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December 21, 2004

Intellectual Property Weirdness

For a while I've been idly thinking that I should find an excuse to favorably link to Dori Smith and Tom Negrino's excellent weblog, "Backup Brain." But I find that I cannot. For here we have another sign of intellectual property land grabs getting out of hand:

Backup Brain: "Backup Brain" is us: I'm starting to see it more and more, and while I'm not a lawyer, my understanding is that we need to nip this in the bud. If you read our What is Backup Brain? page, you'll see that we claim "Backup Brain" as a trademark, and have for quite some time.

If you want to use the phrase "backup brain," and in particular to use it regarding weblogs, we'd greatly appreciate it if you'd reference or link to this site in some way. For instance, this is the right way to do it:

Wagner's Weblog: It's delightful! It's del.icio.us!: I attended a terrific lunch of San Diego bloggers. Asked why they blog, several of the attendees said they basically use the blogs as a backup brain. If they find a site that's interesting, they bookmark that site on the blog, with a brief description, and then they can find the site if they want to find it later.... And, of course, the fact that other people can read the blog entry and comment on it is an added benefit. Many bloggers use their blogs as a backup brain in that fashion. Indeed, there's even a blog called "Backup Brain."...

OTOH, this is not:

Napsterization: Just a note about the use case. Mary's power use may be leading edge, but it is well within scope. If you spend hours of each workday online or at your laptop, then any RSS client becomes integral. It replaces bookmarks. It replaces addressbook entries. It replaces listerv archives. It becomes the place you look for your own blog posts, a backup brain. To pick up threads of conversation. To detect trends and be a little smarter. The place to find contact info, places to go, things to do. So it's indispensable....

Thank you for your attention to this matter.

I believe that the right answer to Tom and Dori is simply, "No." Or, perhaps, "Just how crazy are you?" Phil Wolfe and Mary Hodder are doing nothing wrong in referring to their set of RSS feeds as a "backup brain" without cross-referencing Smith and Negrino's backupbrain.com. The San Diego bloggers talking about their "backup brains" at their lunch have a perfect right to do so. The phrase "backup brain" gets 108,000 hits on Google, for chrissake. There's no bud to be nipped. It's a forest.

Smith and Negrino can, of course, claim "Backup Brain" as the unique, trademarked, and servicemarked name of their weblog. But control how the rest of us use the metaphor in our speech and writing? When they chose to name the weblog after the metaphor because it did have meaningful resonance? No way.

I've been sporadically calling my laptop my "backup brain" and my "external brain pack" for at least a decade...

Posted by DeLong at December 21, 2004 05:53 PM

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From the previous post. Just a note about the use case. Mary's power use may be leading edge, but it is well within scope. If you spend hours of each workday online or at your laptop, then any RSS client... [Read More]

Tracked on December 22, 2004 06:18 AM


I call mine the Pondermatic, myself. (Thanks, Mr. A).

Those two are off base. I've read stories using that phrase for a long time.

Posted by: Chuck Nolan at December 21, 2004 06:33 PM

Please note that I have a trademark on the phrase "intellectual property land grabs." If you wish to use this expression, my IP lawyer and I will be happy to work with you to set up a licensing arrangement which is appropriate for your needs.

At that or another time we can also discuss use of the term "meaningful resonance."

Posted by: Ralph at December 21, 2004 06:48 PM

Remember "fair and balanced?" Suddenly the very language can be bought :)

Posted by: anne at December 21, 2004 06:49 PM

There's quite a difference between claiming trademark rights in a mark and actually having those rights. They may be able to have the limited right to use the name for a blog, but from the term's historical usage, I doubt they'd get much more. But what do I know...

Posted by: Lawyer at December 21, 2004 06:52 PM

So far as I can tell, Smith and Negrino have skipped that oh-so-vital step of actually "registering" their claimed trademark.

Posted by: scott at December 21, 2004 07:03 PM

And here I was calling my brain my backup laptop. I hope that's not trademarked.

Posted by: praktike at December 21, 2004 07:26 PM


As a matter of simple common sense, you are right. But just in case that isn't enough, federal trademark law also supports your view. Even if Smith/Negrino have a valid trademark, you'd only run into trouble if you tried using the term as a trademark (e.g. to identify your own blog). Using the term in conversation or in a piece of writing is a non-trademark use and perfectly fine.

This issue actually comes up a decent amount. A couple of years ago, George Lucas tried to prevent journalists from referring to the Strategic Defense Initiative as "Star Wars." Hormel also tried to keep journalists from referring to bulk-email as "Spam".

Posted by: Joe Liu at December 21, 2004 09:09 PM

I admit having been sympathetic to Lucas--until he decided to imitate the SDI with unworkable films. (Did Hormel "defend themselves" from Monty Python's Flying Circus?)

Does anyone else think "IP land grabs" is going to become the "military intelligence" of the 21st century.

Caterpillar(tm) has IP. backupbrain.com is a website. "Backup Brain" is PD.

Posted by: Ken Houghton at December 22, 2004 05:41 AM

I thought they were joking. At least, that's the impression I get from reading that.

Brad, are you joking?

Posted by: Jesse Tov at December 22, 2004 07:42 PM