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David and Goliath

Chris Ashworth
February 4, 2014

Yesterday, the company FiftyThree wrote an open letter to Facebook.

Facebook, if you didn't know, just released a beautiful app called Paper. The trouble is FiftyThree already had a beautiful app called Paper.

This is, most of us seem to concur, a jerk move by Facebook.

Even the New York Times weighed in, describing the developing narrative as a classic case of David versus Goliath: A tiny, 34-person startup facing down a 6,337-employee behemoth.

All of which it is. It is a story of David and Goliath, and it is a jerk move by Facebook. And it is also, as it turns out...

More Complicated

Hi. My name's Chris. Eight years ago, in 2006, I founded a company called Figure 53. We make tools for artists. We spend our days building products for OS X, iOS and the web. These products help creative people make beautiful things. Our flagship product is a tool for playing audio and video in live performance settings. It has, over the last eight years, become a de facto industry standard for Broadway, Off-Broadway, regional, community, and educational theater. Virtually anyone who's seen a play in the United States in the last eight years has seen or heard our software at work. Hundreds of thousands more outside the U.S. We make other tools for artists as well, including a ticketing product that's seeking to disrupt an unglamorous but very important area in which patrons and performance venues interact. Our software solves complex problems for creative people; not just for our customers, but for their customers.

It's a super fun gig. We love it.

We're a small company. I started alone. I worked nights and weekends from my Baltimore apartment. Eventually, we grew to our current size: 8 people. We're small, but we've helped make a lot of art. I'm proud of that. 3 billion people have heard or seen our work, through the artists we serve.

So it was with some concern when two years ago, in 2012, I noticed a new company named FiftyThree. A company with a strikingly similar name to ours, making software for artists.

Interlude: Bias Alert!

In a story about the complexity of stories, I feel duty-bound to point out how very biased I am about the one I'm telling now. I'm going to try my hardest to be fair. Part of being fair is empathy for the position of others. Another part of being fair is standing up for ourselves, too. I'm going to try for both. Hopefully it works. Cool? Cool. Okay, back to...

What happened when I reached out to FiftyThree

About a year ago, I wrote to Georg Petschnigg, CEO of FiftyThree, and asked if we could set up a co-existence agreement. They are doing beautiful work over there. It's hard to make things that beautiful, and they're doing a bang-up job of it. I want to see the things they will make for the world.

We, meanwhile, are doing our best to do good work over here. We've been doing it longer than they have, and people say nice things. The risk is that people start getting confused about which company is doing which products. I don't think either of us want to confuse anyone, but the devil is in the details of how you accomplish that.

So I reached out to Georg, and proposed that, in essence, if they keep doing specifically the kind of things they're doing now, we're cool with that, and we don't think it's going to be the end of the world. And Georg said, in essence, they like that idea too.

But the part that bummed me out is that, after agreeing to this idea in principle, we got back something very different, which essentially said: "we can do just about anything we want, including the kind of stuff you're doing".

Specifically, they proposed:

Computer graphics software; computer hardware and computer programs for the integration of text, audio, graphics, still images and moving pictures into an interactive delivery for multimedia applications; computer software to enhance the audio-visual capabilities of multimedia applications, namely, for the integration of text, audio, graphics, still images, and moving pictures.

And we said, essentially: "Wait, that's actually not okay. That's basically an exact description of what we do. If that's really what you plan to do, we actually do need to ask you to stop using a confusingly similar name."

About this time, we also noticed that FiftyThree had applied for a trademark with the same language as they proposed for our co-existence, and the trademark office had been of the same opinion as us: "No, sorry, what you propose is much too close to this other company that already exists."

Let's pause a moment

So, here's where things have gotten stuck in the mud. Both of us, I firmly believe, don't want to be dealing with this junk. Both of us want to spend our limited time making things, not negotiating legal documents. At that juncture, neither of us was probably feeling great, for different reasons:

  • FiftyThree had just spent tremendous time and effort to launch a new product under the banner of a name they love and care about. They don't want to give up that name, and here comes a smaller company asking them to do just that. The generous interpretation—and let's be generous, for life is short—is that Georg truly feels that the work they will do will never overlap significantly with the work we will do, and that our concern is misplaced.
  • For our part, Figure 53 has spent even more time (many years more time), and also great effort, launching our own products to what we believe is a very similar audience under virtually the same name. What we don't want is to find ourselves unable to do the work we love under the name we've worked to build up. But! We are small, and we do not have tens of millions in venture capital to back us up.

This was, as they say, something of an impasse.

What happened

We had one big thing going for us: we already had a registered trademark, and the USPTO agreed that FiftyThree's application, as given at that time, conflicted with our mark.

In a final effort to be neighborly but also fair, we said: "Look, we still stand by our first idea: if FiftyThree stays focused on the kinds of things you're doing now, that's fine. But that doesn't mean we think anything you do is fine, and we sure as heck aren't giving permission to do anything at all."

After that, we waited. And I did my best to forget about it, and focus on our work, and sometimes I'd eat TUMS at night.

We didn't hear back, but we did see that they changed their trademark application, which followed the spirit of my original proposal of focusing on the kind of work they're currently doing.

So that's it?

Well, you know, the thing is I don't know. I hope so. The lawyer folks have a few quibbles they're still working through, but it seems like this part of the story is probably coming to a reasonable end. I hope. Boy do I hope. Boy do I not want to have to think about any of this ever again.

But we're not building a startup here. We're bootstrapping our way up. It takes longer. We have strong revenues (in the millions), but we definitely don't have a fresh $15 million in our pocket. We've got our customers, and our products, and our good name, and the desire to be good neighbors with other makers.

Which brings us back to Facebook

When news broke that Facebook launched a product named Paper, my first thought was: hey, I know that feeling. I know that feeling too damn well. That's a crap thing for Facebook to do, but it's Facebook; there's no clear evidence they care much about things like right and wrong.

But when FiftyThree wrote their open letter, I paused. Because I support them in their letter to Facebook. But I have also been the David to their Goliath. I have also been the one to be surprised by a bigger company pushing into the scene with a name that collided with our own. I read the rhetoric about how much hard work is in a name and I think: yes. I agree. I agree very much. Perhaps they just don't see it? I don't know. Life is complicated. Stories are simple, with one David, and one Goliath. Life, however, is not simple at all.

Here's what I believe

  1. Names are hard.
  2. Register your trademark, and do it at the earliest possible opportunity.
  3. I believe we can run businesses in a way that focuses on making cool stuff, which is what we all want to do anyway.

Edited to add: I had a nice phone conversation with Georg of FiftyThree this evening. One thing I'd like to clarify is that, although we haven't necessarily seen eye-to-eye on the nature of the underlying concerns, FiftyThree has not made ultimatums or been heavy-handed. As this post spreads more widely, it is important that I make this point clear. I believe we both are looking for the best possible way to have strong, secure companies making good tools for people around the world. I am hopeful, and genuinely believe, that we'll figure this stuff out.

Edited again to add: Read the conclusion to this story.