The 411 on podcasts, podcasters & podcasting
http://www.podcast411.com/ Copyright ©2006 Rob Walch
On the word “Podcast”
By Rob Walch
Rob Walch from the podCast411 http://www.podcast411.com/ was interviewed 9/26/2006 on the Typical Mac User Podcast http://typicalmacuser.com/wordpress/ and he said;
“Yes, I am going to continue to use ‘podcast’. It seems in the Podcasting world that there are a lot of people saying, ‘The sky is falling! The sky is falling!’ and there are a lot of Chicken Littles out there…the amount of disinformation out there, and granted, a lot of it is not malice. Most of it is just incompetence. Folks, if you are going to act like the New Media and be the new journalists, then do some actual journalistic research and find out what is going on.
For this soapbox, I actually have a copy of the letter that started this whole thing. I talked to the lawyer from the USPTO (US Patent and Trademark Office) and I talked to the lawyer who actually submitted the application for the trademark for the term ‘PodCast’. I did my research and read a lot of different articles and if you read the titles on a lot of these Blogs that quote news article about Apple and the term ‘podcast’ that came out in the last few days, it’s unbelievable how wrong they’ve got it.
Let me give you some examples…
Bit-Tech.net – Apple wants to trademark “podcast” - http://www.bit-tech.net/news/2006/09/25/Apple_wants_to_trademark_podcast/
C|Net News: Apple Squawks over ‘podcast’ use http://news.com.com/2061-11199_3-6118966.html
ZDNet: Apple, Podcast and Jar Jar Binks http://blogs.zdnet.com/hardware/?p=103
“Apple legal eagles have finally started to take objection to the word “podcast”.
Engadget: With Pod on lockdown, Apple goes after ‘podcast’ http://blogs.zdnet.com/hardware/?p=103
Which again all these titles and quotes are very misleading. And it’s not just these quote newsites. Some of the more famous bloggers are also getting this completely wrong. Robert Scoble: Apple is sending lawyers out after companies using the word ‘podcast’ http://scobleizer.wordpress.com/?s=Apple+podcast and suggests changing the name.
First of all, Apple is not going after companies using the word ‘podcast’…and changing the name? Come on folks! Give it a break! Podcast is the best name we’ve got. We are not changing it. Do the Google search. There are over 200 million results. The name is podcast. It is going to stay podcast. The name is not changing.
Over on Jason Calacanis’s Blog starts out with the title “Apple to trade mark podcast?”
http://www.calacanis.com/2006/09/23/apple-to-trademark-podcast-or-how-to-fight-the-good-fight/ and claims in the article that Apple is trying to get people to not use the term ‘podcast’ in their name. No Jason, that’s not right. Do some research. Both you and Robert should be smacked on the wrist. I have more respect for you guys (than this) and I am very disappointed in this from both of you.
One thing that is abundantly clear from reading all these articles and Blog posts and Forum posts is that people haven’t actually read the letter of the cease and desist that was sent to Podcast Ready, because if they had read the letter, they would have had a different reaction.
I have the letter here and let me read a quote from the letter;
http://www.podcastready.com/info.php?section=8&page=41
Apple is saying right here that they have no objection to proper use of the descriptive term ‘podcast’. It’s in writing, right here. Not that Apple’s going after the trademark.
Now all of these articles that I quoted all point back to the main article that started all of this off and that article is from Wired http://blog.wired.com/music/index.blog?entry_id=1561308
Even Leo linked to this.
What is really interesting is that the Podcast Ready CEO Russell Holliman is considering dropping the name myPodder if he had to. So he even understands. Look, myPodder phonetically sounds like iPodder and we all know that iPodder and iPodderX and all those guys dropped the name because iPod is definitely a trademarkable name that does belong to Apple. And Russell understands that and he knows that when push comes to shove, he’d loose that battle. “Podcast Ready” as he does say in the article he is not sure why that is (that Apple is going after that name). I think it has more to do with the service of offering downloadable software services rather than as a podcast directory…
Another thing that is really interesting about all these articles is that they keep implying that Apple has trademarked, or has applied for or is trademarking the term “podcast”. That is not true. The company that is trademarking the term ‘podcast’, and I talked to the lawyer that represents that company, and he claims unequivocally that it isn’t Apple that he represents but Shae -Spencer Management, LLC. It’s not Apple. That said, the US Trademark Office said they have refused the trademark for ‘podcast’;
‘The examining attorney submits that the term ‘podcast’ may be unregisterable because it is generic and informational for applicant’s services. Generic terms are terms that the relevant purchasing public understands primarily as the common or class name for goods or services. Generic terms are by definition, incapable of indicating a particular source of the goods or services and cannot be registered as trademarks. Doing so would grant the owner of the trademark a monopoly, since a competitor could not describe his goods as what they are.’
I talked to the Patent Attorney over at the US Trademark Office and we were talking about this and I can’t quote him exactly, but I can give you the gist of what he was saying. First off, he said that basically, the company that registered the application for the trademark, the USPTO had to go through the motions and process the application, because, as he alluded to, no one else had had the cajones up to that point to actually try to trademark the term ‘podcast’. In his first refusal for the term, he sent back the information from the Wikipedia post saying, hey, this is why it is public domain and you don’t have the right to it. And then he said, while we were talking that podcasting is now in the ID manual of the USPTO, which means it is going to be very difficult, i.e, impossible, to get a trademark for the generic term ‘podcast’or ‘podcasting’.
So to make a long story short, they aren’t getting a trademark on ‘podcast’, nor is anyone else….
I do have to agree wholeheartedly with Jason Calacanis at the end of his post that if you are a company and Apple does comes after you, and you are a small guy, it is good for you. If you look at the Alexa rankings for Podcast Ready before this issue broke and today, they went from a 250,000 to a 25,000 and it will probably get down to a 10,000 ranking or better. If you are Russell Holliman, you love the fact that you got that letter. You got more PR than you could have ever paid for this past week…
So if you have podcast in your name, Apple is not going to come after you…
If you are not even applying for a trademark, forget it, they are not coming after you. Podcast Pickle, Podcast Alley, Podcast411, we are not going to be seeing letters from Apple. I would LOVE to get a letter from Apple. I would LOVE to be able to get the PR that Podcast Ready got. But the fact is, we’re not going to see it…
Dig Deeper
TARR Report on ‘Podcast’ Trademark submittals
http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=78831795
http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=78564869
http://www.paidcontent.org/apple-claiming-rights-to-podcast-terms
http://en.wikipedia.org/wiki/Podcasting
http://www.scripting.com/2006/09/23.html#myTwoCentsOnPodcast
On the Road Again (To Podcast Expo) 9/26/06 http://typicalmacuser.com/wordpress/
