Nigerian Classifieds : competition or content theft?
It has been a long time and well I have been quiet busy trying to make a living. I woke up on the right side of the bed and decided that, I should start blogging again. I do hope this would be for good.
A lot has happened since the last time I blogged, but today, I can’t help but mention a very interesting development in the dotcom industry in Nigeria. Two start-ups were launched, providing the same solution and that not been shocking enough, registered using a similar name or rather the same name with an addition of “S”.
I present to you nairalist.com and nairalists.com. Nairalist.com was registered on 25-Dec-2008, on Christmas, while Nairalists.com was registered a month or so later on the 01-Feb-2009.
Nairalist.com which was the first to launch uses a craiglist inspired concept to present classified advertisement targeted to Nigerians and friends of Nigeria; it was developed by Seun Osewa, the owner of the Nairaland forum.
Nairalists.com which surprisingly was launched one month or so later, presents the same concept, a similar name, and an aggregated content from Nairalist, launched with an improved version of Nairalist.com with also a similar presentation style. This move was really shocking not only to the community but to the owner, who launched a legal campaign against the founder.
The question that plagued my mind then was, Did Nairalists.com infringed the copyright protection of Nairalist.com? It was apparent that the community contributed content was aggregated, but that act in particular is questionable; as Nairalist.com does not own the content submitted by its members.
What then was the crime commited by Nairalists.com?
I discovered that Web pages fall under the concept of “Trade Dress” . This concept refers more broadly to a product’s physical appearance, including its size, shape, texture, colour(s), graphics, and other characteristics.
The U.S. Supreme Court established the standard a person wishing to protect certain trade dress must demonstrate to win in court.
1. First, the trade dress must be distinctive, either because it is inherently distinctive, or because it has acquired distinctiveness over time through public recognition.
2. Second, the trade dress must be non-functional.
3. Third, and finally, the trade dress of the defendant (person being sued) must be likely to cause confusion as to the source of the product or service.
4. Whether a Web site is inherently distinctive would seem a judgment call. Most Web site designers are shooting for a unique look, yet, that can make it easier, or harder, for any one site to stand out.
For popular Web sites this will be of less concern, for they may acquire distinctiveness, that is, recognition by the public, through their popularity. Many of us, for example, might recognize immediately the Yahoo or E-bay home pages.
The requirement that trade dress must not be functional looks at its impact on the competition.
Source:Can I trademark my Website
Now where does Nairalist vs Nairalist fall? (Below is the script of the conversation I had with an American attorney at Traverse Legal)
Brian Hall:
How May I help You?
Kayode Muyibi:
I am writing an article about two websites, and I was wondering if I can ask a few questions regarding trademark?
Brian Hall:
sure
Kayode Muyibi:
The subjects are www.nairalist.com vs nairalists.com
Kayode Muyibi:
Nairalist.com began a classifieds site , a month later nairalists.com was registered by another party for a similar service
Kayode Muyibi:
Now the question is, does Nairalists.com infringe any copyright or trademark law?
Kayode Muyibi:
Do note the difference in the names, as in the “s” that follows in the Nairalists
Brian Hall:
it depends, domain name rights are directly tied to trademark rights. If the owner of nairalist.com can establish trademark rights (either registered or common law) then the registrant of nairlists.com may be cybersquatting
Kayode Muyibi:
Then where does the trade dress clause apply?
Brian Hall:
Trade dress usually does not apply in domain name matters
Kayode Muyibi:
It applies to websites design? aesthetics?
Brian Hall:
it may, but those items tend to be considered as part of trademark infringement and the overall likelihood of consumer confusion analysis
Brian Hall:
trade dress is more akin to the particular packaging of a good, or architecture of a restaurant, etc.
Kayode Muyibi:
if a consumer confusion argument can be made, does nairalist have a case?
Kayode Muyibi:
1 month?
Brian Hall:
Again, it depends, what does nairalist mean? how long has it been used in commerce? are there third party fair uses of it in a descriptive or generic sense? these are the types of questions to consider
Kayode Muyibi:
yes, they have the same services but a little differences in their features.
Brian Hall:
1 month is an awfully short period of time to establish common law trademark rights under us law
Brian Hall:
we assess matters like this daily, identify the case law and provide a more detailed recommendation if you are interested in the future
Brian Hall:
good luck
Kayode Muyibi:
Thank you for your time. Thats about all for now.
My Thoughts
I am not a lawyer, but it doesn’t take a lawyer to understand that Nairalist.com does not have a case against Nairalists.com. But What do you think? Let me Know through your commentary.
About the author:
Entrepreneur, developer and a passionate business developer with experience in business automation and internet businesses. I am behind a few start-ups and love to work and partner with people across the globe . I can develop applications using PHP / MySql and .NET, VB / MSSQL.
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March 14th, 2009 at 1:45 AM
Well,
Considerably, NairalistS.com did not only provide a service similar to Nairalist.com but also stole contents from Nairalist.com
I personally noticed that my post was copied from Nairalist.com to Nairalists.com without my consent. I never wrote to Nairalists.com but found my adds copied there. (Can you imagine!)
Nairalists are thieves and need to be shutdown!
March 14th, 2009 at 1:49 AM
he that buys the trademarks first will win the case and he that innovates more and can get more attention and provide a better service will win the market.
my2cents
March 14th, 2009 at 1:56 AM
@Ahmad
I have a few questions for you, why did you create a post on a classified site?
How do you define content theft? Is it When the creator of that content says that his content are for Nairalist.com only?
or Is it when the creator doesn’t say anything about his content, and creates that particular content with the un-mentioned assumable intent of publicising and a possibility of re-distribution and re-publication due to the nature of the content (classifieds or ads)?
I really would like to know? This is because the content of Nairalist.com was created with the intent of publication and redistribution and its not an “art work” and only the author of the content created (the ads) can scream “theft”, like you just mentioned. Otherwise, I really don’t see any crime been committed.
I personally wouldn’t mind my classified post been re-published in many sites. That is what many job aggregators do by the way.
March 24th, 2009 at 3:39 AM
Thanks, Ahmad.
Ethics is not something that can be taught to an adult. Either you know the difference between right and wrong, or you don’t.
Some people just don’t.
March 24th, 2009 at 3:53 PM
@Seun Osewa, thanks for visiting, Not everything is personal you know. All the best with Nairalist by the way.
April 3rd, 2009 at 11:49 PM
Ownership of content will depend on the site terms, on Gumtree and Craigslist it’s stated that the duplication of the content without permission is prohibited i.e. the advert placer assigns these rights when he/she places the advert.
@kazey journal
If Nairalist+s.com was an aggregate site then it will link back to the original content owner and not pass off the advert as theirs.
Let us call a spade a spade, this is wrong. Maybe I should start publishing your blogs as mine and not giving you any credit, will you like that?
If this is not illegal then at best it is immoral.
April 4th, 2009 at 12:16 AM
@Kay,
Thanks for visiting, and where is the terms or copyright protection on Nairalist?
I think you got it all confused. Please do put my raised points into context. I clearly stated that the type and nature of thecontent is important.
Yes you can republish my blog with my name at the bottom, its acceptable.
Nairalist does not own the advertisement on the site, its a platform for broadcasting advertisement. The owners of the content, i.e the advertisers, did not sign any agreement on how their advertisement should be published or how it should be used, rather its presumed that the intent is for public consumption.
If anybody thinks its perhaps a “dirty” approach to competing, I agree, but saying it is wrong without valid points, I don’t agree.
Ethics do have value and societal standard clauses, and when the clauses are not defined, or cannot be defined, there brings about the birth of subjective conclusions and debate, such as what is wrong and what is not.
April 4th, 2009 at 1:13 AM
You are right about the fact that the users did not sign any agreement and I think it’s important that the owners of Nairaland.com put an agreement in place so they can defend their website.
The internet is a new one with regards to copyright and trademark but I believe with time, some of these will eventually be implied.
Lets be clear this is not competition, it’s outright content theft, the only problem here is that Nairalist.com can’t scream thief! Only the advertisers can do that.
A dirty trick will be emailing Nairalist.com users using the email addresses on the site, that I can accept but not theft and passing off.
By the way, where is the link to your copyright on your website? I see no reason why I should put your name below “my new blog”
April 4th, 2009 at 1:18 AM
My bad I meant Nairalist.com.
April 4th, 2009 at 1:39 AM
You still cast a blind eye on my point. The nature of the content is important.
Your idea of content theft could be argued as aggregation of content, just like news sites, and job sites do.
My blog has my personal written work and they are protected by default and the intent of my publication cannot be confused to one of a classified advertisement website which just publishes submitted advertisements without any written terms etc.
April 4th, 2009 at 2:38 AM
It can be argued that by default Nairalist.com owns the content, we can go on and on about “by default”.
Aggregation sites link back to the original site or give credit, this is THEFT, call it what you like.
The bottom line is this, this individual set up his site with the intention of passing off as Nairalist.com or associating with Nairalist.com.
If he had set up Nairalists.com and sought his own advertisers then there will be no passing off as Nairalist.com is still new.
I don’t mind competition, in fact we need it on the web in Nigeria, but this is wrong.
October 25th, 2009 at 11:38 PM
I admire what seun is doing with both nairaland and nairalist, but sometimes seun baffles me with his comments which shows he’s a little scared of competition. Talking of stealing contents i think that is a baseless acusation, remember there are countless softwares for building different types of websites, for example, if i built a forum site with the same software that seun used in building nairaland, would you accuse me of stealing his content? Simply bcos i share same site interface and layouts with nairaland? Seun, instead of getting personal with issues like this, i believe you should channel your energy more on how to grow further, and this type of environment will make you grow…