Why Take a Stand?
Commentary

Please refer to the related article in this edition: “MHEA Files Amicus Curiae Brief”

“Stand up and be counted”. “The world belongs to those who show up”. “Either you are part of the problem or part of the solution”. And one of my personal favorites by Edmund Burke, “all that is necessary for the forces of evil to win the world is for enough good men to do nothing”.

That said, MHEA decided to let its voice be heard on the EMI vs. Scott Smith (EntrepreneurPR) matter which is back on appeal for the 2nd time in United States Court of Appeals for the Ninth Circuit. This case is essentially about the trademark, usage, and potential monopoly of the word “entrepreneur”. This case is important for at least two reasons:
1) It could affect any business, organization, or publication which uses the word “entrepreneur” in its name or title including MHEA and many others around the country and around the world.
2) It could affect or influence the outcomes of future cases, laws, or regulations on the granting, use or defense of trademarks on “words in common usage” such as the word “entrepreneur”.

I refer to a recent quote from the Wall Street Journal and others:
" When [intellectual property rights] are too easy to get and hold onto, they become a weapon for would-be monopolists and their well-paid lawyers to increase profits rather than a reward for innovation. People get [intellectual property rights] who don't deserve them, and then others wield those [intellectual property rights] in what is close to legalized extortion."
David Wessel
Deputy Bureau Chief
The Wall Street Journal, Dec 11, 2003

“Somebody claims to own the trademark to "entrepreneur." What's next, copyrighting the alphabet? Patenting sex?”
Tongue Tied, Forbes Magazine
March 20, 2002

“Be careful if you use the word "entrepreneur." You might get sued.” “So you can call yourself an entrepreneur, but if you want to include the word in the name of your business -- particularly one in publishing -- look out.”
Christine Van Dusen
The Atlanta Journal-Constitution, August 20, 2003

“Think twice before telling anyone you're an entrepreneur — you just might get sued.” “Entrepreneur Media Inc., the Irvine, Calif.-based publisher of Entrepreneur magazine, owns a trademark on "entrepreneur" and has been enforcing it against firms using the word in periodical and website titles. Targets have included Asian Entrepreneur, Publishing Entrepreneur and The Entrepreneur, a newsletter produced by Carnegie Mellon University.”
“ Who won? At press time the decision was pending. But the real question for other ... er, entrepreneurs ... is whether their innocent moniker could attract legal attention. Could Gardening Joe trademark "gardening" and then sue Jim's Gardening? Could Shingle Depot sue Shingle Land?”
David Menzies
Profit Magazine, June 2003

Very powerful words from reputable sources. This is a real issue which has and continues to affect real entrepreneurs and those who support them.

I spent eight weeks of intensive work from mid November - mid January becoming acquainted with the case; with the previous court decisions; with the previous Amicus Curiae Brief filed by the California Small Business Association and the California Small Business Roundtable in 2000; with the pertinent trademark law; with related issues such as differentiation and levels of protection; and how this decision has affected numerous parties who have (or had) the word “entrepreneur” in their name or title. I also obtained Minnesota and California counsel essentially pro bono to work on this case on an expedited basis on behalf of MHEA.

With all of this involvement, I have learned a few things. I know I don’t want to be an attorney when I grow up. I did learn how very serious this case is and how it may affect MHEA and many hundreds - perhaps thousands of other entities. I also learned how relatively easy it can be to gain a trademark and how relatively difficult it can be to defend it. Another lesson also became clear - a lesson many of us have read about or observed in the business world. Often times, the victor or the victory is not based on merit, fairness, logic, common sense, or the best interests of the many. Often times, it is based on how much money, how many lawyers, and how much ego an entity has with regard to an issue or case. We have all heard the term “the 800 lb. gorilla”...and the joke, “what do you feed an 800 lb. Gorilla? Whatever he wants”.

So, why take a stand?
To date, MHEA is the only entity who has filed an Amicus Brief in this, the fourth round of the case. So, if MHEA did not take steps to be heard in the 2nd appeals case, who would have? Who knows what the outcome will be? Who knows where it may go from here? I’m told that the case may eventually be heard by the United States Supreme Court. Perhaps this case may address the (apparent) weakness and lack of clarity in trademark law especially with regard to the use of “words in common usage” in names or titles.

I plan to submit an article which contains much of the research and background I obtained with this issue that did not find its way into the Amicus Brief. The Brief itself will soon be submitted for posting on a web site which is tracking the case. I hope the MHEA Amicus Curiae Brief and the article are accepted and posted for public review. Please visit http://www.entrepreneur.net for copies of official court documents and background on the case. Let’s see what happens and whether MHEA’s Brief assists the Court of Appeals in its decision.

We owe our deepest gratitude to MHEA’s Minnesota counsel, M. Gregory Simpson of Siegel, Brill, Greupner, Duffy & Foster, P.A., Minneapolis, MN. and to MHEA’s California (and Ninth Circuit) counsel, David Barry of Barry & Associates, San Francisco, CA.

This commentary are my personal opinions and observations accumulated since my initial involvement with this case on behalf of MHEA in mid 2001.
Ron P. Wacks
President, Minnesota Homebased Entrepreneurs Association
http://www.mnhomebiz.org
Co-chair, Minnesota Small Business Expo & Conference
http://www.smallbusinessexpo.org
2003 US SBA Home-based Business Advocate of the Year for the Midwest Region