


Oopsie, looks like somebody read the scathing reviews of their off-off-so very far off that it's utterly irrelevant to life as we know it on this planet-Broadway production and didn't like what they saw.
OSM of "Our trade name is OSM, and please note that we have a TM after OSM" has posted what I'm sure they consider a defense to their hubris, and the only thing lacking is a "So there!" at the bottom of the page. Yet in attempting to answer their critics and close the chapter on the discussion of what appears to be bad planning at best, and potential trademark infringement at worst (which is especially egregious when you consider that they've plastered their website with more DO NOT COPY ANYTHING notices than the RIAA -- and this from bloggers who make their living doing the cut-and-paste jive) regarding their dishwater-dull moniker, they only further expose their ignorance.
First off, trademark infringement is a serious matter, but only if the person whose trademark you're infringing decides to sue you about it. From the looks of things, the real Open Source Media isn't about to scare up the funds to engage in a costly, time-consuming legal process that could take years and run into the tens of thousands of dollars. No kidding. There are expert witnesses to hire, people to depose, testimony to scrutinize, papers to file with the court. It doesn't matter that they may have filed for the trademark first, or that OSM might be blatantly using another's trademarked name within and/or as their own -- they have to defend their trademark through the legal system, or they lose the trademark.
What may seem the most cynical part about the entire venture at OSM, is that Roger Simon, Charles Johnson, Glen Reynolds et al. may have actually known all along that they were treading on previously trademarked ground, but concluded that the real Open Source Media wouldn't have the funds or legal wherewithal to defend themselves. Hence, their unbelievably weak "His trade name is Open Source – and Open Source alone. He’s filed a trademark application under Open Source alone, not Open Source Media" defense, which would be akin to my starting up a car company called Chrysler Cars, then saying that Chrysler can't object because they've only trademarked the name "Chrysler" whereas my trademark is under "Chrysler Cars".
I realize I'm simplifying to a great degree, but bear with me.
It's most likely that a trademark under the name "Open Source Media" wouldn't hold water in the first place, considering that it's descriptive, and you can't trademark descriptive terminology such as "Olive Oil" or "Hot Pizza" because that would cause chaos in a free marketplace ("I own the trademark on Olive Oil, so you must cease using the words 'Olive Oil' on your product's label" -- "But I sell Olive Oil" -- "I'll see you in court!"). Nevertheless, "Open Source" has been trademarked by an existing media company, so for OSM to mutter that "Well, we added a word to our trademark, so there's no conflict" is nonsense. They're both media companies, and the new Open Source Media (er, sorry -- OSMtm) creates confusion in the media marketplace, thereby completely and utterly diluting the value of the real Open Source Media's trademark.
And I find it extremely disingenuous for the new Open Sou . . . agh! I find it extremely disingenuous for OSMtm to claim that their trademark is on OSM, and so has nothing to do with Open Source, media or otherwise, even though "Open Source Media" is printed directly beneath their title as an apparent explanation for what OSMtm stands for.
Now, it may come to pass that the trademark office declares that trademarks under the "Open Source" banner may be invalid, as the term "Open Source" is, to my mind (and possibly to theirs if the case is argued correctly), completely descriptive, which is what OSMtm is saying, and this would make any trademark infringement argument obsolete -- but only after a lot of expensive legal wrangling. But my question regarding that point is, can you trademark the initials for a descriptive term? Especially when you're printing the descriptive term beneath the initials as an explanation for what your trademark stands for? Because this is what OSMtm's argument essentially boils down to, and I have a feeling they might be full of crap (sorry, Laurence -- didn't mean to dilute your mark).
Attorney blogger Venkat posts over at Begging to Differ: 1. Trade names, corporate names are largely irrelevant. The critical issue in this context is priority (who used the mark first) and likelihood of consumer confusion (whether there is a likelihood consumers will be confused). Pretty darn likely in this case. 2. OSM considers "Open Source Media to be a description of what [they] are and do . . . ." That in itself may be enough to kill your trademark application. NOT the sort of the thing you want to say if you are trying to trademark either "OSM" or "Open Source Media." 3. "[Lydon's] URL is RADIOopensource, and he’s given up opensourcemedia.net." The domain name is completely [correction: largely] irrelevant from a trademark perspective.
My sentiments, exactly.
OSMtm's invocation of a URL for a defense means diddley-squat. I can have a trademarked name and not own the URL of that trademarked name, but it doesn't make my trademark any less valid (and since I own the trademark, I could probably sue to get the URL taken away from the person who does own the URL of my trademarked name -- just ask Coca Cola, who during the heady days of cybersquatting sued everyone in the world who bought up all the variants of the Coca Cola URLs since they owned worldwide trademark privileges, though it depends on which came first, the ownership of the URL or the trademark), just as owning a URL to a name doesn't automatically grant someone special trademark privileges over another ("What? You have a trademark? Well, I have the URL, so there!").
There's also an overwhelming number of OSM trademarks already in existence. Just check with the trademark search web-page . Which begs the question: why, if you're attempting to start a media company to appeal to advertisers, would you choose to trademark a name that's already so widely used as to make it fairly indistinguishable in the global marketplace?
Putting all other trademark issues to the side, it's shaping up to look like a $3.5 million dollar media company trampling across a much smaller and fractionally funded media company, and then stubbornly refusing to admit the error of its ways and correct the issue.
Isn't this precisely the kind of situation that our shining New Media was supposed to avoid?
I swear, it's like the people behind OSMtm are not only stuck back in 1989 when no one knew anything about the Internet and Internet law, but also stuck on stupid. I think it's high time for OSMtm to back up, wipe off its shoes and apologize to everyone else for tracking sh*t all across the nice new blog carpet. While this Rainbow Room launch party may have been intended to legitimize blogging in the eyes of the public, I think it only served to create a Point and Laugh situation around the watercoolers at the MSM newsrooms.
No wonder the lawyers over at PowerLine wouldn't touch OSMtm with a ten foot pole.
Heh. Indeed. Whatever.
ADDENDUM:
Stephen Den Beste makes this pertinent observation: "You don't get to use an acronym of someone else's trademark as your own trademark in order to compete with them in the same market. You don't get to use someone else's trademark as a motto on your product, especially if you're competing in the same market."
ADDENDUM 2:
I suppose we could be grateful they didn't name it Little InstaSimon.
ADDENDUM 3:
Glen Reynolds displays a surprising inability to even comment on the criticisms of OSM. When the Huffington Post started up, he linked to criticisms here and here, linked to the Greg Gutfeld hubbub here (while also linking to a number of Gutfeld's satirical posts which slam the Huffington Post), criticized the Huffington Post directly here and here, and there are even more links and comments regarding the Huffington Post beyond those cited.
But link to criticisms of content and policy at OSM? Heavens, no. Anybody reminded of the allergy to criticism, and the desire to shape the discourse through omission, displayed at, oh, say, the NYTimes?
Granted, this isn't the story of the century, but are our top bloggers becoming what they fear the most? "No, don't look over there -- you don't want to read about that, and I don't want to talk about it, especially because I'm involved in it and getting paid a tidy sum (plus bonuses) for my efforts. Instead, let's talk about . . . well, me!"
LAST WORD:
And this just about sums it all up, boys and girls.
OKAY, SO IT WASN'T THE LAST WORD:
Radio Open Source, run by the original Open Source Media, has noted on their website that the founders of the new Open Sou . . .*ahem*, OSMtm, have rewritten the notice on their website about the name confusion, and are deeply puzzled that this little tidbit is now included (where once it wasn't): "There are other Open Sources. A gentleman named Christopher Lydon has an excellent web site called Open Source. His URL is www.radioopensource.com, and he graciously agreed to give us opensourcemedia.net."
Open Source Media, Inc. has this to say in reply: "This is just not true. And weird. We didn’t graciously agree to give them anything. We’ve never talked to them. They didn’t answer our email."
Really, I don't have anything against OSMtm, except for the obvious fact that they seem like complete bunglers, but the sooner they stop trying to beat this dead horse and simply come up with another name, the less painful it will be for everyone involved. I mean, OSMtm is a fricking web portal without much traffic in the grand scheme of things, stuffed mostly with B-List to C-List writers that no one in the non-rarified air of the blogosphere even knows exist. So their odd little cha-cha-cha about their ill-advised name selection that's been going on from day one seems to signify that they want to get sued, because, really, did they spend so much money on business cards and stationary that they've already hit the point of no return?
The people who criticize the critics of OSMtm seem not to understand that the level of criticism towards OSMtm circulating throughout the blogs is merely a reflection of the level of disappointment and frustration over the underwhelming and badly planned nature of the entire venture. "We are blogs -- hear us fall flat on our face!"
Excuse me while I slowly back away.