Like, No Way: Facebook Says TiVo Doesn't Have Rights to 'Thumbs Up'

Social Giant Contends TiVo Has Failed to Protect Its DVR Thumb Marks

Facebook and TiVo are wrestling over an icon of the digital media age -- the “thumbs up” indicator -- with the social-media giant arguing the DVR maker has no valid trademark claims on tiny gloved thumbs.

TiVo last October formally 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, in a complaint with the U.S. Patent & Trademark Office, said it has used the “thumbs up” and “thumbs down” icons in its DVRs since 1999 and that it would be harmed if Facebook’s “confusingly similar proposed thumb mark is allowed to register.”

In a response filed Monday, 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 possesses “strong common law rights in the TiVo Thumbs Marks.”

Moreover, according to Facebook, TiVo’s claims are barred “by the doctrine of unclean hands” (which would include, obviously, unclean thumbs). By that, the company means that TiVo -- even though it was aware of Facebook’s trademarks -- has “encouraged and benefited from the use of the Facebook ‘Like’ mark by inviting users of Facebook’s services to ‘Like’ TiVo’s Facebook page and by integrating its TiVo products, including use of its ‘thumbs’ functions, with Facebook.”

TiVo declined to comment on Facebook’s reply.

Facebook and TiVo have been engaged in settlement discussions over the issue, according to the USPTO Trademark Trial and Appeal Board. But unless and until that happens, the dispute is proceeding, with discovery in the case set to open April 23.

TiVo, through its iPhone and iPad apps, lets users see which programs their Facebook friends indicate they “like,” as well as the programs their friends are currently watching.