title: Paying lawyers by the
hour
by: Scott Bradner
The idea that a bunch of
geeks getting together to debug software would be easily confused with Broccoli
Cauliflower Tetrazzini is a bit stretched. So either Pillsbury is easily confused or their lawyers are
trying to pad their bill. Out of
the blue Pillsbury's lawyers have sent cease-and-desist letters to a number of
engineers and a few companies who have been holding meetings where groups of
programmers get together to test their implementations of some networking
standard against each other. And
what are they to cease-and-desist from?
From the use of the term "bake-off" to describe the get
together, thatŐs what. Seesh - no wonder lawyers get a bad reputation.
Pillsbury wants to claim that
any and all uses of the term bake-off other than to refer to the annual cooking
contest that Pillsbury has run for 50 years is prohibited by Pillsbury's
trademark. That contest is
certainly well known. It even has its own web site (www.bakeoff.com), where,
among other things you can find a list of the 14 "Hall of Fame"
recipes (complete with pictures) from previous bake-offs -- including the above
mentioned Broccoli Cauliflower Tetrazzini. I expect that the fame of the cooking contest did contribute
to the use of the term by the geeks but this did not happen yesterday. There may be no way to figure out when
the term bake-off first started to be used in conjunction with software testing
but RFC 1025 (www.ietf.org/rfc/rfc1025.txt) details its use as early as
1980.
Putting my amateur lawyer hat
firmly on, I do wonder how Pillsbury can suddenly claim that their trademark is
being violated more than 20 years after the alleged infringement started. I suppose that they could claim that
they had not heard of the Internet and the quite common use of this term for
many Internet activities until a couple of months ago but it might take some
searching to find a judge and jury that would believe that Minneapolis, where
Pillsbury is headquartered, is that far off the beaten path. The result of Pilsbury's sudden
aggressiveness just could be a legal determination that "bake-off"
has become a generic term and Pillsbury could wind up with less rather than
more authority to control its use.
This topic would seem more
suited for an April Fool's Day column. But sad to say we have not seen the last
of this sort of sillyness.
The bake-off case does not even touch the far more difficult area of
trademark use on the Internet. The
flat namespace of the Internet makes trademarks a very complex issue. The Internet has none of the
geographic, product category or visual differentiation that makes trademarks in
the real world a, relative only to the Internet, simpler issue.
With the introduction of new
Internet top-level domain names, which create new venues for trademark
conflicts, the ground is being made ready for milling hordes of lawyers ready to do battle while billing their
clients on a per hour basis.
disclaimer: This confusion is in the University's
interest since some of those milling hordes come from the Harvard Law School
but the University has not expressed an opinion.