MEMO TO FIREFLY DIGITAL : IF GADGET REALLY EMBODIES YOUR PASSION DON'T GENERCIZE IT AND THEN SUE GOOGLE

First, let me state my bias. I am a fan of Google. I know they are big but the world is a better place because of what Google has done, is doing, and will do.
But the folks at Firefly Digital don’t share this POV. They have sued Google over use of the term “Gadget”. They base their claims on two federally registered trademarks and claimed use of the term Gadget since 2002.
Should Firefly have ever been able to federally register a term like Gadget? I’ll put that question aside.

Because the fundamental responsibility for anyone who claims trademark rights in a term or symbol is the responsibility to use that term or symbol properly. And proper use almost always means using a verbal term as modifier for a noun.

One shorthand test: if you are using your trademark properly you should be able to remove it from a sentence and the sentence will still make sense.

Does Firefly pass this test? Not on their website they don’t. Here’s their own language:

The Website Gadget® is the ultimate tool…

When Firefly builds a website we use the Gadget® to…

In 2001 when Firefly created the Website Gadget® it marked a turning point…



Uh oh.

And here’s the ultimate irony. If you use the Google search engine for the term “firefly digital” you will find that others who appear to be direct competitors of Firefly Digital are using the term Firefly. Surely this must REALLY strike at the essence of Firefly Digital . But perhaps these others don’t have the same visibility as Google. Or the same pockets.

WHO DAT? ITS SENATOR LEAHY ON THE WARPATH AGAINST TRADEMARK HUBRIS

By now everyone has heard about the NFL's (apparent) attempt to claim rights in the phrase WHO DAT. After an uproar from New Orleans Saints fans, legislators from Louisiana and the Facebook, You Tube, Twitter crowd, the NFl backed off and "clarified" their postion. This appears to be the latest example of a problem that Senator Patrick Leahy, of Vermont, seeks to solve with legislation.

Recently he introduced legislation, passed unanimously by the Senate, that would require the Department of Commerce to study whether large corporations are guilty of systematically overstating their trademark rights. His legislation was prompted by a battle between a local Vermont brewery and a large brewery/distributor of energy drinks.

Will the House agree? Hard to say. Will the Department of Commerce- home of the US Trademark Office really conduct a study with teeth? Hard to say.

But the Internet has brought into sharp focus the entire rationale for intellectual property law.