ALS Association Tries To Trademark Ice Bucket Challenge, Despite Having Nothing To Do With It Originally

from the trademark-shame dept

The whole Ice Bucket Challenge thing has become quite the story of the month of August, and it’s certainly been fascinating to watch how this viral promotion has turned into a massive money raiser for research into ALS (Amyotrophic Lateral Sclerosis — sometimes called Lou Gehrig’s Disease). If you somehow haven’t yet heard of this (and I find it nearly impossible to believe you haven’t yet), it’s when people get challenged to dump a bucket of ice over their heads or give money to charity (though, mostly people do both things). While there’s been some ice bucket challenge backlash (often for silly reasons), just from the standpoint of watching something go viral, it’s been fascinating. Of course, whenever things get big, sooner or later lawyers are going to step in and things are going to get messy. It appears that the ALS Association — by far the largest beneficiary of the Ice Bucket Challenge — is now trying to trademark the term.

That seems problematic for a number of reasons. First off, the ALS Association had nothing to do with the Ice Bucket Challenge originally. It only later became popular in association with ALS. I first heard of the Ice Bucket Challenge back in early July when a friend of the blog, law professor Eric Goldman, did an ice bucket challenge as part of a lung cancer fundraiser. And research into the history of the challenge found that it was used widely for other charities for months before that (often cancer). And other, similar, challenges go back over a century.

The ice bucket challenge really only became associated with ALS much later. The first known connection of the challenge to ALS came on July 14th when a golfer did it for ALS (a bunch of other golfers had been doing ice bucket challenges for other charities for a couple of months before that). Pete Frates, the guy that many have credited as starting the whole “ALS Ice Bucket Challenge” thing didn’t actually get involved until the end of July.

While the ALS Association has certainly been a massive beneficiary, it had little to nothing to do with anything related to the challenge, other than getting a bunch of checks in the month of August. To now claim a trademark over it seems… kind of disgusting. It’s also legally dubious. In the link above, by Erik Pelton, he highlights many of these problems with the trademark claim, but further notes how troubling this is:

If ALS Association successfully registers the phrase, it could seek to restrict use of it for other charitable causes. That would be the biggest shame in all of this.

Hopefully ALS Association reconsiders or the trademark attempt is rejected. Not everything needs to be “owned,” and it’s a real shame that people have been so indoctrinated into myths related to “IP” that they immediately rush to lock up everything.

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Comments on “ALS Association Tries To Trademark Ice Bucket Challenge, Despite Having Nothing To Do With It Originally”

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73 Comments
Ninja (profile) says:

I suggest we challenge these mentally impaired lawyers to a “boiling bucket challenge”. If they really want the trademark and to prevent it from being used to rise funds for other charities then they have to drop the boiling bucket all over themselves. Should make this challenge much more interesting and productive!

And I suspect if given enough money some would actually go for it.

Anonymous Coward says:

Re: Re: Re: Et tu, brute?

You can’t really get much out of how much goes to “staff”. All that tells you is whether they pay money to people who work for them or they pay money to people who work for other people. They can spend a million dollars on their own in-house research or they can give a million dollars to someone else’s research? Or they could pay a million dollars to on-staff lawyers or pay a million dollars to a law firm. One is not necessarily more wasteful than the other just because one is “staff” and the other is “not staff”.

Anonymous Coward says:

Re: Re: Et tu, brute?

And, as to marketing:

Let’s say there’s a charity that spends 50% directly on its cause, 10% on marketing, and the remaining 40% on its other expenses. If that 10% brings in $100,000, then $50,000 can be used to further its cause.

But what if they spent more money on marketing? Let’s pretend the other miscellaneous expenses are more or less fixed, so the extra marketing budget has to come from the cause. So they are now spending 40% cause, 20% marketing, and 40% other.

Now, they have doubled their marketing efforts and are therefore able to raise more money. Maybe they raised $170,000 this time. So now they can spend $68,000 on the cause. That is $18,000 more than the cause got when they only spent 10% on marketing.

Now, obviously, there is a point where the numbers won’t work out so neatly. And that will vary from charity to charity. But obviously, they need to spend some of their income on marketing in order to keep up the revenue. Just saying that they spend a significant amount on that fundraising tells us nothing about how it affects the actual totals.

Anonymous Coward says:

Re: Re: Re:2 Et tu, brute?

Even if they’ve found the sweet spot that maximizes the amount of money they can use on their cause?

I mean, you’d rather donate money to someone that can only afford to get $100,000 a year to some cause than you would for someone that can afford to spend $200,000 a year, just because the latter gets the extra due to better marketing?

Anonymous Coward says:

Re: Re: Re:3 Et tu, brute?

Even if they’ve found the sweet spot that maximizes the amount of money they can use on their cause?

I mean, you’d rather donate money to someone that can only afford to get $100,000 a year to some cause than you would for someone that can afford to spend $200,000 a year, just because the latter gets the extra due to better marketing?

Yes. I’d much rather have them maximize the effectiveness of the money than the amount of the money.

If charity A raises $120K and spends $100K on their cause, and almost-identical charity B raises $500K and spends $200K on the cause, then charity A is where my money would go. Charity B might have found the “sweet spot” to maximize their spending on the cause, but charity A is doing a better job with the money they DO get. A charity spending $9 to get an additional $10 in donations might SEEM like a good idea, but it’s not, even if it does result in more raw dollars being spent by that charity on the cause.

Anonymous Coward says:

Re: Re: Re:4 Et tu, brute?

A charity spending $9 to get an additional $10 in donations might SEEM like a good idea, but it’s not, even if it does result in more raw dollars being spent by that charity on the cause.

Why? Why is it not a good idea?

Outside of making things fit into some idealized budgetary pie where everything can be hyper-efficient, that is.

It’s the dollars that do good. Not the percentage points.

John Fenderson (profile) says:

Re: Re: Re:3 Et tu, brute?

“Even if they’ve found the sweet spot that maximizes the amount of money they can use on their cause?”

Yes.

“you’d rather donate money to someone that can only afford to get $100,000 a year to some cause than you would for someone that can afford to spend $200,000 a year, just because the latter gets the extra due to better marketing?”

Yes, because the the one that spends more on marketing is the one that is getting less bang for the buck. If I donate to a smaller charity, a greater percentage of the money I give actually goes to the activities I’m wanting to support.

In fact, this is a major factor in deciding who I donate to.

Anonymous Coward says:

Re: Re: Re:4 Et tu, brute?

Part of donating to a charity is making sure they have the money to continue the fight. That includes things like paying for their rent, their utilities, their employees’ paychecks, and, yes, even their further fundraising efforts. That is all part-and-parcel of your buck’s “bang”. These expenditures are all how your organization manages to continue its existence and keep on raising money for the cause.

And in any case, if the folks with the bigger marketing department are actually getting more money to the cause, I don’t see how on earth that is less “bang”. The whole point of the marketing expenditure is to create positive feedback. It’s a multiplier.

Sure, maybe not as great a percentage of your individual donation goes to the direct cause. But in the long run, it helps to bring in more actual money. How is that not good?

John Fenderson (profile) says:

Re: Re: Re:5 Et tu, brute?

“Part of donating to a charity is making sure they have the money to continue the fight.”

That’s right. I’m not arguing otherwise. All I’m saying is that if I perceive a charity as overspending on these things, I’ll avoid giving to that charity.

“Sure, maybe not as great a percentage of your individual donation goes to the direct cause.”

Well, that’s certainly one problem — and it does put me off pretty majorly. I want the smallest amount of money possible going to marketing companies. If I wanted to donate to them, I would. It’s not the major problem in my book, though. The major problem is the larger impact.

“But in the long run, it helps to bring in more actual money. How is that not good?”

As I explained, it’s not good because — big picture — it reduces the amount of money going to charities overall. It may increase the amount going to that specific charity, but at the cost of the amount going to other charities.

When the marketing budget is taking a large cut of donations, that reduces the overall amount of money that is being put into charitable actions — the marketing is getting a bigger slice of the overall pie.

I’ve been giving a fixed percentage of my gross income to charitable organizations for decades now, and over that time I’ve developed a list of rules to help me determine who to cut checks to. Among the things that disqualifies organizations from getting money from me is if they engage in media buys, have slick mailers, etc. I started doing that because most organizations that engage in heavy marketing give a paltry percentage of the donations to the actual cause. Not all of them, of course, but it’s a decent rule of thumb.

nasch (profile) says:

Re: Re: Re:5 Et tu, brute?

Sure, maybe not as great a percentage of your individual donation goes to the direct cause. But in the long run, it helps to bring in more actual money. How is that not good?

You would probably need a fairly complex calculation to take that into account. That is, of my $100, let’s say $30 goes to marketing and $50 to whatever the cause is and $20 to other stuff. So if that $30 for marketing brings in an additional $50 of revenue, $25 of which goes to the cause, should I add $25 for a total of $125? Or should it be discounted somewhat? But then of that additional $50 revenue the marketing brought in, $15 goes to marketing, which brings in additional $25…

There’s some sort of formula to describe this but it’s certainly not something your average donor is going to figure out.

Anonymous Coward says:

Re: Re: Re: Et tu, brute?

Maybe they raised $170,000 this time. So now they can spend $68,000 on the cause. That is $18,000 more than the cause got when they only spent 10% on marketing.

If, by raising an additional $70,000, you only spend an additional $18,000 on your cause, then something has gone horribly wrong and you should refrain from doing that.

You might think to yourself, “But the numbers work! We’re spending more money on a cure!” But it’s likely that a significant portion of your donations are from people who are only going to give so much to charity in a given year – if your additional spending is only giving 26% of the added revenue to your cause, you’re likely decreasing the overall amount spent on causes across all charities, because those charities are now getting less. To get their revenue back those other charities could try to increase their own marketing, but you see where this is heading.

That’s not to say that an increase in marketing is never warranted. I’m just saying that nonprofits should exercise caution when doing so.

Anonymous Coward says:

Re: Re: Re:2 Et tu, brute?

If, by raising an additional $70,000, you only spend an additional $18,000 on your cause, then something has gone horribly wrong and you should refrain from doing that.

Well, yeah. Mostly my math, which assumed all the overhead would be a fixed percentage of their revenue rather than simply being fixed cost. I admit I over-simplified.

But the point is that it is actual dollars that are spent, not abstract percentage points. And if shifting some percentage points around results in more real money being spent, no matter what percentage of the revenue it is, then it is a good thing.

John Fenderson (profile) says:

Re: Re: Re:3 Et tu, brute?

“if shifting some percentage points around results in more real money being spent, no matter what percentage of the revenue it is, then it is a good thing.”

Not necessarily. This might be a good argument if the charity is the only one out there. But the AC’s (very good) point is that if a donor has a fixed budget for how much he’s going to give in a world where there are several charities the donor wants to support, then the more money being soaked up by marketing, the less money is going to the charities overall.

That a single specific charity might come out ahead in the game doesn’t mean anything at all — the overall amount has been reduced because the overhead is eating more of it up.

Anonymous Coward says:

Re: Re: Re:4 Et tu, brute?

Not necessarily. This might be a good argument if the charity is the only one out there. But the AC’s (very good) point is that if a donor has a fixed budget for how much he’s going to give in a world where there are several charities the donor wants to support, then the more money being soaked up by marketing, the less money is going to the charities overall.

If your marketing is spending more money than it is bringing in, then you are indeed spending too much on marketing. You are in fact doing marketing very wrong.

But if the marketing is actually bringing in more money than is being spent, then every dollar spent on marketing is actually being multiplied. It is not being lost. It is, in fact, creating more money, some of which goes to the cause, and some of which goes back into the marketing feedback loop.

Anonymous Coward says:

Re: Re: Re:5 Et tu, brute?

It is, in fact, creating more money

No. It may SEEM like this from the perspective of that particular charity. But money is not, in fact, being created. Again, if you’re spending $9 to get another $10 in donations, that’s probably mostly coming out of the donations of other charities.

The choice is not simply “spend $9 and get a $10 donation for a net $1 that goes to our cause.” The choice is sometimes more like “let someone donate $10 to some other charity that will spend $5 of it on their cause, or spend $9 to convince them to give their $10 to us instead so we can then spend $1 of it on our cause.” In the for-profit world, it would make sense for McDonald’s to spend money to get customers that might otherwise go to Burger King. In the nonprofit world, it makes less sense for the ALS Association to spend money to get donations that might otherwise go to the American Cancer Society, for example.

Of course, some of those dollars are dollars that would have been spent on something besides charity. But either way, it’s not “creating more money”. Whether or not they would have given it to another charity, the donator is sacrificing their own money to try to make the world a better place, and as a charity you have a responsibility to use that money effectively and efficiently. Charities need to fundraise, but charities also need to realize that they aren’t for-profit corporations with the profits simply going to research instead of stockholders.

Eponymous Coward says:

Re: Re: Re:6 Et tu, brute?

This is a great, insightful point!

I think the error the other Anon is making is the fallacy of the quantitative trumping the qualitative as if throwing more money at the problem will equal greater success. When in fact being strategic and pragmatic in the way these organizations target their money, in whatever amount they can, is much more important than the total amount given. Especially in research for breakthroughs are not linearly connected to funding amounts, but more nebulous depending on other conditions.

Michael (profile) says:

I would like to try to start something via social media for awareness of these idiots trying to copyright this term. Perhaps get people to donate to some kind of legal fund that could be used to try to stop them.

I’m going to call it the “Save the ‘Ice Bucket Challenge’ Ice Bucket Challenge”.

I’m going to dump a bucket of ice over my head – and then I’ll challenge the Techdirt writing staff.

TestPilotDummy says:

gettin squirly - so fuck it kill me you FASCIST FUCKERS

Meanwhile ALL THE other Yellow MainSTREAM media journalists continuously trick the public into believing that salvia divinium (don’t you shittards have a Western Garden Book/Herbs and things for you LVX’er’s)is cannabis sativa/indica cause you DECEPTIVE FASCISTS are FOR the FOR PROFIT DRUG CORP’S, THE FASCIST/SPYING/DATABASE EXPLOITIN/IDENTITY THEFTING CLUSTERSHIT, MONETARY VAPORWARE, CONSTITUTIONAL DUST, UNARMED SHIT TARD Runnin the OVER COST MEDICAL/0BOMMER CARE, and on and on and on and STILL YOU HAVE NOT MET SOMEONE WHO SAID FUCK NO TO YOUR FACES.

TestPilotDummy says:

Re: gettin squirly - so fuck it kill me you FASCIST FUCKERS

I left out the False Science DSM-5 (locked into ObamaFraud’s NSA WEAPONS BAN database) cause you fucking SHEEP still don’t understand PSYCHIATRY is a FALSE SCIENCE, it’s MORe… POLITICAL WEAPON OF MASS DESTRUCTION, SLAVERY, AND PHARMACUITACAL DRUGGIN ALL UNDER COVER OF BULLSHIT LAW, which I would happily nullify , Call me to Jury Duty you motherfuckers!!!

Anonymous Coward says:

Re: Re: 27% for research

Hmm. But some of the money (19%) goes towards “Patient and community services”, which I assume helps the people already affected by the disease.

The biggest slice of that pie chart is “Professional and public education” at 32%. That does seem excessive. More for education than for research?

Anonymous Coward says:

Re: Re: Re:3 27% for research

Well, think of it this way: The education can inspire folks to become actively involved in research. It can affect career paths. In that way, it is an investment in future research.

Secondly, the education can motivate people to donate. So there is a clear overlap with marketing efforts.

And, of course, education can also help those who have the disease or care for someone with it. So that’s another piece of overlap.

John Cressman (profile) says:

Slavery

When are words and phrases going to get sick of the slavery and overthrow their patent and copyright taskmasters?

At what point do the most common words who once enjoyed roaming the English language throw off the shackles and restrictions of those who seek to oppress them and oppress those who seek to allow them to be free?

Where is our Abraham Lincoln of Vocabulary? Where is our Emancipation Proclamation for Letters in all combinations?

Anonymous Coward says:

Here is another, slightly related question

Something I have wondered about with the Susan G. Komen foundation. They have been marketing geniuses with their campaign visible everywhere. But what happens if/when they find the cure? Do they make a fortune even though a large share of their funding, I assume, came through donations? Or do they share the cure for a reasonable fee with the world?

From the reaction of the ALS Association here, I can about bet what they would do.

Anonymous Coward says:

Yes go ahead, shoot yourselves, and people with ALS, in the foot.

The only thing I see coming out of this is bad press, badwill and less donations. I don’t believe they can ever make anything useful out of this trademark to tip the scale in their favor.
My knee-jerk reaction was “okay I am not going to support these guys anymore”, but this would also hit the people with ALS.
My conclusion was that this was an extremely shitty move. I think it will give them a loss, but if they gain anything by this, it will only be because they hide behind sick people instead of representing them.

McFortner (profile) says:

Legal Presedence

Warner Brothers copyrighted the Foghorn Leghorn character, even though his mannerisms were based off of a longtime character on the Fred Allen radio show, Senator Claghorn, played by Kenny Delmar. Then they were able to force Delmar to get their permission to perform the character he originated. So as you see, there is a precedence in the ALS Association trademarking something they had no part in creating.

PaulT (profile) says:

Funny story – it took me weeks to work out that this had anything to do with charity. Partly because I’m British, and where I’m from the disease is known as motor neurone disease, not ALS.

So, I kept seeing stupid videos appear on twitter with the tag #ALSIceBucketChallenge. I usually avoid such videos because I find them tiresome. After a while, I got tired of seeing them and decided to work out who the hell this Al character was and why people were so interested in his challenge. You see, I’d assumed the tag means “Al’s Ice Bucket Challenge”. One of the problems with things like this is that “viral” means *global*, and regional differences can make a big difference in impact.

I’m not taking part, but I’ll probably donate to charity in support – though it will be British, not American charities. I’ll probably donate to other charities for afflictions of the central nervous system as well, such as Alzheimers, so that other people benefit from this.

Erik Pelton (user link) says:

Update: ALS Association announces they are withdrawing the trademark applications

See FAQ page on their website here:
http://www.alsa.org/about-us/ice-bucket-challenge-faq.html
“Did The ALS Association take steps to trademark Ice Bucket Challenge? The ALS Association filed for these trademarks in good faith as a measure to protect the Ice Bucket Challenge from misuse after consulting with the families who initiated the challenge this summer. However, we understand the public’s concern and are withdrawing the trademark applications. We appreciate the generosity and enthusiasm of everyone who has taken the challenge and donated to ALS charities.”
THANK YOU to everyone who helped spread the word on this!

Karen burns says:

Let's not complicate a blessing !!

Ok, the ice bucket went viral! Can’t you just accept the fact that the organization has received a blessing from the public and work towards a cure!!!! The problem and expense from involving attorneys is a down right shame! This is what is wrong in America! The public has now had an increase awareness of this dreadful disease and let’s just work for a cure.

Come on people, STOP and let’s move on with your mission!!!!

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