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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)

#151

Post by ynniv »

dctoedt wrote: post #145
ynniv wrote: post #100

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 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 trade…

I don't think that 53 claiming there to be no confusion would in itself hold up in court, but I think it could help to inform the public's opinion about how the marks relate to each other, which might get factored into a decision later. I do think that a few years from now, if Facebook's product is successful, it will overshadow 53's brand. While it is technically true that two established marks would be evaluated on who was first, to me it is unlikely that a small developer would win in a suit against a $60B company. The orders of magnitude larger company would aggressively argue their merits and attempt to mitigate the smaller company's. Defending the mark at a time in the future where Facebook has any standing would probably bankrupt 53.

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

#153

Post by conductr »

53 has chosen to use generic single word nouns for their products. Paper, Pencil, Book. When you do that, you do not deserve the consideration the author is expecting from Facebook.

Yes it may cause confusion, but they should have used unique names for their products if they wanted the differentiation.

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

#154

Post by coldtea »

Sparkky wrote: post #115
throwaway420 wrote: post #54

Earlier quoted context omitted.

Insofar as FiftyThree is merely making a polite request as a matter of professional courtesy rather than threatening legal action, then I don't think your criticism applies. They didn't get nasty about it, they didn't cite some bizarre legal arguments where they claimed to forever own the word Paper. They just made a cordial request. I think that's entirely reasonable and makes them come across very good in this situ…

I'm pretty sure they are just trying to ride this publicity gravy train as long and as hard as they can. Look at all the publicity, they are on Reddit, news sites, twitter, HN... I've never heard of them until today, and I imagine I'm, not alone.

That's cute.

So, when a big gorilla company uses the name of your well known (and with your use it already known to them) application / webpage that you've worked for years on, I wish you a good luck "trying to ride this publicity gravy train".

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

#155

Post by hluska »

coldtea wrote: post #154
Sparkky wrote: post #115

Earlier quoted context omitted.

I'm pretty sure they are just trying to ride this publicity gravy train as long and as hard as they can. Look at all the publicity, they are on Reddit, news sites, twitter, HN... I've never heard of them until today, and I imagine I'm, not alone.

That's cute. So, when a big gorilla company uses the name of your well known (and with your use it already known to them) application / webpage that you've worked for years on, I wish you a good luck "trying to ride this publicity gravy train".

When a big company decides to use your name, your options are very limited. You can try to take the fight legal (and face the big company's entire legal team plus the distraction of suing a behemoth). Or, you can turn their massive publicity machine against them and set yourself up as an underdog.

The media loves David v. Goliath stories and being cast as David could have profound marketing opportunities for 53. Kudos to 53 for having the sense to handle this gracefully.

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

#156

Post by dctoedt »

ynniv wrote: post #151
dctoedt wrote: post #145

Earlier quoted context omitted.

> 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 trade…

I don't think that 53 claiming there to be no confusion would in itself hold up in court, but I think it could help to inform the public's opinion about how the marks relate to each other, which might get factored into a decision later. I do think that a few years from now, if Facebook's product is successful, it will overshadow 53's brand. While it is technically true that two established marks would be evaluated on…

> to me it is unlikely that a small developer would win in a suit against a $60B company. The orders of magnitude larger company would aggressively argue their merits and attempt to mitigate the smaller company's. Defending the mark at a time in the future where Facebook has any standing would probably bankrupt 53.

Keep in mind that 53 would almost certainly demand a jury trial, as (IIRC) would be their constitutional right. Jurors tend to favor the little guy; that's especially true if the little guy's lawyers can convince the jury that the big guy behaved badly or even just negligently --- and plaintiffs' trial lawyers can be extremely skilled at doing just that. Under the Seventh Amendment to the U.S. Constitution, which governs civil (non-criminal) cases, a jury's findings of fact cannot be overturned unless the judge (or an appellate court) finds that no reasonable jury could have made those findings on the basis of the evidence of record.

I imagine there are more than a few plaintiffs' lawyers with suitable expertise who would be thrilled to take 53's case on a contingent-fee basis -- not least because they'd get a lot of publicity for doing so.

One not-unlikely outcome: 53 changes its product name, and Facebook pays 53 a significant amount of money, perhaps as an investment.

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

#157

Post by Turing_Machine »

thrush wrote: post #64
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…

Where does one draw the line for a word that is too common for your business? Here are the rankings of just a few company names that utilized popular words. 521 - paper 1991 - match 2723 - apple 2777 - square 2921 - target Imagine if Facebook came out with a new camera app that was called Facebook Target. There would be no doubt that there was clear negligence on Facebook's part. I feel like here I need to disclose t…

http://tess2.uspto.gov/bin/gate.exe?f=searchss&state=4802:iw...

There are over 2,000 records that include various forms of the word "target". Over 3,000 for "apple". Over 3,000 for "windows".

If you use a common word in a trademark you may be able to prevent others from using it for the exact same (or very similar) product, but you don't own the word outright.

Facebook might well be okay with a camera app called Target (though they might not be -- someone else may be using it for that purpose already). They would definitely be in trouble if they started a department store called "Facebook Target", though.

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

#158

Post by arthurcolle »

bikamonki wrote: post #132

The world of app names is weirdly. Obviously you cannot put up an app named Facebook but most likely you can put one named FB Calculator. The way I see it, parts of an app name can be protected, others are generic. It is like subdomains: news.ycombinator.com cannot ask news.fiftythree.com to stop using news . Anyhow, what's the name of that FB Android app that turns your phone's desktop into a FB desktop? Or was it i…

its called Facebook Home

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

#160

Post by xerophtye »

antr wrote: post #136
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.

Apple Computer vs Apple Corps (music) "co-existed" (I know of the lawsuits and agreements) at the time because one was an electronics manufacturer, and the other a record label. Paper (53) is a drawing app, Paper (FB) is a news/FB wall magazine. Completely different markets. They should be able to co-exist.

The point isn't that they are from two different categories. The point is taht both of them are iOS apps! So the case exists.

As for Apple Computer and Apple Corps, obviously Apple never tried to be a Record label company. But when it started moving its operations into the music industry (i imagine that was the itunes time?) it got attacked by Apple corps. Before that it was peaceful co-existence. After that, it was Apple computer paying Apple Corps to keep its mouth shut and not bitch about it

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