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Entrepreneur Support Letter

RE: Entrepreneur Media, Inc., Appellee, v.
Scott Smith dba EntrepreneurPR, Appellant
USCA 9th Circuit Docket # 00-56559

LETTER OF AMICUS CURIAE IN SUPPORT OF APPELLANT, SCOTT SMITH

Dear United States Court of Appeals:

Pursuant to Circuit Rule 29-1, in lieu of filing a separate Amicus Curiae brief, I, Peter Hupalo, author of Thinking Like An Entrepreneur, owner of the small publishing company, HCM Publishing, and President of Hupalo, Ltd., hereby file this letter in support of the appeal of Scott Smith.

HCM Publishing supports the position taken by the Appellant Scott Smith. I urge the Court to grant the appeal of Mr. Smith and reverse the District Court's decision in this trademark infringement case.

As a syndicated, small business columnist and author, I regularly use the common, descriptive and generic word "entrepreneur" to refer to myself and other entrepreneurs. I know many writers serving the entrepreneurial marketplace regularly use this term and the universally understood definition of "entrepreneur" within our trade is the dictionary definition of entrepreneur. No business expert I know makes any association whatsoever between the sole word "entrepreneur" and Entrepreneur Media, Inc.

The primary use of the word "entrepreneur" by the mass media also follows the dictionary definition. If desired, I can provide the Court with overwhelming evidence of the generic use of the word "entrepreneur" by the industry providing informational products and services to entrepreneurs.

The word "entrepreneur" was introduced from the French Language into the English Language because the English Language had no word to denote people who started and grew businesses.

As early as 1901, Richard Ely, writing in An Introduction to Political Economy (text on http://william-king.www.drexel.edu/top/eco/excerpts/Elyxrpt.html), in classifying and discussing the various forces at work within an economy, defined "Entrepreneur":

The Entrepreneur.-- The one who manages business for himself was formerly called an undertaker or an adventurer, but the first word has been appropriated by one small class of business men, and the latter has acquired a new meaning, carrying with it the implication of rashness and even of dishonesty. We have consequently been obliged to resort to the French language for a word to designate the person who organizes and directs the productive factors, and we call such a one an entrepreneur.

The word "entrepreneur" was never intended to be trademarked by the scholars who introduced it into the English Language over 100 years before Entrepreneur Media, Inc. existed. Rather, the word was introduced into the language to allow the free discussion of business and political economy.

Because the word "entrepreneur" is a generic reference to small business providers of goods and services, it is impossible for the word "entrepreneur" standing alone to be an acceptable proprietary reference to any single company.

Consider an example. Before its bankruptcy, thestandard.com com was the leading publication featuring internet companies. They regularly ran a feature called Entrepreneur Spotlight (www.thestandard.com/article/0,1902,28164,00.html one representative feature) which featured entrepreneurs. "Entrepreneur Spotlight" demonstrates the impossibility of distinguishing between generic use of "entrepreneur" and any claimed proprietary use of "entrepreneur" by Entrepreneur Media, Inc. The generic use clearly means "A spotlight on Entrepreneurs" or "A feature of an entrepreneur." However, if "entrepreneur" were deemed a valid trademark of Entrepreneur Media, Inc. , a media company serving entrepreneurs, and not ultimately cancelled, such generic use could be misinterpreted to mean that Entrepreneur Media, Inc. provides the spotlight feature.

As another example, consider the business article titled National Survey Shows Slight Slip In Entrepreneur Confidence (http://nashville.bcentral.com/nashville/stories/2001/08/27/story4.html) which surveys entrepreneurs to get their confidence in the economy. Such use clearly shows a generic use of "entrepreneur" along the lines of a class or subclass or subgrouping of society.

The "incontestability" of Entrepreneur Media, Inc.'s trademark of "entrepreneur" is not the issue. Genericness is the issue. Incontestable trademarks can be cancelled due to genericness and generic words within an industry cannot be captured by a company by promoting them as proprietary references.

Today, understanding the dictionary definition of "entrepreneur" is, in fact, considered a measure of basic economic literacy within the American population.

The National Council On Economic Education (http://www.ncee.net/poll/results.html) has The Standards in Economics Survey which "... was designed to evaluate adult and student understanding of the Voluntary National Content Standards in Economics, developed and published by the National Council on Economic Education). This economic literacy survey concludes (among other conclusions, Part III. Factors Pertaining to Production):

Students are much less likely than adults to be familiar with the definition of an entrepreneur, but just as likely to understand the concept of scarcity.

Three out of four (76%) American adults, compared with three out of five (58%) high school students, are aware that a person who starts a business to produce a new product in the marketplace is known as an entrepreneur.

One in four (26%) students does not know whether someone who starts a business to produce a new product in the marketplace is a manager, a bureaucrat or an entrepreneur.

In addition to referring to an individual who starts a business, it is important to note that "entrepreneur" refers to an entire customer market, i.e., the marketplace of people starting businesses or people who contemplate starting a businesses. A trademark of the word "entrepreneur" by a company serving entrepreneurs is a trademark of the generic name of an entire niche market and would seriously impede competition in selling products and services to people starting a business.

For example, there are hundreds of book authors who use the word "entrepreneur" in their book titles. They do this to indicate that the book is targeted to entrepreneurs, relying upon the widespread understanding of the dictionary definition of "entrepreneur." These authors have no devious intention of making any claimed association to Entrepreneur Media, Inc. Rather, they are just using the best word to describe their target market.

I do not believe that Entrepreneur Media, Inc. has the right, pursuant to 15 U.S.C. 1051 et. seq., to enjoin Mr. Smith or anyone else from using the word "entrepreneur." This is not a complex or subtle aspect of trademark law. It is simple. One, a word in common, generic use within an industry cannot also be held to be a valid trademark within that industry. Two, the word "entrepreneur" is clearly in common, generic use within the industry of selling books, informational products, and services to entrepreneurs. Three, all trademarks held by Entrepreneur Media, Inc., a media company serving the entrepreneurial marketplace, of the single and solitary word "entrepreneur" should be cancelled, and, therefore, Entrepreneur Media, Inc. has absolutely no legal justification whatsoever for attacking Scott Smith's use of "EntrepreneurPR."

I am very concerned about this case. The decision of the District Court granting a judgment, damages, and an injunction against Mr. Smith sets a very dangerous and unacceptable precedent. We cannot allow larger companies to capture words that are well-established within the public domain and claim them as proprietary rights. We cannot allow one market participant to trademark a common, generic word within an industry and then selectively "protect" those trademark rights by attacking financially weaker competitors, while at the same time ignoring widespread "infringement" by larger competitors. We cannot allow trademark law and the legal system to be misused in an attempt to create a monopoly and engage in unfair competition against smaller competitors.

Therefore, I respectfully request that the Court consider this letter, filed in support of the position of the Appellant Scott Smith, and grant Mr. Smith's appeal by reversing the District Court's decision.



Sincerely,




Peter Hupalo,
Entrepreneur,
Author of
Thinking Like An Entrepreneur
President, Hupalo, Ltd.



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