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Neal Ascherson just wrote in the Guardian about how the nation turned to talk

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I was very disappointed. Sounds like he just talked to John B or someone, heard it was “all settled” and incorrectly reported that, without checking. When he posted, most people following the story were aware that the issue had not been “resolved amicably” and permission had not yet been “granted” as Cory incorrectly reported.

It’s a shame that O’reilly’s corporate culture isn’t robust enough to guide them through a more reasonable course of action while Daddy’s gone. The C&D letter was an unfortunate, but understandable as a mistake. However, O’reilly’s rude, clumsy, and ham-fisted response, shocked us all, as it seemed to contradict the basic principles of Web 2.0. This leaves many of us wondering if these people have any real clue about what it is they are hyping.

It’s now late Tuesday afternoon Eastern Time. Where’s Daddy?

http://www.clearleft.com/dconstruct05/

Trademark is more about identity than is copyright. Trademark law is deeply bound up with the concept of confusion. It thus encompasses things like cybersquatting and typosquatting.

It’s harder to get a trademark or a service mark (http://en.wikipedia.org/wiki/Service_mark) than it is to get a copyright (which is automatic for copyrightable works). Marks must be used, enforced, and ideally registered (though it’s possible to have “common law” trademark rights, as I understand it registration makes things more straightforward on the enforcement front). You don’t necessarily have to tout or enforce a copyright in order to keep it. Wikipedia compares/contrasts tradmark law, patent law, and copyright law here: http://en.wikipedia.org/wiki/Trademark#Comparison_with_patents.2C_designs_and_copyright

A term that is generic or merely descriptive isn’t protectable as a trademark or service mark; this is what Cory is referring to when he says he’s not sure there is a trademark here. Genericness is somewhat analogous in the trademark area to prior art in the patent area — if it’s already out there, you don’t even get to pass “Go.” Marks can also *become* generic over time, which is why businesses with products so popular they’ve become verbs — Google, Photoshop, etc. — wind up having to write letters that can seem petty and get them laughed at. If you let something become generic without kicking and screaming about it, you may be in trouble as far as keeping your mark. (Sez Wikipedia: “Such efforts may or may not be successful in preventing genericism in the long run, which depends less on the mark owner’s efforts and more on how the public actually perceives and uses the mark. In fact, legally it is more important that the trademark holder visibly and actively seems to attempt to prevent its trademark from becoming generic, regardless of real success.”)

Just as mark owners need to be vigilant about genericness, they need to be vigilant about trying to prevent infringement. Failure to enforce the mark can ultimatlely mean losing it. O’Reilly/CMP thus are in a sort of damned-if-we-do-damned-if-we-don’t position. They believe they have an enforceable mark (though as you, Cory, and Dave Winer point out, that may be debatable), and the only thing you can really do in that situation is try to enforce the mark if someone tries to attach it to similar services. Your point is well taken — and conceded by O’Reilly — that firing off C&D’s between co-Netizens is likely not the most diplomatic or productive way to open a dialogue on the subject. If someone (not Marc Canter) were to decide this digital lifestyle aggregator concept is where it’s at, and started a business called “Broadband Mechanics” to offer those kinds of services, you’d want to have words with them. You’d probably kick off the discussion a little differently — you’d no doubt blog it ;). But you’d have little choice but to resort to lawyers and legal process if the schmucks dug in and decided to be stubborn about it.

So, to circle back to my original point, trademarks and service marks are about business identities. They are supposed to be distinctive; if they’re merely descriptive or generic, they may not be enforceable. (See Wikipedia: “A descriptive mark is a term with a dictionary meaning which is used in connection with products or services directly related to that meaning. An example might be Salty used in connection with saltine crackers or anchovies. Such terms are not registrable unless it can be shown that distinctive character has been established in the term through extensive use in the marketplace.) If Tom and IT@Cork are wedded to using the term in the title of their event (and/or sufficiently ticked off about this thing), they should get a trademark lawyer on board to research their rights and advise them specifically. Could be they have something to talk about.