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I'm assuming the company in question is Blue Cross Blue Shield. This kind of sucks, but looking at their logo[0], I would have to agree that they're uncomfortab

I'm assuming the company in question is Blue Cross Blue Shield. This kind of sucks, but looking at their logo[0], I would have to agree that they're uncomfortably close, if they are deemed to be in similar enough markets. The only question is whether Watsi and BCBS operate within similar enough markets for their use to be considered infringement - I'm less sure of that. On a related note, this is why early-stage startups shouldn't get too attached to their branding, product name, and/or company name. You're better off focusing your efforts on your product itself. And don't waste money (as an early startup) on filing for trademark protection - because US trademark law respects common law use (ie, if you used it first, you are protected, even if you didn't file for protection)[1]. Registering your trademark does nothing if someone else (with more expensive lawyers) was using it first and can demonstrate that use. And even if they accept your registration, that doesn't mean that it will hold up. Just like patents, the USPTO leaves this up to courts to decide. You could easily register something like the Coca-Cola[2] logo and they could accept it, but that doesn't prevent Coca-Cola from litigating against you and winning. They have no great way to check for conflicts, and they err on the side of issuing the trademark (and collecting your fee) so that the courts can be the final arbiters[3]. (Obligatory disclaimer: I am not a lawyer, and this is not legal advice). [0] https://encrypted.google.com/search?tbm=isch&q=blue%20cross%20blue%20shield&tbs=imgo:1 https://encrypted.google.com/search?tbm=isch&q=blue%20cross%... [1] This is the opposite of the way that patent law works. [2] In reality, probably not Coca-Cola per se, because it's popular enough that anybody reading your application would notice it, but a trademark that's very similar to an existing logo. [3] If you're wondering, no, they won't refund your fee if your trademark is deemed invalid.

will_brown 13y ago
I assumed the same company as you. However, I fall on the other side of the analysis, that Watsi is 1. not interfering with any trademarks registered by BCBS (all BCBS registered marks, which I found in TESS, are word/design marks, which means the blue cross on its own is not protected, it is only protected when it is accompanied by the word mark); and 2. otherwise not causing any confusion in the markplace (for example who is going to donate to Watsi under the belief they were donating to BCBS, there is a test of the reasonable consumer and BCBS would have to prove actual confusion in the marketplace...good luck on that). I am sure Watsi being who they are made an informed decision and with the advice of counsel. The sad thing is the advice was probably to the effect that while Watsi has a reasonable likelihood of prevailing on their use of the mark, BCBS has enough money to try to enforce the mark without putting a dent in their litigation budget, and Watsi's money would be better spent on Watsi's mission of helping people not in defending litigation. Nevertheless I would have felt good defending Watsi's use of the mark.
- paulbaumgart 13y ago
  Yeah, using a plus-symbol for healthcare-related things really shouldn't be protectable under trademark law, considering it's been in use since the 1864 Geneva Convention.
  - alexeisadeski3 13y ago
    It's just the blue plus symbol. Other plus symbols are used by other companies without issue.
    - unreal37 13y ago
      No I believe the Red Cross has international protection over the use of a red plus symbol. [1] http://en.wikipedia.org/wiki/Emblems_of_the_International_Red_Cross_and_Red_Crescent_Movement http://en.wikipedia.org/wiki/Emblems_of_the_International_Re...
      - JacobAldridge 13y ago
        Yes. One of my colleagues tells a fabulous story about 'breaching the Geneva convention' by playing a nurse in a pantomime with a Red Cross on his headpiece. The reality, of course, is slightly less than that - they used his photo in the promotions, and the Red Cross contacted them to advise that the symbol was protected and 'request' that they change the costume, which of course they were happy to do.
      - alexeisadeski3 13y ago
        Are you supposed to be disagreeing with me? I believe your disagreement is with the fellow whom I responded to. :)
- chimeracoder 13y ago
  > all BCBS registered marks, which I found in TESS, are word/design marks, which means the blue cross on its own is not protected, it is only protected when it is accompanied by the word mark As I noted in my post, though, marks don't have to be registered in order to be protected. Even if BCBS doesn't have any instances of the blue cross alone registered with the USPTO[0], that doesn't mean that BCBS couldn't still have trademark rights to it. > while we have a reasonable likelihood of prevailing our use of the mark I'm not convinced - there are many (seemingly) clearer-cut cases that have gone the other way. I'm not saying that this is the ideal state of trademark law, but I think that there's reasonable precedent for it. > they have enough money to try to enforce the mark without putting a dent in their litigation budget I agree that this is probably the dominant reason. [0] Which I would not necessarily conclude based solely on the fact that you couldn't find it. It's not a comment on your searching skills; I've used it before, and TESS (the USPTO database search) sucks.
anseljh 13y ago
I disagree with the recommendation on not filing for trademark registration. Sure, actually finalize your branding first. But once you do, the filing is comparatively cheap (a few hundred bucks total), and provides remedies against copycats that common law trademarks don't have. Even a letter based on a registered trademark is often enough to get people to change behavior. This is actually a case in point. [In general. I am not YOUR lawyer.]
larrys 13y ago
"And don't waste money (as an early startup) on filing for trademark protection - because US trademark law respects common law use (ie, if you used it first, you are protected, even if you didn't file for protection). Registering your trademark does nothing if someone else (with more expensive lawyers) was using it first and can demonstrate that use." Agree with most of what you are saying. But with respect to the above paragraph doesn't incorporate the strategy of why you might want to register a trademark even if protected by common law. Some animals are more equal than others. First, the cost. This can be done without a lawyer by just paying the USPTO fees. So we are talking about $375 (or $325 in the case of certain marks) per category. I've both hired lawyers and I've done this myself as well. Anyway back to strategy. It gives you a leg to stand on. That's very important in terms of how the other side views you. You have taken the time to register and therefore the other attorneys will give that some thought when they are confering with their client as far as how to proceed. [2] Enough that, in my opinion, and from my experience [1], it is worth the trademark filing fees. (There are attorneys that will do this for $1000 all in by the say if you don't want to diy.) [1] The leg to stand on principle is something that I have used before several times. In one case I was able to hold off the NCAA (they have big lawyers, right?) and in another case a billion dollar defense contractor. And in lots of small cases. Now this doesn't mean that you will execute as well as I do when doing this but I'd like to point out that it is certainly possible. (My expertise is strategy to the point where I can usually get lawyers that are working for me to agree with my way of doing things that contradicts even with legal precedent.) [2] Meaning you could potentially extract a pound of flesh or concessions (see NCAA in [1]) just from that leg you lean on.
tomphoolery 13y ago
Low-cost medical care? For people in need? Nah, doesn't sound like Blue Cross at all. Not sarcastic. Completely serious. IBX costs a fuckton, but is really great insurance.
devinmontgomery 13y ago
The only question is whether Watsi and BCBS operate within similar enough markets for their use to be considered infringement - I'm less sure of that. Even if they're in different markets, Blue Cross is well-known enough that they may also have a colorable "dilution" claim. Bottom line, if you're a startup and you get sued, you've already lost. Good on them for not wasting time fighting this too hard and getting on with their work.

will_brown 13y ago

I assumed the same company as you. However, I fall on the other side of the analysis, that Watsi is 1. not interfering with any trademarks registered by BCBS (all BCBS registered marks, which I found in TESS, are word/design marks, which means the blue cross on its own is not protected, it is only protected when it is accompanied by the word mark); and 2. otherwise not causing any confusion in the markplace (for example who is going to donate to Watsi under the belief they were donating to BCBS, there is a test of the reasonable consumer and BCBS would have to prove actual confusion in the marketplace...good luck on that). I am sure Watsi being who they are made an informed decision and with the advice of counsel. The sad thing is the advice was probably to the effect that while Watsi has a reasonable likelihood of prevailing on their use of the mark, BCBS has enough money to try to enforce the mark without putting a dent in their litigation budget, and Watsi's money would be better spent on Watsi's mission of helping people not in defending litigation. Nevertheless I would have felt good defending Watsi's use of the mark.

paulbaumgart 13y ago
Yeah, using a plus-symbol for healthcare-related things really shouldn't be protectable under trademark law, considering it's been in use since the 1864 Geneva Convention.
- alexeisadeski3 13y ago
  It's just the blue plus symbol. Other plus symbols are used by other companies without issue.
  - unreal37 13y ago
    No I believe the Red Cross has international protection over the use of a red plus symbol. [1] http://en.wikipedia.org/wiki/Emblems_of_the_International_Red_Cross_and_Red_Crescent_Movement http://en.wikipedia.org/wiki/Emblems_of_the_International_Re...
    - JacobAldridge 13y ago
      Yes. One of my colleagues tells a fabulous story about 'breaching the Geneva convention' by playing a nurse in a pantomime with a Red Cross on his headpiece. The reality, of course, is slightly less than that - they used his photo in the promotions, and the Red Cross contacted them to advise that the symbol was protected and 'request' that they change the costume, which of course they were happy to do.
    - alexeisadeski3 13y ago
      Are you supposed to be disagreeing with me? I believe your disagreement is with the fellow whom I responded to. :)
chimeracoder 13y ago
> all BCBS registered marks, which I found in TESS, are word/design marks, which means the blue cross on its own is not protected, it is only protected when it is accompanied by the word mark As I noted in my post, though, marks don't have to be registered in order to be protected. Even if BCBS doesn't have any instances of the blue cross alone registered with the USPTO[0], that doesn't mean that BCBS couldn't still have trademark rights to it. > while we have a reasonable likelihood of prevailing our use of the mark I'm not convinced - there are many (seemingly) clearer-cut cases that have gone the other way. I'm not saying that this is the ideal state of trademark law, but I think that there's reasonable precedent for it. > they have enough money to try to enforce the mark without putting a dent in their litigation budget I agree that this is probably the dominant reason. [0] Which I would not necessarily conclude based solely on the fact that you couldn't find it. It's not a comment on your searching skills; I've used it before, and TESS (the USPTO database search) sucks.

anseljh 13y ago

I disagree with the recommendation on not filing for trademark registration. Sure, actually finalize your branding first. But once you do, the filing is comparatively cheap (a few hundred bucks total), and provides remedies against copycats that common law trademarks don't have. Even a letter based on a registered trademark is often enough to get people to change behavior. This is actually a case in point. [In general. I am not YOUR lawyer.]

larrys 13y ago

"And don't waste money (as an early startup) on filing for trademark protection - because US trademark law respects common law use (ie, if you used it first, you are protected, even if you didn't file for protection). Registering your trademark does nothing if someone else (with more expensive lawyers) was using it first and can demonstrate that use." Agree with most of what you are saying. But with respect to the above paragraph doesn't incorporate the strategy of why you might want to register a trademark even if protected by common law. Some animals are more equal than others. First, the cost. This can be done without a lawyer by just paying the USPTO fees. So we are talking about $375 (or $325 in the case of certain marks) per category. I've both hired lawyers and I've done this myself as well. Anyway back to strategy. It gives you a leg to stand on. That's very important in terms of how the other side views you. You have taken the time to register and therefore the other attorneys will give that some thought when they are confering with their client as far as how to proceed. [2] Enough that, in my opinion, and from my experience [1], it is worth the trademark filing fees. (There are attorneys that will do this for $1000 all in by the say if you don't want to diy.) [1] The leg to stand on principle is something that I have used before several times. In one case I was able to hold off the NCAA (they have big lawyers, right?) and in another case a billion dollar defense contractor. And in lots of small cases. Now this doesn't mean that you will execute as well as I do when doing this but I'd like to point out that it is certainly possible. (My expertise is strategy to the point where I can usually get lawyers that are working for me to agree with my way of doing things that contradicts even with legal precedent.) [2] Meaning you could potentially extract a pound of flesh or concessions (see NCAA in [1]) just from that leg you lean on.

tomphoolery 13y ago

Low-cost medical care? For people in need? Nah, doesn't sound like Blue Cross at all. Not sarcastic. Completely serious. IBX costs a fuckton, but is really great insurance.

devinmontgomery 13y ago

The only question is whether Watsi and BCBS operate within similar enough markets for their use to be considered infringement - I'm less sure of that. Even if they're in different markets, Blue Cross is well-known enough that they may also have a colorable "dilution" claim. Bottom line, if you're a startup and you get sued, you've already lost. Good on them for not wasting time fighting this too hard and getting on with their work.