BURNILEAKS: Bullying the Burners [Updates]

The post-Burning Man headaches for BMOrg continue to mount. If you believe in karma or physics, then you understand that for every action, there is an equal and opposite reaction. If you threaten legal action towards the people who create your global following, you should consider the risk that something might come back to bite you in the ass. Such as, your own words, and proof of the motives behind your actions.

At least, that is what’s being threatened, by some Canadian Burners who appear to have little defense left to them but the “nuclear option” of revealing the truth.

chickenookpikThere are as many people at Burning Man from Canada as from Nevada. 20% of Burners are international, and more are from Canada than any other country. It’s 6-7% of the Burner population. Canadian Burners have spent decades building up our culture by throwing burns all across their vast country. Someone has legally owned the Canadian trademark “Burning Man” for many years, and BMOrg are suing them even though they appear to have registered no trademarks of their own in that country. Perhaps they think that Canada is just another part of America?

We covered the beginnings of this dispute earlier in the year: Canada Draws Battle Lines For Burner Culture. As per usual, naysayers came out to accuse us of click-bait and fear-mongering.

Well, fear not, nay-sayers. The Battlespace has now gone to Def Con 1, with this email last night to Burning Man’s Regional Contact mailserv:

stop your malicious lawsuit or WIKILEAKS!

Hi, I’m sure many of you will remember me, I was one of the founding members of the Regional Network, acting as Vancouver RN rep 2001-2006, while also being a member of the Media Team, & working as the first editor of the Regional Contacts section of BurningMan.com.

Burning Man is suing the non-profit Burn BC Arts Cooperative for $35,000 over trademark infringement. I am not involved in Burn BC or any of their events, but I feel strongly that Burning Man is acting as a corporate bully in this situation, attacking long-time community members & artists.

In response, if Burning Man does not drop this frivolous lawsuit immediately, ALL Regionals List & Media Team correspondence, as well as one-on-one communications I had with Burning Man senior staff, including Larry & Marion, will be made publicly available on WikiLeaks, all correspondence from 1999-present, This means that all of your names, the names of persons in your posts, legal issues that were discussed, etc. will be in the public domain. Hopefully this information will help Burners fight trademark infringement cases by showing the evolution of Burning Man’s deceptive practices using volunteers to build corporate brand value under the false guise of community.

Burning Man internal emails were published by Wikileaks before, in the Paul Addis case.

What could be there in 15 years’ worth of correspondence, that could in any way harm this non-profit, which organizes an annual week of dancing and debauchery in the desert? What could be juicy enough that they would send it to Wikileaks? Why should this even be a threat, something to use as leverage against the giant BMOrg behemoth?

It is not for me to speculate – draw your own conclusions. But to all those who accuse Burners.Me of making stuff up and crazy conspiracy theories, consider that this is going on – and it’s nothing to do with us. We just have multiple sources who provided us with a copy of the email, which is the intellectual property of its author. If there was nothing of note in there, why would Burners even make such a threat? The Canadian Burners, who legitimately owned the trademark, and seem to have taken all the right steps legally to renounce their ownership so that there can’t be any dispute, are still getting pursued by Burning Man. For how much? Forty grand. What difference is that going to make to a company that spent $1.43 million on lawyers last year?

vancouver cacophony societyI asked Bhak Jolicouer, who first contacted me about this story, what’s up? 1076 pages of legalese to demand the cash, that’s what up. It seems Burning Man have been busy in their spiteful pursuit, since June when the arts collective formally relinquished all rights to the disputed marks in their territory. This is an example of the “it’s not enough that we win; everyone else must lose” mentality that runs this corporation. Most non-profits I know of, don’t sue other non-profits, then ask their donor community to buy $150 scarves so they can keep this kind of bullying up. In fact, it’s rare to see these sort of tactics from for-profit companies, unless they’re Apple or Samsung or Microsoft.

Bhak says:

Burn BC Founder and Champion of Burner Rights,  Bhak Jolicouer

Burn BC Founder and Champion of Burner Rights, Bhak Jolicouer

Burn BC released our marks “Burning Man” and “BC Decompression” back to the public domain with the attached letter filed on permanent record.

Burn BC has decided to have no further association with the marks, and leaves it up to the Canadian Burning Man Culture to decide who (if anyone) should own them, and how they want to relate as a Culture that developed independently before the 2004 American Marks and the New Brand of Burning Man developed in the United States in 2004. The vast majority of feedback is that no one should own exclusive rights to these terms in Canada. While many people respect what our communities have contributed to the Nevada event, we see that our Burning Man Culture in Canada was founded on an open community model of mutual respectful peers. We had always seen ourselves as independent peers forming independent and self managed Burning Man Communities and independently developed and self managed Burning Man events in Canada.We did this work as peers (not subsidiaries) with no compensation, as a “Gift to the Community”, not as franchises of a corporation.So in response to this kind of input from Burners across Canada, Burn BC released the marks back to the public domain so as not to impede the Arts under Section 13(1B) of the Canadian Trade Mark act.
We deleted our BurningManArts.ca website and removed all references to “Burning Man” from our website.
We released a statement that Burn BC and I (Napalm Dragon), have no more desire to be associated with that name or the American Corporation and it’s 2004 Brand, and will continue fostering our Open Source Culture and Communities in other ways through whatever paradigm emerges next from our culture.Decommodification LLC may have abandoned our culture in favour of Brand Dominance. They are entitled to what they please in the United States with their Nevada event and their American brand. I will seek new ground to express myself unhindered by these politics that are trying to convert a once Open Community and Open Culture into a franchise controlled by Decommodificaiton LLC.After releasing the marks, deleting all references and releasing my statement; I attempted to continue negotiating an out of court settlement. They wanted Burn BC to sign something stating that Decommodification LLC owns these marks.
I told them that if they register with the Canadian Intellectual Property Office, then they owns these marks. Burn BC can’t agree to a demand that is not even part of this frivolous litigation. I had asked for a list of marks they own and Burn BC would have agreed not to register those marks, no list was provided.
I thought that was the end of the story as there had been no communication from anyone since late July… until three days ago when 1076 pages of text came in the mail telling Burn BC to respond to a Motion of Default Judgement by 2:00PM Friday regarding a hearing this Tuesday September 23, 2014.I made the same offer yesterday to their lawyer, who was interested in approaching a settlement.
He said he would get back to me by the end of the day.
There has been no response, and again, no list provided.This is AFTER: We released our marks, deleted all references, and removed myself and Burn BC from any online groups or lists that are “Burning Man”.The case has no merit.
But if Burn BC does not participate in the hearing and offers no defence; then any claim Decommodification LLC makes regardless of accuracy or merit will be awarded.It seems they are now asking for damages, claiming Burn BC hurt their ability to control the good will of Canadians, and are seeking legal expenses, and a court order for Burn BC to turn over BurnBC.Org and BurningManArts.ca over to Decommodification LLC.They are looking for damages of $40,000 against the non profit Burn BC Arts Cooperative (Created by a founding member of the Vancouver Burning Man Community, and other long time Burners), and are not content to just let it go. They know full well this will mean the end of Burn BC, and seem content to push frivolous litigation wasting the resources of the Canadian Federal Courts.They had NO need to take it to the courts, as all they had to do was file an opposition with CIPO.
Burn BC had no intention of using any mark that had not been approved by CIPO.
Now we have no desire to use it at all, even as Public Domain under section 13(1B) of the Canadian Trademark Act.If the judge awards damages, Burn BC receives the bullet to the head.I was surprised as anyone with this post by …one of our founding members, he has a great heart and contributed countless hours of service to the free and open community spirit that was our Burning Man Community and our Burning Man Culture.~ Bhak Jolicoeur (AKA Napalm Dragon)
Lover of Chaos and Cacophony, Art and Beauty.Trademark Withdrawl (June 25 2014)

The non-profit Burn BC group suggested that if BMOrg wanted to own the marks in Canada, then they should register them in Canada. Which to me seems like a very good point. Instead of doing that, BMOrg is trying to shake down a non-profit collective for $40,000. That’s 2 tickets in a Safari Camp to them. OK, we get it: BMOrg forgot to register trademarks in their biggest export market for 30 years. Why not simply register them now? Why pursue and punish Burners, when the matter is clearly settled? The answer is “mentality”. The way THEY think about US.

Welcome to the new, non-profit culture we are teaching to newbies and spreading around the globe. Gift us your art, so we can monetize it and sue non-profits.

This case may take a number of twists and turns, if they find enough financial backing from the community to take BMOrg on, there could be all kinds of documents produced in a courtroom under discovery laws. Not to mention the public release of 15 years of correspondence between the two charities and their volunteers.

As always with this blog, comments are encouraged. Anyone from BMOrg is welcome to come here and inform the community about what’s going on, as is anybody else with knowledge of these events. Thanks to our multiple anonymous tipsters for sharing this leak.

 


[Update 9/18/14 5:46pm]

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the Burner who wrote the email to the Regionals list has responded to our request for comment, elaborating further on their motives:

[releasing]  this info into the public domain will illustrate a long history of highly inconsistent & arbitrary brand enforcement that relies heavily on the discretion of unpaid volunteers [regional reps aka corporate brand ambassadors] who are empowered by BM to make judgements  as to who is & isn’t a “Burner.”  This is often a highly politicized & authoritarian process that creates divisiveness within communities.  Regional reps may abuse their power by targeting community members for punitive actions by BM simply on the basis of their personal discretion, ie, whether or not they like someone.  Plenty of people throwing parties or selling goods & services using the Burning Man name have been given a pass by the brand cops simply because they know someone & can be vouched for as a “good Burner.”  As a regional rep & one of the early architects of the Regional Network, I never would have agreed to donate over 20,000 hours of my time & energy freely over 7 years to the community had I been explicitly told that my role was to be the protector of a corporate brand.  I believed passionately that we were creating an open source arts movement, & by the time I resigned from Burning Man I felt that those feelings had been manipulated by the Org in order to extract free labor in order to build corporate brand value, rather than community.  The idealistic “we’re a community” rhetoric is the key to extracting free labor for the corporation.  In the thousands of emails on the Regionals list, there is little evidence that regional reps have ever seen themselves as corporate brand ambassadors, they generally appear to be more community-minded idealists who believed, like me, they were helping to shape a fluid & organic movement.  It’s a deceptive & duplicitous practice on the part of Burning Man who is using these same well-intentioned volunteers to be brand enforcement police under the false guise of “protecting the community.”
The choice to go after Burn BC was Marian’s, & she had several options & avenues she could have pursued in this case, & she chose the most vindictive course of action.  Bhak & Burn BC have done nothing to damage the brand; for 15 years, Bhak has been adding value to the Burning Man brand in BC & beyond.  She should be compensating him for contributing to the growth of a global corporate brand now valued at several hundreds of millions of dollars
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[Update 9/18/14 7:17pm]
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Bhak has a few details he wants to be clear about:

A couple of Corrections.

First paragraph.
NO ONE has ever registered TM rights in Canada. It’s been in the public domain.

We pulled it out and put it back.

There’s no need to continue a law suit, and it’s questionable they have any right to.

—–

We didn’t renounce ownership, we released back to the public domain so no one has exclusive rights to it here.

We didn’t relinquish “all rights” we relinquished exclusive rights.

—-

And the emails Jody wants to release are not between Burn BC and BRC.

They are 15 years of internal BORG correspondence.

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[Update 9/18/14 9:06pm]

Although Canada did not sign the Madrid Agreement, they did sign the NAFTA agreement which has a clause about trademarks:

Article 1708: Trademarks

1. For purposes of this Agreement, a trademark consists of any sign, or any combination of signs, capable of distinguishing the goods or services of one person from those of another, including personal names, designs, letters, numerals, colors, figurative elements, or the shape of goods or of their packaging. Trademarks shall include service marks and collective marks, and may include certification marks. A Party may require, as a condition for registration, that a sign be visually perceptible.

2. Each Party shall provide to the owner of a registered trademark the right to prevent all persons not having the owner’s consent from using in commerce identical or similar signs for goods or services that are identical or similar to those goods or services in respect of which the owner’s trademark is registered, where such use would result in a likelihood of confusion. In the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any prior rights, nor shall they affect the possibility of a Party making rights available on the basis of use.

3. A Party may make registrability depend on use. However, actual use of a trademark shall not be a condition for filing an application for registration. No Party may refuse an application solely on the ground that intended use has not taken place before the expiry of a period of three years from the date of application for registration.

4. Each Party shall provide a system for the registration of trademarks, which shall include:

(a) examination of applications;

(b) notice to be given to an applicant of the reasons for the refusal to register a trademark;

(c) a reasonable opportunity for the applicant to respond to the notice;

(d) publication of each trademark either before or promptly after it is registered; and

(e) a reasonable opportunity for interested persons to petition to cancel the registration of a trademark. 

It seems from this that all BMOrg had to do was petition to cancel the registration of the trademark. They gave the trademark owner a reasonable opportunity to respond. The response? Putting the trademark into the public domain. BMOrg have now registered the trademark and are listed as the trademark owner, so it seems like they got the outcome they wanted months ago. Why continue this pursuit, which some have estimated will cost $100,000 or more just to defend?
J: article 13(1B) of the Canadian Trademark Act would apply… we, in Canada, used Burning Man images and symbols long before they were registered in the USA, therefore those marks can not belong to Decommodification LLC, in Canada
A good point. Decommodification LLC did not even exist when the Canadian trademarks were registered.
Pantsless Santa says:

A very short summary of what happened, with a little info on trademark law and surely many mistakes. This is based on information shared publicly by Bhak and some of the legal filings he shared directly with me a while back. I am an attorney.

1. The BMOrg forgot to register the trademarks in Canada, which is not a signatory to the treaty that makes registration reciprocal in most countries.

2. Burn BC, an unnoficial regional organization and perhaps mostly Bhak’s alter-ego, had been using the trademarks without the BMOrg’s permission but with its awareness for a while.

3. Trademark law: registration is only one piece of the puzzle. If an entity uses a trademark, generally words or a symbol, it can pretty quickly get the right to prevent other people from using it for the same purposes. Example: If I open up Pantsless Santa’s Light Sick and Feather Hut and run the business for a year or two, I will gain trademark rights to that business name and nobody else will be able to capitalize on my success.

4. More trademark law: Trademark registration basically gives you those rights, and even more, in advance. But if someone else is already using a trademark, nobody else can register it. Example: A local entrepreneur named Hairy Larvae decides that he wants to open up his own Pantsless Santa’s Light Stick and Feather Hut, and attempts to register that name as a trademark. He won’t be able to. It’s already my trademark, even though I haven’t registered it.

5. Burn BC applied to register the Burning Man trademarks on the grounds that it represents the Canadian burner community. Part of the argument is based on the idea that the Canadian community as it has developed over the years has a culture distinct from the corporate American TITD. This is an interesting argument and probably has some merit, but it is not pertinent to this procedural and legal account.

6. The BMOrg opposed Burn BC’s registration attempt, as far as I can remember on the grounds that the above argument is bunk (it might or might not be), that the BMOrg, through its official affiliates, already had the unregistered trademark rights (it does, unless – at minimum – the above argument is valid), and that Burn BC does not represent any separate Canadian burner community that might have trademark rights (this is a coffin nail for Burn BC). I apologize if I have this all wrong – I may well.

7. Burn BC “released the marks into the public domain” and withdrew its registration application, I believe with the intent that they only be used for noncommercial/burny purposes. This was a nice gesture, but a. It might not have any rights to release (see above), and b. Trademarks don’t quite work that way – you either maintain control of them or lose all rights to them.

8. The BMOrg is seeking revenge against Bhak for challenging their authority and forcing them to incur a ton of legal fees, maybe as much as $100k worth based on the amount of paper that’s been generated.

9. The BMOrg is acting like a bag of dicks. Bhak’s theories might or might not hold water in court, but he has acted in good faith with the purpose of promoting what he believes are the best interests of Canadian burners. This is not some kind of frivolous power grab. He doesn’t deserve this.

Decommodification, LLC now owns a newly registered trademark in Canada. What will they do with this in 3 years when they “fully complete” their transition?
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In other news, Billionaire Burner Elon Musk is showing humanity the right way to move forwards, by Gifting his for-profit company’s valuable intellectual property for “good faith” use. This is the future, “the Sharing Economy” that BMOrg loves to tell us they’re an example of.

[Update 9/20/14 11:53am]
Bhak has provided us with more details.
Decommodification, LLC is the party launching the lawsuit, so the legal fees don’t appear to be paid by the charity. The Vancouver Court Docket is here, this matter has been going on for some time with a number of different statements made to the court since April this year.
Bhak explains:
Decommodification LLC does NOT own a registered mark in Canada.
http://www.cipo.ic.gc.ca/app/opic-cipo/trdmrks/srch/vwTrdmrk.do?lang=eng&status=OK&fileNumber=1683813&extension=0&startingDocumentIndexOnPage=1Their application is “FORMALISED” which just means it’s been received and is waiting to be EXAMINED. It takes 12-18 months to reach examination. “Formalised” is just a fancy way of saying “entered in the system” and while it’s being applied for, no one else can file an application for the same.After 12-18 months, if the examiner deems the mark unregisterable they reject the application. If they don’t notice anything, it’s APROOVED which means Decommodification LLC has rights to use it as an official Trademark while it gets ADVERTISED for opposition. But until it’s REGISTERED after the ADVERTISED and OPPOSITION phases, they cannot assign licence to it, and they cannot enforce it, and they cannot transfer, or sell it.

During opposition it gets advertised in a public journal for 60 days at which time anyone can oppose it for any valid reason listed under section 30. http://laws-lois.justice.gc.ca/eng/acts/T-13/section-38.html

Burn BC released it’s marks based on Section 13(1B) of the Canadian Trademark Act.
http://laws.justice.gc.ca/eng/acts/T-13/page-9.html#docCont

Which would fall under section 38 (1B) as an unregisterable mark. It’s kind of like what happens when a mark falls out of trademark into public domain when its “Naked Licensed”, which is generally how it was used in Canada up until around 2009 or so.

…It wasn’t me “Bhak” who registered the marks, it was Burn BC. Burn BC was waiting to see if the marks passed the opposition phase with the Canadian Intellectual Property Office. If anyone opposed it, it was clear that no one should have exclusive rights.

If no one opposed, we were going to hand it off to an independent Federal Non-Profit run by Canadian Burners, and I would resign from it and Burn BC, for the sake of integrity, and to get back to just making my Art and raising my two year old son, unimpeded by this ever imposing conversion of a culture into a global brand owned by a corporation.This was offered as a mutually respectful and mutually respectful proposal before any lawsuit was launched. The original idea was that “we don’t care what you do in the United States, you’ve never really cared to be involved with Canada or do anything for Canada” So we will represent ourselves here, and you can do whatever you want there, and we will be nice about it.Coinciding with this was overwhelming sentiment from Canadian Burners that “NO ONE” should own it here. At this point the only reason to continue this law suit is to frighten me (and others) into silence and isolation about our rights to “Burning Man” in Canada over the last 20 years, and the fact that at this point it’s in the public domain here, through a combination of, 

1: never having been registered in Canada,
2: having been used widely under “Naked Licencing”
3: and generally arbitrarily enforced as a Cultural or Community MarkIn consultations with lawyers they all said it’s already Public Domain, and about the only way anyone can register it is if no one opposes any applications with CIPO. In other words someone is trying to issue and enforce in Canada something they have never had Registered Rights to enforce in Canada.So no one was stealing anything. Burn BC was just recognizing our rights as Canadians and the work we’ve done as a Distinctly Canadian Burning Man Culture, and offering an opportunity for Canadian Burners to step up to the plate and defend those rights. But it became clear, that people wanted NO ONE to have exclusive rights to our Culture and Community here. So we released the marks under a section of the trademark act that says “no mark that interferes with the development of the arts shall be registered.

Burning Man® and the Old Switcheroo

by Whatsblem the Pro

Photo by Sincerely Hana

Photo by Sincerely Hana

The JACK RABBIT SPEAKS has an interesting bit of wording in the latest issue. It’s in a section called “Black Rock City Civics” and it has to do with decommodification:

See, one of our core principles is Decommodification … which means amongst other things, that Burners don’t want to be treated like a consumer to be sold to, especially on playa. Here’s the full description: “In order to preserve the spirit of gifting, our community seeks to create social environments that are unmediated by commercial sponsorships, transactions, or advertising. We stand ready to protect our culture from such exploitation. We resist the substitution of consumption for participatory experience.” Besides, fliers create more MOOP, and we really don’t need any more of that, either!

Nothing wrong with any of that, is there? Except for that one little phrase: “especially on playa.”

Obviously none of us wish to be marketed to on the playa, but by slipping that little qualifier in at the end, Will is telling us that the Org disapproves of us buying things from each other no matter where we are. Of course, that doesn’t count if the Org gets to be in complete control of your interactions with other burners. JACK RABBIT SPEAKS, the official newsletter in which we are being encouraged to regard conducting trade with each other as taboo on or off-playa, often contains advertisements for burner-to-burner businesses.

You foolish children, they seem to be saying to us. Why would you want to network with each other and do any kind of trade or business together? We and we alone will moderate your interactions with each other.

In light of the Org’s trademark lockdown that attempts to prevent the very people who build and maintain the Burning Man brand from using it for non-commercial purposes to gather together and spread the culture beyond the playa, it seems absurd that they want to preach to us about decommodification. . . or about fostering the culture.

By the time Will gets to the part where he quotes from the ten principles, the ‘we’ in phrases like “we stand ready to protect our culture” has been twisted to mean “the Org.” Why is the Org interested in protecting the culture from burners themselves? Because by “our culture” what they really mean is the Org’s exclusive right to exploit burners, on or off the playa.

As we’ve already reported, just days ago the Org in their quest to “protect our culture” sent vaguely threatening messages to several Facebook group administrators, asserting that the use of the words “Burning Man” as part of a group’s name is some kind of trademark violation (it isn’t). The group in question is called “Burning Man Classifieds,” and it was made by burners for burners. Burners actively protect it from cynical outside commodification, and they don’t need the Org to help them do that.

It’s all well and good to blithely assert that “Burners don’t want to be treated like a consumer to be sold to,” but when you’re dealing with a group of burners who have voluntarily gathered in a particular place to do exactly that – have a burner swap meet – then maybe you’re going a little beyond the bounds of “protecting our culture” and sidling into territory that is more aptly described as “a corporation bothering people for no good reason.” Or maybe an even better description would be “a small handful of people, using a corporate trademark to co-opt YOUR culture and profit from it.”

Call me paranoid if you must. I realize that the wording in the JRS is subtle, but coming on the heels of the rising unpleasantness between the Org and burners on Facebook, this smells like a subtle attempt to sway burner attitudes toward an unthinking response that supports the Org’s commercial ambitions for the future. It cleverly ties the idea of any kind of commerce whatsoever between burners to concepts that are already familiar and repellent to us all: commerce on the playa, and MOOP.

The Org is not the culture; burners are the culture. It’s high time for the Org to admit that they have a massive conflict of interest between their stated purpose of spreading and nurturing the culture, and the personal interests of the Board of Directors.

Burning Man Org to Burners: We Own You

Imageby Whatsblem the Pro

People who don’t know what Burning Man is tend to assume that it’s just another festival; a place where consumers go to enjoy passive entertainment arranged by event promoters. Burning Man’s not like that, and it never has been.

What would we have, if the only work that got done out there on the playa was what the Org either paid for or did themselves? If there were no volunteers, no independent artists or laborers or engineers or architects or visionaries or weirdos or pranksters or sex deities or bartenders? Nobody out there just doing their thing?

Attendee participation is fundamental to Burning Man, and it is what provides us with 99% of the shade, art, diversions, exposed flesh, alcohol, and other critical resources to be found in Black Rock City. Even most of what the Org provides gets built, torn down, and cleaned-up after with volunteer labor, and all of it gets paid for with money we give them. Imagine if all those burners who put all that time and money and effort into being amazing on the playa – all the people who aren’t part of the Org or paid by them – were suddenly replaced in the middle of the burn by passive attendees looking to be entertained and vended to in exchange for their ticket purchase. There would be no Burning Man. There wouldn’t even be a festival; instead, we’d have a major tragedy in an artless, corpse-littered desert wilderness: Thirsting Man. Mummifying Man. What-the-Fuck-are-You-Doing-Here Man.

In short, it’s a huge mistake to give the Org too much credit for Burning Man. Burning Man co-founder John Law understood that; back in 2007, he wrote:

Burning Man, since it’s inception has depended upon the gratis efforts of many. Since my leaving active organizing of the event in 1996, it has become a huge business generating more than 8 million dollars a year. Some people are paid quite well for their efforts. If the organizing core of the event believes, as they say quite clearly in their literature that the BM concept is a true movement, and has an opportunity to really make a difference in peoples lives and ideas around community, the arts, etc., then they shouldn’t have a problem releasing the protected trademarks Burning Man, Black Rock City, etc to the public domain where ANYONE can then BE Burning Man. Doing this will not impede their ability to manage and organize the event, sell tickets, pay themselves, and any artists, vendors and tradesmen as they choose using ticket sales receipts.

The only thing that would change is that NO ONE would be able to capitalize on “Burning Man” by licensing the name or selling it or using it as an advertising pitch. There is no other reason to retain these legal ownership titles other than to capitalize on their brand value at some later date.

I was defrauded by Larry and Michael’s actions. I hope they choose to do the right thing and give Burning Man to the people.”

John Law

John Law

Of course they didn’t give Burning Man to the people. They settled with John Law on undisclosed terms instead, and they’ve been jealously guarding the brand they officially own ever since. . . and that eight million dollars? It’s now up to over thirty million.

Yes, I said “jealously guarded,” and there’s no hyperbole in that. . . if anything, it’s an understatement. In 2009, digital civil rights watchdog the Electronic Frontier Foundation slammed the Org for their ticketing terms and conditions, saying “It’s bad enough that some companies routinely trot out contracts prohibiting you from criticizing them, but it’s another thing altogether when they demand that you hand over your copyrights to any criticisms, so that they can use the DMCA (Digital Millennium Copyright Act) to censor your own expression off the Internet.”Electronic Frontier Foundation

Having recognized that the Org may very well have good intentions behind their terms and conditions, the EFF still notes that “the collateral damage to our free speech is unacceptable.”

The Org’s defense to this is that their over-reaching and draconian measures are necessary to protect Black Rock City culture. Some would say that by ‘protect’ they must mean “reserve it for their own exploitation.” The most charitable interpretation I can make of the Org’s response to the EFF is something like “we don’t trust burners to do it themselves, and we lack the imagination to come up with a solution that isn’t a massive violation of peoples’ rights all year long, everywhere.”

The corporation that runs Burning Man is slated to become a non-profit, but this has not yet happened, and it won’t necessarily make things better, or curtail the ability of board members to skim off massive paydays for themselves. For now, the Org is still a non-transparent, for-profit corporate entity whose board members primarily serve their own interests behind closed doors. With most of their operating costs paid for out of the pockets and sweat glands of volunteers, they control tens of millions of dollars per year in ticket revenue alone. . . yet they seem to have zero respect for the people who not only give them that ticket revenue, but also literally build and painstakingly strike the event that makes it possible for them to sell tens of millions of dollars worth of tickets in the first place.

Zero respect doesn’t mean zero interest. Off-playa, the Org seems all too eager to establish and maintain a Disney-like control over every aspect of burner culture they can get their hands on, a process that effectively quashes the very freedom and can-do DIY attitude that burners thrive on and that the Org themselves love to trumpet as their greatest triumphs.

Given the amount of lip service that the Org gives to the idea of spreading the culture as widely as possible, it seems both hypocritical and graspingly self-serving to exert the kind of stranglehold that they do on ‘their’ trademark. That kind of control freakism is par for the course, though. Regionals must adhere to a strict set of policies and rules set by the Org, just to be ‘officially’ recognized as nothing more than organized groups of burners. Try to organize anything bigger than a living room sleepover while self-identifying as Burning Man enthusiasts, and you’re asking for unwelcome attention from the vultures in the Org’s legal department and their mania for protecting the Burning Man brand from the very people who give that brand its value.

The Org even has an official set of rules for online communities, and they are both dismayingly extensive and incredibly oppressive. Rudeness, vulgarity, being disrespectful, being snide, being overly-critical of the Org, or even wandering off-topic are just a small part of what is explicitly forbidden.

“They want burner-oriented Facebook groups to enforce all those rules for them. So naturally, nobody wants their group to be official,” says Michael Watkiss, an administrator of and participant in several such groups. “The official rules are just way too strict.”

The words of John Law echo in our ears: “There is no other reason to retain these legal ownership titles other than to capitalize on their brand value at some later date.” The Org’s death grip on the Burning Man trademark is a visible sign of their preparation of new revenue streams – at the culture’s expense – in order to maintain and increase the personal income of board members in the face of their imminent reconfiguration as a non-profit organization.

There are a surprising number of Burning Man groups and pages on Facebook, most of them unofficial, created and administered by volunteer burners. They range from the Org’s own heavily-moderated Facebook page to various Regional or special-interest groups, including one called “Burning Man Sucks.”

Photo by Michael Macor

Photo by Michael Macor

The administrators of these groups are, of course, unpaid volunteer burners. To one degree or another, they strive to keep their groups lively, useful, and relevant. One thing plagues them all: advertising. People show up in their groups and post ads, aka ‘spam.’

The largest Burning Man group on Facebook, with some 28,000 members, has this problem all the time. “We have to be constantly on the watch for spam,” says Watkiss. “We’re a decommodification zone, no advertising allowed. The only exceptions are for events and fundraising that directly benefit either recognized Regionals, or art projects that are destined for the playa.”

It’s easy enough for the admins to just delete the totally unrelated marketing blather that washes up in our online communities, but some of it isn’t totally unrelated, and is posted by burners themselves. Somewhere between the exceptions made by Watkiss’ group and the realm of outright corporate spam, there lies a grey zone of burner-oriented advertising by and for individual burners. Deleting a corporate sales pitch for diet lard, the latest model of Pootmobile, or low easy payments on plutonium siding for houses is trivial; deleting a fellow burner’s post in which he’s trying to sell the yurts he builds can cause friction.

“It’s often cut-and-dried,” says Watkiss, “but the grey areas are very, very grey indeed. That can really generate a lot of anger.”

Recently, a small group of volunteer administrators like Michael Watkiss put their heads together over an improved solution to the spam problem that wouldn’t shut out individual burners from making contact with each other and buying and selling things. “A guy from one of the Regional groups told us that his people opened a second Facebook group strictly for buying and selling things to each other,” Watkiss explains. “It seemed like a great idea, so we talked about starting one for burners all over the world to use. It keeps the buying and selling out of the main groups, but gives it a place to happen where we can still guard against people from outside the culture trying to market random junk to us. Decommodification is wonderful in its place, but it shouldn’t mean that burners are forbidden from ever having any commerce with each other, anywhere. This way the burners on Facebook get their burner swapmeet if they want it, without polluting the main groups with commerce.”

The charter of the new group, dubbed “Burning Man Classifieds,” reads as follows:

This group is given to the burner community as a place to freely post any appropriate advertisements we wish. Funding an art project? Tell us about it. Need a new roommate, or a job, or a car, or a rideshare, or some exotic materials for your art? Try us. Want to sell something? Give us your best pitch. You can even beg here, if you think your cause is good enough to garner donations. You can even look for a date! What you can’t post: MLM pyramid schemes/scams, obvious attempts to market to us from outside our community, and blatant trolling. Everything else is fair game; the admins will use their best judgment in sorting the wheat from the chaff.

PLEASE THINK BEFORE YOU POST. This is a worldwide group of people. If you post an ad looking for a room to rent, for instance, then we need to know where you are. Not the intersection, the city and State (or Province, etc.). Try not to make extra work for the volunteer administrators, or we might assume you’re a troll.

If you administer a Burning Man related group and would like to help us out, get in touch with one of our admins so we can add you to the team.

Just a week after the new group’s inception, the Org seems to have taken notice in a big way. “Apparently, they’ve been sending thinly-veiled legal threats to one of the administrators,” says Michael Watkiss. “They don’t want the group to use the phrase ‘Burning Man’ because they say it violates their trademark.”

Trademark infringement is not so simple, though. In most cases of alleged infringement, the acid test is consumer confusion. If the defendant isn’t selling a product that consumers might think came from a different manufacturer because of the trademark, then generally speaking, no infringement has occurred. There are also protections for non-commercial use of trademarks, and for parodies.

Michael Watkiss: “I don’t understand why the Org would think they have a leg to stand on. Nobody owns the group, and nobody is making money by running the group. It’s just a place for burners to have a funky little swap meet with each other. The group itself is not a commercial enterprise, and nobody is going to confuse a Facebook group with a giant week-long arts festival in the desert. The idea that there’s some kind of trademark infringement going on that requires their legal team to swoop in is just silly.”

Holle had to change his plates from BURN BRC to BRC LUV

Holle had to change his plates from BURN BRC to BRC LUV

According to Watkiss, the Org’s legal team suggested that a name change to “Burner Classifieds” would be sufficient to call off the dogs. . . but sadly, most people – including the State – still think ‘burner’ means someone who smokes a lot of pot. “It makes it harder for our tribe – burners – to find Burning Man communities that aren’t controlled by the Org, and encourages both dilution and demonization of our communities by making outsiders think we’re all about drugs.”

Watkiss’ complaint seems to hold water.

“I ordered ‘BURNBRC’ license plates from the State of Nevada for my pickup truck,” burner Jawsh ‘Sparrow’ Holle told me. “They printed the registration that way on the spot, but then the State sent me a letter saying they wouldn’t issue the plates because the word ‘burn’ was drug-related, and I had to change my request. I asked for ‘BRC LUV’ instead.”

Trademark law protects people using phrases that can’t be adequately expressed with an alternate phrase, especially for non-commercial uses, and particularly when there’s no consumer confusion likely. The Org’s attempts to exert total control over the term “Burning Man” aren’t just contrary to everything they say about fostering community and culture, they’re also unsupported by trademark law.

“It’s all been very politely worded,” points out Watkiss, “but the implicit threat in these messages from the Org is very clear. It’s the iron hand in the velvet glove. If they can’t be in complete control, the Org wants to marginalize us. . . and we’re burners!”