Infringement. Who cares?

[Village Idiot]

So browsing some one's thread about lighting in the noobie section, they posted up some links to Cowboy studio equipment on Amazon that was advertised as Strobist lighting kit.

The first thing I thought is that, Cowboy Studio equipment isn't something I'd put my name on, let alone a blog with such a huge reputation as Strobist. Apparently, I was right. I got this response from David Hobby.

Will-

I did not know about that circumstance, but I constantly have to go after those guys for trademark infringement.

Fact: They have NOTHING to do with the site, and are merely using the term to try to get into your pants. I would not trust them, and by extension, whatever they are selling, as far as I could throw them.

They are very close to becoming my first trademark infringement suit. I am tied up in two big projects right now, but expect to turn my sites on them shortly.

-D

First, I must mention that if you read the T&S on the blog, you see that Strobist is listed as his business name and is a federally registered trademark. This changes things as it's not just a term that can be lifted and used for anything. There's a discussion going on in the Strobist Flickr group with one certain person (troll? Maybe, maybe not) saying that anyone should be able to use the term however they choose. The problem with this is that people are using a well known name to sell equipment. That's equipment that the creator and holder of that trademark may not even want to touch with a 10' pole.

So who cares right? Once you establish a successful business and recognized name, you're not going to care if some one uses it to sell their business or products...or are you?

 

[Light Artisan]

I've never liked the term 'strobist' myself, so he can have it

So what's next, he goes after anyone that uses the term 'strobist'? How many photos have descriptions under them saying 'Strobist info:' and how much of that gear is he against?

 

[Infidel]

This is certainly not the first time this type of issue has come up: http://www.nytimes.com/2010/01/29/technology/companies/29name.html?_r=1
tldr; Fujitsu initially applied to trademark the name "iPAD" in 2002.

The home theater accessory company "Monster Cable" has been involved in all kinds of infringement lawsuits, going after anyone who uses the word "Monster" in their company or product name (even the job board, monster.com).

Sometimes it's legitimate infringement, sometimes the lawsuits are frivolous.

 

[Village Idiot]

I've never liked the term 'strobist' myself, so he can have it

So what's next, he goes after anyone that uses the term 'strobist'? How many photos have descriptions under them saying 'Strobist info:' and how much of that gear is he against?

"Strobist info" is derived from the flickr group where he requires members of the group to post their lighting infromation to their photos or else they're removed by the admin/mods.

And using the term Strobist in a conversation is a lot different than trying to brand your equipment as Strobist gear so that people who are unaware that the equipment is not associated with the blog purchase it. That can lead to complaints against David for recommending crap gear when in fact it's people just trying to make a buck off his name.

 

[Studio7Four]

Legano, illegano...is grey area. If they are trying to imply a relationship with the Strobist (capital S) site, absolutely there's a problem. If they mean it in the general use of "one who uses strobes" (lowercase s), I don't have a problem with it. A very quick search on Amazon showed one or two instances of the capital - but that's in the product description title, where every word is capitalized, so to my quick glance intent is tough to tell.

At some point words pass into the vernacular to the point that they lose some of their bite. Perhaps not legally, I'm not up on trademark law, but do you think Xerox would have a case if I used a Canon copier to "xerox" my document? If Adobe wants to go after someone putting out a software titled "Photoshop Something" I would say they are entitled, but to go after someone who advertises photoshopping services...again, grey area.

If David Hobby feels that CowboyStudios does this often enough and in such a way that it's worth going after them he should make the attempt. I'm curious (not skeptical, just curious) how it would turn out.

 

[Village Idiot]

Legano, illegano...is grey area. If they are trying to imply a relationship with the Strobist (capital S) site, absolutely there's a problem. If they mean it in the general use of "one who uses strobes" (lowercase s), I don't have a problem with it. A very quick search on Amazon showed one or two instances of the capital - but that's in the product description title, where every word is capitalized, so to my quick glance intent is tough to tell.

At some point words pass into the vernacular to the point that they lose some of their bite. Perhaps not legally, I'm not up on trademark law, but do you think Xerox would have a case if I used a Canon copier to "xerox" my document? If Adobe wants to go after someone putting out a software titled "Photoshop Something" I would say they are entitled, but to go after someone who advertises photoshopping services...again, grey area.

If David Hobby feels that CowboyStudios does this often enough and in such a way that it's worth going after them he should make the attempt. I'm curious (not skeptical, just curious) how it would turn out.

I Canon made a copier that was advertised as a "Canon Xerox Machine", I'm pretty sure that unless there was a special agreement between the two companies, Xerox's lawyers would be ringing Canon's doorbell very quickly.

 

[Infidel]

...At some point words pass into the vernacular to the point that they lose some of their bite...

This is true, but I don't think we're there yet:

google search

Look at how the first several results are used. Maybe it's just good SEO, but it's something to consider.

 

[skieur]

I've never liked the term 'strobist' myself, so he can have it

So what's next, he goes after anyone that uses the term 'strobist'? How many photos have descriptions under them saying 'Strobist info:' and how much of that gear is he against?

"Strobist info" is derived from the flickr group where he requires members of the group to post their lighting infromation to their photos or else they're removed by the admin/mods.

And using the term Strobist in a conversation is a lot different than trying to brand your equipment as Strobist gear so that people who are unaware that the equipment is not associated with the blog purchase it. That can lead to complaints against David for recommending crap gear when in fact it's people just trying to make a buck off his name.

In the Trademark law, this is described under infringement as "Passing off." which means using someone else's trademarked name fraudulantly to describe a different item.

skieur

 

[Derrel]

I'm afraid the allowing of millions of people to call themselves "Strobists", and the creation of a "strobist group" on Flickr, with the free sharing of photos and data might have allowed the term to become a generic term...it would take a hearing and a judge to determine that though.

By willfully allowing many,many people to become members of the "strobist group", and with each person using his or her own brand of accessories, the term might easily be ruled to have been allowed to lapse in to the generic, rather than remaining a trademarked, protected name...

After long periods of use, or widespread allowing of a trademark to be used in a generic sense, the trademark holder can be ruled to have lost exclusive rights to the trademark. An easy way to avoid trademark infringement on this issue for Cowboy studios might be to use the term "strobist-like"...when describing its wares.

 

[skieur]

I'm afraid the allowing of millions of people to call themselves "Strobists", and the creation of a "strobist group" on Flickr, with the free sharing of photos and data might have allowed the term to become a generic term...it would take a hearing and a judge to determine that though.

By willfully allowing many,many people to become members of the "strobist group", and with each person using his or her own brand of accessories, the term might easily be ruled to have been allowed to lapse in to the generic, rather than remaining a trademarked, protected name...

After long periods of use, or widespread allowing of a trademark to be used in a generic sense, the trademark holder can be ruled to have lost exclusive rights to the trademark. An easy way to avoid trademark infringement on this issue for Cowboy studios might be to use the term "strobist-like"...when describing its wares.

Very valid point.

skieur

 

[Overread]

I have to say considering how many times I've been told that flash and strobist mean the same thing by people and the overall impression of the word strobist I think that whilst he might have coined and started the phrase he's done so in such as way as to move it from an exclusive company/trademark name into a general parlance word within the photographic community at least.

I have to say this is the view I always held (infact I never knew that he specifically started the use of the word - I'd assumed that he just used it and then promoted himself under it)and that it thus surprises me upon the reaction to the cowboy studios "strobist" deal when its just (according to many) a "flash" deal.

I agree that it will take the courts to decide, but I don't think its going to be an easy choice and it could go either way (and from my viewpoint its weighted against the strobist guy)

 

[Village Idiot]

I'm afraid the allowing of millions of people to call themselves "Strobists", and the creation of a "strobist group" on Flickr, with the free sharing of photos and data might have allowed the term to become a generic term...it would take a hearing and a judge to determine that though.

By willfully allowing many,many people to become members of the "strobist group", and with each person using his or her own brand of accessories, the term might easily be ruled to have been allowed to lapse in to the generic, rather than remaining a trademarked, protected name...

After long periods of use, or widespread allowing of a trademark to be used in a generic sense, the trademark holder can be ruled to have lost exclusive rights to the trademark. An easy way to avoid trademark infringement on this issue for Cowboy studios might be to use the term "strobist-like"...when describing its wares.

I knew this was coming.

DH created the Strobist group on Flickr. There was no "allowing there. He did it for followers of the blog to be able to share their photos and the lighting info with those photos. Unfortunately, it's grown so large that some people consider it a dumping ground. That's why theres a 1 photo per 24 hour restriction on the group.

The TOS on the blog have been up much longer than it's taken for Strobist be as widespread as it has. It some one reads the TOS, you'll see that DH is not a completely unreasonable person. He's a business man first and foremost. In fact, in January, there have been at least two copyright infringements of two of his photos, at least one of those being one of his most famous. He's fought copyright battles and won them in the past. He's also realized when fighting a copyright battel would be futile ("Mac" magazine using the Strobist behind the keyboard photo with a publication based out of the middle east).

But just because a federally trademarked named grows exponentially in 2 years, does that give people the right to infringe on it?

Derrel - Slighty intoxicated at the moment, so please excuse any typos, but if there's a brand that explodes in the course of that time, does it give people the right to infringe on the brand? I know that people sling Strobist like Dominos sling pizza, but if there's a company that is using your brand to sell their equipment, where do you draw the line?

DH from the blog works with MPEX, Roscoe, and other brands, blogs and people that ask him for permission. He's not unreasonable and he's went after people for stealing his photos for blog, magazines and such, but he's also allowed big names and lowly no-names to show his work if they've approached him. I belive he's been more lax than a lot or people out there, but where do you decide the line is drawn?

I think it was on this forum, maybe POTN, that I've seen some one complaing about a cowboy studio strobe that caught on fire right after the strobe was out of the 30-60 day warranty and cowboy studios would not budge on fixing or replacing the strobe. Cowboy studios is in no way associated with Strobist and I'm pretty sure that most anyone that would stumble into this thread would agree that they're another cheap super entry level supplier that none of use would recommend unless you're on that tight of a budget.

And here's where the problem arises. Strobist is that popular that at what point does some one believe that the name of the blog and the reputation of the material provided is tarnished because so non-affiliated brand uses the name Strobist to market it's material.

I kow this is a long shot, but say your business name is "Derrel Photography" and some brand that is below par in quality uses your name to market their equipment as "Derrel Photography" strobes? At this point the name would have to be so popular that it's used every where. Common usage is one thing, but when some one trie to use your name to market their business, especially there business is one you wouldn't support in the first place, then it becomes a problem.

What would happen if someone that selling Coca Cola Contreceptives? or Ford Motor Boats?

At some point there needs to be a line drawn. Popularity doesn't mean that anyone and everyone gets to use your registered name or your registered brand as they please.

 

[Village Idiot]

I have to say considering how many times I've been told that flash and strobist mean the same thing by people

I have to ask, at this point, is that what you've heard? Flash and Strobes are generally considered the same thing. A flash = strobe, a strobe = flash. I've never heard that a flash and a "strobist" are the same thing.

Just checking on that, because at that point, there's a lot of people telling it wrong. I guess if there were a general definition, Strobist = a person that uses small off camera speedlights.

Broad definition and all.

But I've seen people that post Strobist info as studio lights, speed lights, and natural bounced light, so I guess at this point, the true definition (which ever DH has it as) comes into play.

 

[Derrel]

At some point there needs to be a line drawn. Popularity doesn't mean that anyone and everyone gets to use your registered name or your registered brand as they please.

Sorry, but that's where you're flat-out wrong...

List of generic and genericized trademarks - Wikipedia, the free encyclopedia

Also, you seem to be mixing up copyright and trademark law, which are very different things. Perhaps you're confused yet again.

I'm actually quite familiar with trademarks, and how they are "lost" and "maintained". The promotion of the "strobist" site, with "strobist" members who post "strobist info" on each and every photo is an example of the exact, WRONG thing to do in order to maintain and protect a trademarked name...especially in light of the fact that the "strobist" name appears so many thousands of times without the trademark or registered trademark symbol appearing with it! Doah!

Over the past 150 years, many, many trademarked names have become "generic" words. For example--how many of you know what the generic term for a Thermos is??? Probably not one of one hundred people know that a Thermos is a "vaccuum flask". In grade school did you ever ask you mama to fill up your vaccuum flask with your hot soup in? Not a fricking chance...

How about Adrenaline??? Adrenaline was a registered trademark. Linoleum began as a registered trademark, but in little over a decade, became a generic term. Sorry, but willfully allowing, and actually encouraging, people to shoot with off-camera flash and allowing tens of thousands of members to become "strobists" is a CLASSIC case of the way to LOSE a trademark. Maintaining a trademark demands regular,constant,consistent use of the trademark or registered trademark symbols, and demands that the owner protect and maintain the TM by diligent defense of its use by third parties...and unfortunately, Mr. Hobby's actions have been the polar opposite of what a trademark lawyer would suggest that he should have done...

Sorry, V-I but you might want to do some research and un-bunch your panties.

 

[Village Idiot]

At some point there needs to be a line drawn. Popularity doesn't mean that anyone and everyone gets to use your registered name or your registered brand as they please.

Sorry, but that's where you're flat-out wrong...

List of generic and genericized trademarks - Wikipedia, the free encyclopedia

Also, you seem to be mixing up copyright and trademark law, which are very different things. Perhaps you're confused yet again.

I'm actually quite familiar with trademarks, and how they are "lost" and "maintained". The promotion of the "strobist" site, with "strobist" members who post "strobist info" on each and every photo is an example of the exact, WRONG thing to do in order to maintain and protect a trademarked name...especially in light of the fact that the "strobist" name appears so many thousands of times without the trademark or registered trademark symbol appearing with it! Doah!

Over the past 150 years, many, many trademarked names have become "generic" words. For example--how many of you know what the generic term for a Thermos is??? Probably not one of one hundred people know that a Thermos is a "vaccuum flask". In grade school did you ever ask you mama to fill up your vaccuum flask with your hot soup in? Not a fricking chance...

How about Adrenaline??? Adrenaline was a registered trademark. Linoleum began as a registered trademark, but in little over a decade, became a generic term. Sorry, but willfully allowing, and actually encouraging, people to shoot with off-camera flash and allowing tens of thousands of members to become "strobists" is a CLASSIC case of the way to LOSE a trademark. Maintaining a trademark demands regular,constant,consistent use of the trademark or registered trademark symbols, and demands that the owner protect and maintain the TM by diligent defense of its use by third parties...and unfortunately, Mr. Hobby's actions have been the polar opposite of what a trademark lawyer would suggest that he should have done...

Sorry, V-I but you might want to do some research and un-bunch your panties.

Seems to me that when some one is trying to have a conversation, you can't wait to jump in with insults and condescension. So if I wanted to start a company called Nykon and sell a Nykon Xerox Machine, I could get away with it?

Ed: And he does actively go after infringers. It's not something you see in the news like the Pystar(sp?) Apple case, but he doesn't take lightly to people that infringe on trademark and copyrights.