Reddit’s ‘Gaymer’ Community Rejects Site Owner’s Trademark

VideoGame

Minority groups and labels have always had a complicated, sometimes tense relationship.

The terms and monikers concocted by dominant cultures are often reclaimed, taken back and reworked for the group’s own purposes. The term queer is the most common example from the LGBT experience. Other times, though, the groups think of their own nomenclature, one created to provide linguistic insulation from a hostile culture. For example, video game-loving gay people call themselves “gaymers,” hence the name of Chris Vizzini’s website, Gaymer.org.

Vizzini trademarked that expression, and has been trying to get reddit’s “gaymer” community to find a new terminology. To make clear he means business, he sent reddit a cease and desist letter demanding the popular site create its own designation.

Furious flesh-and-blood gaymers on reddit have now filed a petition with the U.S. Trademarks and Patents Office to take back “gaymer.” According to them, gaymer belongs to the community and should therefore be exempt from copyright status.

Ars Technica outlines the case and the gaymer case:

The “gaymer” trademark is claimed by Chris Vizzini, who also blogs at his website, gaymer.org. Vizzini sent a cease-and-desist letter to Reddit complaining about the /r/gaymers subreddit. That got the group’s attention, and caused it to lawyer up. /r/gaymers now has pro bono lawyers from a major law firm, Perkins Coie, as well as from the Electronic Frontier Foundation.

The purpose of trademark law is to protect consumers by making sure they know the true origin of goods and services. The /r/gamers petition, prepared by lawyers at Perkins Coie and EFF, argues that Vizzini’s trademark is a distortion of the law’s purpose, and should be canceled.

“This registration should never have been granted,” said EFF lawyer Corynne McSherry in a statement today. “Gaymer is a common term that refers to members of this vibrant gaming community, and we are happy to help them fight back and make sure the term goes back to the public domain where it belongs.”

The lawsuit points out, “Public use of the word gaymer dates back to at least the early 1990s, when a growing group of individuals within the gaming community began using it to identify themselves.”

“Due to this long period of widespread, generic use, the relevant public has come to recognize gaymer as a common term for individuals within the LGBT community who have an active interest in video games and the online video game community,” it reads.

To that point, reddit user Ozuri wrote a post about their own adoption of the term, and how it’s interlaced with his or her identity:

… I grew up in an age when being a nerd was not a synonym for tech savvy entrepreneur with a high-paying job at Google; it meant social stigma, awkward interactions with peers and coming in last on the day we ran laps. Coupled with the crippling anxiety of being gay (and for me, being from an evangelical Christian background), being a gay nerd who loved video games was the proverbial hat trick of otherness…

For me, it is the marrying of my hobby and a part of my identity that allowed me to grow into my own as an adult. I am a gaymer.

Mr. Vizzini, you keep using the word ‘gaymer'; I do not think it means what you think it means. To the rest of us, it means community. It means pride in our differentness and our small community. It means inclusiveness rather than exclusiveness.

Vizzini defended himself last September, when the embers of this public war were only just beginning to burn on reddit, and told the community there that he was simply defending what was rightfully his:

As a trademark and word mark holder, it’s my responsibility to defend the marks, otherwise I could lose them.

I started Gaymer.org in 2003 and began to build Gaymer as a brand. Thats why I trademarked and word marked the name. At that time, there was only one other site around dedicated to gay gamers. I have spent countless hours and thousands of dollars on Gaymer.org. I have done so gladly as it’s brought happiness to many people.

I have received many nasty emails and comments on my site, not to mention what’s been said on the reddit site.

I cannot stress this enough. I have no problem with other gay gaming sites. I think it’s great others exist. The only problem I have is when the Gaymer name is used. That infringes on the word mark. A perfect example of this is gaygamer.net. Its a great website for gay gamers but does not use “gaymer” in its name therefore I have no problem.

It’s only when “gaymer” is used in the site name that causes confusion to the public. That is what word marking is all about.

What say you, reader? Does Vizzini have a valid point or is he unnecessarily trying to take a public term private?

Comments

  1. Strepsi says

    Typically this case would make no sense, as the purpose of a trademark is usually to TRADE under the mark for merchandise (i.e. Gaymer™ t-shirts or mousepads, etc.). In this case, though, the mark is specifically for services, specifically online services.

    Actual search of United States Patent and Trademark Office: “Word Mark GAYMER
    Goods and Services IC 042. US 100 101. G & S: Computer services, namely, creating an online community for registered users to participate in competitions, showcase their skills, get feedback from their peers, form virtual communities, engage in social networking and improve their talent; Computer services, namely, hosting and maintaining an online website for others to discuss, receive and disseminate information concerning video games; Computer services, namely, hosting on-line web facilities for others for organizing and conducting online meetings, gatherings, and interactive discussions. FIRST USE: 20030526. FIRST USE IN COMMERCE: 20030526″

    He clearly has the trade-mark and the right to defend it.

  2. bandanajack says

    the trademark should never have been granted, the term was in use prior to his claim. i can remember it being coined as game communities shunned and shamed players who made no secret of their sexual orientation.

  3. BZ says

    Reminds me of the 1980s lawsuit that the IOCC filed against Dr. Thomas Waddell over his usage of “Gay Olympics”. Despite the fact that the word Olympics had been in popular use for over 2000 years, and the fact that the IOCC had allowed the word Olympics to be used for everything from the Special Olympics to the Nebraska Rat Olympics, the IOCC objected on homophobic grounds to gay people appropriating the term, and they successfully sued Waddell. Although dying from AIDS at the time, Waddell was forced into bankrupcy and lost his home. He died in 1987; but his athletic event was reborn as the Gay Games, and it lives on.

    Our whole system of intellectual property, from trademarks to patents, is seriously screwed up.

  4. shibby says

    That he has the trademark is not the issue. He never should have been able to receive it in the first place. He want’s to copyright a logo or “gaymer.org?” Fine. But owning the rights to the term “gaymer” is ludicrous. It’s like trying to trademark the word “twink” or “bear.”

  5. Phillip says

    As a gaymer, I find Vizzini’s attempt to copyright one of my identities absolutely ludicrous. That term has been around much longer than his website, and the ignorance of the US Patent and Trade Office should never have granted him the trademark in the first place.

  6. Simon says

    Strepsi:

    > He clearly has the trade-mark and the right to defend it.

    No.

    The granting of a trademark is, in practice, provisional. Trademark offices don’t spend hours doing exhaustive searches for prior use, they don’t have the resources.

    The idea is: they grant the trademark. If the trademark holder then threatens someone else with it, that person will then do all the research to get evidence on prior use. Using the evidence, they’ll apply to the trademark office to have the TM declared invalid. The trademark office can then look at the evidence and say whether they agree. Less work for them than having to do the research themselves.

    The point is, that a trademark has been granted is not good evidence that it shouldn’t be invalid.

  7. Acronym Jim says

    This is a tricky one. If reddit is using the word gaymer solely to refer to its online gaming community members, but not to offer “computer services, namely….”, they might be fine. On the other hand, the wording “creating online communities” in the trademark registration is problematic and weirdly worded and supports Vizzini’s claims. That one section in the registration may ultimately be struck as being generic. I suspect this may be resolved with a settlement agreement limiting how reddit may use the mark and amending the description of services in the registration.

  8. OddBet says

    Kiwi, I am sure that the gaymer community is mortified that this issue does not meet your standards of importance. Perhaps you could instruct everyone in your lofty pursuit of bettering the world via blogging and commenting?

  9. Caliban says

    Vizzini didn’t invent the word “gaymer,” he trademarked a term that was already in use and is now trying to claim exclusive right to use it, basically taking it away from others. That doesn’t fly.

  10. Bakeley says

    If I’m not mistaken, Vizzini said Reddit could continue to use the term “gaymer” months ago. So why are they sending lawyers after him? Reddit is being the bully here, not Vizzini.

    And why punish Vizzini, who has had the word for something like a decade, when it seems that everyone is annoyed with the government for granting him the word mark? Send lawyers after the government! Don’t penalize this kid for 1) doing everything legally he was supposed to and 2) trying to live the American dream. The whole thing is beyond petty. He let it go! Why be so nasty, Reddit?

  11. Simon says

    > So why are they sending lawyers after him? Reddit is being the bully here, not Vizzini.

    You’re confused. No-one’s sending lawyers after him. The legal petition mentioned is to the USPTO, asking them to invalidate the trademark. /r/gaymers isn’t trying to get the trademark itself, and definitely hasn’t sent a C&D or threatened to sue Vizzini. The only person who’s sent a C&D is Vizzini, to reddit.

    > And why punish Vizzini, who has had the word for something like a decade

    No-one’s trying to punish him. They’re trying to stop him using the trademark to punish /r/gaymers. Invalidating a trademark isn’t a punishment, it doesn’t stop you using it yourself, only from being able to stop others from using it.

    Also, the whole point is that he shouldn’t have been able to ‘have’ a word that people use to self-identify, and have done since long before gaymer.org.

    > Send lawyers after the government!

    That’s exactly what has been done. Didn’t you read the article you commented on?

  12. Lano says

    Thank you Simon! Please everyone, take a minute to study the difference between copyright and trademark. They are distinct concepts and each developed from different aspects of the law.

    BZ, the Olympics case was not a trademark case per se. Rather the mark is protected specifically by statute. 36 USC § 220506. FYI, the IOC has stopped the “Rat Olympics” as well.

  13. Lano says

    BZ, I was wrong. 36 USC § 220506 was a response to conventional trademark cases such as San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee (the Gay Olympics case).

  14. JJ says

    @Bakeley, swooping in and stealing an idea that others invented and used actively and then going behind their back and duping the USPTO into granting you an exclusive right to use said inventors’ idea for your own private profit is a slightly more underhanded, unethical, and fraudulent version of “fair and square” than I’m accustomed to.

  15. E. Manhattan says

    If the word gaymer is used more and more widely, it will send more and more people to gaymer.com – a win win situation for everyone.

    This guy should realize that encouraging more people to use the word is better for him than trying to reduce it’s use!

  16. epic says

    ok some people have some concepts twisted Trademarks are not Copyright(s) and are not Patents…they are all 3 very different areas of intellectual protection rights and while some areas do overlap, they are very distinct…granting Trademarks have no dependence on prior use/exsistance…Trademarks(ie “Just Do It”, three very ordinary words, spoken/written/emoted millions of times before Nike owned it, they still own the trademark/branding), however common usage is considered when granting Trademarks. In 2003 while “gaymer” may have been used in conversation will not exclude someone from trademarking it later in 2007ish once it account value as a brand, especially when for the 4 years prior he owned and operated a website with that very name(or brand) …Trademarks are not Patents prior art does not disqualify granting of a trademark unless it distinctly interacts or interferes with another Trademarked granted before it…nor does simple publication or dissemination of a word or phrase grant some sort of “copy” protection…it all comes down to “Trademark distinctiveness” He was the first and only person to apply for the “Gaymer” mark, as it was in his interest to protect a property(gaymer.com) he had invested in, upon the granting of the mark he is obligated to protect his property when its use is infringed upon, otherwise it could be considered implied consent or equitable estoppel.

    Then there’s the general idiocy that is the reddit user base…sorry you got served, but he had to to protect his mark…sorry you have a poor grasp of Trademark and the rights granted with its application…he owns the brand because he operates a website with that very name, that’s why the USPTO gave it to him…the word’s prior existence does not disqualify his rights and obligations that come with the trademark…dear reddit stop wasting everyone’s time the only people benefiting are the lawyers…everyone else is losing; gays, gamers, gaymers all lose when you try to take something you don’t own, and kick and scream like a petulant child… nobody wins.

  17. JJ says

    @Epic, I think what irks people is that the government has taken a distinctive word that people use to identify themselves and each other in the course of exercising their 1st amendment right of assembly, and asserted the right to grant someone private ownership of that word in a manner that threatens the purpose for which the word was created: for members of the public who identify with that designation to organize themselves around it. If the government has that right, then they can harass any group they disfavor by privatizing whatever marks they use to identify themselves and then going after any services and property they exchange using the marks they invented.

  18. Nolan says

    Should gay.com be able to trademark the term “gay”? If there are documented uses of the term “gaymer” that predate gaymer.org, I don’t see how this should be allowed.

  19. DrunkEnough says

    This is all about denying this guy income, pure and simple. He legally trademarked the word. He got there first. It’s the American way. … He told Reddit it could still use it after all (everyone seems to be ignoring this fact), but that wasn’t enough for the Reditters. Now they want to deny him his livelihood. What’s the difference to them if they’re still allowed to use the word? Just nasty & vicious & petty.

  20. Randy says

    You don’t get to trademark words in everyday use. And if you’re someone like Xerox and your word goes public, that’s too bad for you.

    I’ve heard of gaymers long, long before I heard of gaymer.org (which Chris should trademark instead)

  21. Simon says

    Epic:

    > granting Trademarks have no dependence on prior use/exsistance…

    I’m assuming that’s aimed at me, as I was the one talking about prior use. In any case, it’s wrong. Prior use in the course of trade (in respect of the same type of goods/services) is relevant to trademarks. Not because it’s sufficient to invalidate, as with patents; but because it can be evidence of customary use (use which has become customary in the current language). That *will* invalidate a trademark in the absence of acquired distinctiveness (which in this context would mean evidence that the average person in the relevant area associates “gaymer” specifically with gaymer.org).

    (This is the case in the EU, at least. I’m assuming US trademark law is similar due to Paris, Madrid, & TRIPS. However it may differ, so don’t take any of this as a statement about US law.)

    Nor does it *all* come down to distinctiveness. Lack of distinctiveness is indeed one absolute ground for refusal, but e.g. descriptiveness is another, as is customary use, bad faith, etc. Descriptiveness is pretty relevant here: mashing two descriptive words together may well be descriptive. e.g. In the EU, “biomild” failed, as a mere combination of descriptive elements. (Again: that’s for EU law not US law, I have no idea of what US caselaw says on this). This can also be gotten around by acquired distinctiveness, but gaymer.org hasn’t shown acquired distinctiveness (and probably can’t, their userbase is smaller than /r/gaymers).

    > gaymers all lose when you try to take something you don’t own

    I don’t know where you got this idea that reddit was trying to *claim* the trademark, but it’s nonsense. They’re not, they’re trying to invalidate it.

    DrunkEnough:

    > This is all about denying this guy income, pure and simple. … they want to deny him his livelihood.

    …No. You are confused. His income is from the site. I’m not sure if you’re under the impression that anyone’s trying to shut his site down, but it’s wrong.

    No-one’s even trying to get Vizzini to change his site’s name (which is more than can be said for Vizzini, who was trying to make other sites do exactly that).

    Not having your site’s name trademarked doesn’t stop you running your site. It just stops you stopping *others* from running *their* sites.

    Again: No-one’s trying to punish him. They’re trying to stop him using the trademark to punish /r/gaymers. Invalidating a trademark isn’t a punishment. It doesn’t stop you using it yourself. The *only* thing it does is to prevent you from using it to harass others.

Leave A Reply