[dctoedt]

> 53 needs to claim exclusivity, claim that there is no possibility of confusion, or live with the reality that if people start calling Facebook Paper just "Paper", that Facebook will legally be able to prevent 53 from using the term. With trademarks it doesn't matter who has been using it longer, only who successfully enforces it.

That's a false trichotomy; the second and third branches are the opposite of how trademark law works. Please see my top-level comment for more details.

[ynniv]

I don't think that 53 claiming there to be no confusion would in itself hold up in court, but I think it could help to inform the public's opinion about how the marks relate to each other, which might get factored into a decision later. I do think that a few years from now, if Facebook's product is successful, it will overshadow 53's brand. While it is technically true that two established marks would be evaluated on who was first, to me it is unlikely that a small developer would win in a suit against a $60B company. The orders of magnitude larger company would aggressively argue their merits and attempt to mitigate the smaller company's. Defending the mark at a time in the future where Facebook has any standing would probably bankrupt 53.

[dctoedt]

> to me it is unlikely that a small developer would win in a suit against a $60B company. The orders of magnitude larger company would aggressively argue their merits and attempt to mitigate the smaller company's. Defending the mark at a time in the future where Facebook has any standing would probably bankrupt 53.

Keep in mind that 53 would almost certainly demand a jury trial, as (IIRC) would be their constitutional right. Jurors tend to favor the little guy; that's especially true if the little guy's lawyers can convince the jury that the big guy behaved badly or even just negligently --- and plaintiffs' trial lawyers can be extremely skilled at doing just that. Under the Seventh Amendment to the U.S. Constitution, which governs civil (non-criminal) cases, a jury's findings of fact cannot be overturned unless the judge (or an appellate court) finds that no reasonable jury could have made those findings on the basis of the evidence of record.

I imagine there are more than a few plaintiffs' lawyers with suitable expertise who would be thrilled to take 53's case on a contingent-fee basis -- not least because they'd get a lot of publicity for doing so.

One not-unlikely outcome: 53 changes its product name, and Facebook pays 53 a significant amount of money, perhaps as an investment.