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'Net Insider  

Paying lawyers by the hour

By Scott Bradner
Network World, 01/29/01            

The idea that a bunch of geeks getting together to debug software would be easily confused with Broccoli Cauliflower Tetrazzini is a bit of a stretch.

So either Pillsbury is easily confused or its lawyers are trying to pad their bills. Out of the blue, Pillsbury's lawyers have sent cease-and-desist letters to a number of engineers and a few companies that have been holding meetings where groups of programmers get together to test their implementations of some network standard against each other. What are they to cease and desist from?

From using the term "bake-off" to describe such get-togethers, that's what. Sheesh - no wonder lawyers have a bad reputation.

Pillsbury wants to claim that any and all uses of the term bake-off - other than those referring to the annual cooking contest that Pillsbury has run for 50 years - are prohibited by Pillsbury's trademark. That contest is certainly well-known. It even has its own Web site (, where, among other things, you can find a list of the 14 "Hall of Fame" recipes - complete with pictures - from previous bake-offs. These recipes include the above-mentioned Broccoli Cauliflower Tetrazzini.

I expect the fame of the cooking contest contributed to the use of the term bake-off by the geeks, but this did not happen yesterday. There may be no way to figure out when the term first started to be used in conjunction with software testing, but RFC 1025 details its use as early as 1980.

Putting my amateur lawyer hat firmly on, I wonder how Pillsbury can suddenly claim its trademark is being violated more than 20 years after the alleged infringement started. I suppose the company could claim that it had not heard of the Internet and the quite common use of the term "bake-off" for many Internet activities until a couple of months ago. But it might take some searching to find a judge and jury that would believe that Minneapolis, where Pillsbury is headquartered, is that far off the beaten path. The result of Pillsbury's sudden aggressiveness just could be a legal determination that "bake-off" has become a generic term and Pillsbury could wind up with less, rather than more, authority to control its use.

This topic would seem more suited for an April Fool's Day column. But it's sad to say we have not seen the last of this sort of silliness. The bake-off case does not even touch the far more difficult area of trademark use on the Internet. The flat namespace of the Internet makes trademarks a complex issue. The Internet has none of the geographic, product category or visual differentiation that makes trademarks in the real world a simpler issue (well, relative only to the Internet).

With the introduction of new Internet top-level domain names, which create new venues for trademark conflicts, the ground is being prepared for milling hordes of lawyers ready to do battle while billing their clients on an hourly basis.

Disclaimer: This confusion is in the university's interest because some of those milling hordes come from Harvard Law School. But the university has not expressed an opinion.

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