Another, probably more significant, problem? The new KachingleX site is obviously designed to mimic the style, layout, and typeface of nytimes.com and its blogs. That seemed to be, for the Times Company, the final straw. As Typaldos wrote on her site on October 14, the day after KachingleX launched, she got an urgent phone call from the VP of Digital (probably Martin Nisenholtz) and two other executives (“I promised I would not reveal their names so I will call them Mr. Legal and Mr. Paywall,” Typaldos wrote), who informed her that they found the campaign “annoying” and that she had “ruined their day.” Typaldos expressed surprise that the executives were unhappy with her efforts “to save the NYTimes Blogs from obscurity.” She continued:
The VP Digital said he was deeply disappointed that I had not called him first to get their approval, because if I had he would have said “no”. Hmmmm…I used to work at Sun Microsystems and we had a popular mantra — “to ask permission is to seek denial”. Anyway, it never crossed my mind to ask for their approval. Our “Stop the Paywall” campaign is a completely independent effort based solely on our new KachingleX browser extension and the Kachingle.com website.
The Times team then asked her to stop the campaign, and, when she did not, called back a few hours later and told her a cease and desist order was on its way in the mail. Typaldos and her CEO Fred Dewey got a lawyer. “We believe paywalls are the enemy of democracy,” she wrote. “We believe in our mission, and we will not back down.”
On Monday, the New York Times Company filed an injunction against Kachingle in federal court and stated it was suing the company for violating its trademarks and intellectual property rights. The filing actually went up online on Scribd, via The Trademark Blog, before Kachingle received a copy of it. The main thrust of the complaint is that Kachingle is misrepresenting its relationship with the New York Times Company by using its signature design and “a confusingly similar imitation of The Times Trademarks” to persuade users to contribute money, in the false hopes that the company will accept that money, and that it will have any bearing on their already-decided decision to install a paywall on nytimes.com in the future. The filing also delineates previous conversations between the Times Company and Typaldos, starting in early 2009, in which the Times made it clear “that it was not interested in pursuing any business relationship with Kachingle.” Here are some more highlights from the filing (see pages six-eight):
26. Contrary to the representations made on the Kachingle websites, Kachingle’s interest in the ‘Stop the Paywall’ campaign against The Times is not to prevent The Times from instituting a paid subscription program. On information and belief, the purpose…is to piggy-back off the Times’ goodwill, reputation, and popularity, and to use the reputation and popularity of The Times’ blogs for Kachingle’s financial gain.
27. Kachingle further misleads consumers on its website under the ‘Q&A’ section when it asks whether The Times agreed to this arrangement. In response, Kachingle says no, ‘But we hope they will like it!’ See Exh. D. Kachingle already knew, at the time the website was launched, that The Times did not ‘like’ the business model that Kachingle had proposed….
I bet the Times lawyers had a chuckle over that one.
The filing goes on to explain how Kachingle’s conduct constitutes unfair competition and false advertising, and that “The Times has been and absent injunctive relief will continue to be, irreparably harmed.”
Steve Outing, a journalist who has been very vocal in his support of Kachingle (and whose blog is signed up with the service), calls the whole thing “a good-natured guerilla marketing campaign” and is optimistic that the scuffle with the Times will do Kachingle “a potentially big favor” by getting it some attention in the blogosphere. I am inclined to disagree.