It's worth posting this to the Chilling Effects Clearinghouse at <a href="http://www.chillingeffects.org/" rel="nofollow">http://www.chillingeffects.org/</a> (go to <a href="http://www.chillingeffects.org/input.cgi" rel="nofollow">http://www.chillingeffects.org/input.cgi</a> to submit). They're run by the EFF, so they are indisputably The Good Guys.
IANAL, only an entrepreneur, but this should surprise no one even passingly familiar with trademark law. Failure to enforce your trademark's registration can expose you to claims that your mark is no longer "in use." Sure, this guy might be 100% innocent, but it won't matter when someone less innocent comes along and uses the fact Tumblr didn't enforce their trademark against this other guy to be annoying.<p>It's easier to just shoot an email to your attorneys and have send a C&D than it is to enter into a more protracted, <i>ad hoc</i> conversation. It costs virtually nothing to do this. Some associate at the firm types it up using one of a bajillion templates, sends it out with a partner's name attached, and bills the client for <30 minutes worth of time.<p>You, too, can hire an attorney and pay them a few hundred dollars to reply! Or you can try replying yourself.<p>C&Ds are not legally binding, of course, and the recipient can choose to comply, respond, or ignore as they see fit. Because of how trademark law works I wouldn't recommend "ignoring" since the complaining party is pretty much obligated to escalate matters.<p>For example, a friend of mine created a parody website of a world-famous newspaper and predictably received a C&D. This was more than just the trademark: it repurposed content, used the same typefaces, mimicked the same layout, etc. They agreed to let him use it after he replied and agreed to include a prominent disclaimer up top stating that "<Newspaper> trademarks used with permission of <Newspaper Corporation>" and explaining that this was a parody.<p>I don't know if the OP tried to do this, but I will say turning to the "court of public opinion" as a first course of action makes this outcome somewhere between incredibly unlikely to impossible.<p>Tumblr isn't trying to be evil -- you're using <i>their</i> name, after all -- they're just trying to take care of it in the most time-efficient manner possible. The #1 most time-efficient manner is sending a C&D. For folks whose infringements are minor and inconsequential, it's likely that the #2 most time-efficient manner is to let them use the name in the domain with a prominent disclaimer and an explicit, albeit revokable, license.
Looks like this was a quick semi-joke website. If Tumblr didn't like what message it sent (which is understandable) ... they could have started with a simple email to the guy. Heck, they probably could have just asked him to change the messages so that it was slightly less snarky. If he didn't want to play ball, then sure ... C&D away. But what happened to plain old being nice?
I sympathize with the author and his concerns about Tumblr's disregard for its users.<p>Having said that, companies have a legal responsibility to take "all steps necessary" to protect their trademarks. Unfortunately, this responsibility sometimes requires them to engage in seemingly nit-picky litigation.<p>An excerpt from chillingeffects.org [1]: <i>If a trademark owner fails to police his or her mark, the owner may be deemed to have abandoned the mark or acquiesced in its misuse. A trademark is only protected while it serves to identify the source of goods or services.</i><p>I'm not saying that IsTumblrDown had negative intentions or that it blatantly obscured Tumblr's brand; I never had a chance to use the site, so I didn't see how the name was incorporated into it. I'm just saying that firms like Tumblr are sometimes under external pressure to be aggressive in enforcing their trademarks.<p>[1] <a href="http://chillingeffects.org/trademark/faq.cgi#QID418" rel="nofollow">http://chillingeffects.org/trademark/faq.cgi#QID418</a>
They've sent a retraction: <a href="http://istumblrdown.com/retraction/" rel="nofollow">http://istumblrdown.com/retraction/</a>
> Failure to enforce your trademark's registration can expose you to claims that your mark is no longer "in use."<p>Is that actually true? Has such a thing ever really happened in a situation like this?
The site was more opinionated than your typical "isup.me" style site, so while I can't justify the C&D I can at least understand the motivation a little bit more.
Missing E's warning is to indicate that using a third party plugin to alter the sites behavior - which is constantly being improved and worked on - could have negative effects. If something breaks due to Missing E not working with an update that gets pushed out, then disable Missing E. Check the first page of the Missing E blog, and almost every post is regarding an update due to Missing E breaking in some way due to incompatibility. Seems pretty straight forward to me?
I wonder if this is a case of them requiring by law to defend their trademark, though then I wonder why they can't just license it for $1 per year for the exact use currently being used - so you can't then just go get a license and change everything to be different..
Having yet to see the C&D, the mostly likely reason for this would be utterly boring but entirely rational trademark enforcement/infringement. Odds are, a human only signed the letter without so much as reading it or asking anyone in management for a second opinion.
Alternative: run your own Smokeping server, as I am here (give it some time to populate the data):<p><a href="http://zen.ae7.st/smokeping/?target=Internet.Tumblr" rel="nofollow">http://zen.ae7.st/smokeping/?target=Internet.Tumblr</a>