Two years ago I set out on what would become one of the biggest challenges in my life to date. It ranks up there with starting Outspoken Media, chairing a non-profit and getting married.
On April 24, 2008 I filed my notice of opposition to Jason Gambert’s “SEO” trademark application. On March 11, 2010, I won.
It took two years, $17,004.33 and an untold amount of frustration and self-doubt to get through this. But, what does it all mean? Why did I commit to this? What would have happened had Gambert succeeded in registering the trademark?
We do have some insight from the man himself that he posted to his blog on April 9, 2008:
“My goal in owning the trademark for the word SEO is not to try to force people to change their SEO process, but rather, prevent companies from selling “SEO” as a service under false pretenses.
…We will also be forming a board of directors to oversee changes to the process, and format in which SEO can be sold (basically the BBB for the SEO industry). We will restrict businesses from selling the process of SEO as an “SEO” service if they do not meet the process approved by the SEO trademark requirements. Those approved will use SEO as normal, but will now be able to use the term as SEO™, and will be able to claim that their SEO service is approved under SEO trademark guidelines.
This power is for the people of the Search community and the protection of the general business consumer.”
I’m all for better education, but not from some random guy the industry has never heard of.
On April 7, 2008, Sarah Bird, General Counsel for SEOmoz, published her discovery of Jason Gambert’s SEO registration. Who is Jason Gambert? Yep, that’s what we were wondering, too.
On April 24, 2008, Sarah went on Webcology with Jim Hedger to talk about the SEO trademark opposition deadline and she asked that others get involved. Jonathan Hochman with Hochman Consultants, Matt Foster with ArteWorks and myself (with myself) filed our oppositions. That brought the total number of oppositions to four including SEOmoz.
The SEO industry loves poker, so let’s borrow terminology from the game. The opposers were trying to bluff Gambert. Four oppositions were filed and for several months everyone in the industry was riled up over the registration. It seemed likely that Gambert would fold under industry pressure and the sheer number of deadlines he would now have to meet with the United States Patent and Trademark Office (USPTO). Let’s also not forget about the trail of comments left across the blogosphere in support of Gambert using different identities but all belonging to the same IP address. Thank you Michael VanDeMar for being the best sleuth a girl could ask for! This was becoming a big deal and we knew we had him.
Unfortunately, Gambert called and I was pot committed. I kept getting these glimmers of hope that something would end the process sooner rather than later. I expected Jonathan Hochman’s expedited trial to go through or SEOmoz’s powerful case to win it all. Of course things didn’t work out the way I’d planned.
A year in and the industry had lost interest, Jonathan’s expedited process hadn’t gone through (he still had an open opposition, but at a normal, obscenely slow pace). SEOmoz and ArteWorks had bowed out of their oppositions and I was too committed to back out now. I told my incredible trademark attorney, Cheryl Meide, that I couldn’t do this for much longer. Everyone thought I was insane, I could have bought a beautiful new car for the amount I’d already spent and the other opposers were dropping like flies.
We hit a break when the USPTO said that many of Gambert’s responses to our requests were nonresponsive, evasive, circular, insufficient, incoherent, nonsensical, and failed to comply with the Board’s orders. Those responses would often point to previous filings, sending us on a wild goose chase and of course added to mounting legal fees. Ironically, Gambert spent much of his time telling the USPTO that our case was based on trying to “out-lawyer” him.
Let’s get something straight here. I submitted my notice of opposition as a then 25-year-old individual with a contract job at a startup. Do you think I had the means to “out-lawyer” Gambert? Do you think I had the means to “out-lawyer” any of the other opposer’s cases? I had stubborn morals going for me and a desire to see this through. I was chairing a local non-profit at the time and had the difficult task of raising funds to pay off a massive legal bill we’d accrued in the process of suing a neighboring county. That lawsuit set a statewide precedent for beach access, but it also taught me that doing the right thing can quickly become costly and demoralizing.
I also knew that if I didn’t win this opposition, the registration was going to be sustained. I did not want to throw good money after bad. With so much already invested and no one left standing, I didn’t have much of a choice though. If I stopped I would have wasted a year and a half of time and frustration not to mention thousands of dollars. I’d also stuck my neck above the crowd, so if Gambert wanted to go after someone I’m sure my brand new SEO company would be first in line. The burden was on me to end this once and for all.
On October 29, 2009 the USPTO gave Gambert thirty days to comply with our original discovery requests. Rather than presenting the requested documents and responses, Gambert used his replies to express tidbits like:
“Opposer, aware of the deficiencies of her case grasps at the flimsiest of technicalities. She is seeking to win on a forfeit because it is the only way she can win.”
“In no way was any of my answers “Nonsensical” when they make perfect sense anyone who can understand English can read them.”
Gambert had been instructed to contact his attorney or mine if any requests were unclear. He even threatened to do so to rack up my legal fees. Still, no call or email ever came. I know we asked really tough questions like, “Describe the meaning of “SEO” as used in Applicant’s Application.” The response we got was, “Applicant describes the meaning of ‘SEO’ as used in Applicants Application currently as it is defined.”
Huh? I couldn’t let Gambert win this simply on principle! It was clear that Gambert was trying to circumvent the Board’s orders and refused to cooperate with the proceedings. This allowed us to force judgment.
I’m terrible with dates, but I have a feeling March 11, 2010 will stick with me for awhile. It was our judgment day and the USPTO terminated the trademark application.
Was it worth it? I don’t know. I do know that I learned an invaluable amount about business, trademark law, the SEO industry, my relationships and myself. I never asked the industry to donate to the cause, because this was my responsibility. I chose to pursue this in the face of criticism. I knew that it was something I believed to be wrong. I knew the USPTO did not understand what our industry did or how SEO worked. I wanted to fight for that knowledge and I won. I don’t regret the experience, but I am going to take a breather from hopeless causes for awhile.
Edit: Due to the overwhelming request for a “donate” link, the place to do so is on PayPal to rhea_drysdale [at] yahoo [dot] com. I just got off the phone with my attorney and accountant. Unfortunately, contributions would not be tax deductible, because I am not a non-profit and filed as an individual. I didn’t write this for donations, so don’t feel obligated, there’s just been an enormous outcry and it’s appreciated. If you feel uncomfortable sending a “gift” then email me and I’ll give you the name of my favorite non-profit!