Web 2.0 Service Mark Controversy (Tim responding this time)

A lot of people have been waiting for a statement from me (Tim O’Reilly) about the Web 2.0 service mark. I’m back, and here it is. This is a long post, because the issues are complex, and I hope people will read to the end. I’ll do my best to set the record straight, and to answer some of the comments and questions that have been flying around. I apologize to Tom for the unnecessary lawyer’s letter, and ask that he apologize to me for the way he stirred up the mob. I then explain the back story behind the registration of the Web 2.0 mark, and our current thinking about what to do about it. Because the post is so long, and I don’t want to break it in the middle, only this notice about the post appears on the Radar home page. Please click through to read the full posting.

I used to bristle when members of the mainstream press wagged their fingers at the unprofessionalism of bloggers. I looked around at all the bloggers who are, to my mind, practicing great journalism, and wrote off the MSM criticism as fear of the new medium. But now I’m not so sure. The flap about the Web 2.0 Conference trademark has shaken my faith in the collective intelligence of the blogosphere. Of all the hundreds of people who commented on this issue, only a few touched base to do a bit of fact checking. The New York Times, by contrast, was all over doing due-diligence. They talked to everyone they could get their hands on before publishing their story.

While I admit that the cease-and-desist letter to IT@Cork was a faux pas, the blogosphere response and especially the comments on Sara’s posts to the Radar blog have been appalling both in their tone (even to the point of one comment, which Marc Hedlund deleted in my absence, implying that I’m a child molester!) and in their lack of any fact checking. (Thanks to those brave blog commenters who suggested that the mob hold off till I was back and able to respond.)

Tom Raftery of IT@Cork must have noted the discrepancy between the friendly email from me that he quoted from and CMP’s letter. In fact, the next line of my email, which Tom neglected to quote, was “Best of luck with your event.” A number of people in the comment thread drew parallels to my Amazon 1-click patent protest, but they left out one important point: I wrote to Jeff Bezos privately first, and went public with my complaint only after he’d given me the brush off. Given that Tom and I had previously had a conversation where I wished him the best of luck with his conference, while the lawyer’s letter came from CMP, I would have thought that he would have wondered whether the right hand knew what the left hand was doing before launching and then encouraging the torrent of net vitriol that’s come our way. He did call CMP to talk to the lawyer who wrote the letter, but he never tried to contact me. While he acknowledges that the letter was from CMP, he used O’Reilly’s name in the headline and repeatedly throughout the piece for maximum net impact. So while we owe Tom an apology for heavy-handed tactics, I think Tom owes us an apology for the way he responded.

Now, I want to address the deeper issue that’s been raised, about whether it’s appropriate for anyone to hold a trademark on the term Web 2.0, and to give some backstory on how this happened.

  1. MediaLive (now a division of CMP) routinely files for trademarks (a service mark is a special kind of trademark) on the name of any new conference they start. In fact, Eric Faurot, the head of the group, told me recently that after the sale, they had to review the status of literally hundreds of worldwide trademarks owned by MediaLive. Some of these conference trademarks are very well known — Comdex, Interop, Voicecon — and MediaLive (and CMP) put great store in protecting the conference brands they create.
  2. MediaLive filed for the trademark on the Web 2.0 Conference back in November 2003, when they first entered into the partnership agreement with O’Reilly on this conference. This was before Web 2.0 became such a popular term — the filing actually preceded the first conference. However, I wasn’t personally aware of this trademark filing till this past February, as a result of discussions with CMP after the MediaLive purchase.

  3. O’Reilly also values its trademarks — as do other companies and individuals aligned with the values of openness and sharing. (I’ll note that Linux is a trademark of Linus Torvalds, that Apache is a trademark of the Apache Software Foundation, Mozilla and Firefox are trademarks of the Mozilla Foundation, Wikipedia is a trademark of the Wikimedia Foundation, and so on.) At O’Reilly, we’ve even had to send a cease-and-desist letter once, to a company that was publishing technical books with the picture of an animal on the cover. That’s what trademark law is for, to prevent people from imitating other people’s brands for similar products with the result that customers get the
    products confused. In most cases, though, especially with non-commercial users, we’ve usually found it sufficient to send an email asking the non-commercial user to protect our trademark by acknowledging our ownership of it. We’ve even licensed our trademarks for commercial use when the use is clearly complementary and not confusing in the marketplace. See for example our policies about the use of the Camel image, which is our trademark for Perl.

  4. CMP let us know recently that they were worried about potential dilution of the conference brand by other companies putting on Web 2.0 related conferences using the same name, and I agreed with them that it was an issue that we needed to deal with. I was not aware, however, that CMP intended to send out cease and desist letters to anyone in the short term, let alone to a non-profit organization with whom I’d previously corresponded about the event they were putting on. (Gina Blaber, the head of our conference team, was aware of the letter, however, and approved it, and that’s why Sara Winge, in her postings, did not disclaim O’Reilly’s responsibility.)

  5. Neither CMP nor O’Reilly sued anyone, as has widely been misreported. A C&D letter is not a lawsuit. It is not even a threat of a lawsuit. It is a routine first step in trademark enforcement — and as Sara noted in her earlier post, it is in fact required of any company that wants to protect a trademark. You have to let people know that you believe they are infringing your mark. I still remember the alarm I felt the first time I received a cease-and-desist letter, early in my career, so I have some sympathy with Tom’s reaction. (The letter was from AT&T, warning us that we were using their trademark Unix incorrectly in our books because we were using it as a noun, rather than as an adjective, as they required. They wanted us to say “the Unix operating system” throughout.) And while CMP’s letter may appear harsh to those who’ve never seen one, it is actually relatively mild compared to many such legal letters I’ve seen over the years. For those of us who aren’t lawyers, the special language that lawyers use to cover their various bases is as odd and arcane as a Perl program might appear to most lawyers. That being said, it seems to me that given the non-commercial nature of the event in question, a friendly email simply asking IT@Cork to acknowledge the trademark would have been sufficient. That’s what I would have done had I been around when this was coming down. And I apologize to IT@Cork for the organizational failure that led to them getting a legal letter rather than a simple email query or phone call.

  6. Just to be clear, neither CMP or O’Reilly is claiming the right to all use of the term Web 2.0, as some of the posters assert. We just want to keep other conference companies from putting on events that trade on the name and concept that we created. And don’t tell me it’s not possible to have a Web 2.0-related conference without using Web 2.0 in the name! Microsoft’s Mix 06, Google’s Zeitgeist, the Ajax Experience — these are all web 2.0-related conferences that don’t use the name.

  7. The success of the Web 2.0 conferences and the usefulness of the term admittedly complicates the Web 2.0 trademark situation. With a name like LinuxWorld (Sara’s analogy), the subject of the conference (Linux) and its trademarked name (LinuxWorld) are not one and the same. But with Web 2.0, the name was originally conceived only as the name for a conference and Cory Doctorow’s comments are very much on point. We created a meme that has legs beyond the conference space, and there’s a real tension between the desire to protect the trademark on the conference and the desire for people to talk about, meet about, and otherwise engage with what has turned out to be the name for the next big thing in the computer industry. This is clearly a problem that we’ll need to figure out. We’re hoping we can come up with some guidelines that help balance these two factors. Mozilla’s trademark page is a good example of the kind of balancing act that is required.

  8. I don’t believe that the arguments about prior use of the term, or about “genericization” have a legal — or even a moral — basis. No one was using the term “Web 2.0” with its current meaning before we launched the Web 2.0 conference in October 2004, and the subsequent widespread use of the term Web 2.0 to describe the phenomenon itself is outside the scope of the trademark. The trademark is only for events. Trademarks aren’t like patents, where any prior art (theoretically) prevents registration. A trademark is for the continuous use of a brand in a specific field of commerce. In my conversations with CMP, they’ve made this point. One of their flagship conferences is called Software Development — clearly words that have been used before the trademark was registered. They were able to obtain that trademark for a conference to prevent other companies from building copycat conferences based on their success.
  9. Yes, I really was out of touch till late Sunday night, houseboating on Lake Powell for a week with my family and some old friends. While I took my cellphone and left both my number and my daughter’s for people to contact me in an emergency, it turns out that Verizon is the only service that works on the lake (and even it is very spotty) and my phone is on T-mobile and hers on Sprint. And even then, I didn’t have my laptop with me, and so I didn’t get to actually start reading up on this situation and talking to people until Monday morning. And as I’ve suggested above, it is worthwhile to talk and think before you post, hence the delay in this response.

I’m not sure yet quite how to resolve the situation, and in any event, it’s not completely under my control. CMP, not O’Reilly, filed for the trademark, and we’re partners in the conference, so I can’t make a unilateral decision. We can’t leap to a solution because two companies (and a complicated legal situation) are involved. But as I noted above, I do believe in trademark. It’s perfectly legitimate for a company to file for and own a trademark on a product they create in order to keep others from creating an imitation product that would potentially be confused with the original product.

But I’m really mindful of the fact that Web 2.0 has become so successful as a meme that we’re not looking at a traditional brand name situation. This controversy is also bad for my most important brand, my own name, especially since O’Reilly and not CMP is taking all the heat! So I’m going to be talking with CMP about this situation over the next couple of days, and will see if we can come up with a solution that will satisfy our reasonable desire to protect the name of the conference while taking into account the dual role of “Web2.0” — as a brand for our conferences and as a handy meme for discussions of this phenomenal technology.

And while I’m disappointed in the vitriol and personal attacks and the failure to engage in real conversation, I’m also aware that the passion you have all expressed says something powerful about how important O’Reilly is to you, and how much you expect of us. That’s a good feeling. We really do try to do the right thing. We don’t always succeed, and sometimes we really screw up, but I hope that those of you who seem to assume the worst are doing so only because it’s so important to you to have role models in business that you can respect. The folks at CMP are also good folks, and don’t deserve your abuse either.

Your passion also says something powerful about the nerve we struck with the term Web 2.0. We’re delighted that it has come to mean so much to so many people, and we want that enthusiasm to continue.

I would, as a parting bit of advice, point to an excellent posting by Anil Dash from back in 2004, entitled Learning from Experience. Anil wrote, after a dustup between Cory Doctorow and the magazine Fast Company:

“One of the things I’ve learned of late is that, despite being a wonderful, generous community of truly warm-hearted people, sometimes the blog world likes nothing more than a good old-fashioned pile-on… [But] what I’d like to do is propose a new model for responding to the blogosphere’s frequent and characteristic calls to action against Stuff That Sucks. First, read the link. Don’t go being a slashdot flameboy. Read the thing that’s being linked to. Second, we’re good at collectively ferreting out information, so let’s find the person responsible…. And then? Follow up. They’ll make changes, as quickly as they can, though in most organizations that’s not all that fast…. My last request, though I suspect it’s not likely to be adopted, is that people acknowledge the change when it happens.”

Understanding how and why screwups happen, and trying to engage with the right people to fix them, is way better than name-calling. We got the message loud and clear that the water here is muddy. But I don’t think that anyone deserves the kind of abuse that’s been flying around here. Thanks for your patience while we come up with a solution.

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