May 2, 2000
8:01 AM   Subscribe

I actually wouldn't mind seeing the plaintiffs behind this cease-and-desist order win their case.
posted by ratbastard (23 comments total)
There's been some talk on a discussion list I'm on, and these are the main points against the divas:

1. MS and the digitaldivas aren't being used for the same purpose, one is a web group, while the other is a place for MS to highlight females in the industry.

2. Neither is attempting to steal attention from the other.

Do we really expect every owner of to be allowed to shut down every owner of (or vice versa)?

There is probably no trademark case to answer.

It pains me to say this, but I don't see how Microsoft is in the wrong here.
posted by mathowie at 9:55 AM on May 2, 2000

I suspect this is intended as a gag.

And yes, I'm sure Bill Gates is shaking in his hush-puppies.
posted by ratbastard at 10:42 AM on May 2, 2000

actually i can see where is coming from. the two sites are complete opposites. microsoft's site is ridiculous as well as patronizing and insulting. i mean, come on, "Are you wondering how technology can help you plan a wedding?" "Using Technology to Manage Your Home"?? and this is the absolute worst of it. it isn't highlighting females "in the industry," that's for sure. microsoft isn't in the wrong, no, but i can understand why wouldn't want to be associated with it in any way.
posted by bluishorange at 11:03 AM on May 2, 2000

It isn't a gag at all. I like and support the Divas 100%but I really don't think they have a case. Microsoft didn't even make a domain out of digital diva, just a directory on their site. I have a directory called blogger at my domain. . . . am I going to get sued by Pyra?
posted by the webmistress at 11:11 AM on May 2, 2000

I think you are missing the point.

This is not a gag. We are very serious about it.

The Digital Divas are a group of women computer professionals who have spent almost three years offering computer and internet assistance to the entire web community. We have built a lot, through a lot of hard work, in this time.

The Microsoft Digital Diva is plain and simple an infringment on our trademark. She IS providing the same services that we have provided for three years. And there is a domain that points to that directory on their site.

We have consulted with various lawyers who have given us good counsel prior to starting this. We did not go into this lightly, or without a realization that the odds are stacked very highly against us. But what kind of people would we be if we didn't try to protect that which we have worked so hard for??
posted by faith at 11:36 AM on May 2, 2000

I apologize, Faith (and other Divas), if I seemed to belittle your efforts. It was not my intention.

Best of luck!
posted by ratbastard at 12:06 PM on May 2, 2000

Faith you have my 100% support.

I'm now working on my wife's site which will be the first "woman-owned" home remodeling company in the North Eastern United States....

But why on earth didn't you guys snap up all of the related domain names when you had the chance?
posted by EricBrooksDotCom at 12:08 PM on May 2, 2000

Uhhhh.... I don't quite know how to say this. But I am going to have to recant my previous post.

After joining a Christmas-time boycott against eToys for the very same thing, and speaking out about interNIC's "first come/first served" policy.... I'd be a total hypocryte if I backed this....

I saw both sites, and a distinction...

IMHO, Microsoft has every right to give Miss Elliot the title "Microsoft's Digital Diva"... and the site has every right to exist.

I'm sorry. But I'd rather be a prick, than a hypocryte.

I do wish you guys the best of luck in whatever you decide to do.

posted by EricBrooksDotCom at 1:37 PM on May 2, 2000

I respect that Eric.

But this is not like etoy/etoys. etoy was a totally different THING than etoys. etoy was not selling toys. The MS Digital Diva is offering the same services as we do, in fact in a very similar way.

That's the difference.

posted by faith at 2:44 PM on May 2, 2000

so it is just the combination of the similar name with similar services that makes it copyright infringement? and one or the other alone would be okay?

I have to say, though, that I don't think the MS digital diva is all that similar. it has a dictionary that defines things like "printer" and "online" (where you do your grocery shopping!). the digital divas site is a resource for people who actually *work* the web, not just people who poke around it once in a while and haven't quite figured out what a disk drive is yet. :P

I guess that's not enough of a distinction.
posted by rabi at 4:14 PM on May 2, 2000

Actually, it is trademark infringement, not copyright infringement. And actually, yes, that's what the law says.
posted by faith at 4:24 PM on May 2, 2000

"Do we really expect every owner of to be allowed to shut down every owner of (or vice versa)?"

Etoy vs. Etoys?

heh. ok, that was a cheap shot, I'll go away now. =)
posted by bryanboyer at 5:16 PM on May 2, 2000

Bryan, the point here is that the issue is *not* the domain
name; this is a traditional case of trademark dilution. And yes, an 'S' is definitely small enough a difference not to matter to a judge.

The *real* problem here is that there are no longer *local* trademarks -- *everything's* global, in a fashion that was never practical before, and the law hasn't caught up yet.

We're probably eventually going to have to stamp out .com, and go back to the geographic hierarchical domains everyone hates so badly...

posted by baylink at 5:33 PM on May 2, 2000

etoy came first. when etoys sued etoy, it was ridiculous. etoy COULD have sued

digital divas came first. they are attempting to protect their business against a giant company that has blundered into their place of business. microsoft is savvy enough to do a trademark search before launching some tertiary business. and savvy enough to search for similar domain names before launching a business.

i do not think microsoft is trying to hurt the digital divas. i think this is so far below their radar, they don't even notice. it's a low, low, low level project, probably intended to pacify a group or put a happy face on the company during its endless troubles.

in the normal course of events, a company even one-tenth as savvy as microsoft would have done both a trademark search and a domain search, and would simply have picked a different name.

obviously, the person assigned to this project was inexperienced, and that alone shows that the company doesn't care about the project.

as to why they haven't responded to the divas' legal paperwork yet, it may be because their lawyers are still going through 25 billion pounds of previous legal documents concerning a half-dozen lawsuits, and the government's stated desire to disintegrate their company.

d'ya think maybe that's why they haven't replied yet? i do.

i support the divas because it's their name, their business, and they did it first. but in this case i'm not saying microsoft is yet again showing itself to be an evil company, because i don't think that's what's going on. this whole thing is very serious and important to the divas, but it's not something that would be immediately noticed by a company being sued by everyone it's ever worked with, while simultaneously trying to defend itself against government-mandated disintegration.

posted by Zeldman at 6:44 PM on May 2, 2000

no matter what the outcome, WE know who the real divas are.
posted by the webmistress at 8:07 PM on May 2, 2000

Oh... the link is back.

If you ask me (and as I wrote to Mr. Zeldman..'s er.. son)

I think negotiation, rather than litigation is in order.

An online petition, contacting whoever is in charge of the project, and ask them to change the name of the project, notify them directly that a cease & desist was issued ...

They should have a small idea, by now, what happens on the web when developers get pissed off. :> And I can definitely support people trying to protect their livelihood and ideas.....

PS: Hey Webmistress, didya notice Zeldman got rid of his splash page and now it goes directly to his journal....
posted by EricBrooksDotCom at 8:55 PM on May 2, 2000

Yes, I do believe I invented the "oh, just eliminate the splash page and go directly to the journal" method of webdesign, Eric. Thank you for noticing! hehe
posted by the webmistress at 9:39 PM on May 2, 2000

I understand where the Divas are coming from here, but in a cursory search I did on the USPTO website when I first heard of the issue, I found only 3 mentions of "Digital Diva" in the trademark database, none of which were registered by Microsoft or the Digital Divas trade association. It seems to me like both organizations may need to take a look at Activision's product, "Teen Digital Diva", a software program for girls. They've had trademark on a similar term since September 1998. I am not a lawyer or an expert on trademark law, and in fact the trademarks may be registered somewhere, but what's the law on defending rights to unregistered trademarks? Anyone have a pointer to a good source of generic trademark info?
posted by Electric Elf at 9:56 PM on May 2, 2000

Another Digital Diva jumping in here while Faith (who has explained it all so eloquently is hard at work being a lawyer *grin*). The Digital Divas are aware of "Teen Digital Diva" and their trademark as a software company. Apparently (and I am no legal eagle) trademarks exist for different areas (eg. software, entertainment etc etc) and their trademark of "Teen Digital Diva" is not relevant to ours. Hope that helps
posted by Dani at 10:08 PM on May 2, 2000

Right, I'm aware that there are trademarks in different areas. I'm glad someone looked into that. What's the status of the Digital Divas trademark as it pertains to the web DDs? Is there a registration number? Somewhere we can check on the validity of trademark? I'm sorry, all I can see on the site is a C&D order, and a link to Microsoft's admittedly sorry effort at "educating" women about computers.
posted by Electric Elf at 10:17 PM on May 2, 2000

Hiya :-)...I'm also a member of the Digital Divas and a lawyer (I'm not a litigator...I'm a financial corporate attorney). Regarding the trademark itself, the validity of the trademark need not be verified to publicize our campaign...and although we have registered our trademark it is not always a requirement to defend it (the difference between the "T" and "R" above a trademark simply means that the former is registered and the latter isn't). Registration of the trademark would not be the basic requirement in our case as prior widespread use of the Digital Divas trademark plays a key role. Also, we are not only arguing the fact that Microsoft snatched up the domain name ""...there have been previous cases where domain names similar to ours have been snatched up. We are arguing the similar use of our trademark in addition to the domain name...very much the way Microsoft did it in the situation described here:

Oh, someone asked for some trademark info - there is some pretty good basic info about trademarks and the internet at (it is U.S. based law, though)
posted by Becky at 12:27 AM on May 3, 2000

Greetings! As founder of the Digital Divas, I thought I'd step in to answer the question regarding our trademark. We do not have a registered trademark; we have a pending application for registration of the name under service code 042.

As Faith explained, we are not entering this lightly or frivously. I also want to note that going public was not a knee-jerk reaction - we attempted to resolve this quietly, but were completely ignored.

Pure and simple, this is about 71 women who take much pride in the organization we have built and wish to continue building. We have the legal, moral and ethical right (obligation, even) to defend and protect it.
posted by dana at 6:12 AM on May 3, 2000

Here Here Capt'n! *smile*
posted by Dani at 6:36 AM on May 3, 2000

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