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The Courts Government News

The Digital Divas vs. Microsoft 36

Posted by emmett from the grey-day dept.
The Digital Divas are devoted to helping women get together to learn from each other in the world of Web design. More than that, the Divas organize Grey Day, an annual effort to spotlight the dangers of unlicensed copyright use and plagiarism on the Web. And, oh yes -- it appears that Microsoft has stolen their trademark.

Founded in 1997, the Digital Divas have grown to a membership of 71 women around the world. In addition to championing copyright enforcement, they also provide a free, member-written digital newsletter that provides Web-design help and advice.

In April, Microsoft launched a Web site at Digitaldiva.com that features a woman named Stacy Elliott giving advice to women on how to use the Internet and computer technology. This is all very corporate, and is not the community effort set up by the Digital Divas. For example, Microsoft provides marketing information on their target audience right off of the Digital Diva site.

The Digital Divas aren't rolling in cash. Thankfully, the lawyers at Moses & Singer wrote a pro bono cease and desist letter to Microsoft, but Microsoft's site still remains up and active.

Dana Whitmire, founder and 'Fearless Leader' of the Digital Divas, is mad as hell. "The whole thing makes me very angry, and it's frustrating. We've worked very hard to build a sound reputation and a good group, and I think we've done a good job. It's extremely infuriating that Microsoft comes along and takes the name with their power, money and PR machine behind them and the possibility that they can just run over us and undo everything we've done."

At first glance, it seems as if the problem could be purely accidental. However, research into the Digital Divas name shows a staggering number of Web sites and resources run by members of the Digital Divas. So, Dana, what are the chances that this could be a simple mistake? "We feel the chances are virtually nil. If anyone searched any search engine, there is no possible way they they could not have found us. We've grown steadily, and this is something that we've done with just elbow grease, pure and simple. It's all been very grassroots. We don't have a big publicity machine behind us. This has been the individual members pouring heart and soul into it."

Microsoft has responded to the cease and desist letter sent by the Digital Divas, informing the Divas that they didn't feel that 'Digital Diva' was a trademarkable term, according to Digital Diva and Attorney Faith Kaminski. "Our response to them has been showing them that we've had continuous use of the name dating from 1997, and it includes printouts from Network Solutions, and E-mails dating back to November of 1997."

Meanwhile, Microsoft is stepping up the appearance schedule of Stacy Elliott, their own Digital Diva. The 'original' Divas are angry not only for the alleged trademark violation, but also because of the way in which Stacy Elliott presents herself, and the name Digital Diva. Stacy Elliot's recent interview at siliconvalley.com got the Divas in an uproar. "She's just continuing her stance that women are such idiots when it comes to computers, that we're so afraid of them," Dana said in an interview yesterday, "It's really, really, condescending. ... The damage that we're suffering is that damage to our reputation. Our reputation is not for being a bunch of women who are idiots about computers. Our reputation is being people who are very computer-savvy, and this woman is trashing that by going around saying 'I'm a Digital Diva, and all women are morons.'"

Remember, it costs nothing to join the Digital Divas. It's a free organization. There's not a lot of money lying around to support a legal fight. Dana Whitmire has a day job. The organization exists because of the goodwill and volunteerism of talented people, not as the fruit of a vast payroll account. The good news is that Friends of Ed, Ltd., a division of Wrox Press, is publishing 'The Digital Divas Design Guide,' a real-world book with Web-design advice. Wrox Press heard about the legal issues that the Divas are involved in, and offered them a $10,000 advance to pay for legal fees. Moses & Singer agreed to match that amount with services, and will be fighting for the Divas all the way up through a preliminary injunction hearing against Microsoft.

Well, what's next? The Digital Divas have written back to Microsoft with a mountain of evidence that they've been around since 1997, and expect to see a response from Microsoft by noon today, Wednesday, May 31st. Thanks to the dynamic nature of the Web, expect to see this story updated with new information about this legal battle.
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  • Irony! It's all about irony. While the Digital Divas were busy shoe-horning outmoded and censorious print media copyright concepts onto the web, they got smacked by a -real- intellectual property violation.

    In the age where a photo or HTML or metallica song can be replicated and shared with less effort than getting up to grab a beer from the fridge, the ticket to making content profitable on the web is marketing. You create a unique service, and you market the hell out of it. A well developed brand is infinitely more valuable than the "rights" to the content associated with that brand.

    So while getting all indignant about "theft" and "abuse" and "piracy" (read: sharing), and organizing pointless excercises in corporate snottiness with the Gray Day, the Digital Divas have got a lesson on how profoundly things have changed.

    The only intellectiual property worth a damn in the digital age is the trademark. Good thing it's also the only one still reasonably defensible in court. Go, Divas, go!

    SoupIsGood Food
  • I think groups should show up at the presentations she's giving and openly confront her about this at the Q&A sessions.
  • And now - another 100 messages starting with "IANAL ..."
    Honestly, could you please leave that? Noone is going to sue you for anything you are going to post here. This abbreviation is so - so *anal* ;-)

    Thanks
    tom

    --

  • Hypocritical and lying (or willfully stupid). "Digital Divas" is very much a trademarkable term. According to the USPTO's trademark database [uspto.gov], there are four variations of "digital diva" pending or trademarked.


    -jon (IANAL, YMMV, etc.)

  • Let's see, a group of women with a common interest and talent band together to help each other and anyone else in the community to improve their skills and increase their knowledge. MS steps in, hijacks their name, and replaces the community with it's own puppet-chick-on-a-tether.

    We knew MS was monopolistic. Who'da thought they were misogynists too. (Insert giggle: But then, it was Melinda French Gates who was the product manager and head cheerleader behind Microsoft BOB. Perhaps BillG, et all are nothing short of narrow stereotypers.)

    Digital Divas would do well to get a major 'cause' group behind them (like NOW), but the groups that are going to get behind DD on the gender grounds have already been tuned out (rightly or wrongly) by the 'male majority'. Is there any way to raise issues touching gender without whining?
  • Even Metallica knows that much.
    Hey! Don't be doggin' my boys.
    --
    then it comes to be that the soothing light at the end of your tunnel is just a freight train coming your way
  • While I agree that the Divas have been wronged here, would this story have been posted if it didn't involve MS? Somehow I doubt it.

    <RANT>
    Why is it that when the Big Guy (tm) steals or takes advantage of the little guy's (or gal's in this case) copyright/trademark/domain/etc that /. gets all rush to their defense. But when the little guy (Napster/Gnutella/etc) steals the big guy's property, suddenly copyrights and trademarks mean nothing. You can't have it both ways.
    </RANT>

    /ME waits for the karma to take a diva

    ---
  • They're sending her on a speaking tour [microsoft.com].

    A couple of the items listed mention an "O Magazine Event".

    Now, is that Oprah's new magazine or is it the "O" magazine that caters to the sado-masochist crowd?

    Either way, I want to show up with a whip and a ball gag.

    k.

    MSN Project, Day 132: Anticipating the arrival of the saucers, we put on our Nikes and eat the applesauce.
  • I think that a much better choice for their spokeswoman would have been talking Malibu Stacy from the Simpsons.

    "Thinking makes my brain hurt!"

    "Don't ask me: I'm just a girl"

  • This is not the last time, we will see this happen. I am trying to be optimistic, but reality is setting in.

    There was a time when patents, copyrights, and trademarks protected originators. Today, I see more companies take the actuarial approach of "can we cost justify the violation?". The larger you are the more certain the answer is yes.

    This is by no means a Microsoft only issue. We have seen cases lately of corporations taking web sites, ISPs and individuals to court on extremely questionable cases. Why? Because they cannot afford the cost of litigation, regardless of being right.

    At one point reform was suppose to provide the individual protection by forcing costs to the loser. This has failed because winning cannot be accomplished without the revenue now tied up in litegation.

    I hope they win, but I am almost certain they cannot afford to. The deck is certainly stacked against them.

  • Microsoft claims "Digital Diva" is not trademarkable, but "Where do you want to go today?" is?

    Anyone with some extra clues lying around, send them to Redmond -- there's apparently a shortage up there...

  • As much as I would like to see MS go down in any battle, I am a vehement free speech supporter and think that they can print whatever they want, wherever they want. I don't really care, and I don't think anyone's being hurt. It's nice to see everyone fighting MS back though, no matter their size or economic status.

    Mike Roberto (roberto@soul.apk.net [mailto]) - AOL IM: MicroBerto

  • What happens when Microsoft decides linux isnt a trademarkable name and releases NT6.0 under the name Microsoft Linux?

    Wouldn't that get shortened to MSUX? Let 'em have it :)

  • What happens when Microsoft decides linux isnt a trademarkable name and releases NT6.0 under the name Microsoft Linux?

    You can't even sell a t-shirt with the likeness of billgates or any comment about microsoft without getting in huge trouble. But if you have a name or anything else microsoft wants, bend over and prepare yourself for the rod and shaft of microsoft!

    I hope the DOJ blows this company into a million peices. Die'ns too good for 'em.

    A World without microsofts 'inovation' is like a world where we skipped midevil times and kept up with scientific progress straight from Roman times till today.

    NightHawk
  • I vaguely remember hearing about a similar case several years ago, where the tables were turned. MSFT was suing another company for using the word 'Bookshelf' in their software title, for infringing on MSFT's Bookshelf Encyclopedia software. Can anyone confirm this?

    It seems to me that 'bookshelf' is a much more general term than 'Digital Diva'. Is MSFT being hypocritical?

    Can we assume this is a rhetorical question? After all, this is the same company that tried to claim that "Internet Explorer" is a generic, non-trademarkable term. (Somebody else had the trademark first, in case you're wondering why Microsoft would want to claim that.)

  • MSFT is definitely trying to bully Digital Diva's around with this move. They have a long history of trying to push people around and this is just another example. Hopefully, soon, someone will do what I did in school and beat the crap out of the bully that is pushing them around. a.k.a. MSFT.

    -----

  • someone should register microsofts.com if it hasn't been done already. Let's face it, if having an extra s is ok, how about microssoft.com and various other alternatives. Might lend a bit of weight to the argument.

    "But your honour, Microsoft claim the domain microssoft.com infringes their trade mark although it is spelt differently. However they also claim that digitaldiva.com and digitaldivas.com are sufficiently different. Please let us know which case is valid."

  • Anyone who reads all that gets ten points and a cookie. Summarizing gets an additional ten.
    ___
    A requirement of creativity is that it contributes
    to change. Creativity keeps the creator alive.
  • What if... All the people who create content for the web just deleted their work?

    Well, that would be terrible. The logical solution to this is, whenever you find something cool, take a copy & pass it around, so more people can experience it...

    you can help by participating in the struggle against the ever growing copyright infringement that exists on today?s Web.

    ... oh. So the good stuff should be subject to the whim and convenience of its creators. Or their lawyers. Great.

  • It would be great to see this law used as a means of freedom, not oppression of 2600. [2600.com]


    -- LoonXTall
  • Microsoft has responded to the cease and desist letter sent by the Digital Divas, informing the Divas that they didn't feel that 'Digital Diva' was a trademarkable term,

    Yeah, well, neither is 'Internet Explorer'.

    Take that, Bill, you feculant little dork.

  • What gets me is that when it all began in the 1940s, programming was considered "women's work." The original ENIAC was programmed by women. It wasn't until the personal computer revolution that computers, and especially programming, became a "guy" thing.
  • The letter was dated April 25, and says they want a reply by May first. So why all of a sudden do they expect a reply by noon today?
    >~~~~~~~~~~~~~~~~
  • Does having an "s" at the end of your domain name make you suit happy? I am not a copy write lawer, but this seems a little slim to me, do we really want this? Yes, if M$ is closely following Digital Divas copywrite, perhaps, but trade mark? I have my doubts.
  • ...is a strange way to spend your time without being paid for it. If they think that copyright enforcement is the new "Free Speech Online" (I am just waiting for their ribbon - I wonder whether people will have to pay to display it?) then they really have failed to see the direction things are going.

    --

  • And I don't mean M$, for once. Just like an all-asian society is equally as racist as an all-caucasian society, so is a 'club' that does not allow men equally as sexist as a 'club' that does not allow women.

    And, the 'greyday' thing makes me ill. If every page on the web was plain and grey with nothing but content, well, we'd have a super-fast, zero bullshit, banner ad-free resource from which to draw. Gee, that would sure suck, wouldn't it?

    At some point, people have to realize that equality means equality - working together as equals, not apart as 'equals.' Espousing 'women can do it just as well as, or better than men' is not a stance of equality, it is a stance of separation. I'm sorry we've had a male-dominated society for the last 6,000 or so years, I realize it sucks - get over it, your short-sighted approach is not helping.

    Thanks.

    --
    blue
  • anyone check out the grey day site?
    they posit if we keep taking licensed software lightly,
    the programmers will soon stop writing,
    both software and web pages.
    anyone here get paid for their website?
    how about open source software,
    free by nature.
    i say if no one listens to licenses,
    and for some reason companies stop creating,
    all we'll have is open source, free software.
    this sound bad to anyone?

    -tk
  • The cease and desist letter is here:
    http://www.digitaldivas.com/gol/images/letter.gi f

    The link in the article was cut and paste from the Digital Diva's site and won't work except for there.
  • Fromt the microsoft digital diva site:

    "You don't even need to download drivers when plugging a USB device into your CPU."

    This jargon was as common as asking someone for an aspirin or to pass the salt. After that first meeting, I needed the aspirin - what a headache!

    And the tech tips get worse:
    6.This is a hard one for most of us - but you really must make sure you read and follow the product directions carefully to make sure you set it up properly. Taking the time to review the instructions the first time will save you many headaches later on. (I promise!)

    No wonder there is an uproar. If this was a parody site I'd understand. I don't think too many women would take this air-headed rubbish for very long before going off and getting better information from somewhere else.
  • By defending the established copyright laws and precidents they're only giving corporate thugs like MS more power. Its one thing to try to protect your copyright and its another to start a campaign that's nothing more than airing your gripes about MS in public because you fail to see your problem is with the failings of the legal system than copyright legislation.

    About this trademark hassle, how many times does it have to be pointed out that if you want to create a defendable TM you should create some nonsense word like Kleenex or Xerox instead of combining two common words like digital and diva. Even Metallica knows that much.

    They'd get a lot more sympathy if they focused on the real problem of corporate bully vs. independant users instead of treading on the very hotly debated ground of copyrights.
  • The article mentions MSFT's response to the cease and desist letter : Microsoft has responded to the cease and desist letter sent by the Digital Divas, informing the Divas that they didn't feel that 'Digital Diva' was a trademarkable term

    I vaguely remember hearing about a similar case several years ago, where the tables were turned. MSFT was suing another company for using the word 'Bookshelf' in their software title, for infringing on MSFT's Bookshelf Encyclopedia software. Can anyone confirm this?

    It seems to me that 'bookshelf' is a much more general term than 'Digital Diva'. Is MSFT being hypocritical?

  • That's great to hear. Maybe it harks back to the stereotype that all programmers are just zit-scarred former D&D players, but I've definitely noticed a lack of female web developers. Now, I've worked with female graphic artists (not designers) and project managers, but I really haven't met more than a handfull of all-around programmer/coder/designer-types.

    I hope Digitaldivas can influence a lot more of the teenagers and kids to kick open notepad, get over to webmonkey and start creating.
  • I suggest that everyone send email to Stacy Elliot [mailto] asking her how she feels about Microsoft's infringement of the trademark "Digital Diva"? After all, that's what MS is calling her, so wouldn't you feel bad if your nickname was a trademark infringement?
  • Microsoft tends to think that litigation is a one sided sword that only cuts at their competition and can't be used against them. They obviously looked at this small, grass-roots group of female programers and decided they had a marketable name. And what's more, that all the work in branding had already been done for them! Seriously, if these women were using the name Digital Divas and Microsoft registered their domain name, then proceeded to show the ballsy-ness to use the same friggin format as what they (the real Divas) do (only dummed down, what would we-all do w/o WinME? Gawd.) they should be forced to pay for damaging the real Divas good name and reputation, and made to turn over the site their squating on.
  • They seem like a very accepting organization. I'll bet if MS had found a way to "sponsor" some of their activities, and become a funding part of their organization, they could have reaped 10 times the good pr.

    Now they're just exposed for the thugs they are.

    tcd004

    Here's my Microsoft Parody [lostbrain.com], where's yours?

  • It is great that, only a few weeks after MS sent a letter to /. about possible copyright infringement relating to Kerberos, they are accused of copyright violation, themselves. Best of all, it is publicized by the organization that they tried to bully. Whereas they wrote to /. about a few obscure posts on a large message board, they steal a trademarked name and *compete* with the trademark holders. I love it!

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