Rename it “fridge poetry”. Or don’t.
— Tomas 
I would agree with renaming your tool, unless they have copyrighted the English language.
— Lutero
Aghh… IaNOTal, so mebbe you need some legal advice. Would think that attributing the trademark to it’s owner would be sufficient.
Didn’t seem like what you did was THAT big-a deal, but then apparently it is to somebody(s).
— jt
eMagnetic Poetry? iMagnetic Poetry? Dive into Magnetic Poetry?
They probobably wont like those either.
What happened to common sense. I mean you are not actually doing anything that effects their business, so why bother? Or have they just got an automatic report that says you have the words on your page and automatically sent out a C&D message? As my dad says common sense isn’t very common at all.
I’m not a lawyer so I don’t really know if its worth being stubborn or not. I would change it to something like “The poetry formally known as magnetic poetry”.
Electro-Attractive Verse Constructor?
— jr
I agree, just do a slight name change. Magnetic Verse. Magnetic Rhyme. Something like that should work. :)
— Melissa
Ignore it. If they had lawyers, the lawyer would have contacted you. Lawyers NEVER tell their clients to contact people directly. Don’t have to take my word, every blawger about will tell you this — of this I have no doubt.
They are full of shit. Most likely hoping to generate links to their stuff. Or having fun throwing their weight around.
Ignore them Mark. Not worth your time. I’d rather hear about the wedding.
‘We enjoyed your site’. This is ridiculous, if anything your ‘tip of the hat’ to their ‘property’ is good for them. If you stick to your guns, it could get……sticky. Change it to ‘magnetic dipole poetry’, ‘great attractor poetry’ or even better ‘Tesla poetry’. I suppose Tesla’s family will come knocking if you do.
— gummi
Yup, this is one battle that wouldn’t be worth fighting. The way that trademark law works, companies *must* defend their trademarks, or risk losing them. The fact that you are not attempting to make a profit from the use of the name doesn’t even matter.
Best thing to do is just rename that page to “Refrigerator Poem Simulator” or some other such less-pleasing name.
Mike Little ( http://zed1.com/b2/archives/ ) went through something similar recently with a company that has a trademark on the name “Links Manager” complaining about his “b2 Link Manager” plugin for the b2 blogging system.
— Dougal
Even if they are full of shit. It is their copyright, correct? They politely sent an email asking for a change, so why not be polite in return and make a change.
Like suggested above, it does not have to be a big name departure. Just a small change of the name and a redirect so that old links will go to the new page.
But please don’t try and buck the system just because you can, as that seems kind of childish.
— Erik
More. The trademark registration info can be seen at http://tess2.uspto.gov/bin/showfield?f=toc&state=69rlhq.1.1&p_search=searchss&p_L=50&BackReference=&p_plural=yes&p_s_PARA1=&p_tagrepl%7E%3A=PARA1%24LD&expr=PARA1+AND+PARA2&p_s_PARA2=magnetic+poetry&p_tagrepl%7E%3A=PARA2%24COMB&p_op_ALL=AND&a_default=search&a_search=Submit+Query&a_search=Submit+Query — I hope your app does URLS.
If this is same people, they have trademarked this term, but it doesn’t mean you’re in violation. Helpful stuff at http://www.netatty.com/trademark.html .
I would still ignore them. Not respond at all.
actually, i’m somewhat surprised that folks aren’t more familiar with this stuff.
companies routinely look for uses of their registered name and send out cease and desist letters. they then have a paper trail of evidence they have attempted to protect their trademark, copymark, or registered name. when another company tries to use it, they can successfully defend their ownership of that name (or whatever) in court. it keeps specific product names from becoming a generic term for the product, legally at least.
this is especially an issue for companies that have a very successful product (e.g. kleenex, white-out, coke, etc.), even though we routinely “genericize” products by names in conversation. otherwise, anybody who makes a tissue could call it a “kleenex” and the value of the name “kleenex” for kimberly-clark company would be vastly diminished. their promotional efforts and years of advertising expenditures would essentially become worthless.
i personally would either change the name on the poetry thing, or make a note that it’s _like_ the product “Magnetic Poetry(R)” or whatever and be done with it. but i don’t see it so much as a big, bad company trying to push the small guy around in this case. (that’s what the “davezilla” thing was.) just a little blip.
— dix
I’ve got it – Magnetic Prose.
Hmm, I see that I’m in a minority here. Completely in fact. But I dislike it when people abuse copyright and trademark law. You’re not in competition with this organization. You’re not trying to confuse the marketplace. You’re not abusing the trademark (folks, trademark is NOT the same as copyright, okay?) You’re a weblogger, a writer, who just wants to have fun.
And if you change the magnetic poetry URL everyone who linked to that will have broken URLS, because you have to remove it completely — no redirects. Even a re-direct means that the term is in use elsewhere and connected back to you. All those weblogs in violation of US trademark laws.
Mark, you’ve made criminals out of all of us. Bad boy.
Still, I’m making more of this then it’s worth. Best to listen to the other folks, Mark.
IANAL, but…
I would disagree with Burningbird; you probably are in violation of the trademark, because there’s clearly the ability to confuse your program with an officially santioned program of the same name. I would agree with Erik; they asked nicely, why punish them for the way other people throw their weight around? These people are trying to be friendly (it’s not straight from a lawyer which is the usual practice) and they are right; trademark law requires they protect it, even if they don’t “want” to.
I’d change the name, and additionally ask them for permission to use a redirect; if they grant permission (and you may need to show something to that effect if the user arrives via the redirect) it’s no longer trademark dilution, so hopefully they won’t perceive any reason to deny such a request. If you are all polite and work together you should be able to come to a mutually satisfactory resolution with a minimum of fuss.
I have to disagree with Burningbird. I tried to stick my CRT on my refrigerator when I saw the magnetic poetry on your site. Imagine my surprise when I found out that lead is not in fact a magnetic substance. So I turned it around and tried to stick magnets to my CRT. Imagine my surprise when I found out that the magnets started distorting my screen.
Actually I am in complete agreement with Burningbird. There is no confusion between the physical space of my refrigerator door and my CRT. There is no confusion between the magnetic qualities of my refrigerator door and my CRT. I don’t see how your site would confuse anybody but an idiot. But your site doesn’t really use magnetism beyond that of the electrons involved in the CRT guns and the general principle of the four major forces.
— Mike
As no magnets are actually involved in your implementation, why not call it Kinetic Poetry?
I would go for Shelley’s answer -even though I am no lawyer, but her arguments seem solid.
And besides, shouldn’t they prove that you are dilluting the trademark through the use of Magnetic Poetry? Do they have a product called Online Magnetic Poetry?
On the other hand, you are famous, you made it! C&D letters confer whuffie!
— Camilo
IANAL, but I do read The Trademark Blog.
“The Sixth Circuit held that unauthorized use of a trademark in a pathname of a URL is not actionable, finding, quite sensibly, that use of (an unpromoted) URL is not trademark use.”
http://trademark.blog.us/blog/2003/04/14.html
As far as I can make out, all they want is for reference of their name to be removed. If they were being asses about it, they’d have wanted you to destroy the whole program. I say throw ‘em a bone for the sake of keeping the project alive.
— Dave S.
http://www.chillingeffects.org/
Send in the C&D letter. If you need more help, contact EFF.
What a *polite* cease & desist letter! Wanna trade?
Again, IANAL but, as I understand it, someone who owns a copyright is required to show that they actively protect it, otherwise it lapses.
I believe that in cases such as this, copyright owners are sending out the C&D letter to show that they are taking this action. Apparently, provided no serious damage is being done, the letters are rarely followed up.
Please don’t rely on this though. It’s only anecdotal.
Trademarks must be defended. The letter was friendly. Just rename the page and move on.
Use mod_rewrite to redirect the old url to the new url.
21) There’s no chilling effect here. They are asking that their mark not be used to describe the page.
23) This is trademark issue, not a copyright or patent issue.
— Nona Myous
Well, Shell, I was almost completely agreeing with you.. but didn’t spell it out I guess.
Again, Ianal, but I have studied trademark issues and these trademarks are registered for SPECIFIC classes of goods and services.
“IC 028. US 022 023 038 050. G & S: flexible magnets”… Dunno what this means, but does not EVEN appear to BE any conflict.
I noticed on quick skim, that it was mentioned that if the company does NOT try to protect it’s IP, there’s a REAL GOOD possibility it will lose it’s ability to try to enforce it’s rights in the future. Forget the legal term, but for an example: If a company over a period of time consistently accepts your payment a month late, then they lose right to cut off goods or services to you because of late payment… Which may apply here, in the case of the IP.
— jt
FIGHT THE MAN!
Or, simply send them a polite note explaining that they’re going the way of Kleenex and Band Aids. Being a commonly used household name can’t be bad for business, right?
— Brock
You can use their mark to when writing about their product. If you could not do this, then there would be no way to write about their product. What you cannot to is use their mark to describe your page.
A statement like this is legal: “Online Fridge Verbage is to Magnetic Poetry (TM) as software is to hardware.”
— Nona Myous
1. The trademark is only on flexible magnets.
2. The trademark is so generic that it’s unlikely to hold up in court.
3. You should send the letter to Chilling Effects: http://chillingeffects.org/trademark/
You probably need some legal advice on this issue, so you better search for it.
To me, anyway, Shelley’s advices make a lot of sense. So, personally, I’d go for ignoring them: is your online magnetic poetry script a “product”? Are you selling it? Are you in competition with them?
But, then again, IANAL, and I do not know anything about trademark laws.
Good luck ;).
Maybe they’re trying to develop their own online (fee-based?) version, and view yours as a competitor?
Things that haven’t been mentioned yet:
* Trademarks are only infringed when providing a similar service to that of the trademark owner. (cf. Apple the computer manufacturer, vs. Apple the record label, and recent articles on how it just got sketchier when Apple got into the music distribution business.) However, Magnetic Poetry, Inc. *does* provide an online version of this utility under their trademark: http://www.magneticpoetry.com/magnet/index.html
* Magnetic Poetry, Inc. has good reason to worry about diluting its brand. When their product got popular, there were dozens of knock-offs, and as a consumer, I’m likely to refer to all of them as “magnetic poetry,” because we don’t have a widely used generic name for that kind of product. Not that I ever call Band-Aids “adhesive strips.” But I’m betting Magnetic Poetry Inc. is too small to risk turning the other cheek on misuse of their name, especially if they don’t have a patent on the product itself. (I couldn’t find one, anyway, but I didn’t try too hard: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2Fsearch-bool.html&r=0&f=S&l=50&TERM1=magnetic&FIELD1=&co1=AND&TERM2=poetry&FIELD2=&d=ptxt )
* Posting this entry to your weblog will be considered a response to the cease and desist letter. Not taking further action is different from not having taken any action in the first place. I *don’t* know if this is an issue at all, I’m just reminded of lawyers sending notices like these by certified mail so they can use your signature for the package as evidence that you received the notice (and therefore no response could more concretely be considered a refusal).
You shouldn’t be taking any of our advice, but since you asked: I’m very much the type to stand up for fair use rights and side with unlicensed IP users whenever possible, and I think this case infringes. “Magnet poetry” is what I would go with if it were mine, and I would probably take the time to write back as well.
— Dan S.
I’m with Shelley and Aaron, except that I think you should post a sarcastic open-letter in response using the magnetic poetry. After that, ignore them.
— Ryan
Maybe play nice? They are clearly willing to permit usage of their mark for online mag . . . um, word-arrangement applications with proper attribution of mark ownership ( http://www.crumpledpapers.com/inspire/java.html ).
Perhaps you could offer to stick a like disclaimer on your current page? No links into DiM broken, nice publicity for the MagPo folk . . .
— Chris
I’d change it to, “Poesie Magnetique”. Much more… continental.
— d chalmers
I’d come up with a witty comment, but after 35 others, you’d think that all the witty comments should have already been made.
“Mark has been marked for making a mark
On the online world on magnetic poetry.
It wasn’t the first mark, in won’t be the last,
But if we can’t use magnets, perhaps we’ll kill trees.”
— David
Change it to “Shmagnetic Shmoetry.”
— kf
Rename the feature “Dive Into Trademark Abuse”, subtitled “Magnetic Poetry, and damn the torpedoes!”.
The stylesheet associated with your comment preview section, by the way, still imports “om.css” and “mu.css” instead of “common.css” and “hilbert.css” – not to pick nits, just letting you know.
— Gnomon
I say go the Mr. Edible Starchy Tuber Head( http://winnie.acsu.buffalo.edu/potatoe/ ) route. Rename it in such a way it’s damn obvious you were forced to do it.
— Su
I don’t know why people think there’s a problem here. They have a trademark; you’ve done something similar; they aren’t being abusive, either personally or legally. Of course, IANAL.
Change the name. What’s wrong with “Dive into Magnets”?
— John
Of course, Mark changing the name on _his_ site doesn’t make the problem go away. If you Google on pilgrim+magnetic+poetry ( http://www.google.com/search?sourceid=navclient&q=pilgrim+magnetic+poetry ), the problem goes on, and on, and on, and on…
I wonder what the legal system would make of this? Would everyone have to change links? Google? Wayback Machine?
I know, over the top. But the point is, once somethings on the web, _just_ making a simple change, especially with a popular person like Mark (Mark, you’re such a blog magnet — oops is that taken somewhere?) doesn’t necessarily mean that the change won’t cause problems elsewhere, or continue to exist in violation of whositz’s expressed request for Mark to cease and desist.
But, as others have said, IANL. And I didn’t get the cease and desist. IMO, FWIW, (I love to watch marks acronym worker work) I still say, just ignore it.
Fun discussion.
IANALE, but can the mag-poetry URL really be thought of as “unpromoted”?
It seems to me that Mark promoted it several times in blog entries here — as a result of which it was linked to many times by other blogs.
I’m with Nona (above): rename, redirect, move on.
— James Kew
Did anyone see this article on how branding is bad by the same person who owns magnetic poetry?
http://www.promomagazine.com/ar/marketing_why_branding_stinks/
Moving on. Sure. But was this whole thing a joke?
“We at Magnetic Poetry are not above it. We have a logo, a packaging look, a catalog with an attitude, a vision statement, a target audience, and a media plan complete with sound bites, all devised by very smart people raised in the belly of the marketing beast. Branding is a necessary evil in today’s business world. If we’re birds sitting in the same tree, our brand is the unique song we warble through the din to attract birds of our feather.
The difference is that, for me, the most important thing is the product, not the brand. Magnetic Poetry is the opposite of Coke or Nintendo or the marketing team behind the Spice Girls. I’d rather sell delicious, nutritious food with a weak brand than junk food with a strong brand. I say create good products, and they will lead the way to a strong brand.”
If you do rename it, try Electronic Emulation of Precisely Cut, Magnetic-Backed Plastic With Imprinted Words Which One Can Move By Applying Pressure Over A Magnetic Surface. Rolls off the tongue!
— Paul
http://www.promomagazine.com/ar/marketing_why_branding_stinks/
“Branding is the pilgrim’s road to the Promised Land.”
(imitating Butthead) heh heh…he said pilgrim…
— MikeyC
My online version of Yahtzee was shutdown by a Cease and Desist. Wow I did something before Mark did it??? So I renamed it “Notzee”. Fly under the radar.
http://philsown.com/notzee/
Enjoy.
May I build on #49 and suggest:
Magnotic Poetry (Not®)
— insin
Heh! I live a mile from the office of the trademark holder. Maybe that is why every bookstore in the Twin Cities sells those things. I eventually threw mine away because I would rather stick photos on my fridge than make snarky comments with magnets.
— Anonymous
IANAL, but I suppose I’m basically with Shelley – I don’t think you’ve done anything wrong in basic human terms, so I’d be reluctant to bow to pressure. If anything I’d say your app endorses their product. They hold the trade mark – ok, link to them then. Better still, sell them your version – their online version is a huge Java applet…