When capitalizing on the social networking explosion, it’s best to not be too obvious that you’re ripping off somebody else – especially when everybody knows that somebody else and the high-priced lawyers that come with. For example, a site called “MySpace for Midgets” is wrong for two reasons, but we’ll just focus on one.
According to Harvard Law:
If a party owns the rights to a particular trademark, that party can sue subsequent parties for trademark infringement. 15 U.S.C. 1114, 1125. The standard is “likelihood of confusion.” To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods.
In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant’s intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820 (1961).
I tried to bring this up with the president of EDJ-Associates, Edwin De Jesus, when I received a press release about his new social networking site for business professionals, MySpace for Business. It’s been said you can’t copyright look and feel, which is good for De Jesus, because it looks and feels a lot like MySpace.com.
“The new MySpace. for Business, is exactly what the name implies, modeled after the popular myspace.com, except that we focus exclusively on business networking, targeted towards SMBs,” said De Jesus.
In an email, I asked De Jesus if News Corp. had approved the use of the MySpace brand for his site. He answered, letting me know he also owned MySpace Hispano, a MySpace.com-like site for Latinos.
After noting the loveliness of Rosalinda and Diomily, members pictured on the homepage, I asked again if De Jesus thought his domains would cause confusion with the MySpace brand.
“I’m not concerned about any trademark violations,” he said, “I made sure I didn’t commit any. I don’t mind the confusion, that’s ok with me!”
So if De Jesus, who has financed his two startups himself, says there’s no problem then there must be no problem. News Corp. didn’t respond to a request for comment, so maybe it’s okay with them too.
But just to be on the safe side, the next time you’re trying to think up a name and concept for your niche-targeted social network, ask yourself, “what would De Jesus do?” and do the opposite.
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