May 2006
Confusion in the Blogosphere
The American technical publishers O’Reilly Media have set it lawyers on IT@Cork, the Irish non-profit networking organisation, not to call an upcoming talk "Web 2.0".
Web 2.0 is a term often applied to a perceived ongoing transition of the World Wide Web from a collection of websites to a full-fledged computing platform serving web applications to end users. Ultimately Web 2.0 services are expected to replace desktop computing applications for many purposes.
O'Reilly claims that the term Web 2.0 was coined in a brainstorming session between O'Reilly Media and its pre-CMP partners MediaLive International.
CMP Media, O'Reilly partner company, filed an application in November 2003 to register the service mark "Web 2.0" for arranging and conducting live events, namely trade shows, expositions, business and educational conferences, tutorials and workshops in various fields of computer communication and information technology.
Under US law a service mark relates to services and advertising rather than products.
CMP asserts that use of the term “Web 2.0” by the Irish networking forum for a conference planned for next month is an infringement of CMP's rights.
IT@Cork's refers to the Web 2.0 term in its conference promotional material and links it to an article by Tim O'Reilly of O'Reilly Media.
Tim O'Reilly was even invited to next month's IT@Cork conference but was unable to attend. To add to the irony it appears that O'Reilly is originally from Cork.
However "Web 2.0" is a generic term so it is difficult to see how CMP could get a service mark for that name. Further IT@Cork’s use is in Ireland outside the American jurisdiction. O'Reilly Publishing arranges conferences in California for high VIP fees whilst attending IT@Cork’s talk in Cork will only set you back EUR50. So there is a strong argument that the two events hardly compete and are directed at different channels of customers.
O’Reilly later made a statement that while they stood by the principle that they need to protect their mark from unauthorised use in the context of conferences, they gave permission to IT@Cork’s to use their mark but IT@Cork’s is still not happy with the very principle of “permission”: the term should be free for all to use.
CMP’s mark has been filed with a disclaimer that no claim is made to the exclusive right to use "WEB" apart from the mark as shown. Could the solution be to change the Cork conference from Web 2.0 to Web 2.1.?
Briffa's Opinion:
The whole point of Web 2.0 as the next evolution of the Internet is that it is open in so far as anyone can use it and that web applications are generally free to use. The real test of Web 2.0 is user interaction. It's not necessarily all open source, but open for users to add comments and tag objects instead of book marking pages, creating blogs and “wikis” or server programs that allow multiple users to contribute to a Web site.
Generic marks cannot be acceptable on the grounds of descriptiveness because they are terms that should be available to other traders to use. Even if the term Web 2.0 was not generic in November 2003, it is certainly now and as such cannot be monopolised. Trade mark rights can be lost if the mark in question falls into such common usage that it may be used by anyone.