
It's the real thing - ezl
http://www.lettersofnote.com/2013/07/its-real-thing.html?m=1
======
lutusp
Nice article. It reminds me of a fight I had with Sun Computer (i.e. Sun
Microsystems) some years ago, after I created a Web page that computed the
sun's position / sunrise / sunset times for a given location
([http://arachnoid.com/lutusp/sunrise](http://arachnoid.com/lutusp/sunrise)).
Without thinking very deeply, I named my page "Sun Computer".

Pretty soon, and without any nefarious intent on my part, my "Sun Computer"
Web page ascended above the official "Sun Computer" corporate website in the
search engine listings.

Shortly thereafter I received a registered letter from a team of corporate
lawyers who threatened to sue me for disregarding Sun's proprietary ownership
of the word "Sun". My explanation that there is an astronomical body with that
same name, and that my page provided information about said astronomical
entity, fell on deaf ears.

For some reason, the corporate lawyers couldn't bring themselves to simply say
that my Web page was above theirs in the search rankings and I needed to do
something about it. Instead, the correspondence was phrased entirely in
threatening legalese, in terms of proprietary trademarks and public deceit. I
finally figured out what the problem was, and renamed my page "Solar
Computer". Problem solved.

~~~
dmdeller
Presumably you are referring to the former Sun Microsystems. The amusing thing
to me about this story is that it's such a convoluted name that their own
potential customers apparently can't remember it. And so, attempting to locate
the computer company, they type the closest approximation they can manage,
'Sun Computer', into Google, which likely didn't rank as highly as yours
precisely because that verbatim phrase, being technically incorrect, is
unlikely to appear directly on their own web site or in anyone else's links to
their web site.

Names matter.

~~~
lutusp
> Presumably you are referring to the former Sun Microsystems.

Yes, that's one of the ironies -- Sun Microsystems argued that my use of the
phrase "Sun Computer" directly interfered with their legitimate commercial
interest. And, based on the search engine rankings, they were right.

~~~
malandrew
What I don't get it why society thinks it's okay to encroach on personal
freedoms when it hurts the economic interests of some other party. What is it
about economic/commercial/financial interests that we collectively consider it
more moral.

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relix
Offtopic: I loathe it when people project agreement on their "opponent" like
this: "We believe you will agree [you shouldn't use our slogan]". If he
agreed, he wouldn't have used that statement in the first place.

I've had it a few times where people who disagreed with something I wrote or
did start their statement with "Surely you understand that [you shouldn't do
what you did]". No, surely I don't, that's the reason we have this
disagreement in the first place.

~~~
fluidcruft
You should appreciate that you loathe it because it's effective.

~~~
ganeumann
Edit: "I am sure you appreciate that you loathe it because it's effective."

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markkanof
I wonder if this would have been as effective today. In 1970 this
communication was delivered and responded to via regular mail. So this
correspondence likely took a week or more for the round trip, which doesn't
require, but does I think encourage a more deliberate thoughtful approach to
these kind of discussions.

Today this communication might be delivered via email or some other near
instantaneous form of communication which I think it more likely to lead to
escalation. It's so easy to respond without thoroughly considering your
response. While it certainly isn't prudent to act emotionally with legal
matters, that certainly doesn't mean that people don't do it.

I guess I just think it's interesting how technology has in some ways gotten
ahead of people in terms of having healthy social interactions with other
people.

~~~
busyant
I generally agree. I don't know our it's the technology or the age or both,
but those letters were far more cordial than I expected.

~~~
ciclista
I've made it a habit to wait for 24 hours to respond to an incendiary email.
Allows both parties to calm a bit and the response is more balanced and
eloquent.

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mathattack
I may be wrong, but legally Coca-Cola had to protect the slogan, otherwise
they would lose the copyright, no? The "our advertising will help you" defense
doesn't hold up in court.

Can any lawyers confirm?

~~~
lutusp
IANAL, but I know this issue. To protect an advertising slogan, the plaintiff
must show that other uses of their slogan will confuse the public and
materially injure the plaintiff's interests.

For example, there was once a restaurant named "McDonald's", owned by someone
named McDonald. The restaurant existed before there was a McDonald's chain of
restaurants, and the restaurant name corresponded with the owner's name.
Notwithstanding all that, the corporate giant McDonald's was able to force the
owner of the restaurant to change the name on the ground that the original
name would mislead the public.

EDIT: I researched this further, and it turns out there have been several
"McDonald's" restaurants that came to the attention of the corporate giant --
some legal actions succeeded, some failed:

[http://en.wikipedia.org/wiki/McDonald's_legal_cases](http://en.wikipedia.org/wiki/McDonald's_legal_cases)

Defenses of everyday phrases like "It's the real thing" can only succeed if
the plaintiff can show there is a real probability of public confusion or
injury to commerce or reputation -- it's not enough to say that the phrase is
in wide use. A counterexample is Apple Computer and Apple Music (the latter
owned by the Beatles). In this case it was decided that, because they were in
different businesses, there was no great likelihood of public confusion.

~~~
drcube
> A counterexample is Apple Computer and Apple Music (the latter owned by the
> Beatles). In this case it was decided that, because they were in different
> businesses, there was no great likelihood of public confusion.

That's a bad example because Apple Computer eventually _did_ enter the music
business, with itunes, contrary to an earlier court's ruling that they stay
out of that industry.

I think they ended up just paying Apple Music a ton of money. So that's
basically a case of infringing trademark, but having enough money to pay off
the company whose mark you're infringing. As we all know, enough money solves
any problem.

~~~
lutusp
> That's a bad example because Apple Computer eventually did enter the music
> business, with itunes, contrary to an earlier court's ruling that they stay
> out of that industry.

I would argue that that makes it a good example -- they eventually crossed the
line and the issue had to be revisited. BTW thanks for posting and correcting
the example.

> I think they ended up just paying Apple Music a ton of money.

That makes it a perfect example -- originally there was no issue or conflict,
but eventually the two entities collided.

> As we all know, enough money solves any problem.

So it seems. I think it's a perfect example of how these things sort
themselves out, because over time, it visited both extremes -- not an issue,
then very much an issue.

~~~
drcube
You're right, maybe that does make it a good example. No criticism intended.

This wasn't a one time thing, by the way. There were a whole bunch of suits
between the two companies over the years, I think starting way back in the
70s.

It's interesting how Apple Music was initially the big company in the dispute,
and Apple computer the little guy getting pushed around. Watch how over the
years, the power dynamic completely reverses itself, until Apple, inc. (no
longer Apple Computer) is the one calling the shots.

(Okay, found a link. It's "Apple _Corps_ ", not "Apple Music", by the way.)

[https://en.wikipedia.org/wiki/Apple_Corps_v._Apple_Computer](https://en.wikipedia.org/wiki/Apple_Corps_v._Apple_Computer)

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Shivetya
Perhaps because of how they replied to Coca Cola is why the company did not
pursue it further? There is a lot to say about politeness between responsible
organizations. Not all big companies are staffed by hordes of idiots.

~~~
greenyoda
They didn't pursue it further because they knew that they had no chance of
prevailing in court: a trademark for a soft drink doesn't extend into a
totally different domain, like books. If he would have replied "go ahead and
sue me, you assholes", they would have reacted exactly the same way. Just like
many of today's copyright trolls, Coca Cola was trying to intimidate Grove
Press into capitulating without ever intending to take the matter to court.

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RegEx
Students in AP English in the US get to analyze rhetoric like this. I remember
this as one of my favorite passages.

~~~
SilasX
Same here. The teacher thought I was the Second Coming because I pointed out
that the response involved a strawman (the bit about "people won't think our
books are soda!"). Nowadays that's a trivial thing to notice.

