AUSTIN-Some argue that there is little to a name, but if any of those people work in the world of the Web, they are very wrong. For companies that use either the terms “face” or “book” in a name on the Internet, the consequences can be lethal to their urls, brands and entire identities. After alleged threats from Facebook concerning its branding, Austin-based founders from the parody site Lamebook.com were put in this position last year.
Lamebook allows users to post odd, lame or funny posts, pictures or comments that are gleaned from Facebook by taking screenshots of Web pages a user visits on the site. The founders, who include two alumns from Baylor University in Waco, Texas, allege that Facebook threatened the small startup with legal action concerning trademark infringement in March 2010 because the copyrighted name, logo and design are similar to that of Facebook. After receiving orders from the monolithic social-networking king to change its name and interface or else, the Lamebook crew fought back.
Founders and graphic designers Matt Genitempo and Jonathan Standefer filed a lawsuit for a declaratory judgment in order to gain a pre-emptive judgment supporting Lamebook’s assertion that no copyright infringement exists. A declaratory judgment action asks the court to rule, or declare its position, on certain issues without necessarily providing other remedies. To the knowledge of the founders, Lamebook is the first company to proactively file suit against Facebook concerning trademark issues instead of reacting to a lawsuit from the social network.
The pair founded the site in April 2009, and plan to argue in court that their creation is protected, largely due to the fact that it’s just a joke. Their complaint against Facebook states that Lamebook’s website does not offer social-networking services so it does not compete with Facebook and that by allowing public commentary on Facebook’s content, the Lamebook website parodies the social-network giant and its role in society.
“There is something called the ‘likelihood of confusion analysis’ that goes on when you’re talking about whether you infringe on a trademark,” said Conor Civins, an intellectual property attorney at Bracewell and Giuliani in Austin, who represents Lamebook. “I think it’s clear that Lamebook is not confusing. Everybody understands that it’s a parody and it’s a joke – everybody understands that it’s not affiliated in any way with Facebook. The key is whether it’s confusing – and it’s not.”
The odds that a lawsuit was on its way from Facebook are debatable, after previous spats in which Facebook sued Teachbook, and allegedly threatened Placebook and the adult social-networking site Faceporn in attempts to protect its brand in the marketplace.
The lawsuit, filed in an Austin court in November, was quickly answered days later by Facebook with a trademark-infringement countersuit filed in San Jose, Calif.
In response, Facebook fired back this snippet in the opening of its complaint from court documents: “Facebook is among the world’s most popular social networks. Defendant Lamebook L.L.C. capitalizes on the fame and enormous goodwill of the Facebook trademark through its use of the Lamebook trademark, adoption of a logo and website design that is no more than a knock-off of Facebook’s logo and site, and provision of services that compete directly with Facebook. Despite Facebook’s protests, Defendant has willfully and deliberately persisted in its misappropriation of the Facebook brand, forcing Facebook to protect its user community and the strength of the famous Facebook trademark through this action.”
At one point in late November, Facebook removed Lamebook’s page from the Facebook site, blocked outgoing links to Lamebook’s site and blocked visitors to the parody site from using the “like” function. Lamebook’s presence on Facebook was quickly restored after several inquiries into why the social network shut it down.
Bret Taylor, CTO of Facebook, wrote this official statement explaining the reversal of action:
“This was a mistake on our part. In the process of dealing with a routine trademark violation issue regarding some links posted to Facebook, we blocked all mentions of the phrase “lamebook” on Facebook. We are committed to promoting free expression on Facebook. We apologize for our mistake in this case, and we are working to fix the process that led to this happening.”
Facebook did not provide a timely response for an interview request at press time but lawyers from the company have stated in public records that Lamebook is not a legally protected parody, as the company claimed, because it doesn’t “provide any critique or comment of Facebook itself.”
“The reason we (filed suit) was because we had disagreements with Facebook spanning over eight months,” said Civins. “It was affecting my client’s ability to run their website and we needed some clarity on the issue.”
Lamebook is headquartered in Austin and while Facebook also has an office in Austin, it’s headquartered in Palo Alto, Calif.
Matt Genitempo, co-founder of Lamebook, disagrees with the assertion by Facebook that Lamebook is in any way a competitor. “Facebook is such an important mode of communication and is one of those ‘how did I function before I had this type of thing’ kind of service,” said Genitempo. “We couldn’t run our website without (Facebook) so we’re not competing. If anything, they’re benefiting.” Genitempo said users are likely to revisit their Facebook accounts after scouring Lamebook to use a new function they learned about on Lamebook or search for funny content.
The worn-out cliché of David vs. Goliath is fitting in this case, and the camaraderie from Austinites in their support of Lamebook is growing. The founders are throwing fundraising parties in an attempt to grow their legal defense fund with a current goal of $50,000 to support legal counsel in both states. However, the battle could rage on for years in federal court and the resources at the disposal of Facebook greatly outnumber those of Lamebook.
Most of the money for operating expenses on the Lamebook site is earned through advertisers with all donations through throwing parties and on the donation page of the site going to the legal fund. About half of the total goal has been raised so far.
A recent party at local bar Shangri-La, located at 1016 East 6th Street, drew in numbers of more than 100 in January, for those willing to shell out a suggested donation of $5 for a bottomless cup of keg beer and the payoff for the legal fund cashed in around approximately $2,500.
A book featuring “classic” screenshots and unseen content from Lamebook will be released roughly around September by Chronicle Books and a 2012 once-a-day calendar is also in the works. Genitempo and Standerfer are working with a developer to release a mobile app with hopes to launch in the next couple of months across platforms. A new website by the duo was released a few weeks ago and takes more of a crude approach, witnessed by its name, asmyjunk.com. The site profiles pictures of people using different sized objects in a phallic nature.
“The humor is definitely junior-high level,” said Genitempo. “But there are adults out there that can appreciate that.”
Venturing into other projects are a way of building an enterprise for the founders until the fate of Lamebook is known, which is likely to be years away. The rulings could have ramifications for many other sites as well. If a ruling benefits Lamebook, Facebook may begin to negotiate with other sites less and opt to sue more.
Genitempo said even if the pair loses the Lamebook name, he claims the amount and quality of content should be enough to redirect most of the existing traffic to a new url address. “That’s all we care about. It’s the quality of the content,” said Genitempo. As for the state of the case, Genitempo replied, “It doesn’t keep me up at night.”
Edward Cavazos, partner at Bracewell and Giuliani L.L.P., along with the founders of Lamebook are scheduled to host a SXSW panel titled: “David vs. Goliath: Lessons learned from Lamebook vs. Facebook,” at 3:30 p.m. Friday, March 11 at the Town Lake ballroom of the Radisson Hotel, located at 111 East Cesar Chavez in Austin. Standefer and Genitempo will also co-chair an unofficial SXSW party with other humorous sites TextsfromLastNight.com, Regretsy.com, PassiveAggressiveNotes.com, and ChuckNorrisFacts.com scheduled for 8 p.m., Saturday, March 12 at Red Seven, located at 611 E. 7th Street in Austin.
