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I sympathize with the author and his concerns about Tumblr's disregard for its users.

Having said that, companies have a legal responsibility to take "all steps necessary" to protect their trademarks. Unfortunately, this responsibility sometimes requires them to engage in seemingly nit-picky litigation.

An excerpt from chillingeffects.org [1]: If a trademark owner fails to police his or her mark, the owner may be deemed to have abandoned the mark or acquiesced in its misuse. A trademark is only protected while it serves to identify the source of goods or services.

I'm not saying that IsTumblrDown had negative intentions or that it blatantly obscured Tumblr's brand; I never had a chance to use the site, so I didn't see how the name was incorporated into it. I'm just saying that firms like Tumblr are sometimes under external pressure to be aggressive in enforcing their trademarks.

[1] http://chillingeffects.org/trademark/faq.cgi#QID418




Fair use applies to trademarks, too: https://en.wikipedia.org/wiki/Fair_use_%28U.S._trademark_law...

Specifically see this paragraph:

A nonowner may also use a trademark nominatively—to refer to the actual trademarked product or its source. In addition to protecting product criticism and analysis, United States law actually encourages nominative usage by competitors in the form of comparative advertising.[citation needed]


This is likely an expensive argument to make and one that Tumblr would be glad to spend legal dollars to fight. Tactically, it would make more sense to be as contrite as you possibly can, play the naïve engineer who loves Tumblr to death, and ask them for permission to use the name in the domain in exchange for including a prominent banner + disclaimer at the top of the page or wherever Tumblr prefers.


Sounds like yet another flaw in our current legal system.



I didn't see the letter linked to or quoted on the site. I doubt it was like JD, but it might have similarly tried to explain the trademark issue.



"The Tumblr name and mark is fanciful" -- but, we use C&D letter templates we downloaded off of the internet. They did need to send some kind of request (or risk losing their trademark), but could have done much better.


The best approach IMO is to reply to a C&D with a response like, "We'd be quite happy to work with you to ensure there is no customer confusion. I have started by reviewing the site and trying to make this clear. Do you have any other suggestions?"


IANAL.

Yeap. Put the burden for remedy back to the other side. Go through the motions and hope you'll waste enough of their time, energy and money such that they may reconsider the value of their present strategy.


It is not about wasting their time.

There is a difference between something which clearly attributes the trademark and disclaims any link and something which does not.

I have gotten unreasonable C&D letters in the past. It's a typical lawyer tactic of asking for the world and then negotiating back to a reasonable solution. I have always responded with something like that. I have never had the lawyers on the other side say that such an approach is unacceptable.

The fact is you can use a trademark refer to a trademarked product. There is no disagreement there.


They can police it just as well, in complinance with the law by granting him a license.

"We'd rather not bother you, but this guy who charges us by the hours insists that we spend many of his hours sending weird pointless letters. To wit: To whatever extent you need to license our mark, you hereby have a license to use it to show if our site is down or not. Have fun."




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