Here’s something that most people forget about the story of David and Goliath: both sides were at war. Facebook, our very own Goliath, and FiftyThree, the David-size company responsible for a design app called Paper, are well aware of this.
Facebook’s Paper app was announced last Thursday, but launched on the App Store just this morning. FiftyThree responded with their own blog post, explaining that after communicating with Facebook and asking that the name of the new app be changed, the social network refused.
“We reached out to Facebook about the confusion their app was creating, and they apologized for not contacting us sooner. But an earnest apology should come with a remedy,” reads the blog post, penned by CEO and co-founder Georg Petschnigg.
We reached out to Facebook as well, but the social network declined to comment.
Legally, the situation is complicated. As it stands now, no one lays claim to the term “Paper” on its own, as trademark lawyer Victor Cardona confirmed. So technically, Facebook hasn’t done anything wrong.
The trademark owned by FiftyThree is “Paper by FiftyThree,” which was filed for in May of 2012, and passed in December of the same year. Though FiftyThree declined to comment on legal matters with its trademark, Cardona (who is a partner at HRFM lawfirm) believes that the company chose to pair “Paper” with “by FiftyThree” so that it could slide a generic term like Paper through the process.
Cardona also added that in certain situations, trademarks are use-based. This means that “just by using a mark in a particular field, you’ve got rights,” said Cardona. “Some are state-based and some are federal-based, but if I start using a mark before you in the same area of goods or services, I’ve got rights to the mark over you.”
When asked if FiftyThree would move forward legally, Petschnigg simply said that FiftyThree is “keeping options open.” However, he did express that trademarks are use-based, and that Paper is recognizable as a FiftyThree brand, which hints that the company is certainly considering taking this one to court.
If such a scenario arises, Cardona believes that FiftyThree “has a good shot.”
According to Petschnigg, Fifty-Three filed an application to trademark the term “Paper” on its own, but would not disclose the timeline. USPTO applications show up in search almost immediately, and neither Cardona nor I could find FiftyThree’s application for just “Paper”. In other words, it’s entirely possible that Fifty-Three filed for the term “Paper” in the past five days, after hearing about Facebook’s new app name.
Trademark lawyer and expert, Roberto Ledesma, also believes that FiftyThree has a valid infringement case against Facebook.
“It really will come down to how many third-party Paper marks are out there in this industry, and whether or not FiftyThree’s mark has been made weaker by other third-party marks,” said Ledesma. “But Facebook should have been aware of FiftyThree’s prior trademark rights.”
But setting legalese aside, is Facebook right or wrong?
After all, Facebook has all the resources in the world, both financially and creatively, to come up with an original and simple name. Obviously, Paper by Facebook is an important app to the company — lately Facebook has been more focused on separating out services into stand-alone apps, and Reader just may be the one to replace Facebook altogether — so you’d think originality would be a top priority.
So why take a name from an app developer that claims to have strong ties to Facebook?
Here’s what the blog post said about it:
On a personal level we have many ties to Facebook. Many friends, former students and colleagues are doing good work at Facebook. One of Facebook’s board members is an investor in FiftyThree. We’re a Facebook developer, and Paper supports sharing to Facebook where close to 500,000 original pages have been shared. Connections run deep.
“At this point it’s about asking Facebook to do the right thing,” Petschnigg told TechCrunch. “We’re taking a stand for creativity and believe in having a level playing field when it comes to people building their brands and their companies.”
The apps don’t directly compete in terms of utility, so there’s certainly no hostility between the two companies. Which is why an explanation from Facebook seems even more warranted.
But is it?
Facebook has never been apologetic about the fact that its new products aren’t “original.” When Snapchat posed a threat, Facebook launched Poke, a shameless clone. Zuckerberg recently admitted was a joke, but I bet Fifty-Three isn’t laughing today. And I bet Evan Spiegel didn’t laugh at Poke.
When Instagram started consuming the minds and thumbs of social media addicts, Zuck bought it. For $1 billion. Most recently, Zuck was reported to offer Snapchat a $3B acquisition after seeing the photo-sharing app’s rapid growth over the past two years.
Even the Paper app isn’t original. It’s just a rip-off of Flipboard and Pulse and other content curation services.
Ten years after the social network revolutionized the way we communicate and connect on the internet, Facebook is anything but original. And that’s not really a problem.
Some of the most successful companies in the world have piggy-backed off of the innovations of others, elevating an already-discovered technology to a more user-friendly place. Just look at Apple.
Does this make Facebook more lovable? No. Does it grow our respect for the social network as an innovator and world-changer? Certainly not. But that’s what happens when you grow up.
Facebook is no longer the mom-and-pop bakery where you get your morning coffee, nor is it the super private social network we used to connect with our college friends. Facebook is Wal-Mart. Facebook is Exxon. Facebook is a business, and a great one at that.
And no matter how much it sucks for Fifty-Three, who will forevermore deal with confusion over the name of their first-born product, Facebook really doesn’t care if their new app disrupts some startup’s business.
And this isn’t the first time we’ve heard this story either.
Like the last times, we’ll make a big fuss and then forget. Zuck will save the internet, or crush it with mobile ad revenues, or do something else awesomely Zuck-like, and it won’t matter who was crushed along the way.
It’s just good business.