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Facebook Inc. recently filed more than 10 applications with the USPTO a few months ago to register its “Like” button and the word LIKE.
The applications have all been denied initially due to conflicts or potential conflicts. Following a “letter of protest” filed by TiVo, the button has been refused registration. (TiVo owns registrations for use of the ‘thumbs up‘ and ‘thumbs down‘ symbols.)
In addition, applications filed earlier for ILIKE which cover, among other things “Internet based introduction and social networking services” and and an application and registration for LIKE, owned by Like.com, block many of the Facebook applications.
Has Facebook overreached in this attempt? I certainly support protecting a wide variety and extensive amount of intellectual property to add value and stop others from infringing it. But even if Facebook were somehow able to obtain a trademark registration for LIKE or the Like button, it would – in my opinion – be virtually impossible to enforce. LIKE is common word, likely used by many websites (and many people) to note something with approval. And ‘thumbs up’ is also very common way to express one’s approval of something. The Facebook “LIKE” effort smells a little like Subway’s footlong trademark efforts!
If LIKE is not generic, does it function as a trademark to identify the source of the services? My instinct is that it actually does function – that the combination of the button, the image, the color and the text create enough of a mark that when users see it on a website, if they are familiar with Facebook, know what clicking the button will do, namely lead to a connection with Facebook software to tell others that they recommend the page or post. If the LIKE button is not generic, perhaps is has acquired distinctiveness as a mark? If it is approved by the USPTO, perhaps competitors will oppose it in order to ensure that they will be permitted to use the word “like” when allowing users to make referrals.
Adding interest to the efforts to protect LIKE is the fact that Google last week acquired Like.com. See news story here, which ironically has a Facebook “Like” button on it. Or see another story on it featuring PCWorld.com’s thumbs up and down buttons.
Bottom line: I think in the end Facebook likely could register the LIKE button design upon showing acquired distinctiveness – only if it first overcomes the confusion issues, perhaps with a consent agreement. But the word LIKE itself I think is generic and/or fails to function as a trademark. And any registration received for the word LIKE or the button will be very difficult to enforce, and may be opposed by competitors trying to make sure Facebook cannot try to muffle their use of the word “LIKE” or the ‘thumbs up’ symbol.
Here are Facebook’s LIKE trademark applications (click for link to USPTO.gov data):