Gaymer v. Reddit
In 2008, Chris Vizzini obtained registrations from the United States Patent and Trademark Office for two marks using the word GAYMER (here’s the word mark, here’s the design mark). Mr. Vizzini founded an online community in 2003, gaymer.org, aimed at fostering communication and friendly competition between gay and gay-friendly video game enthusiasts.
Reddit.com is a website featuring user-submitted content. Reddit is organized into “subreddits” for every imaginable topic, including /gaymers, which features discussion of gay-positive topics related to video games. Both gaymer.org and /gaymers are seen as a refuge for those who object to perceived homophobia in the online gaming community.
Can gaymer.org and /gaymers co-exist?
On September 10, 2012, Mr. Vizzini sent a cease and desist letter to Reddit, requesting that the subreddit be renamed on the grounds that /gaymers infringes on his word mark GAYMER. Many members of the /gaymers community responded angrily, in some case threatening Mr. Vizzini’s business. As in many cases, it’s hard to discern the true sense of the community at large, as it’s common for the angriest and loudest people to attract the most attention. Certainly there are many members of /gaymers who have found friendship and comfort among that community. And I’m the first one to admit that trademark law can be confusing and often seems arbitrary to the non-expert.
Mr. Vizzini responded, in part:
Hello fellow gay gamers. I wanted to address the cease and desist letter that was sent to reddit.
First and foremost, I never asked for the sub-reddit gaymer to be removed. I emailed reddit twice asking that they simply rename the community to something else. They did not respond.
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.
It’s true that a trademark owner must make some efforts to prevent others from infringing on his marks. Failure to do so can, in some cases, be grounds for revocation of trademark rights. However, this is an ambiguous case for several reasons.
First, it seems clear that the term “gaymer” was being used prior to Mr. Vizzini’s applications being filed in 2007. The question is whether the term was being used in commerce as a trademark. Individual use of a term generally does not prevent that term from being used and protected as a trademark, unless the term has become generic for the goods or services in question. One could argue that “gaymer” was, as of 2007, a generic term for a gay person who played video games (although I’d have to see a lot more evidence to agree), but Mr. Vizzini’s marks refer to online social and gaming services. “Gaymer” may have been a generic term for Mr. Vizzini’s intended customer base, but not necessarily for the services themselves.
Another factor to consider is that it’s questionable whether Mr. Vizzini was actually the first to use the mark GAYMER in commerce in connection with online services. Yahoo! has had a “gaymer” group in existence since 2000. Was Yahoo! using the mark GAYMER in commerce prior to Mr. Vizzini? I’m not aware of any caselaw showing that the name of a user-generated online group can show use in commerce by the underlying online service provider. Presumably, if Yahoo! had tried to register GAYMER as a trademark based on the existence of their group, they would have encountered resistence from the community – as would Reddit.
A parallel argument is simply that Reddit is not actually using the mark in commerce themselves. Reddit provides a forum in which users discuss the “gaymer” community. Reddit has not, as far as I can tell, claimed any rights in the mark GAYMER or acted to enforce rights in the mark GAYMER against anyone else. On the contrary, Reddit has subreddits for many well-known brands – for example, http://www.reddit.com/r/disney/. The mere existence of that subreddit does not suggest that Reddit is attempting to use DISNEY as a trademark for its online social communication services. Rather, it’s a forum to discuss topics related to Disney.
I think this argument is the strongest one in Reddit’s favor. Unless Mr. Vizzini can show that Reddit is not only using the term, but using it in commerce as a trademark, his claim is invalid. In the end, this is not a particularly clear-cut issue – which makes it interesting for trademark lawyers, but can lead to understandable frustration among those who value their particular online community.
tl;dr: Reddit is probably not using GAYMER as a trademark, so the owner of gaymer.org may not have a claim against the website.
