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Comment by mark-r | Hacker News Reader

My personal experience has been that a generic phrase in common use cannot be used as a trademark. There has to be something added to it to make it unique. I wonder how they obtained the trademark in the first place?

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You can register a trademark for a generic term if it is tied to a very specific category. It is what allows "Apple" to be trademarked when related to computers. The problem here is that "Backcountry" is a term that is too closely tied to what they are actually selling. It would be like allowing a phone company to trademark the term "Cell"

But it's not "Apple" that's trademarked by itself, is it? It's "Apple Computer". As opposed to "Apple Corps" the music company started by the Beatles.

Apple is a word mark. The name of the company is no longer Apple Computer.

Generally speaking you can file a trademark for whatever you want; you just have to show it is being actively used in the way you say it is being used.

That doesn’t mean the trademark will hold up under a challenge. But a challenge takes time and money, and a recurring theme in this story (and many like it) is that one party is way bigger and richer than the other. For a small business, it’s generally going to be way cheaper to just change their name than to take on a federal court case against a national company backed by private equity—even if they think they would win.

This is absolutely why we need a "loser pays" civil court system: interested attorneys should be able to volunteer to take on the case on behalf of the small business, with an agreement with their client that they only get paid if they win. Then when they do, they charge the big corporation an absolutely enormous amount of money in legal fees, which the big company is required to pay.

A system like this would keep frivolous lawsuits to a minimum.

I like this idea until I try honestly to defend myself and fail, and the company says "ok we would like our $10k judgement and $10M legal fees paid today please."

Well it probably needs some adjustments.

So maybe it should be automatic that when a huge company sues a small company and loses, the small company gets all its legal fees paid plus a big payout for their time being wasted.

And maybe it should be different if small companies sue huge ones (e.g., patent trolls), or if small companies sue each other.

Maybe loser pays if they’re the plaintiff.

As I said, I have personal experience with this - the product we were trying to register had sold with that name in the past, but the PTO rejected our application. We never got to the point where a challenge could be made. We resubmitted a new name that had many more qualifiers added, and that one was accepted.

It's just as well, because Microsoft came out with something shortly after that had the same name. Definitely not someone you want to do battle with.

well we had a recent discussion here about basecamp having to run ads to insure their name was top of a search listing. to me their name was more generic than this one. that is the problem with having a corporate name that already has been used in literature if not common discussion. if the name you want is already a reference to what you want to do or what you want to associate with your not really establishing a brand your merely exploiting an existing situation.

google became the term after the name gained popularity, base camp, back country, and such, were terms of activities or places long before someone decided it was a brand.

* edit : the two that stick out in my mind as brands establishing association with the product regardless of who made it would be xerox and Kleenex. In some parts of the world Coke is synonymous with soda.

I don't believe their problem was that terms related to the previous definition of base camp were appearing above them, but that their competitors were appearing above. They were indexed well, but you can pay to be above your competitor when the user is searching for them.

IANAL. But my understanding is that's the case in general. There are apparently some exceptions where a phrase/word has carved out a distinct meaning in the context of a specific company [1] but that wouldn't seem to be the case here.

[1] https://slate.com/news-and-politics/2002/02/can-you-trademar...

> My personal experience has been that a generic phrase in common use cannot be used as a trademark.

Have you never heard of, for example, Facebook?

TBH I'd never heard of "a facebook" (that is a thing, right? I think I learned that at some point from stories about Facebook, and your comment implies it) and even trying to search for "what is a facebook" at this point on Google yields nothing other than Facebook. It certainly wasn't a common term in the Pacific Northwest, where I'm from.

Compare that to "what is backcountry" and I think you'll see the difference.

Same, I had never heard of “a facebook” until the site existed. It’s... something fraternities at rich-ass colleges like the one Zuck went to do/did? Where they collect photographs of their fellow students and accumulate their contact info, vital data, and hotness ratings? I went to college in the eighties and never heard the term.

It's like the yearbook that high schools publish at the end of the year, but colleges published and distributed facebooks near the beginning of the year, so students could get to know their fellow students and promote a sense of... collegiality.

I remember seeing a printed one in 1995. It was an official college of arts and sciences publication, so did not include any hotness ratings or non-academic vital data. Basically names, photos, undergraduate year of study, and majors.

They moved to departmental websites during and after that time, which is how Zuckerberg was able to scrape names and photos for his own skeezy little project.

Sounds like some kind of term that was only known within certain circles, and maybe only at certain colleges. I was in college at that time, and I also never heard the word "facebook" until that company became large enough to be nationally known as the alternative to MySpace.

I think most places would just call that a "(student) directory".

Most places, yes. It's even printed on the cover. The word "facebook" was probably exclusive to East Coast US, from DC to Boston. I didn't even know it was a "facebook" until a local called it that.

I think it was more common in smaller populations, either a small school or a unit within a school like a greek organization. Ohio State with 50K students at 10x10 photos per page would yield a 500 page book, and a pointless one at that.

thefacebook.com was a private re-implementation of Harvard's "online face books", which were a digital ports of the paper "face book" that had been distributed at Harvard for decades prior to the creation of the website.

https://en.wikipedia.org/wiki/Face_book

In case anyone is considering downvoting this response, check this out: https://en.wikipedia.org/wiki/Face_book Apparently "face book" was a concept/generic phrase in common use before Facebook was a thing.

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