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June 10, 2011

"Predictive Coding" is Not a Registered Trademark

Uspto Confusion around usage of the term "predictive coding" arose this week after Recommind commented on its patent situation. The skinny: Recommind obtained a patent on predictive coding technology and methods, but the San Francisco company does not have a registered trademark on the term itself, and so anybody can use it freely. Patents and trademarks are completely unrelated to each other.

Recommind applied for a registered trademark on the term a couple of years ago and began using the TM symbol. A half-dozen of the many examples are hereherehereherehere, and here.

"We did it because we anticipated that we would soon change the TM to an ®, which turned out not to be the case," said Recommind's general counsel and vice president of marketing Craig Carpenter told me today, following his related remarks yesterday to Christopher Danzig at AboveTheLaw.com and Barry Murphy at eDiscoveryJournal.com

Recommind's application for the trademark was tentatively rejected by the United States Patent and Trademark Office on grounds of the term being too broad.

I asked Carpenter if Recommind will stop using the TM symbol now that its application was denied. "To be honest with you, I don't know. It's less a matter of the USPTO and more a matter of what makes sense," he said. "I don't know if the denial we got was final or not. It's conceivable it's something we could actually re-file."

Also, he said, "The people who would typically use our software are lawyers so they would understand the difference."

That's a valid point, but as the e-discovery field grows, so too will its awareness in the wider IT industry.

Recommind should stop using the TM symbol in the context of predictive coding technology. Registered, unregistered, or otherwise, it's not your term to use -- the U.S. government said so (at least preliminarily) -- and continuing to use it, in my opinion, will cause further confusion which would be bad for your company, all the other companies that also sell predictive coding, and the wider e-discovery industry.

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