October 8th, 2007

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Of Freecycles, Genericide, and a Dose of Common Sense

In catching up on my back reading, I find a rare bird indeed -- a sensible opinion from the 9th Circuit on trademark.

Indeed, this is one of those cases where one wonders how the heck the district court reached the conclusion it reached, and a devout hope that the vindicated appellant will get attorneys fees.

For those not clicking through, the case involves an Arizona non-profit that sought a trademark for the term "Freecycle" as meaning encouraging reuse. The organization holds freecycle.org and apparently, at the urging of a member named Tim Oeye, sought to trademark the term "freecycle." Oeye subsequently had a change of heart and converted to the "commons" side of the force. He begged the organization to give up its efforts to trademark freecycle and to instead encourage its use as a generic term. When the Org refused, Oeye continued his crusade to change people's minds until the organization threw him out. When Oeye continued his campaign to "genericize" the term "freecycle" and persuade members to give up the effort to trademark the term, the organization sued for violation of trademark.

What is astounding was that they found an Arizona judge stupid enough to grant the injunction. The Appellate decision is rather scathing in its analysis of the lower court for its misreading of the Lanham Act (the relevant statute). Indeed, the 9th Cir. does not even reach the First Amendment arguments, finding that the issuance of the injunction was a phenomenal abuse of discretion and that the supposed claim of the organization is not even cognizable.

I'm glad to see common sense prevail for a change, although rather sorry for Appelant. Anyone with a bigger right to shout "Oy!", I can't imagine.