Owning a college sports web site doesn’t usually bring with it much intrigue or drama, though having a blog does allow me to share interesting stories about the online college hockey world with you when they do occur.
Does USCHO exclusively own the term “PAIRWISE”, as it relates to college hockey rankings? For now the answer appears to be no, though USCHO has been trying to change that. I first became aware of this effort when USCHO added a small “SM” to their “Pairwise” tables on their site last spring. I dashed off to the United States Patent and Trademark Office to investigate, which you may also want to do so you can follow along:
USCHO’s claim to Pairwise
Mar. 20, 2006
USCHO’s initial application for trademark for “PAIRWISE”
Apr. 17, 2006
The next action in the file, described as “Paper Correspondence Incoming”, came from a bunch of names you might recognize as formerly associated with USCHO: Mike Machnik (founder of HOCKEY-L, now affiliated with CollegeHockeyNews), Adam Wodon (founder of CollegeHockeyNews), John Whelan (developer of some pretty neat hockey ranking analysis tools, wrote USCHO’s Pairwise analysis tools, now with CollegeHockeyNews) and Keith Instone (long-time HOCKEY-L ranking guru, first devised the pairwise technique to mimic the selection process). Their letter raised quite a few objections to USCHO’s application, including the following:
- Pairwise is a generic mathematical term that describes how the comparison is performed
- The algorithm, in relation to college hockey, was developed by Keith Instone before USCHO existed
- USCHO doesn’t use the term “pairwise” in commerce, as they claimed
- The sample of “advertising” submitted by USCHO was not, indeed, advertising, but a page of hockey rankings
- Lots of other sites cover college hockey and publish pairwise rankings of teams
Compelling stuff, particularly the first, which is why I was surprised to see the next document…
Sep. 11, 2006 Office Action Outgoing
No mention of the Apr. 17 “Paper Correspondence Incoming”. Notes were pretty much limited to the following:
Office records have been search and no similar registered and pending mark has been found that would bar registration
The wording used to describe the services needs clarification because it is unacceptable as indefinite. Applicant may adopt the following identification of services, if accurate: Providing information in the field of rankings of college hockey teams; and publication of books featuring rankings of college hockey teams.
Though there seemed to be some confusion between the two parties about wording (is USCHO a book or a web site? is PAIRWISE a marketing slogan or the name of a database?), it seemed like USCHO just needed to adopt the suggested description. I start getting ready to scrub the word “pairwise” from SiouxSports.com and come up with the SiouxSports.com Power (PWR) rankings (which is what everyone thinks PWR stands for, anyway).
Nov. 22, 2006 Response to Office Action
USCHO seems pleased with the change in wording, though did want to note that they publish a website, not books.
Jan. 25, 2007 Office Action Outgoing
Pointing out that USCHO is a web site, not a book, seemed to have compelled the USPTO to search the web, because it came back now denying the claim:
Registration is refused because the proposed mark merely describes a characteristic and feature of applicant’s goods and services
The proposed mark appears to be generic in connection with the identified services
According to the Internet evidence, a ‘pairwise comparison’ is a problem solving method that allows one to determine the relative order (ranking) of a group of items
The mark… is a commonly used term for ranking college hockey teams
Evidence for the denial included a mountain of captured web pages (what did trademark examiners do 10 years ago?)
Page 1 — The first few pages are from Wikipedia. Really? It was my understanding that students aren’t allowed to cite wikipedia in fifth grade reports, yet the PTO uses it? Ok, let’s see what else they have…
Page 9 — Wiktionary?!? Seriously, will someone buy the PTO a subscription to the OED? I think m-w.com is free.
Page 10 — Mathworld, that sounds like an amusement park where I could imagine running into Whelan.
Page 12-16 — SiouxSports.com. w00t. I’m particularly impressed that he grabbed our awesome individual team detailed pairwise comparisons table, which I still think is the best on the net.
Jul. 25, 2007 Response to Office Action
Obviously, PAIRWISE is not descriptive of a ranking
Eh?
Even if the word “Pairwise” has become descriptive of a general process by which items are ordered and ranked by comparing each item to another, the fact that such a process is employed in a specific sport application in which the source of the ranking chooses and assigns weights to selected criteria makes it clear that the word is, at best, suggestive of what makes PAIRWISE rankings better than its competition.
Ok, I think I’m getting it. USCHO is trying to lay claim to PAIRWISE in all caps, differentiated from pairwise, the descriptive term. Huh.
From Tim Brule’s letter:
The success of our PAIRWISE rankings help establish uscho.com as a definitive source of information about college hockey and consequently increases the traffic to our site. Obviously it is economically benefical to us to have high traffic rankings.
Ah, is this about search results? Let’s google “pairwise hockey“:
USCHO.com::U.S. College Hockey Online::Pairwise
USCHO.com::U.S. College Hockey Online::Pairwise Surprise
College Hockey News: NCAA Tournament Pairwise Comparison Ratings
College Hockey News: Pairwise and KRACH
SiouxSports.com: NCAA College Hockey PWR (Pairwise Rankings)
Is USCHO’s new desire to trademark PAIRWISE because CollegeHockeyNews is gaining ground as a source of that information? It hardly seems a coincidence that this occurred so soon after the CHN guys split off.
Sep. 5, 2007 Office Action Outgoing
The examining attorney has also considered the applicant’s arguments carefully but has found them unpersuasive.
The applicant has responded to the refusal by stating that the proposed mark is not descriptive of the applicant’s services. The examining attorney disagrees
The term “PAIRWISE” as used in the mark merely indicates that the pairwise method was used to generate the college hockey team rankings.
Let’s take a look at PTO’s new evidence (much of it from the same source as the previous):
Page 4-6: Is PTO really using a page from USCHO’s site to try to demonstrate that Pairwise is a generic description. I don’t get this one.
Page 7-10: CollegeHockeyNews’s PWR
Page 11-12: SiouxSports.com’s PWR
Page 18-21, 27-30: Brad’s blog chats about USCHO’s PWR
I think those last three sets of evidence are flawed, for reasons I’ll describe in the next section.
What does Jim make of all of this?
Keep in mind that USCHO wasn’t trying to protect the mathematical formula behind PWR (which by my understanding could have proven difficult), but rather the name “PAIRWISE” when used to describe their rankings using that formula.
Though the formula isn’t their invention, but rather mimics the NCAA Selection Criteria, trademarking their own unique name of their presentation of those rankings strikes me as plausible. Searching the HOCKEY-L archives** may give you fascinating look at the origin of all of this stuff; the first reference I could find to the criteria came from Keith Instone, but the first reference I could find to PAIRWISE or PWR was from Tim Brule (of USCHO).
As to the numerous examples from the Internet of sites using PWR/Pairwise to describe the college hockey rankings, though there was no way for the examiner to know it, the term is likely in use in all of those places specifically because USCHO popularized it. I have no idea if allowing it become part of the college hockey lexicon for 10 years before attempting to trademark it harmed their case, but I can say on behalf of SiouxSports.com that our PWR rankings are called PWR specifically so people are aware that they use the same methodology as those USCHO calls PAIRWISE (PWR’s very purpose on SiouxSports.com is to assist people who want to analyze and predict the PAIRWISE rankings by providing detail of the calculations beyond that available from USCHO).
However, that is all likely irrelevant, as the nail in the coffin of USCHO’s claim seemed to be that pairwise is a generic term descriptive of the ranking methodology. Though the first reference I can find to that name did come from Tim Brule on HOCKEY-L, it also predated the creation of USCHO, so it’s not surprising that the rankings were given a descriptive name rather than one chosen with attention to trademark suitability. If only he had chosen Tim’s Rankings for American College Hockey (TRACH).
Final thought — it’s almost impossible to run sites like these without a good IP attorney. Thanks to John (ours).
** While browsing the HOCKEY-L archives, you may stumble upon the Nov 29, 1995, announcement of SiouxSports.com, which wasn’t yet called SiouxSports.com, but is a pleasant reminder of our longevity.
Thanks for the excellent article. I’ve been aware of the pissing contest between the USCHO and CHN since I noticed USCHO booting them because they were linking to CHN articles on the fan forum. That was cheesy.
On my blog I reference CHN wherever possible if for no other reason than Wooden and Machnik are simply better hockey writers than anyone they have at USCHO. Without the fan forum CHN would blow USCHO away in my opinion. The game recaps on that site are often a joke with grossly biased and/or inaccurate coverage. CHN suffers perhaps from not having as many folks working for it but the quality of their product always exceeds USCHO’s in my opinion.
Try getting someone at USCHO to address a concern about their site or it’s coverage and you’ll be damn lucky if you ever get a reply. The quickest reply I ever got from them came from Patrick Miller … Conversely, I’ve had numerous (and full) exchanges with both Adam and Mike at CHN.
I suppose it’s a bit of a personal thing for me since they banned me from the fan forum but USCHO could disappear from the Web tomorrow and I wouldn’t miss it.
But again … thanks so much for great article. A real nice look “behind the scenes” and well-written/documented as well. You do a great job for Sioux fans with Siouxsports and hopefully that leads to lots of free beers for ya!
Sincerely,
Donald (UAA Hockey Fan Blog)
Good job Jim. A fair and comprehensive analysis. I won’t quibble over the details. I will point out that I encourage folks to read our entire rebuttal from last April. I’ll also say that, as far as we’re concerned, there’s no “pissing match” with USCHO, and if there’s any issues between the two, it comes solely from their end. It’s my personal wish that all three major college hockey news sites worked together. I’ve always felt that way. … Finally, my views on the Pairwise have not changed. They’ve been consistent going back to long before I left USCHO. … Regards, Adam W. (CHN)
It seems to me that the Pairwise, PAIRWISE or PWR are out there for everone to use, thanks to the people you mention earlier in the article. It also mimicks the NCAA selection process. I an not see any reason why USCHO would benifit from putting a copy right on PAIRWISE? Jim would that mean that you would no longer be able to post it on SiouxSports.com?
Donald is right, USCHO is has really declined over the years, is lame the right word to use, USCHO’s fan forum has become stale and the new WCHA writer isn’t worthy of sniffing Todd Melowski’s socks.
I also agree that CHN does a good job of reporting and I get most of my college news from there because of the email notifcations. The only article on USCHO I read anymore are Hockey Guru PCM.
In fairness, Todd Milewski is an excellent college hockey writer, but Theresa Spisak is someone who is very enthusiastic and will be very good. We started her writing articles last year. This year, USCHO took her to fill that spot, but she’s still writing for us. She may not be at Todd’s level yet, but he’s been doing it a lot longer. — Adam W. (CHN)
Adam,
Hate to disagree with you. Milewski (and the cat they had after him before Theresa) were such blatant Wisconsin homers that it made their columns slanted. That’d have been fine if they have admitted to it at any point during their USCHO days. Theresa is refreshing since she has none of the pretense of virtually everyone else on that site. If anything she is too apologetic for her “newness”. A little dose of confidence (which the experience should give her) and she’ll be fine.
Donald I don’t know if it is possible for anyone to write without some kind of a bias. It is just human nature. I
John assures me that it’s normal operating procedure for the first response of Sept. 11 to just cover form, not yet related “art.” He further assures me that they use Wikipedia all the time. While I do see the advantages, I still also see drawbacks.
Goon — we try to be very respectful of others’ intellectual property, so if USCHO were granted a trademark over PAIRWISE, we would look for a way to continue to publish the pairwise details we currently do without infringing on their trademark. I can’t really predict what that would take, since it’s all hypothetical.
I can’t imagine a court giving them a trade mark PAIRWISE, that would be silly even in my eyes. 🙂