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August 12, 2002

BEST OF THE WEB (scroll down) says that Josh Marshall shouldn't be complaining about the Washington Post's use of the name "Talking Points Memo" for a new web feature, because Bill O'Reilly has used it on his show for a few years.

Yeah, but while the term "Talking Points Memo" predates both Marshall and O'Reilly (quaintly, it was once actually used to refer to actual memos containing talking points), Marshall has used it in the context of a web-based political site for quite some time, and it's certainly become identified with his particular product. As a matter of trademark law, that may be enough for Marshall to win.

But regardless of the law (and I'm not a trademark lawyer) what the Washington Post did was downright sleazy, and they deserve to suffer the sanction of social opprobrium. Visit Marshall's long-established weblog (it's even older than InstaPundit!) for his side.

UPDATE: Several readers have written to ask how I can reconcile my "opposition to intellectual property" with my position here. Oh, please. I'm not opposed to intellectual property -- just to the misuse of intellectual property laws to protect industry structure from technological change. That's hardly what's going on here.

ANOTHER UPDATE: Will Vehrs tried to ask about this during Howard Kurtz's online chat today, but for some reason they didn't take his question.