Will Entrepreneur Media Challenge The World's Greatest Entrepreneur For Daring To Use The Word "Entrepreneur"?
It was bound to happen. Microsoft, the giant software company founded by Bill Gates, is rolling out a new software program for small businesses, named Dynamics Entrepreneur Solution 2008. The program will challenge Intuit, Peachtree, MYOB, and other small business accounting and enterprise resource planning software. More powerful than entry-level accounting software, Entrepreneur also covers marketing and finance.
As reported in TechNews.com: "Microsoft said that Entrepreneur itself was more than just a scaled-down version of Dynamics NAV and had been specially developed for small businesses, particularly in terms of cutting back on the need for users to heavily customize the software." The software is, quite naturally, targeted to entrepreneurs, specifically companies with fifty or fewer employees.
Entrepreneur Media, Inc., the publisher of Entrepreneur Magazine, claims ownership of the word "entrepreneur" when used to market software for entrepreneurs. Entrepreneur Media, Inc., has threatened smaller entrepreneurs with lawsuits when they dared to create software with "entrepreneur" as part of their title.
Under threat of lawsuit, the entrepreneur who created the game "Entrepreneur" about entrepreneurship was forced to change its name. Who can afford to spend $2 million in trademark litigation to defend the right to use the public domain word "entrepreneur"? Not your average entrepreneur.
Entrepreneur Media, Inc., has argued use of the word "entrepreneur" within a software title violates Entrepreneur Media, Inc.'s trademarks of the word. Will Entrepreneur Media, Inc., send the world's greatest entrepreneur a cease-and-desist letter threatening legal action unless Microsoft ceases to call its new software "Entrepreneur"?
Entrepreneur Media, Inc., claims the word "entrepreneur" has acquired distinctiveness within the world of entrepreneurs and potential entrepreneurs. This means that when the entrepreneurial market hears the word "entrepreneur," they instantly think of the company Entrepreneur Media, Inc., or Entrepreneur Magazine. The don't think of the dictionary definition. They don't think of somebody who's starting a business.
Ironically, among the real entrepreneurs of the world, there is almost certainly a much higher secondary-meaning-sort-of-relationship between the word "entrepreneur" and Bill Gates than there is between Entrepreneur Media, Inc., and the word "entrepreneur."
Bill Gates is described as the World's Greatest Entrepreneur, The Greatest Entrepreneur of All Times, and A Famous Entrepreneur. Entrepreneur Magazine, itself, has described Bill Gates as Entrepreneur Of The Millennium. He's the big Kahuna of entrepreneurs.
Scoring a whopping 1590 of a possible 1600 on his SAT and today known as one of the world's greatest philanthropists, Bill Gates is the richest man in the world. And, he's achieved it through entrepreneurship. Today, he's fighting world hunger and infectious disease throughout the world.
If you were to ask many entrepreneurs the question: "When you hear the word "entrepreneur" which individual or company do you most think of?", the answer would often be Bill Gates. If you were to ask the person to think "software," even a higher percentage of entrepreneurs would associate the word "entrepreneur" with Bill Gates.
What about the association between the word "entrepreneur" standing alone and small business software? Where would Entrepreneur Magazine rate in consumer awareness as a provider of business software or entrepreneur software? I think it's fair to say Entrepreneur Media is relatively unknown in the software world--if not totally invisible. Entrepreneur Media isn't a big player providing quality software to serious entrepreneurs. They don't do enterprise management. Many entrepreneurs would scratch their heads and say, "Entrepreneur Magazine produces business software? I didn't know that."
It's true. They do. They have Business Plan software. I looked it up. Many companies offer software for creating basic business plans. It's not rocket science. In a few days, I could throw together basic business plan software. There are many quality programs in the market.
Given that Entrepreneur Media, Inc., is basically unknown in the business software world, how were they able to demonstrate acquired distinctiveness to the United States Patent And Trademark Office (USPTO) for the word "entrepreneur" when describing computer programs for entrepreneurs?
I looked up Entrepreneur Media, Inc.'s early trademark for class 009 products, computer programs. Examining Trademark Registration Number 73537579, it becomes clear Entrepreneur Media, Inc., never provided any proof of acquired distinctiveness for the word "entrepreneur" with respect to class 009 goods. They somehow snookered the USPTO into believing the word "entrepreneur" when used to describe software for entrepreneurs was not descriptive. It was inherently distinctive! Most of us immediately would understand "entrepreneur software" to be software for entrepreneurs. It's obviously software related to entrepreneurship and starting and running a business.
Henry Bissell, Entrepreneur Media, Inc.'s attorney wrote:
"The Trademark Attorney's comments regarding mere descriptiveness of ENTREPRENEUR as registered in Registration No. 1,187,239 can only be applicable to the goods of Class 16. Applicant respectfully traverses the statement in the Office Action to the effect that applicant's computer programs highlight and pertain directly to the activities and aspirations of the individual business entrepreneur. This is an erroneous conclusion without basis in fact. The uses of applicant's computer programs are broader and much more varied that that. Applicant's computer programs are directed to the specific utilization of VISICALC TM spread sheets which may be used by anyone from students to accounts without requirement that they be "individual business entrepreneurs. ..."
Wow. Traverses means denies. Entrepreneur Media, Inc.'s attorney denied their software pertains to "the activities and aspirations of the individual business entrepreneur." In other words, they argued their use of the word "entrepreneur" wasn't descriptive. How did their attorney keep a straight face when he wrote that!?
A good laugh is important. And, it appears Entrepreneur Media, Inc., is in a bit of a pickle, needing to send a cease-and-desist letter to the world's greatest entrepreneur and the richest man in the world for daring to use the word "entrepreneur." So, I've decided to help Entrepreneur Media protect their valuable goodwill. I'll create a cease-and-desist letter for them. Of course, this letter is just a spoof. It's not serious. And, I made up the name of the software program mentioned within the letter. Enjoy.
SPOOF: A possible draft of cease-and-desist letter for Entrepreneur Media, Inc., to send Bill Gates for daring to use the word "entrepreneur":
Dear Bill Gates, Founder of Microsoft:
It has come to our attention that your company has recently created a product named Dynamics Entrepreneur Solution 2008. Your product is software designed to help entrepreneurs with their accounting and management problems.
Entrepreneur Media Inc., objects to your use of the word "entrepreneur" because your product clearly targets our market--entrepreneurs. Your use of the word is a clear infringement of Entrepreneur Media's trademarks of the word "entrepreneur." The word belongs to us. Leave it alone.
Our rights are solidly grounded in legal minutiae. Back when you were founding Microsoft and inventing the computer industry, our founder Chase Revel trademarked the word for use in selling franchise business opportunities.
Today, our famous trademarks (by the way, in case you don't know who we are, Entrepreneur Media, Inc., is the publisher of Entrepreneur Magazine) encompasses all areas of information--including exclusive rights to create and promote software for entrepreneurs using the word "entrepreneur."
Our bestselling software product, Chinchilla Entrepreneur 3000, helps home-based Chinchilla farmers track their inventory and estimate profits. Clearly your attempt to market software named "Entrepreneur" is a blatant and willful attempt to profit from the goodwill of our trademarks.
Please be advised that if you do not cease-and-desist from calling yourself an "entrepreneur," Entrepreneur Media, Inc., will consider legal action to protect its valuable intellectual property--our word, not yours, entrepreneur. Thank you.
Big-Wig Trademark Attorney
Entrepreneur Trademark Update 11-1-07