title: Paying lawyers by the hour


by: Scott Bradner  


The idea that a bunch of geeks getting together to debug software would be easily confused with Broccoli Cauliflower Tetrazzini is a bit stretched.  So either Pillsbury is easily confused or their lawyers are trying to pad their bill.  Out of the blue Pillsbury's lawyers have sent cease-and-desist letters to a number of engineers and a few companies who have been holding meetings where groups of programmers get together to test their implementations of some networking standard against each other.  And what are they to cease-and-desist from?  From the use of the term "bake-off" to describe the get together, thatŐs what. Seesh - no wonder lawyers get a bad reputation.


Pillsbury wants to claim that any and all uses of the term bake-off other than to refer to the annual cooking contest that Pillsbury has run for 50 years is prohibited by Pillsbury's trademark.  That contest is certainly well known. It even has its own web site (www.bakeoff.com), where, among other things you can find a list of the 14 "Hall of Fame" recipes (complete with pictures) from previous bake-offs -- including the above mentioned Broccoli Cauliflower Tetrazzini.  I expect that the fame of the cooking contest did contribute to the use of the term by the geeks but this did not happen yesterday.  There may be no way to figure out when the term bake-off first started to be used in conjunction with software testing but RFC 1025 (www.ietf.org/rfc/rfc1025.txt) details its use as early as 1980. 


Putting my amateur lawyer hat firmly on, I do wonder how Pillsbury can suddenly claim that their trademark is being violated more than 20 years after the alleged infringement started.  I suppose that they could claim that they had not heard of the Internet and the quite common use of this term 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 Pilsbury'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 sad to say we have not seen the last of this sort of sillyness.   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 very complex issue.  The Internet has none of the geographic, product category or visual differentiation that makes trademarks in the real world a, relative only to the Internet, simpler issue. 


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


disclaimer:  This confusion is in the University's interest since some of those milling hordes come from the Harvard Law School but the University has not expressed an opinion.