Feb 10 2008

The Frustrating Part of Internetizens: Everyone’s a Lawyer

By Jane • Letters of Opinion • • Tags: ,

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A little brouhaha went down over the past week within the Young Adult author community. When this was first sent to me, my immediate reaction was “thank goodness it’s not us this time.” Then I went to read. Another friend of mine commented that the internet makes it so easy for people to make themselves look bad.

Exhibit 1 would have to be Young Adult author Rosanne Parry’s “cease and desist” letter (a definition I use in the broadest terms as C&D letters go).

The backstory, as far as I understand, is as follows. Author Jackson Pearce had some problems with how Class2k9 was being run. Class2k9 is a limited membership organization for young adult authors. The group is primarily a group marketing effort that started with Class 2k7 and was then succeeded by Class 2k8 and so on. It claims to be “well known by authors, publishers, booksellers, librarians, and teachers.” Class2k9 is purportedly a trademark owned by author and lawyer Greg R Fishbone. One problem, though, the trademark is not a federally registered one.

Jackson Pearce looked it up on the federal trademark database and found nothing. Believing that she was not violating any right, she apparently set up a livejournal with the same name. Tempers flared. Rights were asserted. Threats were handed out like candy at Halloween.

Rosanna Parry is apparently the co-president of class of 2k9′s. Emboldened by her faint knowledge of common law trademarks and her prestigious position, Parry went forth and posted on closed yahoo groups about how Jackson Pearce was trying to co-opt the 2k9′s marketing effort (only in not very nice terms).

The truth behind Pearce’s motives is probably only known to Pearce herself, but Parry’s attempts to shut down Pearce’s livejournal did not leave this reader with a very good impression of Parry. First, if Parry’s writing skills are evinced in her letter to Pearce, I have grave concerns about Parry’s book.

Jackson, one of the most common illusions that comes from the frequent use of the internet is that because much information is instantly available; therefore, all information is instantly available.

Wow, awkward phrasing much? But it’s not just the text that is jarring, it’s the context. The letter is full of embarrassing condescension.

You are not old enough to be a patent lawyer. You are old enough to be held legally and financially responsible for violating another person’s intellectual property.

There isn’t any age limit to taking the patent bar so Pearce (whose age I know not) could be old enough to be a patent lawyer. She would have to have some kind of scientific/technical background to be eligible to sit for the patent bar but is not required to be of any particular age.

I wish to the core of my heart that you had taken my repeated warnings to change your 2k9 site on livejournal seriously.

I am glad that Parry wrote this sentence because I cannot take any warnings seriously unless they come from the core of someone’s heart as opposed to “depth of my heart” or other such cliched reference to the heart, mind, soul.

Parry does recognize that online activity as an author can have an impact and worries that Pearce’s lack of a mentor will be her downfall. (Srsly? Lack of mentor?).

However, as an author you are a more public person than you have been and your words and actions must be weighed with more care. Do you have a mentor? Is there anyone in your life, besides your livejournal group, who is in a position to give you solid council about conducting yourself in a professional manner? I would hate for this lapse in judgement to have a negative effect on the reception of your writing.

Parry graciously offers to counsel other members in the Class 2k9 to say nice things about Pearce if Pearce does what Parry wants but threatens cautions her on how to comport herself in the future.

I would strongly caution you to be judicious in how you talk about the 2K classes even in a closed journal community.

I am no trademark expert but the whole C&D struck me wrong. The use of the word trademark appeared inaccurate based on my limited knowledge so I did a spot of research.

It is true that unregistered trademarks have protection, but it generally isn’t protected afforded by federal law. The Lanham Act does allow for protection of some unregistered marks but most case law involving unregistered marks is on the state level where the state’s unfair competition laws either formally (legislatively enacted) or informally (judicially adopted) enforce the owner of unregistered mark’s legal rights.

Technically, the type of mark that Class 2k9 would be is a “collective mark” not a “trademark.” Trademarks are for things of a tangible nature: goods and products. Trademarks are not for services like marketing or advertising. The legal designation of Class 2k9 is probably a service “collective mark” :

The term "collective mark" means a trademark or service mark–
(1) used by the members of a cooperative, an association, or other collective group or organization, or
(2) which such cooperative, association, or other collective group or organization has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter,
and includes marks indicating membership in a union, an association, or other organization.

15 U.S.C.A.  § 1127.

I wonder, too, whether Class 2K9 can even be protected. I venture to guess that any number of students, secondary and post secondary, will be using that phrase to emblazon their yearbooks, tshirts, and so forth. Service marks fall into four different categories, with each category afforded different levels of protection. A descriptive mark, as opposed to a fictitious or fanciful mark, is protected only when a “secondary meaning” is shown. Class 2k9 looks to me to be a descriptive mark and therefore would need to have a commonly understood secondary meaning in order for Fishbone to successfully prevent its use by others.

There are generic terms which “communicate information about the nature or class of an article or service” which are never afforded protection. It might be that the use of Class2k9 as a marketing tool toward publishing insiders might be confusing, but as a general blog to readers on the internet? Probably something the court would have to decide.

Also, I wonder about the validity of the C&D letters. If the cease and desist letters came from Parry and not Fishbone who is ostensibly the owner of the collective mark, Parry does not have the legal right to challenge the misuse of a mark she does not own. Simply because she has the right to use the mark with permission of Fishbone does not give her the right to challenge others’ uses. That right belongs to Fishbone.

I think Parry’s ” lapse in judgement” might “have a negative effect on the reception of [her] writing. See, the Foot in Mouth Disease? It is spreading.

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