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AOL Sues Over "You've Got Male"
A reader sent us today's stupid
lawsuit. AOL is suing a Denver-area woman to get her to stop using the phrase "You've Got Male" in her book to online dating. *sigh* Put your own pithy comment about stupid lawsuits here.
Unix states "You have mail" or "You have new mail". AOL says "You got mail" if you have new mail. "You got mail" is a catch phrase recognized by millions with AOL. I have used UNIX for the past 4+ years and it took some time to remember that association. I have never used AOL in my life and instantly think of AOL when I here the phrase "You got mail".
2) AOL has never gone after the people who parody them on The Simpsons, etc.
That is called freedon of speech. Simpsons are protected by the first amendment.
3) As usual in these cases (such as WB against their FANS), AOL is trying to sue someone for parody
This is not a case of parody. This is not making fun of AOL. This is using AOL's brand name to be able to obtain easier recognition so more books can be sold. If no disclaimer is by the phrase "You got male", believe it or not, one can believe there is an association with the AOL brand name. AOL is a highly recognized brand name among the general population. (General population, not the techies folks)
To me this "small potatoes" bookwriter is not worth their time.
It is if they are profiting off of a brand name. This is a book about internet dating. AOL is largest ISP in the World. Millions of people chat on AOL and people meet or discover new people using AOL.
I usually only read comments scored 2 and higher, and as of this post there are 27 of those. Almost every one refers to this mythical lawsuit. (It's the fault of Hemos for getting the ball rolling)
AOL sent a cease-and-desist letter. That is not a lawsuit. It is the common first round in a any trademark dispute. It basically says, "BOO! We don't like what you are doing and we want you to cut it out." I've recieved dozens of these over my lifetime, and I've sent a few out. It's a formal notification that you have been noticed doing something that irritates someone. It's never gone to court.
Companies seldom start with a lawsuit because they are costly, drawn out, difficult to endure, and most non legal people are scared off by a formal looking letter from a lawyer (just look at how many web sites fold on a cease and desist).
All she has to do is send a polite letter back telling them that she feels she is well within her rights, and that she isn't going to budge or give an inch. End of story.
If they persist, then she offers to clean up the second printing by putting in a disclaimer that the book is not endorsed or affiliated with AOL. Again, End of story.
If they still persist, then she points out why a lawsuit would be costly to them, require them to travel to CO to sue her, be a loss for them (no confusion, parody exemption, reasonable assumption exemption, similarity exemption, etc) or that it would endanger their trademark, or that it would generate bad press etc. Again, this is an end of story point where they come to an agreement
Finally, you can drag it out until a change in management, validity of the trademark, work the politics in the company, etc, and they decide to go away. Again, endgame.
It's also important for everyone to realize that when you are issued a trademark, you must defend or lose ownership. Defend doesn't mean sue, it means you just need to "care". A lot of these actions are merely for "show".
I can asure you that if I decided to print the slashdot.org trademark, or something similar (news for Geeks, stuff that matters) on a shirt tommorow, and then flaunted it in front of Andover legal staff, I would recieve the same letter. It is the way the real world plays.
To purchase it is not like spending money but rather it is an investment in the future in a blow against the empire
Exactly. Exactly! This is amazing coming from a company whose only claim to fame is setting up modems around the country and dumbing down technology to a point where even the previous kings in that arena, M$, could never compete. Most people I know who use AOL are so dopey that they can't even say the NAME right, calling it "American On Line". Then they buys a truly innovative company like Netscape and corrode it slowly from within. What's gone wrong with the world? I need sedation.
-F
brennanw writes:
.... Fourth District.
Didn't the courts already rule that AOL can't own the phrase "You've got mail"? [snip] then there's no way they can sue someone for using a phrase that is derived from something they don't have the right to enforce as a trademark.
Unfortunately, it's not that simple. The Judge who issued that ruling, Claude M. Hilton, is in the Eastern District of the Fourth Circuit. At this point, his ruling is only enforceable within that court district. AOL is free to sue anyone in any other district court in the country and hope they get a more favorable judge (in practice, this is rare, as judges tend to respect each other's reasoning -- but it keeps lawyers employed, and if all judges agreed in the first place, there would be no reason for appeals courts to exist).
The Hilton ruling, according to this CNET article, has been appealed to the Fourth District U.S. Court of Appeals. If and when a ruling is issued from them, that legal precedent will then hold throughout the entire
Again, other judges are free to rule in concert with the Hilton precedent, or not if they feel strongly about it. Hilton's ruling is a legal ruling: it is not the law of the land.
Presumably, ideally, AOL will also lose at the Fourth District level, and appeal to the Supreme Court. At that time, an individual Supreme Court justice will consider the appeal and whether to take it up. If he does, good for AOL: they get the entire U.S. Supreme Court to consider their case.
At this point, the earlier paragraphs still hold: other judges are free to respect the Hilton decision, or not. It is not law, only a legal precedent that a judge may consider in making her decision.
After the U.S. Supreme Court considers the case, they will decide whether to affirm the original decision. They may do so without taking arguments, usually indicating that they feel there is no new point of law to be discussed. They generally then simply affirm it without comment.
If they take arguments, they will then (often after months of research and quiet haggling) issue their respective opinions. Generally there is a majority opinion and a minority opinion.
Only at this point will the Hilton ruling become effective across the entire United States.
But wait, there's more! Perhaps AOL's lawyers can creatively argue to another judge that the previous decision was flawed based on a different arcane point of law. Then, the entire process starts again at the Federal District court level.
Whee! Ain't a federal democracy judiciary fun?!
lake effect weblog
{Network engineer in Chicago--looking for work!}
To be fair if you have a trademark you legaly
have to defend it every time. Or it stops being a
trademark. So it is atleast part the fault of a
dumb system.
Erlang Developer and podcaster
"We believe when people hear that phrase they think of AOL." -Jim Whitney, AOL
;)
Close, Jim. Now when people hear that phrase they will think "AOL sucks". Is that what you want?
Geeky modern art T-shirts
Will this 'trademark infringement' idea hold up in court?
Probably not, as they found out in Virginia. But the Denver judge may be more sympathetic; we'll see.
Besides, isn't 'You've Got Mail' as generic nowadays as 'Kotex' or 'Xerox' or 'Kleenex'?
Careful. None of those trademarks is generic; to this day, they have all been successfully defended by their owners. You may ask, more accurately, "as generic as 'escalator' or aspirin'?" The owners of those trademarks did not have lawyers as good as AOL's, and they lost them. The fact that they lost, means that people like AOL realize they have to aggressively defend their marks.
It's difficult, but not impossible, to claim a trademark on a common word or phrase. In this case, AOL is trying hard, but I think in the long run they are going to lose.
lake effect weblog
{Network engineer in Chicago--looking for work!}
"When people hear that phrase we believe they think of AOL."
Looks like we better all be careful about using the phrase 'frivolous lawsuit'.
I'm copyrighting you've got ale... I'm suing AOL.
--
RumorsDaily
I seem to recall a court case from business legal studies course, where Johnny Carson sued a port-a-potty company for calling the company "Here's Johnny!" (get it, ha ha) Well the port-a-potty company eventually lost, and had to change their name since the average person would think it's referring to Johnny Carson and think that he's endorsing the port-a-potty company.
I think that should this go to court, that AOL has a chance of winning, on the same grounds. On the other hand, I'm just a computer geek, not a lawyer, so they could think up something totally different and AOL will lose (since they couldn't trademark their IM and "You've got Mail"...)
What is stupid is the trademark over the phrase "You've got mail". That's such a common phrase---or at least close enough to the grammatically correct version---that it's amazing that AOL can have a trademark on it. Gee, why don't I just trademark "what's up" or "see you later"? Anyone more familiar with trademark law know about any possible restrictions on trademarking common terms?
And oh yeah, how AOL can be so high on itself about protecting a phrase that is so grammatically incorrect is beyond me. We all make mistakes, but a company with AOL's millions should at least be able to have the grammar capacity of a ten year old.
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In a real emergency, we would have all fled in terror, and you would not have been notified.
They basically steal because they know the law and cause the price of everything else to go up. They are the single biggest factor in limiting freedom in this (US) country, as well as representing the rich and repressing the poor. (if I can afford someone to bend the law for me and you can't, I win). Oh yeah, most politicians are lawyers, so there ya go.
+&x
Assuming that you're correct (which would shock me if true), it remains that to get that figure requires classifying most of the lawyers in the rest of the world as something else (or from a different angle, counting U.S. lawyers that wouldn't be counted as lawyers if they were in other countries).
>Did you know that the US has like 4% of the
>world's population but over 50% of the world's
>lawyers?
This and similar figures just aren't true. To take one where I've seen the actual figures, it's commonly repeated and believed that there are less lawyers in Japan than the U.S. Maybe in absolute numbers, but not on a per capita bases. Japan has roughly the same proportion being trained as lawyers, but the majority do not become licensed for the courtroom and general practice, but instead work in-house. In the U.S., virtually all of us take bar examinations and receive general licenses, and work for ourselves, prosecuting authorities, or law firms. (But then, I knew one who graduated from Stanford and never took the bar, instead teaching high school math [independently wealthy, though], and two more who became housewives after a few years of practice. And I closed most of my practice and picked up a Ph.D.)
hawk, esq.
> Is there a way to defend yourself from a (at least frivolous) lawsuit without spending thousands of dollars you can't get back even when you win?
If you're really confident that it's frivolous, you ask for it to be summarily thrown out of court. This usually doesn't happen, in which case, hope for a lawyer that does pro bono work or you're screwed. And you still get to miss a lot of work. Welcome to justice, American style.
I've finally had it: until slashdot gets article moderation, I am not coming back.
I have never used AOL in my life and instantly think of AOL when I here the phrase "You got mail".
I've never used AOL in my life and I instantly think of AOL when I hear the phrase "Stupid Lawsuit"
-Yarn - Rio Karma: Excellent
ewe goat gnu male
(I should put this in my mutt)
-Yarn - Rio Karma: Excellent
This suit is about brand protection.
Just like Apple suing anyone who sells a computer in blue/white translucent computers.
Or if Corel releases binaries of GPLed code. The GPL contract *MUST* be defended.
Otherwise, the contract becomes less enforceable. Just like the 'iMac look' or the phrase 'youve got mail'.
Face it: As the economy changes from physical things like steel formulation, tool design, etc la to electronic information and products are 'the same' (except for the brand on the box), these kinds of lawsuits will continue.
This is just one of the many problems of the electronic world we are forging. And, you, the consumer, are what give the brands power buy buying them and making them WORTH defending. So deal with it.
If it was said on slashdot, it MUST be true!
I used to be a cab driver and I used the phrase "Where do you want to go Today?" a lot. Way before Microsoft started using it. If AOL can sue so can I.
Cab drivers of the world unite. We could start a class action suit against Microsoft.
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In a real emergency, we would have all fled in terror, and you would not have been notified.
Thankfully AOL is about the /last/ damn thing I think about when I hear the phrase "you've got mail".. Usually what comes to mind is a) I've got bills or b) I've got a letter from my favorite girl or c) something I ordered from Amazon just arrived. That's such a bland and generic "trademark" I want to scream at them for even thinking they could protect it, or register it, or anything else. I think we should go back to public beatings. Take the entire AOL legal department, their CEO, and all of their networking "gurus".. and beat them senseless. Well, no not really.. but I do wish Americans would stop using their horrible service and switch over to a /real/ ISP so we can be rid of these idiots.
~ Kish
The article says that this is SOP when they find someone infringing on their trademark. And that they think that whenever someone hears that phrase, they think of AOL. But I have to wonder -
Yes, when I *hear* 'You've got mail(male)', I think of the silly AOL thingie that pops up to tell you that mail has just arrived in your in-box. However, this is a *book*. It is *obvious* that it is not 'mail', but 'male' (I mean, duh, it's right there in print). Yes, the woman is obviously making a play on a trademarked phrase, but she's *not* using the phrase! And instead of thinking, "Oh, this must be AOL!", people will think, "Wow, that's a cute turn of a phrase! I must have this book!" which is what I would assume is what she intended.
Will this 'trademark infringement' idea hold up in court? If it was a look-and-feel copyright case (like the iMac clone idea which I personally don't think has much of a leg to stand on anyway if it doesn't actually run MacOS), I can see them having a case ("well, it's a homophone, and so it *sounds* the same, even if it's not the same word! Therefore it has the same 'look-and-feel' of our trademarked phrase!"). But in this case? I'm not a lawyer, but it sounds to me like AOL has no sense of humor.
Besides, isn't 'You've Got Mail' as generic nowadays as 'Kotex' or 'Xerox' or 'Kleenex'? I mean, if I bring the snail mail in from the mailbox, I'd like to think I can call through the house, "Honey! You've got mail!' without AOL suing.
Didn't you know that AOL patented the phonemes for "you got mail"? So also out are the phrases "Ewe got male" and "U Gought Mehl." Sorry.
This screams stupidity yet again. Do we remember this?
1) Unix has said "You have mail" for a long time.
2) AOL has never gone after the people who parody them on The Simpsons, etc.
3) As usual in these cases (such as WB against their FANS), AOL is trying to sue someone for parody.
The problem isn't whether this woman meant it to cause harm to AOL or not, but whether AOL has a right to restrict the use of a phrase they don't even own! Since the words "mail" and "male" are completely different, and merely homonyms, this lends me to believe AOL's assertation will be this book serves to "confuse the public" or somesuch. Such confusion would be hard to find:
1) The book will be in the "self help" section.
2) Books about AOL are not.
3) Any 1st grader knows the difference between "mail" and "male"
To me this "small potatoes" bookwriter is not worth their time.
Lowmag.net
IANAL, but AFAIK, you can't countersue for frivolous lawsuits unless they constitute a pattern of harrassment. One suit don't do it. You can challenge the suit as being without merit, but that's for the judge to decide, and to the defendant, every suit is without merit.
I've finally had it: until slashdot gets article moderation, I am not coming back.
Associated Press 9/24/99
In todays news America Online Inc. announced they will be pressing suit against the United States of America. "The federal government knows that when people hear the word "America", they are really thinking of America's largest Internet Service Provider.", a company spokesman said. "We only ask that they never use "America" when they refer to anything having to do with technology or the internet. The use of "America" is easily confused with our operation and it makes us look bad when they say dumb things."
Negotions broke down yesterday after a 24 hour run. AOL said they will be file an injunction tommorow unless the Justice Department yeilds to their demands. "If Columbus was still alive he would be entitled to the IP, but he's not."
AOL(NYSE) was trading at 111 1/2 up 20 3/32 points in heavy trading following the anouncement.
Novel theory: Modern Man evolved from psychopath
The American Lawers Association (ALA) is to sue AOL for making such a mockery of lawsuits filed in america. In this unprecedented comment, and ALA spokesperson said "We dont need AOL to demonstrate how far money-grabbing lawyers will go just to get their cut, we are quite capable of doing that ourselves."
Wasn't there a movie a little while ago called 'You've Got Mail'? Now, why is AOL going after this one little person when they can go for the real money and try to kick a major movie production company in the teeth? Hell, they can try going after all kinds of people in that regard... =) Wouldn't mind seeing that... -- - dom
- dom
- gnome
What's up, Mr Jones?
Reason?
/.er. Including myself.
"News for Nerds. Stuff that Matters."
Now, while whether or not it matters is open to debate, it is definitely "news for nerds". As for whether it matters, given that a lot of the stories are for fun, I would submit that while it's not as important as an earthquake or school shooting, it's probably something of interest to the average
"You can never have too many elephants on your team."
Didn't the courts already rule that AOL can't own the phrase "You've got mail"? I seem to recall reading that here in /.
If that's true, then there's no way they can sue someone for using a phrase that is derived from something they don't have the right to enforce as a trademark.
So I think that in return, the lady being sued should countersue for a whopping big sum of money. Seems fair to me.
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