I get asked questions related to the business status of Fitzroyalty a lot. Why doesn’t it have advertising? Why don’t I register a .com domain name? Why don’t I behave more like an entrepreneur? How can I be indifferent to trying to make money from online publishing? Because I make my own decisions.

Two advocates of commercial online media, Sarah Stokely and Duncan Riley, recently had a Twitter conversation about how I could not tell the difference between copyright and trademarks. Some people can’t see beyond the capitalist imperative. I find it bemusing to be underestimated and / or misunderstood by people I have never met.

My previous post discussing the use of the term ‘Fitzroyalty’ included a short summary of why I have not registered the name as a business, but people apparently found it confusing, so I will provide more detail in this post. Some of this information may be useful to other bloggers who have similar questions about intellectual property and their site’s identity.

IP Australia explains that company names, business names, trading names, trademarks and domain names are all separate things. For example, registering a company name does not protect that name from use in other ways, such as someone else registering it as a trademark.

‘Fitzroyalty’ is already used as the name for a company registered with ASIC. Once a company name is registered it cannot be used by someone else to register another company. In any case, my blog is not published by a company but by an individual, so creating a company simply to register it would be a waste of time and money.

I cannot register Fitroyalty as a business name because it is not, technically, a business. Consumer Affairs Victoria states that:

A business name can only be registered if business is being carried on under the name by regularly engaging in commercial transactions seeking to obtain or supply orders for goods or services with clients or the public.

Fitzroyalty engages in no commercial transactions. It earns no income. It arguably provides a service in publishing information but it has no commercial relationship with its readers.

Consequently, I cannot register Fitzroyalty as a trading name. A trading name is the name a business uses that to identify itself to the public. For example, ‘Gonzo Pty Ltd’ may trade as ‘Yummy Pies’. As my blog does not have a company name or a business name, and doesn’t engage in trade, it can’t have a trading name.

Entrepreneur Ross Hill asked me on Twitter last year why I have not registered fitzroyalty.com as a domain name. The answer is simple: it’s not important. A decade ago, a brief, recognisable and easily memorable (usually .com) domain name was an important acquisition for a business for branding and identification purposes.

Now, they’re not nearly as important thanks to the ubiquity of searching. Readers don’t need to remember a .com domain name and URL for Fitzroyalty. If they receive a word of mouth recommendation to read one of my posts, they only need to remember the name and search for it. Registering and hoarding domains has become an exercise in commercial control and has little to do with audience engagement.

Finally, trademarks. I have not bothered to formally register ‘Fitzroyalty’ as a trademark for two reasons. First, it costs hundreds of dollars. This may be considered a worthwhile investment for businesses trying to protect their commercial activities, but Fitzroyalty is a non-commercial publication and does not require this kind of protection.

Second, in popularising the use of the term ‘Fitzroyalty’ in online writing and as the title of my site I have arguably established it as a common law trademark, which is:

an unregistered trade mark which has been used (such as a brand name or in advertising) in relation to certain goods or services to such an extent that it is recognised as distinguishing that business’ goods and services from those of other businesses.

The fact that I have been asked by people whether I was performing a comedy show called Fitzroyalty, or hosting a ball called Fitzroyalty, demonstrates that the name is associated with my site to a significant extent.

The commercial world of companies and businesses does not exist to provide legal structures for non-commercial entities like Fitzroyalty. Online social media is too new to have developed regulatory structures for itself. Demonstrating that I may have a common law trademark is all I can do.

Sarah Stokely teaches internet communications at the University of Melbourne, and in 2009 and 2010 Fitzroyalty has been used as a case study in the curriculum. She’s obviously monitoring what I do, but her opinions are not always helpful.

I contacted Sarah in 2009 and politely asked her if she could let me know how she was using Fitzroyalty in the course and which posts were on the reading list. I never got a response. When I asked again later I got a belated apology for not doing it but no answer. It’s poor etiquette in an exchange between two academics, particularly when one is teaching the work of another.

Students in the net communications course publish their own blogs and their posts are assignments for assessment. On one of these, All things Mel-born, author Mel says that Fitzroyalty has ‘undeniable cult status‘. I mention this because it amuses me to provide further fuel for the people who accuse me of egotism and over-confidence.

I’m not over-confident. I am confident. I am the confident blogger who had a complaint upheld by the Australian Press Council against News Ltd, which had to publish a correction and an apology for breaching my copyright and publishing a deliberate lie about me.

I am the confident blogger who beat a billion dollar global business, Formula One Management, in a copyright dispute because my reading of the Digital Millennium Copyright Act in the US jurisdiction was better than theirs.

Mel also shows more insight than some more experienced commentators when s/he discusses my statement that Fitzroyalty is a ‘testing space for new and social media’. S/he says ‘this conscious awareness is not something shared by your everyday blogger‘.

Thank you, whoever you are, for your thoughtful words. You get it. I do try to consciously and critically examine the phenomenon of social media while I am participating in it. Your feedback gives me encouragement that at least some of my readers appreciate what I do.

In a recent Twitter post Stokely compared the situation with Fitzroyalty to the dispute over the name ‘GeekGirl‘. It’s a complicated situation that’s worth reading about if you are interested in intellectual property and social media. The original geekgirl, Rosie Cross, has a good post on the issue.

I am uncomfortable with the ethics of trademarking or patenting things in the public domain, such as colloquialisms like ‘geekgirl’ or ‘Fitzroyalty’ or human genes. My common law trademark is enough for me. I won’t be sending cease and desist letters unless someone tries to deliberately mislead the public by deceptively masquerading as Fitzroyalty online.

I have already demonstrated success in negotiations with WordPress.com over the use of the name in a WordPress.com blog domain. This action forced the publisher of an anti-Fitzroyalty blog to state that their use of the name was not associated with my site. I did not pursue the matter to get the anti-Fitzroyalty blog deleted (though if WordPress.com actually upheld its own terms of service it should have deleted it).

I did nothing about the comedy show, and only commented on the FLN issue to help the FLN avoid being negatively affected by the confusion. My aim is not to control or restrict the use of the name but to ensure that its use is clear and does not confuse my readers.

So thanks for underestimating me Duncan, Sarah, News Ltd etc. It’s been a laugh. Every time something like this happens it gives me something new to write about. Cheerio…

on being non-commercial in a commercial world

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