Thursday, May 29, 2008

This Post is Entirely Safe For Work

(Drew Curtis, founder of Fark)

The popular trademark blog Trademork covered a story about the phrase "not safe for work" late last year. Apparently, popular news blog / forum Fark.com applied for a trademark to protect their use of the acronym "NSFW." The application was filed in November of 2007 and was denied in March 2008.

I guess there are three ways to view this. One is that Fark wanted to protect their use of the mark, that they wanted to be the only ones permitted to use the acronym. This seems pretty unlikely, since the mark is so widely used that Fark would have a hell of a time trying to sue all of them. Fark also officially issued a statement that this was not their intention (here).

Another possibility: Fark had an elaborate joke planned that uses the trademark. Even if this is true, as they hint in their statement, I can't imagine it being very funny.

The way I see it, this case is an example of the trademark process at work successfully. The mark is so widely used by internet forums and blogs that it has no association with Fark. Maybe Fark thinks that when people think of content that is "not safe for work," they think immediately of Fark. But it seems to me Fark just doesn't understand the real function of Trademarks. Trademark isn't a method for getting "squatter's rights" to a phrase just by being the first to use it. It's a method for protecting brand.

People sort of see trademarks as a big stick to hit people with if they use your trademark. But trademark should probably operate more like a wall, a structure that separates companies and their brands from each other. It grows naturally from the culture of branding in modern commerce, and it operates in the marketplace as walls operate in a mall; the stores are separated for the benefit of customers to choose which they will use. This is the ostensible function of trademark law, too.

That's why a trademark on such a functional phrase just doesn't make sense in this context. The name "Fark" and any symbols associated with it are trademarkable but "NSFW" isn't, in the same sense that "Starbucks" is trademarkable but "hot coffee" isn't.

References:
Trademork Article
Trademark Office Documents

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