First discovered by TechCrunch, the trademark was filed with the United States Patent and Trademark Office on January 30, the same day Facebook initially unveiled its new app. As noted by FiftyThree co-founder Georg Petschnigg in an open letter, FiftyThree was not given advanced notice of Facebook’s plans and was taken by surprise by the app release.
Though FiftyThree previously filed for a trademark on the term "Paper by FiftyThree" it did not have a trademark for "Paper" at the time that Facebook created its app. According to two trademark lawyers that spoke to TechCrunch, while the trademark is newly filed, FiftyThree could have a case if it proceeds with a lawsuit as trademarks are partially use-based and it has been using the Paper app name since early 2012.
Trademarks, to a degree, are use-based. This means that "just by using a mark in a particular field, you’ve got rights," said Cardona. "Some are state-based and some are federal-based, but if I start using a mark before you in the same area of goods or services, I've got rights to the mark over you."It remains unclear whether FiftyThree will win the trademark, as paper is a term used by many other products, apps, and services that predate even its own app. FiftyThree has not said whether it will pursue legal action against Facebook, but Petschnigg says the company is "keeping its options open."
For now, FiftyThree has asked Facebook to "build a brand name of their own" and to stop "using our brand name."
Paper by FiftyThree can be downloaded from the App Store for free. [Direct Link]
Paper by Facebook can be downloaded from the App Store for free. [Direct Link]