I think it’s great that our Community makes an effort to surface IP issues, and brings them to our attention. The purpose of this blog post is to encourage continued efforts from the Community in this regard, and to politely propose a narrower channeling of these contributions.
Questions of trademark infringement are rarely black and white, and often must be made by balancing many factors. For example, several Community members have voiced concerns over Quirky’s use of the Linkets name for our cardboard connectors product, in view of the Edushape Linkets product. Both products are directed primarily to children, and share the same name, so I can understand the questions from those Community members who may have avoided the name Linkets during the product naming phase. However, several important factors mitigate against risk of trademark infringement. First, Edushape’s use of Linkets is heavily descriptive of their product. It is fundamental to trademark law that one cannot trademark a word/phrase that is primarily descriptive of the related goods or services. Second, Edushape has taken no clear steps to claim any trademark rights in the name for use with its product, either through attempts to register the name with the USPTO or by claims to common law trademark rights on its website or product packaging. These two factors reasonably lead to the conclusion that Edushape would not object to Quirky’s use of the name Linkets in connection with the cardboard connectors product.
However, the foregoing analysis has shifted somewhat now in view of the volume of discussion in the Quirky blog and forum positing that Quirky’s use of Linkets constitutes trademark infringement. This public discussion increases the likelihood that Edushape may take notice and object to something that they may otherwise have left alone. While we have not changed our assessment of the legal merits concerning our use of “Linkets” in view of the Community discussion, we have shifted our assessment of the practical merits – namely that it is now more likely that we might have to expend resources on defending our use of the name than it was prior to the blog and forum discussions. As such, we think it is now prudent to move to a different name and tagline proposed by the Community that may have not been our first choice, but doesn’t present the expenditure risk that has developed over the past several days.
The new name and tagline for the cardboard connectors is JUGO and JUST ADD CARDBOARD.
In the future, so that we might attempt to avoid repeating an outcome of this nature, please contact us with IP issues concerning our products, via direct email at Questions@quirky.com, so that we can investigate the issue privately. In the end, this approach will yield a more beneficial outcome for the Community as a whole.
Continued thanks to the Community for supporting us.
