ThinkGeek's Best Ever Cease-and-Desist Letter 264
ThinkGeek, sister company to Slashdot, received a meticulously researched (except on one point) 12-page cease-and-desist letter from the National Pork Board. What had the meat lobbyists up in arms was an April Fools product from the TG catalog: Radiant Farms Canned Unicorn Meat, whose copy included the line "the new white meat." The NPB figured this was confusingly similar to their trademarked "the other white meat" (an advertising slogan the pork industry is considering retiring anyway). Geeknet, parent company of Thinkgeek and Slashdot, issued a press release apologizing for any confusion; you can read it on ThinkGeek's site (PDF), because the newswires refused to distribute it for some reason. Oh, and ThinkGeek has no intention of taking down the protected parody.
Before having a knee-jerk anti-lawyer moment... (Score:5, Informative)
...consider that organizations can lose their trademarks if they don't actively defend them against even vague and doubtful potential infringements. If they let this case slip without issuing a token C&D, it could be cited later by an actual competitor as grounds for permitting their own infringement.
That's not to say that the law isn't stupid, but the proper target for complaints about the stupidity of the law is your local congresscritter, not the lawyers who are just dealing with the laws as they are. These lawyers are just writing letters, not trolling for DUI cases on the sides of city buses.
Re:Why did this make the front page? (Score:5, Informative)
Would you have known about the $10 off any $40 order if it wasn't on the front page? ;)
Article reading FTW!
Re:The Letter, Please... (Score:2, Informative)
The first page is posted here http://www.thinkgeek.com/blog/2010/06/officially-our-bestever-cease.html [thinkgeek.com]
Re:Isn't Satire Protected? (Score:4, Informative)
I'm an IP lawyer (IAAIPL) and putting aside the fact that this is completely ridiculous, the most obvious legal problem the NPB is going to face is that I don't think ThinkGeek was using the slogan as a trademark (which is a prerequisite for trademark infringement), given that they weren't selling an actual product. Although to be fair, I'm not sure the sale of an imaginary product under trademark law has been considered by a court before...
Re:Before having a knee-jerk anti-lawyer moment... (Score:5, Informative)
I am an IP lawyer (IAAIPL). From the letter of demand, it appears that the NPB hasn't actually twigged that this is an imaginary product. Therefore even if ThinkGeek has used their trademark, they haven't used it as a trademark - i.e. to indicate the origin of a product - because there is no actual product. (I tried ordering it, it doesn't let you.)
Funnily enough, it might be different if they were shipping something, even if it was just a novelty can of dog food.
Parodies of trademarks are not protected (Score:4, Informative)
Re:Oh, c'mon! (Score:5, Informative)
Re:Before having a knee-jerk anti-lawyer moment... (Score:5, Informative)
If the intention is to protect their trademark, issuing an exemption (a proceed and permitted letter) is also an acceptable option, and it's a hell of a lot less offensive. These guys are just being jerks.
Re:Before having a knee-jerk anti-lawyer moment... (Score:3, Informative)
Likelihood of consumer confusion as to sponsorship is as good as likelihood of consumer confusion as to source. Then there's the trademark dilution and tarnishment issues. It'd be hard to argue that "the other white meat" is not a famous mark.
One of the better discussions of trademark parody is found in Mutual of Omaha Insurance Co. v. Novak, 836 F. 2d 397 (8th Cir. 1987). Although the fact that the parodist is not in the market is significant, ThinkGeek really does sell a broad range of merchandise. The twist that it is offering the Canned Unicorn Meat for sale (even if never completing a sale) is one that courts who are sympathetic to the 8th Circuit might not find amusing.
Re:Before having a knee-jerk anti-lawyer moment... (Score:3, Informative)
Lastly, pork is far from the 'other white meat'. Compared to chicken or turkey its incredibly unhealthy.
From the couple of searches I did, pork is (recently at least) very close to chicken and also has other nutrients in addition:
FOR YEARS CHICKEN has been the white meat preferred by Americans--and for good reason: It's naturally low in fat, fairly tasty (what doesn't it taste like?) and a good source of vitamins and minerals. But a study by Duke University showed that lean pork could be just as effective as chicken in helping to lower LDL ("bad") cholesterol--that's the bad stuff, y'all.
http://findarticles.com/p/articles/mi_m1608/is_8_19/ai_105853400/ [findarticles.com]
How exactly does pork hold its own on the pollo grounds? Mainly because one-third of its saturated fat comes from stearic acid, which does not contribute to increased bad cholesterol levels. But pork is also low in sodium and a good source of potassium, iron, magnesium, zinc, riboflavin, and vitamins B12 and B6.
Pork also packs a significant amount of nutrients in every lean portion. A 3-ounce serving of pork tenderloin is an "excellent" source of protein, thiamin, vitamin B6, phosphorus and niacin, and a "good" source of riboflavin, potassium and zinc, yet contributes only 6 percent of the calories to a 2,000-calorie diet.
http://www.medicalnewstoday.com/articles/46034.php [medicalnewstoday.com]
In case anyone didn't read Thinkgeek's response... (Score:3, Informative)
Re:Before having a knee-jerk anti-lawyer moment... (Score:4, Informative)
One of the better discussions of trademark parody is found in Mutual of Omaha Insurance Co. v. Novak, 836 F. 2d 397 (8th Cir. 1987).
But in that case Novak was actually marketing products containing parody slogans. In this case, if I understand the facts correctly, unicorn meat is not actually being offered for sale. So the use of the mark is not a trade mark use and the question of parody would never arise, surely?
Re:Before having a knee-jerk anti-lawyer moment... (Score:2, Informative)
Linden labs sent a "permit and proceed" letter to getafirstlife.com. So there are alternatives you can use regarding trademarks and parody sites.