at first, the story seemed to have been penned by the merry AP-spoofing pranksters at The Onion. Mighty Radio Shack, the Taj Mahal of consumer-electronic outbuildings, turning its baleful corporate trademark-protecting gaze upon a dinky online lean-to called "Bianca's Smut Shack"? Steely-eyed lawyers in $3,000 suits battling over a decrepit, straw-roofed word with no running water, used only for sleazy assignations and storing piles of old tires?
Shackingly, it's true. Tandy, the giant Fort Worth, Texas, electronics chain that owns 6,000 Radio Shacks, is trying to prevent Bianca's Smut Shack from using the word "Shack." And, not content with trying to burn down Bianca's Shack, Radio Shack is also on the warpath against other Shacks. In fact, not since Attila the Hun laid waste to shacks across the Asian steppes have shacks been in such peril.
The assault on Mt. Shack started on August 23, 1995, when Bianca's Smut Shack (despite its sleazy name, Bianca's is a fairly tame, well-regarded chat site that has flourished since the Web's youth) received a letter from Tandy's trademark attorney asking the site to stop using the word "shack" in their name. "TPI [Tandy's parent corporation] has expended much time and money in developing the goodwill associated with the SHACK (R) family of marks ... we believe that dilution will inevitably result from your company's use and advertising of 'Bianca's Smut Shack' to consumers who are interested in the purchase of computers and other consumer electronic products." To "avoid further dilution and confusion in the worldwide retailing business," Tandy requested assurances that Bianca's would "phase out" its online use of "Shack."
Dave Thau, a Bianca founder who rejoices in the title of "Core Troll," responded to Tandy. "We here at biancaTroll Productions are tickled pink that our humble hovel on the Internet has received attention and time from the upper echelons at Tandy," wrote Thau. "A TRS-80 Model 1 once graced the desk of one of our founding members, and we have often used your resistors and other components to make attractive jewelry and other decorative objects. Regardless of our deep affection for your organization, however, we must respectfully reject your request ... Claiming that our organizations have something in common is like claiming that the Gillette Company can sue Penn Gillette [sic] because they sell liquid paper and he uses paper to advertise his performances."
Putting their Shack where their mouth was, the Trolls submitted their name for trademark in January 1996. A year later, it was published in the Trademark Office's official gazette. But the Texas super-shack was not about to allow Bianca to shamelessly Shack up out of Tandy-trademark wedlock. It sent an identical Shack-off letter to Bianca in January 1997, and in Feb. '97 it filed an "opposition." Bianca's Smut Shack filed their answer to that opposition on April 8. Tandy has not sued Bianca or prevented it from using the word "Shack" in its name. It has, however, prevented it from trademarking it.
"Now the Trademark Office must deliberate," says Thau. "We're also negotiating with Tandy to see if we can reach some kind of compromise."
Bianca's Smut Shack's lawyer, Steven Thau (he is David Thau's cousin), says that Tandy is arguing that Bianca's use of the word "Shack" "may disparage and falsely suggest a connection with Tandy. They say that [the names] are confusingly similar in sound. They also cite the fact that they're advertised over the same or overlapping channels over the Internet."
Tandy media relations spokesperson Fran McGehee declined to comment on the shackocalypse. A dry "Company Statement" faxed to Salon goes to some pains to make clear that Tandy is not suing Bianca. In a wild rhetorical flourish, it concludes "Tandy Corporation has a significant investment in its trademarks, 'Radio Shack,' 'The Shack' and 'Shack.'"
Tandy's action is based on the Federal Trademark Antidilution Law, which forbids use of a trademark that lessens "the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of: 1. competition between the owner of the famous mark and other parties, or 2. likelihood of confusion, mistake, or deception."
In other words, whether or not there are human beings dimwitted enough to confuse Bianca's Smut Shack with Radio Shack, if the Trademark Office decides that Radio Shack essentially owns the word "Shack," in all of its saggy-roofed glory, Bianca's is going to have to become Bianca's Smut Hut or Bianca's Smut Lean-to or Bianca's Smut Shanty or Bianca's Smut Outbuilding -- and none of those have that je ne shack quoi.
But Steven Thau says there is reason to believe that Tandy's expansive, Shacks 'R' Us position is structurally unsound. "There are several core doctrines in trademark law," the lawyer says. "You can't trademark something that's merely descriptive -- that's one reason why Tandy may not own the rights. And if your mark has become generic, you lose the trademark. That's what happened to Thermos, and that's why Xerox fires off letters to dictionary editors, telling them not to put 'Xerox' in the dictionary."
Tandy is clearly bothered by the fact that Bianca is spreading its heretical Shack Gospel all over the Internet. When you do an Internet search, Radio Shack and Bianca's Smut Shack shack up together: An Alta Vista search on the word "Shack" yielded 40,000 matches, with Bianca's and Radio Shack topping the list. An Infoseek search yields 19,868 matches, from a Hotwired article about Radio Shack to listings for the Technobitch Shack, Daddy Mac's Cyber Rib Shack, the Spice Girls Spice Shack, the Chicken Shack, Coffee Shack, ad shack nauseam. (And that doesn't even deal with homonyms like Shaq Chat.)
The presence of this vast, dilapidated village of Virtual Shacks may prove Radio Shack's downfall. Unless Tandy goes after every Shack on the Web, a prospect that seems pretty ridiculous, it's hard to see how they can attempt to put the shackles on Bianca's Smut Shack.
In fact, Radio Shack is not just chasing Bianca's Smut. They've already strong-armed the Software Shack into removing the "c" from their name, forcing them to become Software Shak. They have also taken a corporate chain saw to the rough-hewn two-by-fours holding up the Computer Shack, which has posted an open letter to the president of Tandy on their site:
"It is regrettable that you think you can extort the right to the word 'SHACK' in the courts by the likes of yourself. In our view, you are nothing but modern day Al Capones, using the dollar instead of Thompson Sub Machine guns ... While you try to project a public image of crime fighting, you are in fact little more than thieves, hiding behind well heeled lawyers ... While we feel it is regrettable that we cannot afford to continue this fight, we are hoping the public will in the end realize that the Tandy Corporation is little more than corporate thugs, and will refrain from purchasing your products, which in the end will be justice in itself. We will not succumb to your Civil Extortion!!!"
Computer Shack is not the only site to fire back at Tandy. Jim Hart, a production manager and interface designer at Electric Minds, another online discussion forum, has begun leading a grassroots struggle against Tandy. Within hours of reading an article about Tandy's Great Shack Attack -- which he initially mistook for a joke -- he set up a Web site where fans of Bianca's Smut Shack could e-mail Tandy's PR department.
"What they don't realize is that nobody sees Bianca as a porn site, they see Bianca as a pioneer on the Internet," explains Hart, who says Bianca's Smut Shack was one of the reasons he decided to become a part of the Internet community. Hart says letters have been pouring in at a rate of two or three every five minutes.
Bianca's Smut Shack isn't about to fold up their Shack and slip into the Shackless darkness. Core Troll Chris Miller says, "We're going to fight this to the end."
"I'd love for them to take us to court," says Miller. "In fact, I'd love it if it got to the point where they couldn't have the trademark on the word 'shack.' Then all the Joe's Chicken Shacks would celebrate."
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