Freecycle! Save the planet and abuse trademark law at the same time!

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)

Freecycle Trademark Logo

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.

11 Responses to Freecycle! Save the planet and abuse trademark law at the same time!

  1. Bob Cumbow says:

    Thanks for keeping up with this issue. Tim Oey was a client of mine for a time, and I try to stay aware of what’s happening with his good fight. – bc

  2. […] The legal satyricon punches at freecycle vs oey If anyone was surprised at TFN getting one upmanship over Tim Oey and the rest of the freecycling world who simply want to use the word freecycle whenever and wherever without feeling that they are going to have a Cease and Desist letter wrapped around a ton of bricks each day for the rest of their merry lives then check out the Legal Satyricon’s blog article Freecycle! Save the planet and abuse trademark law at the same time! […]

  3. andyswarbs says:

    I have been running a blog for a month now that brings much of the controversy up to date, which is very relevant at the moment since a number of groups are being delisted and others are leaving voluntarily. You can read more on my freecycling blog at http://freecycling.wordpress.com

  4. Glenn Hess says:

    Hello Professor Marc,

    My wife and I are the one’s featured with our groups in that news article.

    since that time we have uncovered and verified the the freecycle network was using data-mining techniques in his groups and sending complete postings of yahoo messages stripped of their yahoo ads, and then reproduced on Deron’s private server with Google Ads in their place to benefit him and his .org.

    this was reported to Yahoo and confirmed as a blatant violation of their TOS and their members privacy.

    Yahooo agreed and ordered Mr. Beal to immediately stop re-transmitting Yahoo’s data to his server and has posted publicly on this.

    less than 24 hours after that… we were hit with infringement violation notices from Yahoo on behalf of Mr Beal… with 48 hour notice to remove trademarked or copyrighted materials belonging to freecycle from our sites… including any derivation of the word.

    we had none of freecycle’s pending and contested logo which has been sitting in application for 3 years now on any of our sites.. and this was strictly a retaliatory measure on Freecycle’s and Yahoo’s part.

    the pending trademark is based completely on stolen copyrighted clip art and the ravie font.. the clip art belongs to NVtech of Canada… and the company president had already told Deron he could not TM the graphics as part of his logo… Mr. Beal ignored him… and went ahead and secured a TM in the UK using those same graphics..

    We spoke directly with the president of NVtech today.. for over an hour… and he was absolutely amazed that this has continued.

    The Ravie font used was bought for one machine under one license, and has since been distributed to thousands of freecycle moderators by deron and his staff with no licensing or royalty fees given for the multiple installations on all of those systems.

    There is currently a motion to dismiss the Sunnyvale case in the 9th district to be heard on the 23 of August for Naked licensing..as Deron encouraged everyone to start their own network… long before he thought of TM it and making a couple hundred thou.

    My wife Char who was in that article used to run the database for Freecycle, when it truly was grass-roots and community based.

    She was the world-wide new group approver for them at the time, started the mentor mod program for freecycle, helped research and secure grants and funding for him prior to his getting the 501c-3 status and wrote most of what is currently in the moderator’s and mentor”s manuals and guidelines… we have had to serve mr beal to have him stop copyrighting works written by my wife then that they attempted to edit or abridge and then call their own… under Freecycle’s copyright. so instead of crediting her… they obliterated her from the archives, and said she was a “Bad Apple”

    NVtech’s representatives are currently contacting Yahoo’s legal team, and Deron Beal and TFN, as well as the USPTO, UK patent office, and patent offices in Canada.

    The owners of the Ravie font used in the logo as well which are also being attempted to Trademark for Freecycle’s logo/branding have also now been fully brought into the loop.

    meanwhile, Freecycle, and it’s TM team continue to have thousands of groups served by illegal e-mail cease and desists…. and then having Yahoo… shut down the groups based on Freecycles claim of Trademark, and Copyright on these marks, words, genericized words, and all stolen and appropriated works of others.

    we have even received confirmation that their goal is to serve 50,000 notices on other community recycling groups worldwide… so that they may show due-diligence in protecting their TM….. which is again based on stolen property, which is un-licensable
    for commercial use… and cannot be included in a copyrighted work for commercial purposes.

    if you’d like proof…. we have tons of it…. screenshots, e-mails, chats, statements, archives and timelines to back all of this up..

    Thank you for your time

    Glenn Allen Hess Sr
    Brevardfreecycle.org
    321-757-9971

  5. Glenn Hess says:

    Also sir, if you know of any ACLU or Free-Speech atttorneys, paralegals, or Law classes that could help us and our local groups here, as well as thousands of other free-recycling groups and organizations that are to this day being harassed and threatened in this way by both Yahoo.. and The Freecycle Network.

    it would be greatly appreciated.

    the various networks that have sprung up and away from Freecycle.org are zero-dollar operations… and we pay for our servers and promote our groups for free.. as true volunteers and grass-root movements should be.

    freesharing.org
    sharingisgiving.org
    freecycleamerica.org
    reuseitnetwork.org
    brevardfreecycle.org

    all of these networks… and many new ones are being harassed and threatened, and these involve millions of local members in their communities who want to do nothing more than their part to save the planet, meet their neighbors, hopefully make some friends, and build their communities back into caring ones.

    we all need pro-bono or low cost help… and have been instructed to seek counsel many times over the years…by Police, Yahoo, members of the press, and our friends. we can’t afford much, but we feel it’s worth the fight.

    doesn’t anyone else? how can he destroy communities for using a word that pre-exists Mr Beal working at Rise Inc… and stealing someone elses words and concept.

    I just don’t get it.

    Respectfully,

    Glenn Hess

  6. […] Freecycle! Save the planet and abuse trademark law at the same time! […]

  7. […] Freecyle v. Oey – Victory for Free Speech A few months ago, I blogged on the Freecycle v. Oey case, here. […]

  8. Glenn Hess says:

    Glenn Hess
    April 24, 2008 02:14 PM

    Open letter to Yahoo, Jami, Deron, Conni, and MR. Yang CEO at yahoo-inc.com

    and invites to others soon to join or pop in for a look…
    with the EFF and NPR and local and national print media, tv and
    digital media, and local radio station contacts that we have made over
    our years here…..

    Yahoo here’s my analogy and I guess query on your Total and Truthful
    and Honest feelings and the way this one was rolled out and why……
    just humour me please, Jami, Connie, and Mr. Yang…

    I feel that Mr Yang should receive this since the press and networks
    and bulletin boards all over the world are currently reading this as
    well…. maybe you should have talked to him a long time ago about
    though Ms. Heldt

    and all that I have sent invites to you and my friends who are working
    and promoting a better planet and a future for it… for our
    children’s children’s children’ and to be able to live as healthy
    happy human beings with still any GREEN zones on our planet?

    “A little whitewash can cover up a lot of ding, breaks, cracks, and
    wormholes in the fence”

    but a little whitewash, can be pretty very easily be removed and be
    re-exposed whether it is being thrown away as there is no saving it as
    there is just too much rot and smell, and decay,

    or see can it be seen that there is really something More Beautiful
    and better down inside… that’s probably always been there.

    if you know what you are doing, and have been already given the tools
    to do it properly, all that rottenness and decay, some generally have
    the tools or ideas to fix it… or others just band aid it, or.. or
    just let it deteriorate on and they let it become less than it was…

    but a Craftsman, can see that old scarred piece of wood, and can
    re-expose it for the beauty that’s there..and inside of it and
    surround it….. and fix it, and make it right.. and beautiful, and
    organic, and fluid again.

    and place it alongside with other restored pieces of wood metal screws
    and good and steady construction…. by a skilled and respected artist
    or craftsman or leader which TFN and Deron Beal have repeatedly demonstrated they are NOT.

    couldn’t a piece of art, that was gifted to the world, and the entire
    world, has been told this…. that the whole world created built and
    grew…. can’t it be made it to be that way.?

    why would you keep the broken board, with so many cracks… and
    continually keep polishing it up…. the cracks keep showing,…. but
    maybe if it was part of the whole piece of furniture or construction
    and realized it needed to be there too in order to be Beautiful and
    something to marvel at once again……

    Mr. Yang…. this is to you. directly.

    what kind of wood has Yahoo repeatedly seen Freecycle and TFN to be,
    there are a lot of cracks there, and rot, and mold, etc….

    can it ever be made part of something beautiful again… after the TM
    loss?

    maybe with your help I guess….. but aren’t the rest of us and
    others….the independents whose leaders and facilitators almost to a
    man and woman the original Leaders, contributors, etc… for TFN and
    grew it to what it is today, before all of the whitewashing and WMI
    attempting to GREEN up their image, aren’t all of these communities
    what finish the piece and make it complete? I think so..

    why doesn’t Deron? Why don’t your many employees that we have talked
    to, emailed, faxed, visited , and arrange meetings with all start
    ignoring us, not returning calls… emails, ims, etc… Jami… we
    haven’t heard from you in weeks….

    Connie we again enjoyed the conversation even again just another
    repeat and rerun of everything we’ve heard before…. so at least it
    was just as old and familiar as watching the Andy Griffith show….. but still enjoyable
    and you know exactly what’s gonna be said next..

    Mr Yang, we would really like to know your feelings on this…

    I think that piece of wood your propping your campaign on is pretty
    rotten, and a strangely joined three piece board at that.

    Is this crappy three piece board… and I do mean the current board of
    directors on TFN which consist of his wife, himself, family friend,
    and no disclosure or transparency, and nothing but smoke and mirrors,
    a trojan horse that violated all of your groups policies, and false
    claims of copyright or tm or ownership of the word…

    the TM application is for the logo only and the font and graphics…
    but amazingly those also are not licensed for commercial use, and has
    not applied for an exception, and are not created by them.

    and is a pending TM only and with the decision in the 9th is very
    certainly not going to happen.

    but Since the 9th did decide in all of our independents favor and the
    TM is dead……almost dead, I think you and Deron both know it…so….

    derivations of the word or use of the word is not restricted in any
    way, according to many attorney’s …. and Judges, and Law Reviews,
    but yahoo routinely removed/deleted them.. and even just plain ole
    recycling communities…

    So I guess Mr. Yang, and the rest of your teams, and sales agents, and
    affiliate teams, and infringement teams, and your trademark teams,,,
    Jami, Connie, and while so many other so many of us have been keeping
    you informed of all of this, for all these years… yet you continue
    to delete our groups…. and that cost you advertising placement,
    promotion, clicks, members, and most of all TRUST….

    hundreds of thousands of members could not reach their recycling
    communities, and contacts to new friends, old friends, neighbors, and all while helping the planet, and their communities. “One Gift at a Time”

    How can this be fixed…. many know how… and are trying… just
    seems that YOU, or YOUR teams or Deron just won’t let it happen.

    Are you a Craftsman? Mr Yang Can YOU rebuild or construct something
    from pieces, or with strokes of a brush make something beautiful,
    special, and complete it one way or another….

    but isn’t it sometimes wrong if not enough is put into what your
    putting together if it’s not going to hold together, securely, safely,
    and for a long time, instead of hastily, exclusively,

    and instead of being inclusive of
    the whole work as started? and freely gifted… this has been already proven and decided on in a court of LAW and in your and Yahoo’s own back yard in Sunnyvale.

    as it was designed and destined to grow and become?
    as it began when it was first gifted to the entire world?

    I know you are a smart man to be where you are…Mr Yang.

    What are your skills, priorities and passions sir?

    some of us would like to know.

    can it be fixed? and placed within the greater complete and more
    beautiful work? or works as a TRUE GLOBAL EFFORT?

    so far it doesn’t want to fit…… or try to fit….. and only wants
    to be remain a board and stay in it’s current condition and just ask for.
    more polish, and faux filler to seal the cracks and blemishes.

    just a board, and nothing more.

    have you really looked at the true condition of it’s structure?

    is it something that can be included in a Beautiful work for everyone?

    thank you for your time here.

    Glenn Hess Sr.
    http://www.brevardfreecycle.org
    http://www.greenribbon.us
    321-757-9971
    http://www.thefreebiecafe.com
    http://www.forherandnow.com
    http://www.freecyclefabby.org

    • Liz Douglas says:

      For over a year until September last year the UK Exec Directors and group owners and moderators tried to get Derron to respond to the many issues we had not least that groups were being taken away from many Go’s and Mods and taken over to the freecycle server just for asking why questions DB didn’t like and why considering how much money ‘Freecycle’ has we were virtually unable to get even basic running costs. Many GO’s asking questions DB didn’t like lost their groups some after many years of hard work without a word. When it was queried we were told that they ‘No longer a good fit with freecycle’ so after a year and much pain and distress the 4 UK exec directors and 150 groups resigned in protest with heavy hearts we started the ilovefreegle.org reuse/recycling network. With currently around 1.67 million members and almost 300 groups not including those still coming over from FC having had enough of the autocratic way DB runs FC – Freegle which means ‘Free Giving Locally Easily’ is not for profit and our only goal to stop good stuff going to landfill. We have won nearly 20 local and national awards including the CEED National e-Wellbeing award this year. We also allow FC mods and Go’s to use our moderator sites under psueudonyms where they can discuss issues without the threat of losing their groups for speaking out. I’ve also just found the following in the FC moderators manual (http://faq.freecycle.org/faq/manual/mod_trademark) Freegle has also received mail from groups in the states and other countries asking if they can come on board. We have said that we aren’t into empire building and just wanted autonomy in our UK groups which was also one of our original beefs with DB but that we are happy to share information and give support if we can to other countries wishing to start their own countries version of Freegle. What goes around comes around Derron!

  9. Glenn Hess says:

    Re: OPEN LETTER TO YAHOO, TFN, AND FTC, IRS, (KMM89637516V42582L0KM)

    Hello, Thank you for your recent inquiry regarding use of the term FREECYCLE….

    Reply
    from Yahoo! Copyright
    reply-to Yahoo! Copyright ,
    to charlotte Hess ,
    date Fri, Apr 25, 2008 at 12:57 PM
    subject Re: OPEN LETTER TO YAHOO, TFN, AND FTC, IRS, (KMM89637516V42582L0KM)

    Reply

    Hello,

    Thank you for your recent inquiry regarding use of the term FREECYCLE.
    We are fully aware of the recent court decision involving the trademark
    rights in this term and do not believe that this decision warrants any
    major changes in our current policy. We will continue to monitor this
    situation and make adjustments to our policy should the state of the law
    change.

    Regards,

    Copyright/IP Agent, Yahoo! Inc.
    copyright@yahoo-inc.com
    ****************************
    c/o Yahoo! Inc.
    701 First Ave.
    Sunnyvale, CA 94089

  10. John G says:

    Are there any updates on this case? Is “freecycle” fair game?

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