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The Internet was once hailed as the fastest way for a company to market its brand. Now it turns out to be the fastest way to kill one, too. Tech magazine publisher CMP Media found this out when it coined, publicized and then lost control over the term “Web 2.0,” a description of the Internet in the post-dot-com era. Tim O’Reilly, a publisher of technology books and an Internet icon famous for his well-publicized criticism of Amazon.com’s one-click patent, came up with “Web 2.0″ in 2003 as a title for his annual invitation-only technology and business conference. The phrase was supposed to represent the new generation of technologies and services that have made today’s Web sites more dynamic and interactive, from blogs and Google’s ever-expanding feature set, to the popular, if questionable, user-written encyclopedia, Wikipedia. CMP, which co-sponsored O’Reilly’s conference, filed a trademark application in the United States, the European Union and elsewhere on the unique term for use with conferences and other live events. So when two other groups picked up the term for their events, the company thought its May 24 cease-and-desist letterswould be a routine matter. Instead, they raised the ire not just of the two companies, but of an angry mob of bloggers objectingto any claim of proprietary rights to the term Web 2.0. Apparently, in less than three years’ time while CMP’s trademark applications were pending, the company’s mark had become a generic term among Web cognoscenti for the Internet du jour. San Francisco trademark attorney Nate Garhart, a partner at Coblentz, Patch, Duffy & Bass, said the Internet makes it possible to lose control of a brand virtually overnight. “The Internet is so viral and it reaches so many people so fast that it makes it a lot easier to promote your brand,” Garhart noted. “But if you’re not careful about monitoring whether people are using your brand name correctly online then you could easily lose it too.” O’Reilly, in responding to critics, acknowledged the popularity of the term on his own blog, saying that “there’s real tension between the desire to protect the trademark on the conference and the desire for people to talk about, meet about and otherwise engage with what has turned out to be the name for the next big thing in the computer industry.”
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Call it too much of a good thing. “The success of the Web 2.0 conferences and the usefulness of the term admittedly complicate the Web 2.0 trademark situation,” he wrote. In the end, CMP and O’Reilly backed off, allowing the groups to use the phrase and mollifying critics. Trademark attorneys doubt the company would be able to assert its right in the future. “Usage caught up and surpassed them. If Web 2.0 now means the Internet for the modern world or for 2006 or for the resurgence of the Internet, then CMP will have a hard time enforcing their trademark rights, even for ancillary things like conferences,” said Douglas Hendricks, a trademark partner at Morrison & Foerster in San Francisco. FAST TRACK TO GENERIC The swiftness with which the Web 2.0 mark has joined the trademark graveyard containing once-famous brands such as Aspirin, Cellophane and Yo-Yo is a case study of how the Internet’s reach can hurt as well as help trademark owners. Typically, trademarks become generic � used to define a category of products, not just one � only after years of consumer misuse of the name. For example, trademark attorneys say, it took the escalator, invented in 1892 and trademarked by the Otis Elevator Company in 1899, 58 years to become officially a generic term representing all “moving stairway” products. Many people today ask for a Kleenex when any tissue will do, and there are parts of the country where asking for a Coke can be a request for almost any fizzy drink. Many companies now struggle with trying to balance their desire to make their brands a household name but not to the extent that it loses their uniqueness. Google, for instance, zealously monitors online usage of its brand to keep it from entering the English language. In 2003, for example, Google asked Wordspy.com to remove or revise from its online dictionary the definition of “google” as a verb. Wordspy complied by adding a note after the definition informing readers “that Google TMis a trademark identifying the search technology and services of Google Technologies Inc.” The company still routinely sends out letters to people. “You have to start early to avoid a bigger headache later on,” Garhart said. “Xerox had to spend a lot of money to stop people from misusing its core brand name.” The company that popularized the photocopier invested in a campaign blitz that included ads that said: “When you use ‘xerox’ the way you use ‘aspirin,’ we get a headache.” One famous anti-generic ad run by Rollerblades even pokes fun at the theory behind such advertisements, stating, “This message comes to you courtesy of our attorneys, who are correctly referred to as ‘extraordinarily anal.’” Martin Schwimmer, a New York trademark attorney who runs the popular Trademark Blog, blames CMP for its own bad experience with enforcing its mark and for overlooking the power of the Internet. “Web 2.0 started off as a perfectly fine mark,” Schwimmer said. “But the point here is that CMP forgot that it is very difficult to combine selling a brand and selling it as a buzz word. In the age of the Internet that’s very dangerous. A lot of people are going to use it very quickly.”

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