Patterico's Pontifications

9/15/2009

Politico to College Politico: Give Us Your Domain or We Will Sue You

Filed under: General — Patterico @ 5:43 pm

The College Politico has received a cease-and-desist letter from lawyers for Politico, demanding that he stop using the word “Politico” in his name — and that he give them control of his domain.

Stephen Gutowski, the operator of the domain, has broken several stories, including one that proved that Obama=Hitler signs were being wielded by Lyndon LaRouche supporters.

Spread the word far and wide: we will not stand for such thuggish tactics.

UPDATE: Until this threat is withdrawn, I plan to boycott Politico, and I encourage others to do the same.

UPDATE x2: The word “politico” is in the dictionary. It means “politician.”

What other ordinary words do we not get to use in naming blogs?

UPDATE x3: I have a call in to Lisa H. Glassman, the lawyer who wrote the cease-and-desist letter.

UPDATE x4: Another example of Politico’s thuggery here. Thanks to happyfeet.

UPDATE x5: Thanks to Instapundit for the link.

Here’s the letter:

Gutkowski Letter 1

Gutkowski Letter 2

Gutkowski Letter 3

172 Responses to “Politico to College Politico: Give Us Your Domain or We Will Sue You”

  1. I wonder if Siemens AG supports politico’s thug tactics?

    happyfeet (6b707a)

  2. I always thought that Politico was a Team Obama skin, anyway. It sure looks that way from these tactics.

    trentk269 (0481e9)

  3. They should call it POLITICA and tell them to go screw.

    willa (54a874)

  4. [...] the jerks at Politico think they own the name “politico.” Kos them. Comments [...]

    damnum absque injuria » Thug of the Day: Politico (490ac4)

  5. That link for the letter doesn’t work for me. I had to sign in to googledocs but still I didn’t get to see the letter they just directed me to my gmail account that I never use. It’s remarkably spam-free I noticed. But no letter.

    happyfeet (6b707a)

  6. Which domain was registered earliest?

    gp (de7e13)

  7. Of course you could always go viral with the name …

    Neighborhood Politico
    Washington Politico
    Politico Dispatch
    Street Corner Politico

    The list is endless, so get humping.

    Dusty (7bba43)

  8. Here is an interesting thing that is related. (I has an algorithm.)

    Faced with a trademark legal challenge and protracted litigation by the publishers of the newspaper and website ¨Politico,¨we have reluctantly chosen to change the name of our publication, from “La Política” to “CandidatoUSA.”

    happyfeet (6b707a)

  9. The Left is getting desperate to shut the masses up. They finally win power only to see their dreams crashing & burning at their feet. Why won’t people just shut up and worship them?

    ras (20bd5b)

  10. happyfeet,

    I just uploaded the image of the letter. Try again.

    Patterico (64318f)

  11. I’m going to start a website called PoliticHo and see if they come after me, too.

    MayBee (48424e)

  12. Which domain was registered earliest?

    Comment by gp — 9/15/2009 @ 6:39 pm

    That might be relevant if it was a fight between politico.com and politco.net, but one is politico.com the other is thecollegepolitico.com.

    This is like having Cafe sending a cease and desist to the Up The Street Cafe next door for using Cafe in their name.

    Dusty (7bba43)

  13. Which domain was registered earliest?

    Politico.com, by several years.

    That said, politico is a common word, and collegepolitico.com has been registered for over two years now. This looks more like legal bullying to me.

    Isn’t it a shame that there could even be such as thing as “legal bullying” when you think about it?

    ras (20bd5b)

  14. Thanks, Mr. P… I read it. Sort of could give a guy a headache, reading too much of Lisa going on about domain names. I guess mostly we learned when the college guy registered his domain. I think it’s probably sort of poachy based on that, but also it’s way dumb to invest kajillions into a startup based on an everyday word I think.

    Hah. Who is teh funny? MayBee is teh funny.

    happyfeet (6b707a)

  15. oh. I guess I should say I think the Politico people have a good case, really. The College Politico guy can’t be terribly surprised.

    happyfeet (6b707a)

  16. They have no case – massive corporations like GE tried years ago to get copycat – type domains off the web, to no avail. It’s just another intimidation tactic, which you correctly noted.

    Dmac (a93b13)

  17. This wouldn’t be as big a problem if people didn’t for real try and register domains to poach off the equity other people build up around similar domains. There’s no elegant solution. If Politico offered to buy CP out they’d just be giving a green light to copycat people.

    happyfeet (6b707a)

  18. I think they have a case but I’m not a lawyer not even a little so I’m gonna go to my quiet place now.

    happyfeet (6b707a)

  19. MayBee at #11, hilarious. Go for it!

    I’m sure the Politico name is personal and meaningful to Stephen Gutkowski, blah, blah, but to me it just seem like someone’s ego got too big for his britches.

    Dana (863a65)

  20. real quiet-like I’m gonna use my hubcap-stealin’ voice and just say that here is the specific page about what can happen next…

    happyfeet (6b707a)

  21. DowJones should sue DowLohnes.

    ms. docweasel (b970ac)

  22. [...] POLITICO: All Your Politicos Belong To Us. Seems like they could resolve this without lawyers and threats, and I think they should. More here. [...]

    Instapundit » Blog Archive » POLITICO: All Your Politicos Belong To Us. Seems like they could resolve this without lawyers and … (fe8e62)

  23. I believe I shall register the word “asshat” and charge royalties for the use of it, except when used in reference to politicos.

    crosspatch (6adcc9)

  24. So, anything with “politico” or apparently “politica” is an infringement? Let’s look around for something older than they are, of that form.

    Kevin Murphy (3c3db0)

  25. Proposed name change suggestions:

    Po-li-ti-co

    Poli-tico

    Politi-co

    Politic-oh!

    P******o

    F***ing P!@#%#@!!!

    Let Gutkowski put those in his poli-pipe and smoke’em.

    MarkJ (d2394a)

  26. I believe I shall register the word “asshat” and charge royalties for the use of it, except when used in reference to politicos.

    Good idea, but word on the street says that Barney Frank has already registered “asshat.” ;)

    MarkJ (d2394a)

  27. People wonder why lawyers are as little respected as pedophiles, journalists, and Congress, then along comes Lisa H. Glassman to remind us.

    Martindale-Hubbell isn’t a sex offender registry, but it works the same way — a handy list of unpleasant people to avoid.

    Kevin R.C. O'Brien (8124a2)

  28. I’m a trademark lawyer who has been involved in a published case over domain names as trademarks. If the facts regarding domain registration in the letter are correct, then the Politico does indeed have priority of rights, and are well within their rights to send a C&D — indeed, they need to if they don’t want to lose what trademark rights they have in the domain. Trademark rights can be lost if you don’t protect them. Patrick, you’re wrong here.

    Alex (2b5036)

  29. Alex,

    No, I’m not wrong here.

    Everyone who was confused and thought College Politico was really a subsidiary of Politico, raise your hand. I want to talk to you.

    Anyone?

    Patterico (64318f)

  30. But *links* to the College Politico could confuse people. And cites. I think the Campus/College dealio is compelling in terms of possible confusion.

    People are stupid and hasty, lots. You see this at your Blockbuster, if you ever go to those anymores, how a lot of the dtv titles try to poach off the equity of for real movies that people have seen.

    happyfeet (6b707a)

  31. Patrick — yes, you’re wrong here. Maybe you should stick to criminal law.

    The standard for trademark infringement is likelihood of confusion — and while evidence of actual consumer confusion is a factor that weighs in favor of an infringement plaintiff, it’s not necessary to prove likelihood of confusion.

    Same goes for trademark dilution, at least since the recent revision of the federal dilution statute: the standard is likelihood, not actual. Otherwise, you couldn’t enjoin dilutive use of a mark until the harm was already irretrievably done.

    Alex (2b5036)

  32. someone isn’t using their super-polite not-snotty collegial here let me share my knowledge voice

    happyfeet (6b707a)

  33. Patrick — yes, you’re wrong here. Maybe you should stick to criminal law.

    Ah, the arrogance of the civil lawyer. How it shines through.

    I took intellectual property, I was a law clerk to a federal judge, and I have dealt with trademark issues before.

    But please! keep up the insufferable condescension! It’s so helpful to your making a persuasive case.

    The standard for trademark infringement is likelihood of confusion — and while evidence of actual consumer confusion is a factor that weighs in favor of an infringement plaintiff, it’s not necessary to prove likelihood of confusion.

    Nor did I say that it was.

    Nor do I think that Politico could possibly establish likelihood of confusion.

    Evidently you do; please dazzle us with your analysis. And don’t forget a heapin’ helping of condescension, just to help it go down nice and smooth.

    Patterico (64318f)

  34. Alex, even if you think the law is on Politico’s side doesn’t mean they have to resolve their problems in this manner. They are trying to bully someone who can’t afford the kind of legal help Politico can.

    Alex, if you can’t think of a better way to resolve this, then perhaps you shouldn’t deal with these kinds of issues. I would think collegepolitico posting some kind of notice, somewhere in their fine print, saying they are not affiliated with Politico and respect their trademark, would be enough for Politico to keep their precious name from being infringed by HighSchoolPolitico. And they wouldn’t look like complete jerks to consumers of news.

    Selling internet news requires people linking to you, and those people greatly dislike this kind of thing. Not only is Patterico less likely to give them links, but even Instapundit seems annoyed. An altogether bad strategy, even if they ‘had the right’. This has, for sure, cost Politico money… which is also their right.

    Juan (bd4b30)

  35. First of all…

    Who ever goes to “Politico” as a stand alone website. Isn’t is always as a click-through from another blog/article?

    Second of all…

    NY Times, Washington Times, Chicago Sun Times, LA Times, etc…

    Politico laywers- you should start advising every Times, Post, News, Herald, Observer & Record in the US. Looks like there’s some money to be made…

    Regret (d43014)

  36. “someone” isn’t informing himself before going off half-cocked and calling legitimate behavior on the part of a trademark owner “thuggery,” either.

    I hope “someone” doesn’t behave similarly rashly when deciding whether to set out to ruin a criminal defendant’s life.

    Alex (2b5036)

  37. “someone” isn’t informing himself before going off half-cocked and calling legitimate behavior on the part of a trademark owner “thuggery,” either.

    I hope “someone” doesn’t behave similarly rashly when deciding whether to set out to ruin a criminal defendant’s life.

    You’re on thin ice, Alex.

    Patterico (64318f)

  38. I wonder how many newspapers use the name “gazette” or “tribune” or “ledger” or “post.” In that sense, is there not already some legal precedent that has been set due to years and years of media outlets using similar names?

    Go to gazette.com and you will see the online presence of a news outlet in Colorado Springs. Go to gazette.net and you’ll see content from Maryland. Interesting how those two sites have managed to co-exist — as have thousands of newspapers since the Internet age began — without there being a big legal fight as to the use of the names.

    Lynda (bb828f)

  39. The blunder was trademarking a common noun. Toys “R” Us is the classic case. Anything “R” Us with a backwards “R” is property of the “R” Us folks, and rightly so. “Cars.com” fucking with “Collegecars.com”, or “usedcars.com” not so much.

    [note: fished from spam filter -- Stashiu]

    bc (4e9305)

  40. Generic not trade-markable.

    Fat Man (66aae0)

  41. The solution is of course that everyone under the sun should get a domain name with the word politico in it and put up a quickie satire site (talent not required).

    Steve (3a435e)

  42. The thing sounds a lot like Monster Cable threatening to sue anybody with the term Monster in the name. Last I heard, it was a go-kart race track. Doesn’t make for good feelings amongst people.

    I like the “moron-in-a-hurry” test. If he ain’t fooled, carry on.

    Red County Pete (3a2280)

  43. I just registered MDPolitico.com. Let the games begin. They are full of s**t and the Shamwow guy has a better case. He’s on the TV in the background so I guess his tongue is feeling better.

    I can think of at least a thousand variations of Politico.com. Let them come ! Assholes !

    Mike K (2cf494)

  44. Where would Politico’s chief, Robert Allbritton, have learned such thuggery? Maybe from such pros as Augusto Pinochet, for whom the Allbrittons laundered money as owners of Washington DC-based Riggs Bank.

    http://www.pecuniarius.com/blog/?p=179

    Sean Ryan (6333d1)

  45. So, this is the end for my PolitiCola project?

    politi-comatus (d56886)

  46. I would think that a simple request that they note on their home page that they’re not associated with Politico.com would have been complied with and there would have been no reason for more letters. Maybe not. Was it tried?

    htom (412a17)

  47. Politico doesn’t seem that distinctive to me. How did it manage to get trademarked in the first place?

    DRJ (a51a0e)

  48. Alex, I’m really not the one to defend anybody else on here, but why shouldn’t a prosecutor set out to [convict (what you call 'ruin the life')] of a criminal defendant? Just chuckled a little at that. Patterico’s really tolerant of stupid comments, which is why I’m here and why some very heated disagreement is here. You don’t need to be a dickwad about your disagreement. I’ve disagreed with Patterico and I don’t think he even gave a shit. I’m not trying to be a sychophant here, but you’re really annoying.

    According to you: [You shouldn't call] “legitimate behavior on the part of a trademark owner “thuggery”.

    Legit meaning legal.

    Don’t you see why this is a really stupid thing to say? this is really at the heart of the anger at the law. I was always told it was jealousy at their powerful careers, but it’s really this crap. It’s not always OK to attempt to enforce every legally conceivable right you have. It’s often really horrible to do that. If we want to share the world, we need some give and take. A modern spin on that might be that if you want to run a website that gets fans, you shouldn’t be an asshole.

    But your legal view is not the only one. I don’t think it’s confusing at all that collegepolitico is not involved with politico. I don’t think sites with general words for names should own that name. I definitely think sending a C&D to a media website after so many companies have done so and wound up apologizing and looking stupid means this company got bad advice. Any idiot could find a way for these sites to get along. After all, they have for years.

    Juan (bd4b30)

  49. If I were on a jury, I wouldn’t find that “thecollegepolitico” is confusingly similar to “politico,” particularly when you look at both homepages. I understand Politico’s need to establish and protect a trademark, but there ought to be some way to do it without bullying people who aren’t really infringing on your name.

    I did a Google search of “politico” and found a Politicos Bookstore listed which I think is more similar to Politico than “thecollegepolitico.”

    AST (b6610c)

  50. As I understand it, a politico is anyone involved in politics.

    If there was some unique spelling, sure, they could demand someone copying that spelling in the same line of work to stop using that spelling. That makes perfect sense. So if they were Po1itic0.com and there was a domain called CollegePo1itic0.com, they would have more ground on which to stand. But to take a generic term that MEANS politics, claim ownership of it, and demand that people not use it is dumb. It shows their own stupidity in attempting to trademark a generic word.

    Has anyone ever trademarked “Garage” as an auto repair place and then demanded that all other auto repair services with “Garage” in their name stop using it? How about a cab company called “Taxi” or a plane manufacturer called Aircraft. Maybe a website about teachers called Educator.com

    A domain search of “educator” shows 133 current domains in .com, .net, and .org spaces with the word “Educator” in them yet I have never heard of Educator.com demanding that they all turn over their domains.

    Politico’s attempt to cover for a mistake in choosing domain names looks to me like a case of more money than brains.

    crosspatch (6adcc9)

  51. The great thing is that the attorney is a first year associate at Dow Lohnes (what a joke of a firm name, by the way), who went straight from undergrad to law school.

    Circumspection much? What a way to get famous.

    cenzo (c226ee)

  52. Trademark law is inherently schizophrenic. Lest you waive your trademark rights, you have to be vigilant in enforcing them, especially whenever possible infractions come to your attention. This is used as an excuse for bullying. Well-resourced bullies prosper because trademark issues are inherently fact- and opinion-intensive, which is to say, everyone has to hire lots of experts and do lots of surveys to try to address topics like “likelihood of confusion,” and if you don’t have the money to pay for the lawyers and experts and surveys you’re SOL (a term I’d like to trademark but, alas, it’s generic) as a practical matter.

    If they’ve received sound counseling under the cloak of attorney-client privilege, the business decisionmakers (who sign the checks to pay the lawyers and experts) at Politico.com or, rather, Capitol News Company LLC, have long since learned that they have chosen for their business name something that is a “weak” mark at its very best. It’s a step less generic than if they’d called their new website (and gotten the URL for) “Politics,” but barely that. If they were up against a well-resourced opponent who could afford the price of poker, they’d get their asses kicked, eventually, in court. But “eventually” means after months and months of pretrial motions and discovery and expenses out the wazoo.

    Odds are that they’ll get away with this bullying, and indeed, they may legitimately feel compelled to be bullies to some degree. After all, Rupert Murdoch might decide that he wants to start a new online publication called, say, “Politicians & Politicos,” based out of London and focused on E.U. and U.K. politics. If they’ve let College Politico “get away” with its arguable infringement, they may be estopped from trying to stop Murdoch. And he definitely does have the bankroll to post his ante and go a few betting rounds in this game.

    [note: fished from spam filter what hates Beldar ;) -- Stashiu]

    Beldar (c9f99a)

  53. Damn your comment filter, Patterico. Damn its bits and bytes to hell. It hates me.

    Beldar (c9f99a)

  54. 74,400,000 hits on “politico” on the Google.

    It’s an album by Frank Glover (2005)

    They started in 2007 as “The Politico”.

    Wikipedia topnotes “politico” with
    – For the multimedia political news venture, see The Politico.–

    Looks to me like they have one leg of a stool, and are trying to make up the others with bullying.

    htom (412a17)

  55. I’m not so sure that Politico has a whole lot of choice here. They have a registered trade mark and they must defend it or lose it. I don’t know if collegepolitico.com is being used in commerce or not, and that may be a significant factor, but there really isn’t any question that Politico has to defend its mark. I can see the argument that they are perhaps being overly thuggish about it, but competitors don’t often respond to “pretty please.”

    MichaelW (09f51e)

  56. And yet it lets that last (#52 – 9/15/2009 @ 8:53 pm) comment through!

    Beldar (c9f99a)

  57. Everyone who opposes Politico’s gangsterish move and doesn’t mind receiving threatening letters should immediately start a web pub with the word “politico” in it and advise this goon accordingly.

    Trying Again (31b155)

  58. I think I found their trademark thing; cutting and pasting the info if the link doesn’t work.

    ord Mark THE POLITICO
    Goods and Services (ABANDONED) IC 016. US 002 005 022 023 029 037 038 050. G & S: Newspaper reporting on the activities of the legislative and executive branches of the Federal government, officials and employees of the executive and legislative branches of the Federal government, members of Congress and their campaigns, and other matters of interest to people who work for or with the Federal government
    (ABANDONED) IC 041. US 100 101 107. G & S: Providing news and information via the Internet in the nature of current event reporting about the activities of the legislative and executive branches of the Federal government, officials and employees of the executive and legislative branches of the Federal government, members of Congress and their campaigns, and other matters of interest to people who work for or with the Federal government

    Mark Drawing Code (3) DESIGN PLUS WORDS, LETTERS, AND/OR NUMBERS
    Design Search Code 26.11.08 – Rectangles comprised of letters, numerals or punctuation and letters, numerals or punctuation forming the perimeter of a rectangle or bordering the perimeter of a rectangle.
    26.11.21 – Rectangles that are completely or partially shaded
    Serial Number 77113089
    Filing Date February 22, 2007
    Current Filing Basis 1B
    Original Filing Basis 1A
    Published for Opposition January 15, 2008
    Owner (APPLICANT) Capitol News Company, LLC LIMITED LIABILITY COMPANY DELAWARE 1000 Wilson Boulevard, Suite 2700 Arlington VIRGINIA 222093921
    Attorney of Record Mitchell H. Stabbe
    Description of Mark The color(s) red, black and gray is/are claimed as a feature of the mark. The mark consists of the word “THE” vertically to the left of the letter “P” of the word “POLITICO”; above and below the words “THE POLITICO” are rectangles, the top rectangle and the word “THE” are in the color black, the word “POLITICO” is in the color red, and the bottom rectangle is in the color gray.
    Type of Mark TRADEMARK. SERVICE MARK
    Register PRINCIPAL
    Live/Dead Indicator DEAD
    Abandonment Date November 10, 2008

    Foxfier (97deae)

  59. Sounds like Beldar and MichaelW are trying to rationalize Politico’s thuggish threat. Are they of the view that “politico” is not a common noun? Is it their view that any company with a common noun as part of its name is justified in suing other companies that use that common noun as part of its name?

    Trying Again (31b155)

  60. Sounds like Beldar and MichaelW are trying to rationalize Politico’s thuggish threat. Are they of the view that “politico” is not a common noun? Is it their view that any company with a common noun as part of its name is justified in suing other companies that use that common noun as part of its name? And what does it mean to say that Politico “doesn’t have a whole lot of choice” in the matter? Did someone put a gun to their head?

    Trying Again (31b155)

  61. There are a whole lot of results for “Politico,” too.

    Sounds like bullying to me.

    Foxfier (97deae)

  62. MichaelW, read up on La Politica, a Spanish site for politics that Politico attacked. Here’s a link

    They indeed were willing to do all kinds of things to avoid a costly legal dispute. My suggestion is realistic, and Politico is aware of that kind of thing. They are thugs.

    I don’t think Politico should even have a trademark to that name. I hope that can be taken away from them, but the legal costs would be staggering for an online publication.

    Juan (bd4b30)

  63. Trying Again,

    I think the point is that if Politico is a trademark, the owners have to defend it to protect their interests. But your point is why I wondered earlier how they managed to trademark the word Politico in the first place. Finally, instead of justifying what Politico is doing, keep in mind that Beldar suggests the term ‘Politico’ is a weak trademark that would not be easy to defend against someone with deep pockets.

    DRJ (a51a0e)

  64. I have to send them a C&D for infringing on my site CollegeAthlete.com.
    Look out Patterico, it seems to me that Patterico sounds a lot more like Politico than CollegePolitico does.

    Have Blue (854a6e)

  65. Finally, instead of justifying what Politico is doing, keep in mind that Beldar suggests the term ‘Politico’ is a weak trademark that would not be easy to defend against someone with deep pockets.

    . . . Or a loosely-knit cabal of pro-bono attorneys and “friend of the court” briefs to up the attorney-cost-ante on Politico’s bullying?

    Just thinking out loud here . . .

    John Hitchcock (3fd153)

  66. Nor do I think that Politico could possibly establish likelihood of confusion.

    Going just by the domain name without actually looking at the site I would have guessed that the site was a politico.com venture aimed at a younger audience. So yes I would say that likelihood of confusion is present.

    My understanding is that trademarks exist to allow companies to brand their products for ready identification, and that only the mark itself need be examined, not the content of the product.

    I.E. a dairy had to quit selling MacDonald’s Cheese due to likelihood of confusion, despite not even spelling the name in the same manner.

    Soronel Haetir (2b4c2b)

  67. i would direct everyone to http://www.politicoisabunchofdouchenozzle.com

    JD (7cad2c)

  68. Actually, JD, the whole thing reminds me of this famous story:

    http://www.groucho.com/

    Don’t these folks at Politico have…well…anything better to do?

    But then, I knew some students long ago who loved science and their version of post-punk, and called their band “Nerds.”

    And Nestle Corporation sued them.

    Eric Blair (721b15)

  69. If I was The College Politico, I’d give them what they wanted.

    It’s not worth going to court over.

    Dave Surls (bf4073)

  70. Trying Again (#57 – 9/15/2009 @ 9:10 pm) wrote:

    Everyone who opposes Politico’s gangsterish move and doesn’t mind receiving threatening letters should immediately start a web pub with the word “politico” in it and advise this goon accordingly.

    The problem is that this won’t necessarily stop with threatening letters. It may well progress to a lawsuit, and everyone who’s set up a cyber-griping site with the word “politico” in the URL may quickly find themselves as defendants. The case will likely be in federal court, and you can be sure it will be in a federal court that Politico’s lawyers believe is receptive to its claims and convenient for Politico and its lawyers — and very likely inconvenient to you. You’re likely then to have to hire a local lawyer in that far-away city, and you have no assurance that your motion to dismiss will be granted even after you spend several thousand dollars paying your far-away (sympathetic but non-pro-bono) lawyer to draft and file it. Bullies in this position very often play serious hardball — insisting during “settlement discussions,” for example, that “when” they win (not “if”), they’ll be able to recover substantial damages even without proof of any economic harm, plus their costs and attorneys’ fees. And yes, there are provisions in the trademark statutes and interpretive caselaw that don’t rule out that result. Unless you have comparable resources to the bully, the question quickly becomes, for most defendants in these lawsuits, how to gracefully surrender at a minimal price while retaining a shred of dignity and giving the bully everything it wants (i.e., you cease and desist, and commit to do so contractually, and everything gets covered up with a confidentiality clause).

    Trying Again then wrote (#60 – 9/15/2009 @ 9:15 pm):

    Sounds like Beldar and MichaelW are trying to rationalize Politico’s thuggish threat. Are they of the view that “politico” is not a common noun? Is it their view that any company with a common noun as part of its name is justified in suing other companies that use that common noun as part of its name? And what does it mean to say that Politico “doesn’t have a whole lot of choice” in the matter? Did someone put a gun to their head?

    I’m sorry if I haven’t been clear enough. My sympathies are entirely with The College Politico and others in comparable postures, which is why I have referred repeatedly to Politico as a “bully.” My legal analysis, though, is independent of my sympathies, and it tells me that while The College Politico would probably, and should, win if it had sufficient resources to fight to the finish in a fair forum, that’s far from being a lead-pipe cinch or a slam dunk. Moreover, The College Politico almost certainly doesn’t have those resources. So it will be under considerable pressure to settle, that is, to give Politico what it wants (probably a name-change, but possibly something like a prominent disclaimer of the “Not Affiliated with Politico.com” variety printed on everything it publishes).

    Apart from bullying and over-reaching, I also pointed out that the law imposes on trademark owners an obligation to protect their marks, which often becomes an excuse for bullying behavior, especially in an initial demand letter. And the reason I mentioned what Politico’s lawyers have probably privately told them is to explain why the Politico, too, has strong motivations to settle: If they fight, they might lose, and losing can be catastrophic. But by making timely protest and then settling (with appropriate stipulations among the parties), they can show that they weren’t lax. (Ask the companies that once owned the rights to “Zipper” and “Celophane” and “Yo-Yo” and other now-generic names whether they wish now that they’d protected their tradenames before courts ruled that they hadn’t.) That’s built into the trademark/tradename law; it’s something litigants in these cases have to understand in assessing each others’ motivations and priorities; and it’s something I thought (and think) might be useful for readers here to understand as well, especially if they’re non-lawyers.

    Beldar (c9f99a)

  71. Thuggery. Hmmm. I wonder if Nancy knows. Imagine a nice conservative fellow like this, one of Ronald Reagan’s pallbearers to boot, running a shop that stoops to using “thuggish tactics”…

    Frederick J. Ryan, Jr. is president and CEO of The Politico and is Chairman of the Board of Trustees of the Ronald Reagan Presidential Library Foundation. Beginning in 1985, Ryan served under President Ronald Reagan in “the White House Office of Private Sector Initiatives as well as serving as Director of Presidential Appointments and Scheduling”.

    Ryan is also a member of the Board of Directors of Riggs National.

    A November 1987 press release for Ryan continues that he “began serving at the [Reagan] White House in February 1982 as Deputy Director of Presidential Appointments and Scheduling. In February 1983 he was appointed Special Assistant to the President (Reagan] and Director of Presidential Appointments and Scheduling. Mr. Ryan was previously an attorney with the Los Angeles law firm of Hill, Farrer and Burrill. While engaged in his practice, he published several articles on various aspects of the law.

    “Mr. Ryan graduated from the University of Southern California (B.A., 1977) and the University of Southern California Law Center (J.D., 1980).” -source, sourcewatch.org

    Frederick Ryan, Jr.
    AKA Frederick Joseph Ryan, Jr.
    Born: 12-Apr-1955
    Birthplace: Tampa, FL
    Gender: Male
    Race or Ethnicity: White
    Sexual orientation: Straight
    Occupation: Business
    Nationality: United States
    Executive summary: CEO of Allbritton Communications
    Former assistant to [President] Reagan. Throws an annual St. Patrick’s Day party at his home in Potomac, Maryland.

    Father: Frederick Joseph Ryan
    Wife: Genevieve (“Genny”)
    Daughter: Genevieve
    Daughter: Madeline
    Daughter: Caroline
    Law School: JD, University of Southern California (1980)

    Allbritton Communications CEO
    Member of the Board of Riggs National
    Alfalfa Club 2000
    George W. Bush for President
    Ronald Reagan Presidential Library Chairman, Board of Trustees
    Funeral: Ronald Reagan (2004) Pall Bearer Irish Ancestry -source,nndb.com

    And who funds Politico:
    http://www.salon.com/opinion/greenwald/2007/05/04/politico_funding/index.html

    DCSCA (9d1bb3)

  72. Well, it looks like someone is back from the clinic again. Complete with Wall O’ Text, quote from freakin’ Gleen, and neurotransmitter imbalance intact.

    Eric Blair (721b15)

  73. Re Patterico’s self-imposed boycott to linking to Politico.com:

    I think that’s just fine. Outside the courtroom — and especially in the blogosphere, home to many opinionated civil libertarians — Politico.com doesn’t have the same overwhelming advantages it does in the realm of high-priced intellectual property lawyers and the conference rooms and courtrooms they infest.

    It’s not impossible (or even implausible to believe) that The College Politico might get some settlement traction based on public opinion, and that’s a realm that should be very important to Politico.com too.

    So yes, to the extent The College Politico can play David to Politico.com’s Goliath on other fields of battle, more power to it.

    However:

    John Hitchcock wrote (#65 – 9/15/2009 @ 9:32 pm):

    Or a loosely-knit cabal of pro-bono attorneys and “friend of the court” briefs to up the attorney-cost-ante on Politico’s bullying?

    In a better world such a coalition of the willing would indeed coalesce and defend The College Politico. And maybe it will in fact happen. Having to rely upon such defenders, though, leaves those in the “David” role in more-or-less continuous jeopardy; its defenders pretty much all have to give priority to their full-time jobs when (as inevitably will happen) resources get tight. And The College Politico is potentially at risk for more than just its legal fees.

    Re the actual likelihood of confusion: I’m quite sure that both sides would be able to find credible and competent expert witnesses whose pretrial testimony would raise a genuine issue of fact and defeat either side’s motion for summary judgment. And bullies count on, and benefit from, that uncertainty, and the resulting inability of the righteous defendant to get a quick and cheap dispositive motion granted.

    Beldar (c9f99a)

  74. Alex and Beldar got this right.

    I do this (i.e., practice trademark law) for a living.

    “UPDATE x2: The word “politico” is in the dictionary. It means ‘politician.’”

    EXACTLY!
    It does NOT mean a newspaper or blog providing news and commentary about, among other things, politics and politicians. Add to that the fact that because of Capitol News Company’s investment of talent, time, effort and money into its business, most people looking for news and commentary associate “POLITICO” with the business run by Capitol News Company, and many of them would believe that “CollegePolitico” was in one way or another associated with “Politico.”

    So, no matter how much any us may personally like whoever is running “CollegePolitico” and/or like and admire what he is doing, as a society we should NOT be condoning his or anyone else’s trading on the goodwill of someone else.

    And, please, let’s not be wimpy because a lawyer letter was sent out!

    Hey, anyone OK with http://www.collegepatterico.com, a website providing news and commentary on politics which might affect college age folks?

    Ira (28a423)

  75. Actually, I disagree with Beldar’s comment in #73.

    Ira (28a423)

  76. Ira, give me a respected dictionary’s — any respected dictionary’s — definition of the word patterico.

    Linky

    Linky

    Didn’t find a dictionary definition of patterico. So, Ira, you changed horses in the middle of the ocean since the camel got its nose under the tent.

    John Hitchcock (3fd153)

  77. Sorry Ira… but its not “collegepolitico.com”

    It’s thecollegepolitico.com which is a reference to me… as in this is the personal blog of an author who calls them self the college politico. Or, in other words, a college kid who is in politics.

    I’ve been using the name to refer to myself since December 2007 and I can tell you it was in no way conceived with POLITICO.com in mind. Actually allah pundit was my main inspiration for creating the moniker… I just didnt like how the college pundit sounded and thought the college politico sounded much cooler.

    Sadly I think that Beldar’s comments are probably the closest to the truth. I will fight this as much as I possibly can but I have little to nothing in terms of money to put towards this…

    POLITICO may just bully me out of the brand I built

    The College Politico (b7df52)

  78. Hang in there, kid. Hopefully you will get some high-falutin- type pro-bono lawyers who will run them bullies through the ringer.

    John Hitchcock (3fd153)

  79. TCP/Stephen:

    I don’t have any problem with a disclaimer (no affiliation to Politico.com) and I bet you don’t either. Giving up your domain is something else altogether. I’d do the former without being asked; I would never do the latter.

    Patterico (64318f)

  80. [...] Today I received a cease and desist letter from Dow Lohnes PLLC on behalf of Capitol News Company LLC which is the publisher of POLITICO. They claim that my domain name “thecollegepolitico.com” and its contents are “confusingly similar” to their trademarks. They then make absurd unfounded claims that I somehow specifically choose to use the term “politico” in my name to steal their readers and confuse them into thinking that POLITICO is a tiny conservative college opinion blog run by a single person. [...]

    The College Politico » Blog Archive » POLITICO Threatens to Sue Me (072daa)

  81. I just think if Hollywood were this fussy, no porn movie would ever get named.

    MayBee (48424e)

  82. Patterico:

    I would be completely fine with putting up a disclaimer and would have already if there had been any evidence anywhere at anytime that anybody had ever been confused about whether or not I was affiliated with POLITICO…

    If they promise, in writing, to drop this crap in exchange for some kind of disclaimer I will certainly accept that

    The College Politico (b7df52)

  83. TCP, I would suggest doing it anyway on your own accord. There are many reasons to put the disclaimer up. Like you don’t actually want to have anyone think you’re tied to a lib site, do you? I mean, seriously. And you’re better than them, integrity-wise, honor-wise, true-compassion-wise, no? Besides, it would show a good-faith effort to distance yourself.

    John Hitchcock (3fd153)

  84. Ira wrote (#74 – 9/15/2009 @ 10:59 pm):

    I do this (i.e., practice trademark law) for a living….

    … Add to that the fact that because of Capitol News Company’s investment of talent, time, effort and money into its business, most people looking for news and commentary associate “POLITICO” with the business run by Capitol News Company, and many of them would believe that “CollegePolitico” was in one way or another associated with “Politico.”

    With due respect, there’s no shortage of lawyers, even among the readers and commenters on this blog, who know a fair amount about this area of the law. And I’m sure you’ll acknowledge that among the reasons IP lawyers are in reasonably high demand right now is that their opinions, as applied to any particular set of facts, may differ from one another’s.

    You and I are both guessing about what the evidence might be. Politico.com is fairly new, but I’ll acknowledge that it made a pretty big splash on the internet in a short period of time. Still, if we were to survey 100 prototypical “average Americans,” I doubt that two in ten has ever heard of it. People who spend a lot of time reading news and political commentary on the ‘net are more likely that others to have heard of it, but that’s only a fraction of the people who are regularly on the ‘net.

    Coming at it from the opposite direction — the small minority who does already know of Politico.com — those are precisely the sort of internet consumers whose sophistication is most likely to prevent them from being misled as to whether there’s some affiliation or sponsorship, or from being otherwise confused or misled.

    You went on to say (#75 – 9/15/2009 @ 11:01 pm) that you disagree with my comment in #73. Did you mean my comment predicting that “both sides would be able to find credible and competent expert witnesses whose pretrial testimony would raise a genuine issue of fact and defeat either side’s motion for summary judgment”? Or did you mean my endorsement of the idea that The College Politico may gain practical leverage if Politico.com is perceived as a bully as a result of bad PR? If you just want to disagree, without explaining why, that’s your prerogative, but it’s not likely to persuade other readers.

    Finally, you write that “as a society we should NOT be condoning his or anyone else’s trading on the goodwill of someone else.” I agree. But there’s absolutely no basis for anyone to suppose that’s what The College Politico has done here, and in fact, I think there’s a fairly persuasive argument — from his own mouth, and even moreso from his relative circumstances — that he’s done nothing of the sort.

    Mr. Gutowski: You should probably stop commenting about this matter in public — whether here or on your own blog — until you do have competent legal counsel, volunteer or otherwise. You may want to mobilize opinion in your favor; but by the same token, you may want to leave that possibility latent for the moment, until your counsel has had a chance to consult thoroughly with you and, perhaps, to get a better read on Politico.com’s pulse. I don’t think you’ve said anything yet that is likely to be prejudicial to your interests later, but it’s hard to tell how something might be misinterpreted or twisted.

    Beldar (c9f99a)

  85. Beldar,

    I’m not certain why I have a feeling of unease when I see your name. I have a vague feeling it has something or other to do with other matters. But your response to Ira sounds very solid to this man’s uneducated — regarding the law — ears. And I fully support your advice to Mr Gutkowski.

    Mr Gutkowski,

    You have the right to remain silent (about this issue). Should you give up your right to remain silent and exercise your right to speak out, your words will be used against you in a civil court. You have a right to an attorney (and I strongly suggest you get one before you speak out again on this matter).

    As a politico with a very specific interest, I suggest you “Lock it up, Marine.”

    (And I would like all future reference to “pols” to be changed to “politicos.”)

    John Hitchcock (3fd153)

  86. “What other ordinary words do we not get to use in naming blogs?”

    You probably can’t make a blog named “Apple computers.” I’m guessing this is a trademark dispute. This makes me think you don’t understand that.

    imdw (52a386)

  87. You probably can’t make a blog named “Apple computers.” I’m guessing this is a trademark dispute. This makes me think you don’t understand that.

    Comment by imdw — 9/16/2009 @ 5:11 am

    That’s right, asshole, but my local Jewel sells apples and McIntoshes, and my local jewelry store sells jewels. I’m guessing that you’re a disingenuous moron.

    nk (df76d4)

  88. So you get that it is not a question of what ordinary words one can’t use in naming blogs. That’s a simple basic conclusion from noticing the trademark issue. Missing this means either you dont’ get the trademark issue or you want to confuse it like a hack.

    imdw (2d0308)

  89. When you have a weak mark, a word in ordinary use, you cannot preclude others from using it unless you can prove that they are trying to pass themselves off as you. Your case gets even weaker when your “mark” is only a part of their mark and you got approval for your mark based partly on its graphic design including font and color. (See comment #58 above.)

    nk (df76d4)

  90. Too bad I don’t have a graphic of Calvin peeing on Politico.

    Watch it Pat. You may get sued for Patterico being too close to Politico in some liberal ambulance chaser’s mind.

    PCD (02f8c1)

  91. Heh.

    Kevin (7a485a)

  92. also, how many blogs have “loose cannon” in the names? Very many.

    Any other “loose cannon” wants to serve me, fine, but I volley with a right cross.

    PCD (02f8c1)

  93. So I guess that calling my soon-to-be-opening chain of Mexican restaurants in the DC area “PoliTaco” is a bad idea, right?

    That’s a shame. I already had the napkins printed up.

    RC (2658bd)

  94. [...] other bloggers, including Patterico, were let in on the information, and Pat decided to go public last night, having put in a call to [...]

    Politico Tries Bullying College Politico « POWIP (e3a4cc)

  95. Apple has their word protected, and yet it is a very common noun. But then until they staked their claim to it, nobody associated Apples and electronics. Trying to protect a word like Politico in the field of politics IS like trying to protect the word Garage in the the field of auto mechanics.

    quasimodo (4af144)

  96. [...] to Patterico, it appears that they think so: The College Politico has received a cease-and-desist letter from [...]

    Hot Air » Blog Archive » Who owns the word “politico”? (e2f069)

  97. Coca Cola tried to trademark fireengine red as well

    EricPWJohnson (785fbc)

  98. Good on you, Patrick. I’ll join you in your avoidance of the Politico site.

    SarahW (692fc6)

  99. That should be fire engine red

    EricPWJohnson (785fbc)

  100. I have another idea, if one must link to Politico, do it obscenely.

    PCD (02f8c1)

  101. Even John Deere had the good sense not to trade mark the color names, John Deere Yellow, and New John Deere Yellow.

    PCD (02f8c1)

  102. quasimodo, tell that to Yoko Ono!

    But you have a great point.

    Juan (bd4b30)

  103. Wonder how serious Politico is — the attorney they assigned to write the letter, Lisa H. Glassman, is a newbie who just graduated law school last year and was admitted to the D.C. bar this year. Of course they’ll reassign it if it comes to litigation, but still. Don’t these idiots know that any lawyer who makes this kind of threat against a blog gets vetted in about five seconds?

    My first advice to College Politico would be to either (1) ignore the letter, (2) respond with a simple “Dear Ms. Glassman, Go f*** yourself,” or (3) a long screed cataloging Politico’s embarrassing history of political bias, just so it ends up in the court papers and all over the internet.

    Northeast Elizabeth (4f6d4a)

  104. Oh, and P.S., Hi Lisa! Say bye bye to your reputation.

    Northeast Elizabeth (4f6d4a)

  105. Elizabeth, what did Lisa do that would harm her reputation?

    I think she’s just a lawyer representing her client. She hasn’t lied and seems to be getting what her client wanted.

    The problem is that our legal system has a problem. It’s like that punk rock band ‘Nerds’ that got sued by Nestle… even if it’s not confusing to customers, trademarks are used to bully. Lisa is just joining a party that is already long going. Why should she not represent her client according to the flawed standards in practice? How would it have helped anything for someone else to have put their name at the bottom of this form letter?

    We don’t know that Lisa didn’t suggest to Politico that they make a phone call or friendly request for a disclaimer. We only know that this is the action of Politico’s representative. To each her own, but I will direct my frustration at Politico.

    Juan (bd4b30)

  106. IANAL,

    But I note that locally, the Mall of America, lost it’s trademark violation suit against the Waterpark of America, which was built just 2 blocks away.

    I know that the Mall of America had collected evidence of confused guests at it’s (the Mall’s) amusement park, who wanted to know where the waterpark was.

    Seems the court felt that the “of America” tag was not unique enough.

    Loren (af2946)

  107. MasterCard claims to have trademarked “priceless”. And Paris Hilton “That’s hot!” Can I trademark “Good luck with that”TM?

    nk (df76d4)

  108. Elizabeth, what did Lisa do that would harm her reputation?

    We don’t know that Lisa didn’t suggest to Politico that they make a phone call or friendly request for a disclaimer. We only know that this is the action of Politico’s representative. To each her own, but I will direct my frustration at Politico.

    Politico’s president didn’t sign the letter, Ms. Glassman did. If what you’re suggesting is that she’s abandoned her principles to do what her client wants for money, well, there’s a name for people who engage in that sort of conduct.

    I’ll direct my anger at Ms. Glassman and any other Politico fool who lends their name to this nonsense. As Alinsky said, personalize it.

    Northeast Elizabeth (4f6d4a)

  109. “DowLohnes” must be some sort of trademark violation.

    Chuck Roast (f2ccc0)

  110. Stephen wrote,

    “It’s thecollegepolitico.com which is a reference to me… as in this is the personal blog of an author who calls them self the college politico. Or, in other words, a college kid who is in politics

    .”If your name was “Gallo,” you could not name your wine “GALLO.” If your name or nickname were “Patterico,” you could not call your website “thecollegepatterico.com” without creating a likelihood of confusion.

    Ira (28a423)

  111. Ira is conflating names and nouns.

    JD (59882e)

  112. Conflating or not, the point stands.

    Ira (28a423)

  113. [...] what he has to say. Well recently he was contacted by the news website POLITICO’s lawyers and told to give up his domain and never use the name “the college politico” [...]

    The College Politico | Freedom and Liberty (3cb641)

  114. [...] Patterico: The College Politico has received a cease-and-desist letter from lawyers for Politico, demanding that he stop using the word “Politico” in his name — and that he give them control of his domain. [...]

    Politico Threatens to Sue the College Politico : Stop The ACLU (dae8af)

  115. I want to trademark the glyphs ©, ®, and ™, please. Oh, and § and ¶, too!

    htom (412a17)

  116. Beldar,

    Thank you for the objective analysis.

    Et al,

    If the issue is likelihood of confusion amongst those people who might be searching for politico.com on the internet … well, why not ask those people directly instead of guessing at what they might think?

    We can do this; there are no end of blogs who have just such readers. Many (most?) of the larger-traffic ones are also well aware of Patterico’s site as, I’m sure, are many more smaller sites as well.

    Wouldn’t it be considered good evidence if those sites asked their readers to vote in an online poll on the matter, hosted, for sake of argument, here, and linked to by as many sites as wish to participate? Wouldn’t this evidence be considered pretty compelling regardless of whether those readers vote yea or nay?

    Or am I being naive?

    ras (20bd5b)

  117. More importantly, Ira is not dealing with the core issue of the strength of the Politico mark, the degree of descriptiveness, etc.

    I’ve written more than a few of these kinds of C&D letters in trademark / domain cases and Beldar has – once again – hit the nail on the head.

    I’ve made it a practice, especially in domain name cases, to reduce the bullying tone and offer compromise resolutions where I felt that doing otherwise would rebound to the discredit of my client when the letter was published as this example shows.

    Glassman has not learned the lesson yet.

    SPQR (26be8b)

  118. ras, no that kind of poll would not be at all compelling. The exact legal factors vary a bit by circuit but they are all a long list of potential factors such as the kind of product/services, the distribution channels, the strength of the mark at issue, etc. Only one factor and often not even the most conclusive is evidence of actual consumer confusion.

    SPQR (26be8b)

  119. Ira @ 10:11 am; The point does not stand, because the law distinguishes.

    SarahW (692fc6)

  120. It’s not possible to trademark the word Politico, just the brand (in general terms), and other critieria must be met before infringement could be proved.

    Steve created no obvious attempt to ride Politico’s coattails.
    He does not have a site design that attempts to fake or ape Politico’s. He doesn not infringe on their logo or heading.
    If I understand correctly his site was created before their campus site, which is not even in present use.

    Thecollegepolitico can not reasonably be assumed to be trading on the good name of Politico’s blog. Indeed one might, at present argue the opposite.

    SarahW (692fc6)

  121. Does “the point still stands” qualify as a viable position? There is a large difference between a name (Gallo or Patterico) and a noun (politico). Am I incorrect in assuming that is not a distinction without a difference, which Ira appears to be asserting?

    JD (adf3eb)

  122. JD, it is decidedly NOT a distinction without a difference. The law looks with less favor on an infringement claim based on a common word in frequent use, than a claim that a more unique name (with “identity” implied). It’s easier to prove the latter has been coopted and will create confusion.

    SarahW (692fc6)

  123. SarahW – That was my understanding, but Ira’s breezy dismissal made me wonder if I was missing something.

    I am prolly a racist.

    JD (d3d21b)

  124. Crooks and Liars should write a cease and desist Letter to Teh One’s administration.

    JD (d3d21b)

  125. SPQR,

    Thx for the reply. So actually measuring the confusion is not considered important in determining whether or not confusion is being caused?

    Maybe I’m the one living in Bizarro Land after all, cuz that just makes no sense to me. I expect that you’re correct, but the logic behind the law escapes me in this case. Anyway, thx again.

    ras (20bd5b)

  126. without creating a likelihood of confusion.

    No – the only confusion that happens very rarely is when a trademarked name becomes predominant in the public lexicon. Think of Coke and Kleenex – but politico? It is to laugh.

    Dmac (a93b13)

  127. Or Kodak and Xerox in the recent past.

    Dmac (a93b13)

  128. “DowLohnes”?

    Oh, see – I was confused for a moment there.

    Thought they were associated with the ‘Dow Jones’.

    …seems there ought to be a trademark lawsuit in there somewhere.

    – Ron

    Ron (ed8c24)

  129. [...] not quite sure how The Politico is going to get away with this. The College Politico has received a cease-and-desist letter from lawyers for Politico, demanding [...]

    Can You Copyright a Word? (9cf8b6)

  130. The change from SciFi to SyFy was because “SciFi” is a common word– thus couldn’t be trademarked very well.

    Foxfier (97deae)

  131. While I’m not impressed by the legal claim being made by the owners of Politico, I don’t see any need to blame the attorney who signed the letter. It’s not likely that she was the one who made the decision that it would be a good idea to send a cease & desist letter to the College Politico.

    Joshua (9ede0e)

  132. “I’ll direct my anger at Ms. Glassman and any other Politico fool who lends their name to this nonsense. As Alinsky said, personalize it.

    Comment by Northeast Elizabeth ”

    You have no reason to assume Lisa wanted to do this. you only know that she is representing an aggressive client. Your ‘anger’ would make a lot more sense if she was making irresponsible claims. But she’s not. Her client is pressing their advantage way too hard, and Lisa’s expressed that clearly in a well executed letter. It was foolish to make a legal matter out of this so quickly, but I don’t see any reason why someone wouldn’t want to rely on Lisa’s legal work. Your comments about her reputation being ruined are really stupid, which makes a lot of sense if you are trying to emulate Alinksy.

    I just think Politico is the asshole here.

    Juan (bd4b30)

  133. A few more observations, in response to other comments:

    Northeast Elizabeth wrote (#103 – 9/16/2009 @ 8:45 am):

    Wonder how serious Politico is — the attorney they assigned to write the letter, Lisa H. Glassman, is a newbie who just graduated law school last year and was admitted to the D.C. bar this year. Of course they’ll reassign it if it comes to litigation, but still. Don’t these idiots know that any lawyer who makes this kind of threat against a blog gets vetted in about five seconds?

    I agree that among the first things to be done upon receiving such a letter is to vet the writer, a process made much easier by the internet. (In the olden days we had to walk down the hall and find the relevant volume of the Martindale Hubbell legal directory, and Ms. Glassman may be too new to practice to be in the print version.) But note, too, that her letter shows a cc to Mitchell H. Stabbe, Esq., the head of the Dow Lohnes firm’s trademark practice and in all likelihood Ms. Glassman’s supervising partner on this matter. In all likelihood, Ms. Glassman — as an ultra-junior new associate with the lowest billing rate offered by the firm — was tasked by Mr. Stabbe to write this letter, probably using prior cease & desist letters from their practice group as a template, but with instructions to marshal and then incorporate the best factual arguments to support their client’s purported infringement claim. Mr. Stabbe probably reviewed and approved the letter before it went out. However, the fact that it was sent under Ms. Glassman’s signature, rather than his, may be intended to do more than show their joint client that the firm is trying to be cost-effective; it may be intended to signal that while the firm is serious enough to send a C&D letter, they’re not quite yet planning to launch World War 3.

    Mr. Gutkowski (Gutowski? sorry, I’m not sure which is right) and his counsel can be relatively certain, too, that Mr. Stabbe will be involved at least in overseeing settlement discussions, and he likely would be listed as the attorney-in-charge in any future court pleadings. Deciding whether to direct a response to Ms. Glassman, or instead to go over her head directly to Mr. Stabbe — like the decision whether that response should be telephonic or written, and if written whether it should be in formal letter form or in a more casual email — that’s all part of the delicate tactical judgments each side makes as these dances play out.

    SPQR wrote (#117 – 9/16/2009 @ 11:25 am):

    I’ve made it a practice, especially in domain name cases, to reduce the bullying tone and offer compromise resolutions where I felt that doing otherwise would rebound to the discredit of my client when the letter was published as this example shows.

    Glassman has not learned the lesson yet.

    I agree with this, and once again I don’t want to be interpreted as approving of, much less defending, the tone or substance of Dow Lohnes’ letter. But just as I’ve (occasionally) seen letters crafted to project more of a “come let us reason together to resolve this problem” tone, I’ve also seen many C&D letters that were far more trenchant and over-the-top than this one, both in tone and substance. And once again, it’s useful to keep in mind that there are multiple purposes being served by C&D letters like this one: First and foremost, it’s to get the other side’s attention and open a dialog before filing suit; but second, it’s to create an evidentiary trial to establish in some future proceeding that the trademark owner was not merely diligent, but aggressively so, in protecting its mark.

    With due respect, that’s why Prof. Reynolds was (IMHO) being naive when he suggested that this could have been handled without lawyers and a demand letter. It might be possible to start down the path toward a negotiated settlement with a polite principal-to-principal telephone call, but that creates risks most lawyers wouldn’t welcome (such as an “I-said then he-said” swearing match later about that phone call). And by the end of the day, even if there’s a negotiated settlement — and there is one in all but a very, very tiny percentage of these disputes; most of them never result in lawsuits being filed, and only a tiny fraction of those go through the full trial and appellate process — the lawyers are still going to have to be involved in documenting the terms of the settlement and, again, creating the evidentiary trail to serve the tradename owner’s purposes in proving diligence.

    ras wrote (#166 ):

    Wouldn’t it be considered good evidence if those sites asked their readers to vote in an online poll on the matter, hosted, for sake of argument, here, and linked to by as many sites as wish to participate? Wouldn’t this evidence be considered pretty compelling regardless of whether those readers vote yea or nay?

    Such an informal poll would never make its way into evidence, either directly or even indirectly (as, for example, something upon which an expert witness had relied). To meet modern thresholds for admissibility in all federal courts and most state courts, there would need to be more methodology employed. It’s quite likely that if this dispute were to go to active litigation, each side might commission experts to do such carefully planned and controlled surveys or polls to address all of the various angles that tradename/trademark law considers relevant. Still, an informal poll, taken by bloggers, of the sort you suggest might still be useful outside the courtroom — e.g., in getting Politico.com’s attention about the negative PR consequences from its actions. (But there’s still a lot of risk of manipulation, and huge questions about the representativeness of the sampling.)

    Regarding PR generally, and further on the subject of the modest snowball of opinion already rolling: I recommended that Mr. Gutkowski clam up in public until he’s consulted with counsel. One reason to clam up is that certain rhetorical bells, once rung, can’t be un-rung. Obviously, he’s not directly responsible for what others may do, think, or say about this situation now that it’s already out in the public domain; by consulting other bloggers who (with his permission, I presume) publicized his situation, he’s already eliminated the chance that this would all be resolved in complete secrecy; and that’s probably okay, and quite possibly something he would have done even after getting the advice of competent counsel. However, his further silence, or even his future cooperation, potentially becomes an asset for him and his counsel to trade in settlement discussions. In cases that have already gathered some public attention, it’s not uncommon for such settlements to include closely negotiated and carefully drafted “joint statements” (or separate bilaterally approved ones), typically to the effect that the parties have worked things out and wish each other well and aren’t going to talk about this any more.

    Beldar (d577a9)

  134. Correcting the above: “evidentiary trial” –> “evidentiary trail.”

    Beldar (d577a9)

  135. Why do you have to be so reasonable, Beldar?

    JD (4d64db)

  136. “Sadly I think that Beldar’s comments are probably the closest to the truth. I will fight this as much as I possibly can but I have little to nothing in terms of money to put towards this…”

    If you’re not making gobs of money off your site…it’s really not worth fighting with Politico over what your site is named.

    They have dough, you don’t, and that’s a losing proposition, unless you want to fight them just for kicks.

    I’d just give them what they want.

    Dave Surls (6c17f7)

  137. Yeah, I learned a lot reading Beldar’s comments.

    I would hope emailing the college politico to add a ‘we ain’t politico’ notice to their page would have worked, but I have no experience with that.

    Juan (bd4b30)

  138. JD: I’m reasonable when I’m not being paid to represent one side or the other. When I’m being paid, I merely maintain an illusion of reasonableness (to further my credibility and my client’s cause).

    Beldar (d577a9)

  139. Dave Surls, there’s more to life than money. He made that site… might as well try to get something reasonable out of this. his site is probably more popular now than ever before, and he’s winning the PR battle handily.

    Beldar’s obviously right about speaking freely, but I would not give them what they want without trying for a compromise.

    Hell, if he does give in without even trying, he is partly responsible for the problem, in my opinion.

    Juan (bd4b30)

  140. Beldar,

    Thank you yet again for another thoughtful reply; one point, tho: IANAL and hopefully I’m not merely being thick but:

    But there’s still a lot of risk of manipulation, and huge questions about the representativeness of the sampling.

    Manipulation is indeed a potential problem, but presuming it could be avoided (and be seen to have been avoided), then this case strikes me as a rare one in that, for once, an online survey could well be the most representative sample possible. Usually, it is online polls’ lack of representativeness that causes them to be viewed as unhelpful, but here we have a situation where, it appears, this failing might be reversed, however counter-intuitive that may seem.

    For Politico to claim confusion, it would be potential readers who would be most likely to be confused, correct? And who is more likely to be an online reader of political news than current online readers of political news? Who is more likely to be representative of future online readers of political news than current online readers of political news?

    I’ll stop there, because I’m well aware that I’m out of my depth and might be projecting my own opinions where they don’t fit, but that’s how I see it.

    ras (20bd5b)

  141. “Dave Surls, there’s more to life than money.”

    There’s a lot of important things in life besides money…but, what your weblog is called ain’t one of them…IMO, of course.

    Dave Surls (6c17f7)

  142. Dave Surls,

    The Politico apparently disagrees with you. And CP was a stepping stone to a paying gig with other web operations, so Steve must have done something right.

    Karl (fc3df5)

  143. Getting past JD’s obvious racism, which just so clearly colors and shades his every single comment in this thread, getting past sarahw’s error in stating that in this case the distinction between a noun and a proper name is not a distinction without a difference, and giving a nod to SPQR’s comment that the “strength” of the senior user’s mark must be considered (and it was considered by me):

    Let’s have a website “thecollegecosmopolitan.com” about college kids’ takes on sex, love, hair, beauty, celebs and style because the person running that website is “cosmopolitan.”

    Let’s have a website “vogue.com” about college kids’ takes on style, beauty, people and accessories because the person running that website is always in “vogue.”

    Let’s have a website “thecollegerealclearpolitics.com” about college kids’ takes on news and politics because the person running that website provides a “really clear take on politics.”

    Let’s have a website “thecollegehotair.com” because the person running that website is a college kid pointing out and/or poking fun at the “hot air” (also known as exaggerated talk) by politicians and those damn liberal professors.

    Let’s have a website “thecollegplayboy.com” with tons of pictures of bare, naked, nude college girls because, well, the person running that website is a college “playboy.”

    Ira (28a423)

  144. So, if you get past, or ignore all of the things that actually matter, you can then construct an army of strawmen. Gotcha.

    JD (2f47e2)

  145. Ira, it’s not that a case for confusion/brand stealing can’t be made when an ordinary word is used, but a claim of infringement is met with less favor. null

    I don’t think Politico can establish that the use of this particular word generates confusion, and that it is the entity with a hight claim to its use.

    SarahW (692fc6)

  146. “The Politico apparently disagrees with you.”

    No, I don’t believe that’s the case. I think they see protecting their trademark as a financial matter, and nothing more.

    They don’t appear to be seeking exclusive rights to a name just for the sake of having the name.

    Dave Surls (6c17f7)

  147. I’m not going to lie, if it were my blog, I would be very tempted to follow Dave’s advice. But there’s more to it than money. I think there’s definitely room for a compromise that protects Politico, but at this point, that probably includes some degree of apology. Cease and Desist to a blogger triggers a reaction. I do not appreciate Politico treating some humble blogger to this kind of legal treatment. Most bloggers don’t have the money, and we all know the big media would love to use this to their advantage. AP does it too.

    Treat bloggers with a great deal of respect and at the very least email them a humble request before calling out the dogs. Perhaps i’m just unrealistic, but if that’s the case, Politico can still expect a lower level of readership as a result of this action.

    Juan (bd4b30)

  148. Can the New York TIMES sue the Washington TIMES sue the TIMES-Picayune sue the Los Angeles TIMES sue the Gainesville TIMES sue the Seattle TIMES and so on.

    I’m confused as to where I read that interesting article!

    Peter (60fdd6)

  149. Mr. Patterico, while I am not a lawyer, let alone a trademark lawyer, I’ve read far more over the last few years than is good for me on domain names and the trademark issues surrounding them. I have a vested interest in the issues of trademarks and domain names, for what would be obvious reasons.

    I hate to have to say it, but it looks as if legally, the owner(s) of the trademark “Campus Politico” (notice though how I cruelly and with mocking laughter refuse to add (TM) or (R) after it) have a good case against the use of “College Politico” by another party, whether or not the domain name for the attendant site reflects that; and, given that the domain name does reflect that, to demand the surrender of the domain name itself.

    I’d bet 20 to 1 that an ICAAN trademark dispute panel would rule for the complainant on this issue, let alone any federal court in the U.S.A.

    On the other hand, I have some doubts about whether the trademark of simply “Politico” would hold up under challenge. I think an overworked PTO worker, seeing no (formal) challenge, allowed that one to be finalised. It could be argued with considerable merit that a trademark composed merely of a single common word, even if the PTO worker didn’t know or realise that, is not allowable. I think the lawyer for Politico is overreaching with the claim that using “politico” at all in the context of a political site, is an enforceable trademark infringement.

    I admit to being quite interested in what will happen with this. My guess is that after consulting his own attorney, the owner of the College Politico site will surrender his domain name with regret, but immediately set up another domain name containing “politico” and send via facsimile to the complainants a Webcam capture of a very rude gesture, possibly with a note saying, “Sue me, sue me, do, do.”

    Crafty Hunter (876faa)

  150. Aw, poop. I misspelled “ICANN”. Oh, well. While I’m cluttering up the thread anyway with replies to myself, here’s a link which at first glance doesn’t seem too biased:

    http://www.isoc.org/oti/articles/1000/been.html

    (I also mangled the grammar slightly, but hope no one will notice that).

    Crafty Hunter (876faa)

  151. ira, JD’s comments are a schtick.

    ras writs: “Thx for the reply. So actually measuring the confusion is not considered important in determining whether or not confusion is being caused?

    Its not that its not important. Rather, that such evidence is just one factor among others.

    SPQR (26be8b)

  152. I’m a believer in property rights but Ira’s examples above make me more willing to find The College Politico’s use of the word “Politico” acceptable. Some publications have rather pedestrian names: Time, People, and the now defunct Life. Are the use of these names off-limits, too?

    DRJ (a51a0e)

  153. DRJ,

    Ask Boy’s Life, High Times, or Pepperdine People Magazine.

    Ira is smart, but I don’t agree with her view at all. Certainly, if she’s right about the law, then the law must be changed ASAP.

    Juan (bd4b30)

  154. We’ll probably never know for sure and Politico is douchebags regardless so…

    I forgot what my point was.

    happyfeet (6b707a)

  155. [...] The gist of the letter is, “We own the word ‘politico’ and if you don’t hand over your domain (website) within ten days, we’ll sue you.” You can view the letter in its entirety here. [...]

    David and Goliath: A Politico Story « Seeking Liberty (2b7e85)

  156. Thanks, Juan. I, too, think I’m smart, and modest. By the way, like the overwhelming majority of other people named Ira, I’m a GUY. Not that theres anything wrong with anyone being a woman, or even being a woman named Ira.

    Hey, SPQR, I know JD’s “racist” comments are a schtick. Doesn’t he usually accuse others of being racist when they agree with him? In any event, I guess I need a “sarcasm” or “irony” font, because I was trying to tag along with his routine.

    Ira (28a423)

  157. My apologies, Ira, I missed that.

    SPQR (26be8b)

  158. Is there a legal defense fund for the College Politica? I don’t want to spell it right in case they are going to start sending out letters how use their noun without permission.

    JD (648c77)

  159. I apologize Ira for getting your gender wrong. It’s probably obvious. I’m not a native English speaker, and once in a while I F it up.

    JD’s one of the consistent nice guys on here. Which is good, because the blog runs such a wide range of controversial issues that we all disagree at some point.

    Juan (bd4b30)

  160. I am a mean and nasty cantankerous bastard that oppresses brown people, women, old people, and children, just for fun. Now, take that back.

    JD (648c77)

  161. yes, well, nice guy = good old boy = George Wallace

    Juan (bd4b30)

  162. Those gawdern codewords get me every time.

    JD (648c77)

  163. Juan: “It’s probably obvious. I’m not a native English speaker, . . . ”

    Could have fooled me!!

    Ira (28a423)

  164. FWIW – This DRJ person is a wise, wise, wise, did I mentioned wise? lady. Yes, she is.

    JD (648c77)

  165. Why, thank you, JD. Flattery like that might even induce me to turn off the SuperCache for you.

    DRJ (a51a0e)

  166. Wise does a disservice to your wisdom, and your wisdom is only exceeded by your beauty, especially in that hot librarian kind of way ;-)

    JD (648c77)

  167. [...] I’m sure you can come up with others. But for the real breakdown I suggest you head over to Patterico’s. [...]

    The Revolution will not be Televised – internet · information · ideas · intertainment » Blog Archive » Politico should simply change its name to (e01308)

  168. “POLITICO may just bully me out of the brand I built”

    They should change their name to “POLITI-CADS”.

    Travis Monitor (483b36)

  169. simple, rebrand.

    get a couple cute college girls and guys and call it
    thecollegepoliticoeds.com

    G (58c282)

  170. [...] Pontifications — Politico to College Politico: Give Us Your Domain or We Will Sue You Spread the word far and wide: we will not stand for such thuggish tactics. ….Until this [...]

    American Daughter Media Center - Front Page » Blog Archive » Boycotting Politico (694660)

  171. [...] H. Glassman signed a “cease and desist” certified letter as “counsel” for the publisher of Politico.com with a carbon copy to Michael H. Stabbe, [...]

    Gamecock’s offcampuspolitico.com vs Politico.com and other DeVine Law - gamecock’s blog - RedState (8eaf85)

  172. [...] isn’t the first time Politicos’ lawyers have surprised someone… The College Politico has received a cease-and-desist letter from lawyers for Politico, [...]

    Politico vs Tory Politico | Sim-O (35fd15)


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