Caroline @ CNET contacted me to confirm a story she heard through common friends of legal issues we’ve been analyzing over @ FindMeOn in regards to Google’s OpenSocial initiative.
Link: http://www.news.com/8301-13577_3-9839997-36.html?tag=more
Yes, it’s true. FindMeOn really doesn’t like the fact that Google named their product so similarly to ours, and we would prefer if they changed it.
You can read the official press release shortly on findmeon’s official blog.:
Link: http://blog.findmeon.com/
Just to personally clarify some points on this matter that people have asked me over the past few days.
Q. Are you really serious about this?
A. Yes. This is a serious and legitimate trademark issue, that has already affected our business in a negative manner.
Q. What exactly is OpenSN? I thought your company is FindMeOn.
A. OpenSN (Open Social Network) is a set of standards & software that FindMeOn maintains & distributes to enable Social Network Portability; we’ve been distributing products under this name to the general public, and actively advocating them at Technology Conferences since October 2006. findmeon.org / opensn.org have operated as a repository of the OpenSN specification , and database code for people to implement.
Once upon a time… not too long ago… Social Networks were walled gardens and all very different. OpenSN was designed to standardize social network , web application , blog , dating , etc. profiles into a common format. Existing standards like foaf and hCard were unsuitable to our needs - they were concerned with ‘contact’ style information and did not support common profile fields (interests, work histories, etc). We mapped out several hundred Social Network profiles, figured out the base commonalities, and created OpenSN to address the overlap and uniqueness of them all. Most SocialNetwork / Profile websites and Open Source projects can translate their entire profile data into the OpenSN format - which can then be serialized to disk or transferred to another SocialNetwork/Application — which can use a reverse mapping of their fields to access the data in their native format. Simplest put- OpenSN was designed to be a babelfish for Social Network profiles.
Q. I thought trademark registration was necessary for protection.
A. Unlike Patents which are ‘awarded’, Trademarks can be formally registered — but that is not necessary for protection under US law. You can yahoo the “Lanham Act” for more information on US Trademark law - it still pretty-much stands as the definitive bible for trademark law. Simple usage of a term in interstate commerce grants common-law trademark status and rights - and that why there is a difference between a “registered” trademark (circle with an R) and a general trademark (superscript TM).
Q. Are you really worried about confusion between the products?
A. Yes: we have already been experiencing it, and it has been to the detriment of the firm. Since the release of OpenSN, people have continually confused OpenSN with OpenSocial. At NYC technology events, people often say “Oh, thats the Google thing, right?!” When speaking with investors and clients, we often hear “OpenSN, is that the Google product? Are you the guys they bought?” The names of the two products are confusingly similar, and have been the cause of constant confusion. Being a startup is hard enough; being a startup where people constantly confuse your product with a new one from a billion dollar competitor is even harder.
Imagine this conversation, I have it nearly every day:
Random: What does FindMeOn do?
FMO: We created the first technology to port and sync identity information across the internet through Widgets and APIs, and foster social network portability through open standards we call “OpenSN - Open Social Network”
Random: Oh cool! Google just bought you, right?
FMO: No. That’s Google’s OpenSocial. It’s like Widgets & APIs. Too.
Random: They kinda sound the same.
FMO: Yeah… I know… We’ve been using our name for about a year before them. Its becoming an issue.
Random: I’m not surprised.
Q. The article mentions foreign use and other companies using similar terms. Doesn’t that diminish your rights?
A. No. Foreign and ‘other’ use are largely irrelevant to US Trademark law. US Trademark law generally serves protect fair business practices within a given arena. That being said, under US Trademark law, even national use of identical or similar marks are generally irrelevant when names are in a different realm of business. For example: there is a car company and modeling agency both called Ford - they both operate in different arenas of business, and are not likely to be confused with each other. We believe that “OpenSocial” is confusingly similar to “OpenSN” - and it is not only in our industry (internet goods and services) but for a very similar product. If you created a search engine today, would you call it “GooglySearch” or “Gaggle”?. We think Google could have chosen many other names, and wish they had.
On a side-note: unless you’re a mega-corp or specifically targeting a foreign market, you generally don’t want to bother with overseas patent or trademark protection - you’re rarely going to have the ability to litigate/enforce your rights. You’re much better off taking the money you would have spent on securing those rights and investing them into your company. Even better: how about making a charitable deduction to a worthwhile non-profit, so you can help make a difference in the world. Can I suggest the Patrick O’Brien Foundation?
Q. Are you just going after the big tech player?
A. Not at all.
Ms. McCarthy stated in her article- “If the story sounds familiar, that’s because it is: many an obscure start-up has gone after a big tech player over some technology or idea that it sees as a bit too familiar.” Unfortunately she seems to forget about another all-to familiar story: when a big tech player decides to quickly enter a space and develop its own systems to directly compete with smaller firms.
Until recently, it was common for large tech companies to acquire startups for users or technology. Since around 2004, acquisition and funding for consumer internet ventures have been based solely on userbase numbers ; i.e.: attention/audience is purchased, not innovation. That’s why acquisition prices and market valuation are now almost only spoken of in terms of “Cost-Per-User”.
Recent giant-staff upgrades from IPO cash & profitability , and rapid-development frameworks have made it cheaper & easier for large corporations to embrace a ‘Build Your Own’ approach to technology. Tech giants are increasingly choosing this route using internal incubation services to compete with startups in certain sectors: Yahoo has Brickhouse, Google has Labs, recently Facebook has been alleged to make ‘official’ apps based on 3rd party platform development.
Q. The article mentioned Patent Holding Groups - what does that have to do with this trademark issue ?
A. Absolutely nothing. Because of recent market activity, FindMeOn is pursuing an aggressive Intellectual Property strategy - which includes both ensuring our trademark rights AND strategically managing our Patent portfolio. The OpenSN system and protocols are fully open , and irrelevant to our patent strategy. We’re currently exploring options to continue as a firm on our current path, or suspend operations to focus on IP licensing & market consulting - which is why we’re talking to these groups.
Q. Did you file a lawsuit against Google? Are you planning to?
MarketingVox incorrectly reported that FindMeOn filed a lawsuit. That is simply not true.
No lawsuit has been filed, and there is no intent to litigate. We hope to work this out amicably, and have turned to nationally recognized Intellectual Property experts for consultation on these legal matters, and to develop & manage or intellectual property strategies. Legal matters like these are far different than lawsuit, and the American court system is overburdened already.
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