Freecycling, is the act of giving away usable but unneeded items to others. Freecycling harnesses the power of the Internet to connect people who have stuff with others nearby who want it so it doesn’t wind up in a landfill. See Brevard County Sets Freecycling Record.
Craigslist has always had a freecycling page (here is the one for Orlando). I absolutely love it. I hate to throw things away, but I love getting rid of them. You couldn’t imagine the stuff that I’ve posted there along with the address where it can be picked up, left the stuff on the curb, and within hours it is gone — being used by someone.
You would think that with all this great karma going around, people giving stuff away for free, environmentalism, caring and sharing, that nothing really bad could happen. Well, it looks like yet another person fails to understand the meaning of the word “trademark.” Trademarks are not “word patents.” Even if you “invent” a word, that doesn’t mean that you get to stop someone else from using it — especially when it is a generic term.
A spat has erupted between some freecyclers. Freecycle Network believes that it has ownership rights to the mark FREECYCLE. Another company, New Media Worlds, Inc, filed an ITU application for the word mark, FREECYCLE on May 7, 2004. However, this appears to have been a sloppy layman’s attempt to file an ITU, and it was abandoned. Freecycle Network filed its application under section 1(a) (in use) on August 27, 2004. However, this was not for a word mark, but rather for a (rather creative and nifty) logo (pictured below)
That is when things got ugly. Volokh does a much better job of discussing the case than I could. See his post here.
Here is the problem. Tim Oey, a former volunteer at Freecycle Network thinks that the word “Freecycle” is generic. I think he’s right. You don’t “own” a word just because you have a trademark that might incorporate that word — especially when the word is used generically. Go ahead and Google (irony intended) the term “freecycle” or “freecycler” or “freecycling.”
Freecycle Network has a right to trademark its logo. Nevertheless, there is no way, no how, that they have a right to say that they get to control the term “freecycle,” whether they coined the term or not. (I don’t believe that they did).
Oey has been encouraging people to use the term “freecycle” generically — which it appears they do with or without his prodding. For this act of defiance, Freecycle Network sued Oey for, among other things, trademark disparagement. Amazingly, an Arizona judge not only bought the argument, but issued a preliminary injunction restraining Oey from doing so. This is one of the most unbelievably ill-considered abuses of trademark law that I have ever seen. Trademarks are not supposed to restrain free speech — they are supposed to serve as source identifiers. This decision must be reversed. Here is the brief in opposition to it.
Lets stay tuned to this one, because if the 9th Circuit doesn’t overturn this blatantly unconstitutional injunction, up will become down, cats and dogs will be living together, and yet another area of intellectual property will have expanded to the detriment of the First Amendment.
