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I don't understand how that isn't a huge trademark issue for kickstarter, since american trademarks are on the base of "protect it or lose it". Edit: To make

I don't understand how that isn't a huge trademark issue for kickstarter, since american trademarks are on the base of "protect it or lose it". Edit: To make it clear, here are some quotes from http://www.inta.org/TrademarkBasics/FactSheets/Pages/LossofTrademarkRightsFactSheet.aspx http://www.inta.org/TrademarkBasics/FactSheets/Pages/LossofT... : "it is possible to lose rights in a mark by allowing third parties to use the mark without controlling how it is used. This can include failing to control the nature and quality of the goods and/or services offered under the mark by the third party." "improper use by a trademark owner or third parties also may result in the loss of trademark rights. A trademark should not be used in a manner that strips its significance as an indicator of the source of goods and/or services." (emphasis mine)

DanBC 11y ago
You can only use it within the context of kickstarter projects. You can't use it if your crowdfunded project is not on kickstarter.
- ILIKEPONIES 11y ago
  I know someone who is currently running a Kickstarter and who is also a 'Staff Pick.' As far as I understand, some (not all) campaigns receive an email at some point to congratulate them on being named a 'Staff Pick.' The email isn't 100% clear as to what being named a SP means. KS actually discourages the campaigns from putting up a badge, but many of the projects do anyway. There is little to no policing. So, my guess is that some projects use the badge regardless of whether or not they're a SP. Personally, I think they should formalize the process and bop the heads of those that are misrepresenting themselves.
colinbartlett 11y ago
The quote from Kickstarter, according to the author: "[The graphic] is not an official Kickstarter badge, nor is the badge granted by Kickstarter" Note that this doesn't necessarily say "we are okay with people using this." In fact, the quote could easily have gone on to say "people who use this are violating our trademark and we intend to pursue removal".
pbhjpbhj 11y ago
>american trademarks are on the base of "protect it or lose it" // Pertinent to the supposed "failure to police" please cite where that is in the USC, thanks. You have a trademark by virtue of use. You have a registered trademark by virtue of paying for the registration and continued payment of renewal fees. >To help avoid such adverse consequences, the trademark owner should police its mark by enforcing [...] While some courts have determined that a trademark owner need not necessarily prosecute every infringing third-party use of its mark, such third-party uses can still affect the distinctiveness of the mark in the mind of the public. [...] Sounds like they think you should rather than they determine that there's an actual "failure to police" clause in the USC. An additional aspect is that you can offer a license to any user you come across. So if "failure to police" were true you still would not need to prosecute people for infringements in order to retain the mark provided they agreed to your [as liberal as you like] license terms.
- Lazare 11y ago
  That's...half right. If a term becomes generic, a trademark is abslutely lost under US law. And one of the easiest ways for a term to become generic is via unauthorized third party use. If Kickstarter didn't immediately threaten to sue, eg, Indigogo asking people to "come kickstart a project on Indiegogo" then they would be on a short path to losing their trademark by virtue of, yes, their failure to police their trademark. So yes, there is absolutely a requirement to police third parties using your trademark in a way that treats the term as generic...which isn't the case here. Even if every damn project on Kickstarter said they were a "Kickstarter staff pick" it doesn't make "kickstarter" into a generic term for "crowdsourced funding".
  - pbhjpbhj 11y ago
    Genericisation is pretty orthogonal to supposed "failure to police". Moreover genericisation is definitely not an issue here as the trademark is being used to refer to the services of the trademark owner. >one of the easiest ways for a term to become generic is via unauthorized third party use // Yes, sort of. The third parties are the public though. In practice words used as marks don't become generic terms because your competitors infringe your trademark, they become generic when you corner the market and in the public perception your product becomes synonymous with that type of good/service. Ordinarily when people raise this "failure to police" argument they're claiming that Jack Daniels have to sue - for example - a writer for using a similar style of writing on their book-cover or they'll lose their RTM. >I don't understand how that isn't a huge trademark issue for kickstarter, since american trademarks are on the base of "protect it or lose it". (Mithaldu up-thread) // The badge does appear to use the authority of Kickstarter's mark, in order to sell Kickstarter's product, this isn't a competitor appropriating a mark but a customer using a mark without express permission. There might be a case for exhaustion of rights (where a supplier can't sue a customer for retailing goods with their TM on). It's not deceptive of origin and apparently it's also truthful. Incidentally "kickstart a project" is perfectly acceptable - you can't trademark common language, or rather you can sometimes but still not prevent others from using that language. "Kickstarter" wasn't and isn't a term in the relevant fields, indeed the part of a motorbike is just a kickstart but normal extension of language would have someone who kickstarts something termed a "kickstarter" - it's a terrible choice for a RTM and should probably have been rejected by the USPTO. In truth Indiegogo should triumph over such an attempt by Kickstarter to sue for RTM infringement, but Indiegogo would probably be shy as IP cases are seemingly often poorly judged. "kickstart" is already common language, "Kickstarter" isn't however: "I'm looking to kickstart this project" doesn't use the RTM.

DanBC 11y ago

You can only use it within the context of kickstarter projects. You can't use it if your crowdfunded project is not on kickstarter.

ILIKEPONIES 11y ago
I know someone who is currently running a Kickstarter and who is also a 'Staff Pick.' As far as I understand, some (not all) campaigns receive an email at some point to congratulate them on being named a 'Staff Pick.' The email isn't 100% clear as to what being named a SP means. KS actually discourages the campaigns from putting up a badge, but many of the projects do anyway. There is little to no policing. So, my guess is that some projects use the badge regardless of whether or not they're a SP. Personally, I think they should formalize the process and bop the heads of those that are misrepresenting themselves.

colinbartlett 11y ago

The quote from Kickstarter, according to the author: "[The graphic] is not an official Kickstarter badge, nor is the badge granted by Kickstarter" Note that this doesn't necessarily say "we are okay with people using this." In fact, the quote could easily have gone on to say "people who use this are violating our trademark and we intend to pursue removal".

pbhjpbhj 11y ago

>american trademarks are on the base of "protect it or lose it" // Pertinent to the supposed "failure to police" please cite where that is in the USC, thanks. You have a trademark by virtue of use. You have a registered trademark by virtue of paying for the registration and continued payment of renewal fees. >To help avoid such adverse consequences, the trademark owner should police its mark by enforcing [...] While some courts have determined that a trademark owner need not necessarily prosecute every infringing third-party use of its mark, such third-party uses can still affect the distinctiveness of the mark in the mind of the public. [...] Sounds like they think you should rather than they determine that there's an actual "failure to police" clause in the USC. An additional aspect is that you can offer a license to any user you come across. So if "failure to police" were true you still would not need to prosecute people for infringements in order to retain the mark provided they agreed to your [as liberal as you like] license terms.

Lazare 11y ago
That's...half right. If a term becomes generic, a trademark is abslutely lost under US law. And one of the easiest ways for a term to become generic is via unauthorized third party use. If Kickstarter didn't immediately threaten to sue, eg, Indigogo asking people to "come kickstart a project on Indiegogo" then they would be on a short path to losing their trademark by virtue of, yes, their failure to police their trademark. So yes, there is absolutely a requirement to police third parties using your trademark in a way that treats the term as generic...which isn't the case here. Even if every damn project on Kickstarter said they were a "Kickstarter staff pick" it doesn't make "kickstarter" into a generic term for "crowdsourced funding".
- pbhjpbhj 11y ago
  Genericisation is pretty orthogonal to supposed "failure to police". Moreover genericisation is definitely not an issue here as the trademark is being used to refer to the services of the trademark owner. >one of the easiest ways for a term to become generic is via unauthorized third party use // Yes, sort of. The third parties are the public though. In practice words used as marks don't become generic terms because your competitors infringe your trademark, they become generic when you corner the market and in the public perception your product becomes synonymous with that type of good/service. Ordinarily when people raise this "failure to police" argument they're claiming that Jack Daniels have to sue - for example - a writer for using a similar style of writing on their book-cover or they'll lose their RTM. >I don't understand how that isn't a huge trademark issue for kickstarter, since american trademarks are on the base of "protect it or lose it". (Mithaldu up-thread) // The badge does appear to use the authority of Kickstarter's mark, in order to sell Kickstarter's product, this isn't a competitor appropriating a mark but a customer using a mark without express permission. There might be a case for exhaustion of rights (where a supplier can't sue a customer for retailing goods with their TM on). It's not deceptive of origin and apparently it's also truthful. Incidentally "kickstart a project" is perfectly acceptable - you can't trademark common language, or rather you can sometimes but still not prevent others from using that language. "Kickstarter" wasn't and isn't a term in the relevant fields, indeed the part of a motorbike is just a kickstart but normal extension of language would have someone who kickstarts something termed a "kickstarter" - it's a terrible choice for a RTM and should probably have been rejected by the USPTO. In truth Indiegogo should triumph over such an attempt by Kickstarter to sue for RTM infringement, but Indiegogo would probably be shy as IP cases are seemingly often poorly judged. "kickstart" is already common language, "Kickstarter" isn't however: "I'm looking to kickstart this project" doesn't use the RTM.