm, no.

[Anonymous Coward]

Since your name is BasilBrush, aren't you from Brazil?

Re:Ehmm, no.

[dunkelfalke]

So, the German company is the only one that is just "Merck"

Not quite. The "KGaA" is by law (Â19 HGB) a part of the company name.

Re:Ehmm, no.

[Ecuador]

You mean it is a part of the legal company name. It is the same in other countries. I work for a US company and we have to write the ", Inc." in all legal documents (or software/copyright notices), however we don't include it when people ask us what our company name is and we certainly don't include it in our url. So, I was responding to the post that suggested it be appended to the url as part of the name, but forgot the same would be required for all US companies if we applied the same rule about full legal names.

Mutual Unhappiness

[bk2204]

I totally agree with this policy. It's the same one that Debian uses to decide disputes over the name of a given binary: if both sides can't agree, then nobody gets it and both packages have to rename. It reminds me of a Law and Order episode where the judge said, "I know I've made the right decision when both sides are unhappy."

Re:Mutual Unhappiness

[forkfail]

So, it's a good decision when a mugger and a victim go to court, and neither gets the wallet in question?

Re:Mutual Unhappiness

[Rich0]

That's pretty-much how courts tend to work things out. Usually the judge views a compromise as the best solution. The problem is that if one party really is right and the other really is wrong than a compromise isn't really justice, and the costs of litigation are an additional affront to the party who is right.

I wonder...

[Anonymous Coward]

Merck KGaA has €22 billion in assets.
Merck & Co. has €78 billion in assets.

I have no idea who they will give the name to...

Shouldn't it go back to Merck Germany?

[flimflammer]

If Merck Germany had it first, and it was misappropriated to Merck US by Facebook as an "administrative error", why would they threaten to take it away from both? Facebook seems to have dropped the ball here, no one else. It should go back to Merck Germany.

Re:Shouldn't it go back to Merck Germany?

[bws111]

It has already been explained about a dozen times, but here is one more:

Merck & Co owns the trademark to 'Merck' in North America. No-one else is allowed to use the name Merck for pharmaceuticals in North America.
Merck KGaA owns the trademark to 'Merck' outside North America. No-one else is allowed to use the name Merck for pharmaceuticals outside North America.

Because Facebook is global, no matter which 'Merck' they give the name to there is a trademark problem somewhere.

Some people have suggested some sort of disambiguation page. While that may be a technical solution, it does not solve the legal issue at all. The whole point of trademarks is to remove ambiguity. Saying 'there are two Mercks, pick the one you want' is the same as saying there is no trademark on Merck, something Facebook does not have the authority to do.

If Facebook does not have a technical solution (such as selecting the correct page based on location), then the correct thing to do is not give the name to anyone.

Re:Shouldn't it go back to Merck Germany?

[flimflammer]

Thank you. The comments section on Slashdot is really broken for me right now so I didn't read most of them.

Really?

[C0R1D4N]

Who the hell is going to a pharmaceutical company's facebook page?

Upon notice

[tepples]

Should all websites scan their own URLs for trademarks

Proactively? Not necessarily. Upon notice from an owner of a famous trademark? Perhaps.

for most of http://facebook.com/$WORD, $WORD is not anyone's trademark.

Not having a Facebook account myself, I was not aware of this fact.

Re:Upon notice

[Cajun Hell]

for most of http://facebook.com/$WORD, $WORD is not anyone's trademark.

Not having a Facebook account myself, I was not aware of this fact.

I know a site that you do use, which will show you exactly the same situation. Look at this page and its URL.