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Despair Suing 7,000,000 Email Users Over :-(

Posted by CmdrTaco on Fri Jan 26, 2001 02:24 PM
from the patenting-the-emoticon dept.
Patents
Calle Ballz writes "According to an article on Despair's Website, they are suing 7,000,000 email users over trademark infringment for using the :-( 'emoticon'. I can't tell if it is a joke or not, I would like for it to be. The trademark registration is valid and is listed here. *sigh*" I would just like to say that our use of :-) is covered by fair usage. And that this is the funniest thing I've seen in a long time.Update: 01/26 04:18 PM by H :Check out the press release about it - that's one of the best pieces of satire I've seen in a while. Kudos to Despair for making a mockery of trademarks. Update: 01/29 04:52 PM by CT : Apparently a bunch of retarded Slashdot readers couldn't discern that this was parody and mailed despair to complain. Little itchy on the flaming finger guys? Here's the NY Times story
+ -
story

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[+] News: Russian Hopes To Cash In On Emoticons 213 comments
drewmoney writes "According to a BBC article, Entrepreneur Oleg Teterin said the trademark for the ';-)' emoticon was granted to him by Russia's federal patent agency. 'Legal use will be possible after buying an annual licence from us,' he was quoted by the newspaper Kommersant as saying. 'It won't cost that much — tens of thousands of dollars,' added the businessman, who is president of Superfone, a company that sells advertising on mobile phones. The president of Russian social networking site odnoklassniki.ru, Nikita Sherman said: 'You're not likely to find any retards in Russia who'll pay Superfone for the use of emoticons.'" Teterin may have gotten the idea by catching up on some old news about Despair, Inc., which in May 2000 was awarded a US trademark on the "frowny" emoticon (Slashdot story).
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Despair Suing 7,000,000 Email Users Over :-( 50 Comments More /

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  • They own a trademark, not a patent. Trademarks are limited to one field of use, so we have Apple Computer and Apple Records, Sun Microsystems and Sun Oil Company. What the trademark means is that no other company can use :-( as their corporate logo, and that's all. This is completely legitimate.

    The reason that we are now having such trouble over trademarks is that trademark owners are trying to leverage their limited control over the use of a word (in a specific business) to an unlimited control (use in unrelated fields, like domain names of businesses in a completely different line of work). The ICANN is headed for a legal fall Real Soon Now because of this (their attempt to expand trademark law even though they have no right to do so).

  • IANAL, but if the article weren't satire (or probably even though it is), the trademark is quite vulnerable to challenge. Recall that Bayer lost the trademark over "aspirin" because the term had become one used generically by a large portion of the public, rather than as a trade name for a specific product.

    In this case, the generic use of emoticons greatly predates the trademark (allegedly applied for in 1998): According to ESR's _The New Hacker Dictionary_, 2nd Ed (1993),

    ...used to indicate an emotional state in email or news... are virtually required under certain circumstances in high-volume text-only communications forums...

    ...are in common use. These include...

    :-(

    It appears that the emoticon was invented by one Scott Fahlman on the CMU bboard systems around 1980...

    So: invalid, indefensible trademark-- already in use as a generic even before the trademark application.

  • As much as I enjoy the humor involved, it does show what's right with trademark registration. Notice that they have a fairly narrow mandate for using their trademark -- "Printed matter namely, greeting cards, posters and art prints." So, no one else can use :-( to sell posters. Patents may have their problems, but trademarks have been fairly limited, especially since the Apple (Records/Compter) lawsuit.
  • No, what's truly amazing is that no one has patented the < blink > tag yet.

    Yes, I know, it's all just a matter of time . . .

    Geoff

  • or a cynical attempt to increase their audience greatly?

    [shrug] Maybe not "or" but "and". So?

    (Was this an insightful comment by me, or a cynical attempt to get moderated up?)

  • or the power of large people in stupid groups :-(

    oops...
  • could that person really not tell this was a joke?

    that's sad, as in :, -, (,
    :-(
  • Some of my co-workers seem to suffer from a lack of the intelligence needed to realize this is satire.
  • Only people with a mental deficiency (the inability to recognize even the most blatantly obvious heavy-handed satire as such unless they literally read the words "this is satire") are fooled by such things.
    We're talking about even more mentally deficient induhviduals here, since the page does include the words Articles and items appearing in our "Recent Spin" are satirical, and they still didn't understand that this was satire.
  • Check out This insane patent [delphion.com] which is referenced in the press release. I almost burst a gut!

  • I have been granted a trademark for "8======D". That's right. I've patented the ACSII Jimmy. I've also been granted a trademark for a series of X's and O's. ie, xoxoxoxo. Here me oh porn sites. Pay up now or suffer my wrath!

    --

  • While it is nice to be cynical about things, the falsehood (that is, the satirical nature) of the report was apparent on its face. Do the editors truly think that this story was on the level?

    Be real.
  • While there are those who would be pleased to make that claim, that "the current state of intellectual property law is so egregious that intelligent people might actually believe," that's hokum -- sheer demagoguery. No well-educated and intelligent person could buy this story on its face.

    While it is "politically correct" in this forum to be anti-IP, and to make things laughable, it is critical to recall that hysteria is one of the traits most effectively used by the pro-strong-IP forces to marginalize and discredit critics of overreaching.

    Simply put, it is not really a great idea to try to fight an intellectual war where you are weakest. There are strong anti-IP arguments. This isn't one of them.

    Anyone who pretends otherwise is selling something.
  • Very true - it makes me wonder if it would be possible to file a "counter patent" by "innovating" with a "visible beam", or get the patent overturned because of validity due to the fact that laser beams are visible...

    You are right - the filer is an idiot...

    Worldcom [worldcom.com] - Generation Duh!
  • Coming back a little late on this (was on vacation, no net connection - but it actually was quite nice)...

    Anyhow, thank you for correcting me - I was thinking a CO2 type laser setup, forgetting the IR lasers used in CD players and such...

    Sometimes dumb thoughts come out of me...

    Worldcom [worldcom.com] - Generation Duh!
  • I'm not sure if it has ever been noticed before in earlier postings about this patent on /. - but did you notice the line in the patent that reads:

    A method for inducing cats to exercise consists of directing a beam of invisible light produced by a hand-held laser...

    Invisible light? Is this the innovation in the patent?

    Note that most typical laser pointers project visible light, generally 635 or 670nm, which is a bright red. For a laser pointer to generate invisible light, it would have to be a UV or IR laser.

    Does anyone know where I could get a UV or IR laser, in a sleek pen form factor?

    Ok, I am being sarcastic (these types of lasers tend to be on the large side of things) - but I have to wonder about the wording of this patent. It really seems absurd...

    Worldcom [worldcom.com] - Generation Duh!
  • >The Onion may be the premier parody newspaper,
    >but Despair, Inc is a corperation...they're not
    >supposed to rip on people like Microsoft, Apple,
    >and Fry's Electronics. That wouldn't be
    >Politically Correct of them!

    We should all give a tip o' the hat to despair.com: they put "Windows 95 officially debuts (1995)" on their 1999 calendar August 24 entry.

    For those who don't know, despair.com calendars have a variety of tidbits put in some of the days of each month, chronicling something bad that happened that day in history.

  • although they are making fun of it...they really do (or will soon) own the trademark for it...

    just like /. (tm)

    it's pretty sad and funny. it's :| maybe?
  • When I called it "beautiful" I was not being sarcastic.

    Thanks for the clarification. And for what it's worth, I'm a tad pissed off, as well.
    ------------------------------
  • I don't know. We have seen a judge rule that something is still 'secret', even after being published worldwide on the Internet and numerous other media (including T-shirts!), taught in college courses, and still available from hundreds of sites at the click of a mouse.

    When the courts pervert IP law to that extent, what depths of absurdity are needed to make something incredible?
  • Hey, thanks! Now I can stop feeling irate about my submission of this story getting rejected three days ago... You're the deserving one, not I. Though perhaps it was my including of that actual trademark page that confused them. Too much information to check out.

    (Though that's not the record...I submitted the "sugar eating Robot" thing last September, but those in charge didn't find an acceptable version until January.)

  • What, you think I care?

    Now THAT is funny...
  • Consider this: if CmdrTaco had posted it with the foot icon and said, "boy is this a real funny joke!" he would have spoiled it. The enjoyment of satire comes in part from the discovery that it isn't true. Some people never attain that level of satisfaction, unfortunately.

    I don't know if that's what he was thinking, but I think I should get a "No Prize" for it. I like to read the occasional Slashdot post that serves more as a link than a pre-packaged, categorized, analyzed news blurb. Then I form my own judgement and proceed to bore myself to tears reading what all of the hysterical ACs have to say about it.

    By the way, have you ever noticed that the people most likely to say, "Jeezus you moron, why don't you think a little before you post," are also the quickest to misjudge in exactly the same way? Funny.
  • Aww, I missed first post. :-(

  • Wonder how I earned 'Troll' status with that? I was trying to be funny, hence the :-( at the end.

  • There is a real Trademark, and it is quite reasonable. You can not use the frowny emoticon as representing your trade in business cards and artwork. ... I can't create a printing house and use the frowning logo.

    That is not how Intellectual Property law works. You can use the trademark all you want. You can paint it on your house, you can sell posters on it. A registered trademark just means that the holder can sue you for it, and collect damages.

    In this case, while they HAVE acquired :-( as a registered trademark, they are NOT using Carnivore to find infringers, they are NOT likely to care about your use of :-( at all. If ever, they'd only care about an egregious use of :-( as an identity mark to divert or confuse THEIR customers.

  • I like the bit about how they're using Carnivore to catch infringing users.

  • From http://www.gseis.ucla.edu/~howard/Papers/copyright 99.html [ucla.edu]:

    In 1996 the American Society of Composers, Authors and Publishers (ASCAP) told the Girl Scouts of the USA that scout camps must start paying a licensing fee to sing any of the 4 million copyrighted songs that ASCAP controlled (Walker and Fagan). This included girl scout staples such as "Happy Birthday". Many camps went songless for months, until newspaper and talk show attention generated enough outrage that ASCAP was forced to say that they had no intention of prosecuting girl scout camps for violations of singing songs around the campfire. But in backing down, ASCAP still insisted that they still might prosecute camps for playing background music without a license. Though most citizens would bristle at ASCAP's attempts to charge the girl scouts, as a copyright holder the law is on their side, and the girl scouts' only defense would be fair use (but only as long as fair use remains a defense).

  • There is a real Trademark, and it is quite reasonable. You can not use the frowny emoticon as representing your trade in business cards and artwork. It is questionable if you can use it as an image in a poster, but I would imagine that prior art covers it.

    However, they have that logo. I can't create a printing house and use the frowning logo.

    I like there logo, and I thought the page was hysterical.
  • You mean to tell me they're not really going to make every one of the defendants write out ":-( is a registered trademark of Despair, Inc." a thousand times by hand?

    Poop. I would have liked to see that.

    I have to confess that I was a _tiny_ bit suspicious when I read, "Whether you are a 4th grade nothing using your momma's AOL account, or you are Time Magazine's "Man of the Year", we are going to hunt you down, and when we do, we're really going to give you something to :-(® about."

    Ah well. I'll have to get my amusement elsewhere I guess.

  • An obvious hoax. C'mon, why do you think they call it a TRADEmark? You can't take a generally used word or symbol out of the public domain; you can only enjoin a specific and limited use. I can use the words hallmark and paramount, for example, even capitalizing them if I choose, and if it doesn't give a false impression to consumers I can't be successfully sued. Additionally, you generally can't have classes of unrelated defendants in a suit. That should have tipped you off. Even if you didn't know law, wouldn't you wonder how they got a list of millions of e-mail users who used the emoticon? Did they lease Carnivore? A little cogitation goes a long way, guys.

  • Re:Come on, critical thinking, people. (Score:3)

    by magic (19621) on Saturday January 27 2001, @05:37AM (#479465) Homepage
    You might have also been tipped off by:
    Despair has also petitioned the court to require defendants to submit a handwritten letter which repeats the phrase ":-( is a registered trademark of Despair, Inc." one-thousand times.
    Or the blatantly faked picture of the CEO with Jeff Bezos.

    Great article!

    -m

  • my feelings on the matter... (Score:3)

    by brianvan (42539) on Friday January 26 2001, @09:31AM (#479466)
    :-(

  • What really sucks is... (Score:3)

    by DzugZug (52149) on Friday January 26 2001, @11:19AM (#479467) Journal
    ... rather than read the whole page I went to lexis-nexis to see if despair had in fact filed any suits in U.S. District court. They hadn't.
  • better watch out, or they'll sue you for that too!

    i smell a segfault article on this.....

  • Re:What really sucks is... (Score:3)

    by iElucidate (67873) on Friday January 26 2001, @11:28AM (#479469) Homepage
    ... rather than read the whole page I went to lexis-nexis to see if despair had in fact filed any suits in U.S. District court. They hadn't.
    Rather than go to Lexis/Nexis to find out of Despair really sued 7,000,000 people based on their e-mails harvested from Carnivore, I just thought about it for about...oh....maybe .0000001 second and figured it out myself.

  • the Cat bit (Score:3)

    by Maeryk (87865) on Friday January 26 2001, @11:26AM (#479470) Journal
    The truly scary part to *me* is that they *DID* grant a patent to two people from Arlington VA for a "method to exercise a cat" using a laser pointer.

    Which brings me to my next question.. if they can patent an action, can I patent masturbation? Think of the money maker there!

    Maeryk
  • Damn, and here I was getting ready to put the frowny on T-shirts and use the T-shirts as free speech argument to defend myself in court!

  • Re:What's really sad (Score:3)

    by SquadBoy (167263) on Friday January 26 2001, @10:52AM (#479472) Homepage Journal
    The trademark *is* real. The lawsuit is not. I could tell that much from reading the bit on the front page of /. The key to the whole joke is that the trademark is real and while they don't work at Despair there are people [cmgi.com] out there who if they had thought of it would do the lawsuit. In fact I would not be surprised to see a similar but real thing in the near future.

  • Re::-( Symbol (Score:4)

    by Anonymous Coward on Friday January 26 2001, @10:24AM (#479473)
    They can kiss my (_!_)

  • The next thing you know ... (Score:4)

    by Jim Tyre (100017) on Friday January 26 2001, @10:17AM (#479474) Homepage
    ... someone will try to trademark an expression as banal as "Good Dog!"

    Oh, someone [puppyfarm.com] did.

    But I think it's another joke.

    "In order to be inherently distinctive, the trade dress must be either arbitrary or suggestive..."

    (Cmdr)Taco Cabana Int'l, Inc. v. Two Pesos, Inc.
    932 F.2d 1113 (5th Cir. 1991)

  • I have just registered the trademark "Anonymous Coward." All who wish to post to Slashdot using that name should send US$1 to me for each use. Pay pal accepted.

  • "Never underestimate the power... (Score:5)

    by Anonymous Coward on Friday January 26 2001, @10:12AM (#479476)
    of stupid people in large groups."

    Some people don't seem to get this is a joke. According to today's SJ Mercury, some people have been writing hate mail to Despair about it.

    Here's the link (see bottom of page)

    http://www0.mercurycenter.com/svtech/reports/gmsv/

    :-( to be henceforth known as 'the "Work'" redux: Those of you unsettled by an item in Thursday's column discussing Despair.com's alleged trademarking of the :-( emoticon, take note: the article was satirical, as was my discussion of it. There's no need to lambaste Despair.com and its CEO Justin Sewell.

    [An email from Despair follows]

    John

    Thanks for your recent mention of our :-( trademark story in your "Good Morning Silicon Valley" column.

    It is somewhat unclear to me from reading your recent write-up whether or not you were aware that the article regarding the frown emoticon was a parody story. If you were aware of this, please forgive me for this email.

    Your article does state that we are satirists -- but afterwards seems to treat the matter of the lawsuit as though it were not a satirical gag. This seems to have created some confusion amongst the readership of your column, some of whom have contacted us in outrage asking passionately for their names to be added to the list of those we intend to sue. Heroic gestures, to be sure, but ultimately as futile as grabbing the family shotgun to fend off a Martian invasion being reported by Orson Wells.

    Best regards,
    Justin Sewell, CEO
    Despair, Inc.

  • sad, really (Score:5)

    by Anonymous Coward on Friday January 26 2001, @11:00AM (#479477)
    An acquaintance of mine ran an (unsuccessful) t-shirt business a few years ago. one of his lines were Ts with the emoticons printed on them.

    He registered for and recieved copyright on all the emoticons.

    I sent him a copy of the story, but the sarcasm must have whizzed over his head. He sent this cease and decist letter to despair:

    To Whom it may concern,

    Be aware that the :-( symbol has been copywrited previous to your use as a trademark. The use of this symbol as graphic art (ie. T-shirts, posters, mugs, etc.) will be considered copywrite infringement. Please contact me if you wish to use this symbol in any context. If this symbol is being used in this context current you are to cease and desist.

    Thank You,
    [name omitted purposely to protect the guilty]

    Pathetic, isn't it?

  • Trademarks are in general a good thing, they at some level protect us the consumers. Or at least they are suposed to. When you see a red can with "Coca-Cola" written on it you know that it really is "Coca-Cola" and not something else. No one but the Coca-Cola company has a right to sell a can of stuff called "Coca-Cola". You can sell "MyCola" all you want and even put it in a red can.

    Similarly many things like endorcements that you see on products (Such as the Circle-U on foods or the ADA label on toothpaste) Can only work due to trademarks.

    Now I will admit in some cases the Enforcement of trademarks has gone to far.

  • Re:What's really sad (Score:5)

    by JoeBuck (7947) on Friday January 26 2001, @09:41AM (#479479) Homepage

    No intelligent people ever believed that the trademark holder was going to sue 7,000,000 email users. Only people with a mental deficiency (the inability to recognize even the most blatantly obvious heavy-handed satire as such unless they literally read the words "this is satire") are fooled by such things.

    Unfortunately several of the Slashdot editors suffer from said mental deficiency, as do way too many Slashdot readers.

  • See for your selves. [uspto.gov]

    On a separate note...

    I am AMAZED at how many idiots there are that don't seem to be able to realize that this story is MAKING FUN OF FRIVILOUS LAWSUITS by PRETENDING TO BE ONE.

    I have to revise my opinion of the average intelligence of the readership of slashdot WAAAAAY down.

    Ask yourself, outraged nimrods, if you really believe the following things are TRUE.

    1) A company that sells PARODY products is actually working with the FBI to MONITOR YOUR EMAIL.
    2) The PARODY company in question is SERIOUSLY planning to sue 7,000,000 people.
    3) The founder of that company is SERIOUSLY CONSIDERING changing his name to :-(
    4) The SAME person also is suing JEFF BEZOS for infringing on a trademark.
    5) The DISCLAIMER at the bottom of the story is actually NOT TRUE.

    Did you read any of the OTHER STORIES [despair.com] on the website?

    Do you REALLY believe they are partnering with Yahoo [despair.com] to create BOOHOO.COM- a portal for miserable people?
    Do you REALLY believe Noah Wylie is the interim CEO of FUTURE POWER [despair.com]


    The only story on their entire site that I might ACTUALLY believe is the one about selling 5000 Apathy posters to Fry's [despair.com]. That I believe.

  • Come on, critical thinking, people. (Score:5)

    by Speare (84249) on Friday January 26 2001, @09:34AM (#479481) Homepage

    From the writeup, "I can't tell if this is a joke or not."

    From the page itself, Articles and items appearing in our "Recent Spin" are satirical and are not intended to be an accurate portrayal of the persons, companies or events depicted within them.

    This is SATIRE. Put on your thinking caps, people, or geez, read the whole thing! The CEO also claims he's considering changing his legal name to the frowney emoticon. Yeah right.

  • What's really sad (Score:5)

    by aggressivepedestrian (149887) on Friday January 26 2001, @09:34AM (#479482)
    Yeah, it's funny, until you realize that the current state of intellectual property law is so egregious that intelligent people might actually believe a trademark would be granted for the emoticon, and that the trademark holder might actually sue 7,000,000 email users.

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