A Lawyer Explains Why a Recent Attempt to Trademark the Word ‘React’ Was Bad News
The Fine Brothers pioneered the “reaction” video format. But does that mean they should own a word on YouTube?
The Fine Brothers. Image by TheBuiBrothers.com via Flickr
The world has seen no shortage of absurd and greedy attempts to trademark commonly used words. It’s one of the many byproducts of an economic system whose proponents preach a free and open market, but who far too often try to quash potential competition. And so it was with the Fine Brothers, Benny and Rafi, who made their name on YouTube with “reaction videos,” that exquisite art in which filmmakers shoot the reactions of people watching a video. These enterprising businessmen recently got approval to trademark the word “react,” which would have allowed them to license the “reaction video” format or stop people from using “reaction” on YouTube under threat of takedown notice. And but for their celebratory squawking about the issue, the word would have been theirs on YouTube.
What they didn’t count on is the reaction from internet denizens, who had 30 days to file an opposition to the trademark approval. And they also didn’t count on lawyer Ryan Morrison, who helped raise awareness about the Fine Brothers wanton power grab, which created enough pressure to get them to abandon their effort.
Morrison tells GOOD he has a standing offer on Reddit to assist with any frivolous cease-and-desist cases free of charge. As a lifelong gamer, he hated seeing many developers he loved dealing with companies equipped with bottomless bank accounts and legal teams able to bully smaller competition out of the marketplace.
“I go on Reddit, not only to offer pro bono services to people getting bullied, but also to just explain the legal system and make it a lot less intimidating,” Morrison says. “And I am proud to say I’ve helped thousands of developers know their rights and protect themselves.”
It was on Reddit that Morrison got involved in the campaign against the Fine Brothers’ “react” trademark effort. He explains that trademarks are broken up into classes of goods, and they can’t be descriptive to those goods.
“So, for example, Apple brand computers is fine, but Apple brand apples would be ridiculous,” Morrison explained. “However, the way most media reports it, you’ll just read things like “Company Trying to Own the Word ‘Apple’.” It usually sounds a lot worse than it is, when it’s really just a company protecting their brand within a specific marketplace (which is good!).”
“However, with The Fine Brothers, it was as bad as it sounded,” Morrison adds. “Owning ‘react’ on the internet is like owning ‘sitcom’ on TV.”
So what was the real danger in the Fine Brothers trying to trademark “react”? That is, what could they have done legally if they had gone ahead with the trademark process? Despite what the Fine Brothers have said in videos and responses to criticism, Morrison says that trademarks have very little, if anything, to do with format.
“They would be given the power to claim the word ‘react’ as part of their brand on YouTube, and stop anyone else from using that term in titles or channel names,” Morrison says. “Because trademarks protect against ‘confusingly similar’ names and logos as well, it’s possible they could have taken down channels with titles [like] ‘Kids Have Emotions.’ While they probably wouldn’t have gone that crazy (despite trying to attack Ellen and other similar issues), why give them the power to?”
It’s worth noting that not everyone was aligned against the Fine Brothers. TechDirt’s Mike Masnick, for instance, actually offered qualified support of the effort, suggesting that the Fine Brothers did a bad job of explaining their goal in trademarking “react.”
“They know that lots of people make similar reaction videos. And a lot of those people are their fans,” Masnick writes. “But rather than shut them down and rather than demand big licensing fees, they created this (somewhat unique) program, where they’re giving a license to anyone who wants it, and with that license, you get a variety of benefits, including graphic elements and (importantly) the ability to have the Fine Brothers help promote and monetize your videos. They take a cut (looks like a pretty small percentage actually), but that should be worth it for many people, who probably wouldn’t have many opportunities to monetize the videos by themselves.”
But Masnick acknowledged the trademark could be abused, and that the Fine Brothers or their associates have a history of filing “stupid takedowns,” which would also be a cause for concern with a “react” trademark. Despite the Fine Brothers’ counter-protest, Morrison says the loss of almost one million subscribers in a day and a half was bound to produce…well, a reaction. And they were obviously aware of Morrison’s opposition, as after they abandoned the trademark effort, they sent him a proof of trademark withdrawal.
“Although there are never certainties in the law, I’m certain I would have stopped this trademark,” Morrison says. “I believe they were certain, too, and they wanted to do all they could to just have this stop. I can’t imagine the hell they went through for those few days after their two most recent videos.”
“I also believe this is a great thing, though,” he adds. “It showed the internet will not allow free speech to be policed or taken over by anyone, no matter how they try to market it. It was all very reminiscent of the internet blackout during SOPA and PIPA.”
And for those thinking that a major corporation might have been more successful with its deep pockets and talented legal team, think again. Morrison says that luckily the law is the law. This should be a source of encouragement to all aspiring content creators and game developers.
“Luckily, I happen to have my own law license, enough paying clients to keep the lights on, and a determination to not let these things happen,” Morrison says. “Regardless of the size of your company, descriptive and generic trademarks will never be okay. And if you really think about it, the Fine Brothers are a big corporation, with the (in my opinion) not so subtle backing of YouTube/Google.”
“It’s important to understand this is not about being anti-trademark,” Morrison adds. “It’s good to protect your brand! But if you use a descriptive term to describe your merchandise, you have to win the marketplace by having the best product, not by policing that term.”
And that, folks, is the free market.