OK, I’ve started hearing back from people on the other side of this trademark debate. I approved a posting from someone arguing against my position in the “Cease and Desist” letter page. Same person submitted another post on the “Argument Against Trademark” page, the text of which I am quoting here:
You need to find some legal precedents for your argument.
And the way you are using the Internet to respond to a simple Trademark C&D request amounts to “cyber bullying”. You’re inciting people to threaten and harass someone and yet you write about Karma…wow. It’s disturbing the number of people you have calling McNeal names.
You should be thanking McNeal–no one was reading your blog until you started posting the legal correspondence and getting yourself some free press. Now you have many more readers, so tell me, what is the damage to you? I see only GAIN!
And yes, I can make my opinions known on the same sites that you are using–thanks for noting that in your comments back to US news.
Just a few of things:
1) I’m not sure that I need legal precedents when I express an opinion. But the concept of “freedom of speech” really has gone completely out the window in this.
2) I first used the internet to contact other blog owners to see if they had experienced similar challenges to their language use. When they started posting the issue, I was surprised. Then I realized why people cared so much about it — this isn’t about my blog or the word “frugalista,” it’s about the fairness of an action by the USTPO that restricts the expression of other people on the web. It honestly took other people telling me so for me to understand the significance of this question. Only then did I start sending emails to other potentially interested bloggers. And if the fairness of the mark approval weren’t in doubt, I guarantee you none of them would have run with it.
3) My blog was never intended for people outside of the Jackson-area. While there may be extra eyes on it these days, they are reading about a fight that will be over long before my friends and I stop caring about bargains. The ONLY reason people are paying attention to this issue (and my blog) is because of the cease and desist letter — and that came TO me FROM Ms. Hart, it’s not something I invented.
4) What possible gain do I get from this whole thing? My site is not commercial. I have no advertisers. People have actually been OFFERING ME MONEY to fight the trademark and I have turned them down.
5) The comment I made about your post appearing on my blog as to let people know that I DO approve comments that are contrary to my own position, unlike Ms. McNeal who apparently has been deleting any comments on her blog that raise the issue.
Regardless of what I call my blog, this issue is going to stick. The USTPO might have approved the trademark, but those approvals are not permanent. And while it’s highly unlikely that I will be the person who gets it reversed in court, I truly believe it will be. And me and my blog, whatever I call it, will be following the case every step of the way.
I’ve had tons of people, via email and blog posts, encourage me to NOT change the name. Some of those people are even offering money to help me fight.
My options are:
1) Change the name and let the whole thing drop.
2) Change the name but keep fighting — emails, posts, networking with other interested parties, etc. In other words, be an annoying online gnat to the people who claim to own the word.
3) DON’T change the name and just see what happens.
4) DON’T change the name and accept donations from blog visitors to fund a fight.
I lean towards #2, with a big part of me interested (but a little scared of) in #3.
I think it would be a struggle to do #1, I’m not great at keeping my mouth shut on things that make me mad. I also am VERY uncomfortable with the idea of taking money from people, it just seems skeezy somehow.
I have this horrible fear that more money would come in that I might need, or it would come in and the matter would be resolved, and I’d have no idea how to refund the donations so I’d go on a fancy vacation instead and end up on Dateline in a “How to Catch a Scam Artist.”
Chris Hansen: You accepted this money to fight for free speech.
Me: Yes, I did.
Chris Hansen: But you spent it on a trip to Martha’s Vinyard.
Me: And I said the word “frugalista” A LOT while I was there ….
Anyway, I am conflicted. Tell me what you think my next steps should be.
This keeps getting weirder and weirder. US News and Word Report online is now discussing trademark issues and THE MOST CONTROVERSIAL WORD IN THE UNIVERSE, “Frugalista.”
Part of me is glad people are paying attention to what I think is a ridiculous restriction on language. Part of me is a little freaked out that they are.
But a BIG part of me feels bad I haven’t posted those garage sale listings yet. It might be midnight before I get it done, but I will. When you get up at 5 a.m. tomorrow, info will be here.
Or change the name. The order comes from attorneys representing Natalie McNeal, a blogger with the Miami Herald. She apparently has trademarked the word “Frugalista.” The WORD. Not a brand or service she is calling “Frugalista,” the actual WORD.
Now, this blog has been up for justa few days. I am not worried about that. But something inside me is INCREDIBLY offended that someone can own a WORD. Not the name of a product or a store or something like that, but a WORD that is in general use that refers to a concept. It would be like trademarking “foodie.” It’s a relatively new term, but it’s a descriptive term, not specific to any single person or product.
I checked the trademark registration with the US Trademark Office. It is there — basically, anyone who wants to use the word “frugalista” in reference to any kind of financial tips (like, “hey, rummage sale!”) in an online journal or blog must FIRST get McNeal’s permission.
I am not usually an anti-government ranter, but WHY does the government allow people to file stuff that makes it “illegal” for me to use a generic-if-recently-developed word in my blog?
And, by the way — do ANY of us think my little blog talking about what’s on sale in Jackson-Freakin’-Mississippi should be ANY kind of threat to ANYTHING happening in Miami? Is there anyone who will be looking for her blog, “FrugalistaFiles” and stumble onto mine and be confused? I would think the word “Jackson” in the name of my blog would be a clue.
It’s not like I am doing my blog for any kind of profit. I am posting about church rummage sales and telling my friends that Hudson’s in Ridgeland got some maternity clothes. There is no cash in that.
It’s dumb. And I hate-hate-hate-hate-hate dumb.
Here’s the text of an email I sent to the US Trademark Office. Curious to see if I get a response:
To whom it may concern:
I am the recipient of a “Cease and Desist” letter from an attorney representing the holder of US Trademark Application, serial number 3532912, for the word “Frugalista.” The holder of that application has a blog hosted by the website of the Miami Herald called “Frugalista Files.” She covers fashion and financial issues, primarily in South Florida.
I recently started a blog for friends and family in Jackson, Mississippi, called “Jackson Frugalista.” This blog is dedicated to talking about special sales, consignment stores, rummage sales, etc., in the Jackson, Mississippi area.
I looked at the restrictions for the trademark application in question. The short definition is that any use of the word “frugalista” in ANY online journal or blog, related in ANY way to financial matters or tips (such as notification of sales) is restricted to only the application holder.
I would like to suggest that this word is not one that should be restricted as such and that perhaps the trademark application should be rejected.
My understanding of “common use” words in trademarks includes three concepts: descriptive marks, secondary meaning and genericity.
1) Descriptive marks — where the mark describes a characteristic or quality. Such words are not protected unless they have obtained secondary meaning. The definition of “Frugalista” is completely descriptive — “a person who is fashionable while being thrifty.”
2) Secondary meaning — when the consuming public associates that mark/word with a particular producer/source, rather than the underlying meaning. The public doesn’t have to know the producer, they must simply understand that a single producer is associated with it. I assert that the word “Frugalista” does not have that kind of association with the South Florida blog or the holder of the mark, even when she is mentioned in passing by other authors who use the word.
3) Genericity — “A word will be considered generic when, in the minds of a substantial majority of the public, the word denotes a broad genus or type of product and not a specific source or manufacturer.” While the blog the application holder runs is well-known in South Florida, the word “frugalista” does not typically cause the public to think of the blog. The word has a meaning altogether separate from the blog, as evidenced by its extensive usage on the web (see sites listed and linked below). In fact, the New Oxford American Dictionary named “frugalista” a finalist for “word of the year” for 2008. It’s description of the word did not mention the South Florida blog or any particular online product or effort. Even William Safire, who does mention the “Frugalista Files” in an article, references the word as a concept, not a particular brand.
**My information is from the “Overview of Trademark Law” posted by Harvard Law School.
Here is a short list of online uses of the word “frugalista” —
Again, those links are the result of a BRIEF search.
I presume the definitions and exceptions were included in trademark law to prevent any one person or company from having exclusive legal rights to what are (or are becoming) common-use words. Imagine if someone had, at some point, trademarked the word “recession.”
The trade marking of common-use words like “frugalista” is fundamentally unfair. I am not trying to make money off the word. I am not trying to do postings about South Florida bargain shopping, I simply want to give my friends and family some shopping tips for our area. I can’t do that, though, under my chosen name, because of this restriction approved by your office. And neither can many of the blog and website authors I linked to above.
Please reconsider your approval of this trademark.
I look forward to your response.
Will let you know what I hear.