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A letter from Paper (FiftyThree) to Paper (Facebook)

news.fiftythree.com

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Re: A letter from Paper (FiftyThree) to Paper (Facebook)

#141

Post by morganvachon »

officemonkey wrote: post #130
pron wrote: post #74

Earlier quoted context omitted.

Making a cordial request about it to Facebook is one thing; publicizing it (probably in an effort to shame Facebook) is another.

>shame Facebook If only. The entire post is to (a) differentiate their Paper from the FB Paper and (b) make an effort to protect what little trademark they have. They're making it public so everyone can know "We exist, we were here first, please don't let FB steamroll us." If they didn't do this, in six months FB lawyers would send a cease-and-desist telling them to stop using Facebook's trademark "Paper." If they ma…

>If they make enough stink they can maintain their brand.

This is it exactly. Copyright and trademark are not the same thing, but many people confuse them. You have it right: With trademark the burden is on FiftyThree to defend it. The fact that they are doing that so politely makes me like them more.

Re: A letter from Paper (FiftyThree) to Paper (Facebook)

#142

Post by rz2k »

christiangenco wrote: post #18

My first thought when I read the Facebook Paper announcement was along these lines. This is a big social faux paus on Facebook's part - at least among the developer community - but I really don't see either company changing their Paper's name. I imagine it'll go similarly to Google's Go name collision[1]. How should the little guy in these situations be legally protected? On one hand it's clear that "candy" shouldn't…

That's what I thought of, since two programming languages are even more alike.

Did it not turn out to be a legal issue because there was ultimately little commercial interest behind the Go![1] language?

Apple Computer had to pay Apple Corps, even though it seemed like the computer industry had little to do with the music industry at the time[2], so it is confusing how the conflict can be ignored until it goes away.

[1] https://en.wikipedia.org/wiki/Go!_%28programming_language%29

[2] https://en.wikipedia.org/wiki/Apple_Corps_v._Apple_Computer

Re: A letter from Paper (FiftyThree) to Paper (Facebook)

#143

Post by Tyr42 »

austenallred wrote: post #38
pron wrote: post #35

Earlier quoted context omitted.

On the other hand, FiftyThree have chosen a very common English word for their product name. You can't call dibs on a word like "paper", and this was a risk they should have taken into account. Either choose a proper (and trademarkable) name, or choose a common word and expect such consequences. You can't have it both ways, and I think even considering Facebook's Paper, FiftyThree have probably made the right tradeof…

What about something like "Square?" That's about as generic as it gets, yet is there any question as to what someone is referring to when they are talking about "Square" in the context of an app?

If I didn't already know about the payments company, I'd think that final fantasy was moving off of DSs and onto mobile, to be honest.

Re: A letter from Paper (FiftyThree) to Paper (Facebook)

#144

Post by yoshokatana »

ynniv wrote: post #22

People are going to call the app by Facebook "Facebook Paper" because "Paper" is simply too generic. 53's drawing app name is not strong either. Their iOS app is not called "Paper", but "Paper by FiftyThree". Their icon is not of paper, but of a napkin style rendering of "53". For all intents, the drawing simulation brand name is "FiftyThree". There was a brief moment in history when people thought "I wonder if 53 wa…

I did an informal poll of my coworkers, and "facepaper" won over "Facebook Paper" and "paperbook."

Re: A letter from Paper (FiftyThree) to Paper (Facebook)

#145

Post by dctoedt »

ynniv wrote: post #100
Jare wrote: post #75

Earlier quoted context omitted.

Whenever I hear the name "Paper" in a mobile / tablet context, I immediately think of 53, and I don't even have an iPad. If Facebook Paper is successful, that will no longer be the case (but it will hurt my perception of Facebook Paper in the meantime). That said, I don't think 53 can claim any exclusive rights to the name, and I'm happy to see they haven't - they have just asked with exquisite politeness.

Whenever I hear the name "Paper" in a mobile / tablet context, I immediately think of 53, and I don't even have an iPad. If I took ten people off the street, in San Francisco itself, and asked them who made an iPhone app called "Paper" a majority would probably already tell me Facebook. Perhaps one of them would know of 53, and probably not by name. Being in the mobile software community, we know of a lot of "success…

> 53 needs to claim exclusivity, claim that there is no possibility of confusion, or live with the reality that if people start calling Facebook Paper just "Paper", that Facebook will legally be able to prevent 53 from using the term. With trademarks it doesn't matter who has been using it longer, only who successfully enforces it.

That's a false trichotomy; the second and third branches are the opposite of how trademark law works. Please see my top-level comment for more details.

Re: A letter from Paper (FiftyThree) to Paper (Facebook)

#147

Post by malandrew »

ynniv wrote: post #100
Jare wrote: post #75

Earlier quoted context omitted.

Whenever I hear the name "Paper" in a mobile / tablet context, I immediately think of 53, and I don't even have an iPad. If Facebook Paper is successful, that will no longer be the case (but it will hurt my perception of Facebook Paper in the meantime). That said, I don't think 53 can claim any exclusive rights to the name, and I'm happy to see they haven't - they have just asked with exquisite politeness.

Whenever I hear the name "Paper" in a mobile / tablet context, I immediately think of 53, and I don't even have an iPad. If I took ten people off the street, in San Francisco itself, and asked them who made an iPhone app called "Paper" a majority would probably already tell me Facebook. Perhaps one of them would know of 53, and probably not by name. Being in the mobile software community, we know of a lot of "success…

    "If I took ten people off the street, in San Francisco 
    itself, and asked them who made an iPhone app called 
    "Paper" a majority would probably already tell me 
    Facebook."
Actually I think the majority would say "I don't know". Facebook Paper was released a few days ago, so how could the majority of people already know that Facebook makes it.

Furthermore, Facebook also has an app called Messenger and Camera•. They've been around awhile and I'd be surprised if you surveyed people that they would be able to tell you that Facebook makes either. For both, I would expect people to tell you that those are actually the generic name for any phone's build in messenging app and camera app, respectively.

TBH, I really which we'd move to a trademark system that makes all dictionary words untrademarkable. You should have to come up with an original name if you want protection and if you want the generic name you should be able to use it knowing full well that you will have no protection when doing so. Companies should not just be allowed to highjack single words like Paper, Camera, Messenger, Candy, Saga, etc. etc. etc.

Re: A letter from Paper (FiftyThree) to Paper (Facebook)

#148

Post by nknighthb »

Touche wrote: post #84
jimwalsh wrote: post #76

Earlier quoted context omitted.

"Windows", "Apple", aren't too generic. This is perfectly reasonable for 53 to ask this of Facebook.

I suggest you read up on Microsoft v Lindows before you use that example.

That case never made it past the trial court, and ended in an out-of-court settlement in which Microsoft paid a paltry sum to make the problem go away, setting no legal precedent. Furthermore, the surrounding circumstances included an injunction from a Dutch court against Lindows.

Re: A letter from Paper (FiftyThree) to Paper (Facebook)

#149

Post by malandrew »

Since the Apple store rankings are intentionally opaque and controlled by Apple for its own gain, I secretly hope that the Apple artificially ranks 53 Paper above Facebook Paper. At the end of the day Paper has been an excellent app for the Apple ecosystem and it would be a nice way to say "thanks" to 53. If this happens, then Facebook's use should help 53 get more downloads since most users will go along with the first result in the store.

Re: A letter from Paper (FiftyThree) to Paper (Facebook)

#150

Post by dctoedt »

It's helpful to analyze this the way a U.S. court likely would. Suppose hypothetically that the following are true:

(A) that the mark PAPER is protectable for what 53 sells -- and I think that's highly likely; PAPER in this context strikes me as a "suggestive" and therefore protectable mark [1]; and

(B) that 53 was the first user of the mark; and

(C) that there's a "likelihood of confusion" about the origin, sponsorship, or endorsement of the companies' products or services -- this entails looking at seven or eight factual questions, namely the "strength" of the mark; the proximity of the goods; the similarity of the marks in appearance and/or sound; any evidence of actual confusion; similarity in marketing channels used; the type of goods and the degree of care likely to be exercised by the purchaser the junior user's intent in selecting the mark; and the likelihood of expansion of the respective product lines [2].

In that situation, as the junior user, Facebook would (or should) be liable for infringement.

Another point: 53 can be damaged by "reverse confusion," namely people thinking that 53 is the one that's ripping off Facebook [3].

[1] http://tmep.uspto.gov/RDMS/detail/manual/TMEP/Oct2012/TMEP-1...

[2] http://en.wikipedia.org/wiki/Trademark_infringement

[3] http://definitions.uslegal.com/r/reverse-confusion-trademark...

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