Having “Just Ship It” Reluctance?

by Winthrop & Weinstine, P.A.

Seth Godin – famous for inspiring those who create to “shipit” — took the opportunity yesterday to respond to those who contend he encourages others to “just ship it.”

In Godin’s response he takes issue with the word “just,” because it “implies a throwaway“:

“The just has a, ‘what the hell,’ element to it. With ‘just’ in the mix, the alternatives seem to be: polish, improve, focus on quality OR just throw it out there.”

I’ve never understood Godin’s passion for “shipping” to mean quality doesn’t matter, clearly it does. Instead, as I understand his ”battle cry” — he seeks to empower those who might otherwise allow fear (i.e., the ”lizard brain”) to sabotage a project. So, his “call to action” actually is to complete the work, and perhaps even more importantly, share it with others:

“You ship. You ship your best work, when it’s ready. Not after it’s ready, not when it’s too late to make a difference, and yes, of course, not when it’s sloppy or unformed.”

As a trademark type, and one familiar with the strength and fame of Nike’s “Just Do It” tagline, I’ve been conditioned not to see “just” in a negative light or implying a “throwaway” quality. Indeed, ”just“ means “exactly or precisely.” And, “just so” means “arranged with precision.”

Just“ also works as a language intensifier. So, to me ”just do it” or “just ship it” both communicate a positive ”call to action.” While “just ship it” is clearer in the action called for, “just do it” more generally calls for one to ”quit talking about it and start doing it,” whatever “it” happens to be. For Nancy Friedman’s take on “just,” check out her always just swell Fritinancy posts here, here, and here.

Just two years ago, Nike prevailed in a notable trademark opposition, proving “Just Jesu It” for clothing is likely to be confused with and likely to dilute the distinctiveness of Nike’s famous “Just Do It” trademark, and in that decision the Trademark Trial and Appeal Board commented on the meaning of Nike’s tagline and mark:

“[Nike] has shown that its mark has been viewed as a ‘battle cry.’ The meaning of applicants’ mark is ambiguous, not just as a three-term phrase with a middle term that evokes ‘Jesus’ (but appears not to be itself an English word), but even when that middle term ‘Jesu’ is combined with ‘it’ to form the word ‘Jesuit.’ Despite this ambiguity in the meaning of applicants’ mark, the overall commercial impression of the parties’ marks is similar because given the fame of opposer’s mark, the public is likely to view applicants’ mark as similarly being a call to action, even though it is unclear what action is being urged.”

While I am not encouraging Mr. Godin to embrace “Just Ship It” to the point of adopting it as a trademark (because he just might hear from Nike, or maybe not, as you’ll see below), I am encouraging him to rethink any possible reluctance to run toward the “just ship it” criticism, and instead actually embrace the enitre phrase as a Nike-Just-Do-It-style ”badge of honor,” a “call to action,” or a “battle cry” for those needing the reminder of not letting fear stall or kill an important project or a valuable piece of work.

The irony in Nike’s “battle cry” tagline is that its trademark enforcement program for the “Just Do It” tagline and mark is not a model of clarity or simplicity, much less one easily understood by those paid to advise clients about the risks of potentially conflicting trademark rights.

Despite its resounding win two years ago, Nike has filed just two oppositions since that win: Don’t Just Do It Do It Right, and Just Shave It, despite additional opportunities for opposition in Int’l Class 25 alone (Just Cover It, Just Pause It), not to mention the multitude of coexisting third party registrations for “Just ___ It” marks in Int’l Class 25 for clothing items (Just Grab It, Just Jew It, Just Canoe It!, Just Flush It, Just Cure It!, Just Brew It, and Just Face It). The enforcement opportunities for a famous mark like “Just Do It” outside Int’l Class 25 are even more plentiful.

A seemingly inconsistent enforcement program only encourages the likes of Raj Abhyanker, owner of Trademarkia, to clear and file for marks like Just Finish It for clothing. By the way, this one was published for opposition just today, so we’ll see shortly whether it falls within Nike’s present enforcement plan.

In the end, and back to Seth, those who are inclined to nay say don’t need the word “just” to do so, they’ll just find another way to critique, if they are so inclined.

Hopefully that won’t be necessary here, since I just clicked publish, a/k/a the ship button.

So, please be kind.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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