Digital Gloves Come Off As Facebook, TiVo Spar Over ‘Thumbs Up’ Marks

Facebook and TiVo are battling over a gesture — the “thumbs up” — that’s been part of the Western cultural canon since the days of Roman gladiators and has continued with modern practitioners Siskel, Ebert and The Fonz.

Last October, TiVo challenged Facebook’s 2010 registration of a “thumbs up” mark for its “Like” feature, familiar to the site’s 1 billion-plus users worldwide. The DVR company — whose legal team has netted more than $1 billion in patent-litigation settlements from Dish Network, AT&T and Verizon — said it has used “thumbs up” and “thumbs down” icons in its DVRs since 1999 and it would be harmed if Facebook’s “confusingly similar proposed thumb mark is allowed to register,” according to its complaint with the U.S. Patent & Trademark Office.

The social-media giant’s response? Big dislike: Facebook countered that TiVo has no valid claims on tiny gloved thumbs.

In a response filed last week, Facebook said TiVo has “failed to protect, police and/or control those marks from widespread use and/or failed to exercise quality control over its licensees resulting in abandonment of its trademark rights.” Facebook also denied that TiVo has “strong common-law rights in the TiVo thumbs marks.”

The companies declined to comment on the quarrel.

Facebook and TiVo have been in settlement talks over the thumb-wrestling, according to the USPTO Trademark Trial and Appeal Board. But unless and until that happens, the dispute over the digital digit is proceeding, with discovery in the case set to open April 23. The Wire trusts that all relevant documents will be backed up for safekeeping on (sorry) thumb drives.