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ThinkGeek's Best Ever Cease-and-Desist Letter 264

Posted by kdawson
from the good-source-of-sparkle dept.
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.
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ThinkGeek's Best Ever Cease-and-Desist Letter

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  • Well good. But does this mean I have to give up bacon?
  • Acronym? (Score:5, Funny)

    by Locke2005 (849178) on Monday June 21, 2010 @06:24PM (#32647424)
    SPAM is a contraction of SPiced hAM; what is the acronym for Canned Unicorn Meat? Have they considered changing the slogan to "Enjoy some tasty CUM today!"?
  • by Saeed al-Sahaf (665390) on Monday June 21, 2010 @06:24PM (#32647430) Homepage
    OK, but where is this "12 page C&D letter"?
  • by Locke2005 (849178) on Monday June 21, 2010 @06:27PM (#32647444)
    Soylent Green: the other other white meat!
  • by Angst Badger (8636) on Monday June 21, 2010 @06:29PM (#32647460)

    ...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.

    • by gad_zuki! (70830) on Monday June 21, 2010 @06:49PM (#32647628)

      /////.not the lawyers who are just dealing with the laws as they are.

      Pardon me, but this is clearly parody. The lawyers ALREADY HAVE LAWS TO TELL THEM TO RESPECT PARODY. They chose to ignore them.

      Not only is this a parody, its not even a real product, and the phrase is not the same phrase as "the other white meat."

      Playing up the "We're just following the law, ma'am and are powerless to think for ourselves" card is a unconvincing excuse. that empowers organizations like SCO.

      Lastly, pork is far from the 'other white meat'. Compared to chicken or turkey its incredibly unhealthy.

      • Re: (Score:3, Insightful)

        by budgenator (254554)

        Except that " the other white meat(tm)" is a trademarked phrase not a copyrighted phrase so I don't think that parody is a defense, additionally Trademarks are protect it or lose it, so the lawyers really had no choice no matter how ridiculous the infringement was.

        • by gad_zuki! (70830)

          What exactly is confusing the potential consumer in this case? How can he be tricked into buying a fictional product? Its ridiculous to keep defending this action.

        • You can't take parody into account with trademarks. It's a touchy subject and you have to send out the C&D even if it is parody for no other than if you don't, then someone else can say, "In this example, they let it slide, therefore they failed to defend their trademark."

          By sending the C&D the council covers their ass for the next attempt to infringe on the trademark.

          • by Speare (84249)

            It's a touchy subject and you have to send out the C&D even if it is parody for no other than if you don't, then someone else can say, "In this example, they let it slide, therefore they failed to defend their trademark."

            NO. There is no requirement to be an asshole about a trademark. The phrase is 'defend the trademark' not 'be an asshole sending out hollow legal threats without thinking about it.' If they feel they must do something, they can simply say "we happen to have a similar trademark, we ch

            • Re: (Score:3, Funny)

              by SharpFang (651121)

              Contrary to some popular opinions, The Pork Board is not nearly as humorous entity as some are made to believe it is.

      • Re: (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]

    • by RuralJuror (1836050) on Monday June 21, 2010 @06:54PM (#32647670)
      That would be true if this were a real product.

      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.

      • Re: (Score:3, Informative)

        by DRJlaw (946416)

        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. Th

        • by Capsaicin (412918) on Tuesday June 22, 2010 @02:11AM (#32650178)

          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?

    • by rm999 (775449)

      That's the funniest part: they are getting rid of that slogan very soon:
      http://www.cbsnews.com/stories/2010/06/10/ap/business/main6569347.shtml [cbsnews.com]

    • I know someone that works for a company that sends these letters. She's a moron. In fact, everyone that "researches" these cases at that company is a moron (at least all the ones I've met) They get a trademark, in this case "The other white meat" as a case file. It comes with the trademark itself, some pictures of how its used on cans and what-not and other basic info. Then they put the terms into a scripting program they have... which is basically just a web crawler. The crawler finds sites that use the te
      • I know someone that works for a company that sends these letters. She's a moron.

        If we didn't have jobs for morons to do the rest of us would have to support them with welfare.

        • by sconeu (64226)

          We could always send them off on the "B" Ark, and tell them that a giant space goat was about to eat the Earth...

          • We could always send them off on the "B" Ark, and tell them that a giant space goat was about to eat the Earth...

            No.... thats how we got into this situation in the first place.

    • Re: (Score:2, Insightful)

      by dewatf (209360)
      And it's not like the lawyers didn't know it is stupid.

      This was probably the most fun they had all year.
    • by initialE (758110) on Monday June 21, 2010 @08:01PM (#32648236)

      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: (Score:3, Insightful)

      by Capsaicin (412918)

      [C]onsider that organizations can lose their trademarks if they don't actively defend them against even vague and doubtful potential infringements.

      I agree with you that we shouldn't have a knee-jerk reaction against lawyers and I would add that there was not even a potential infringement here, the statment "the other white meat," was not being used in trade. Pork's lawyers should have waited till next April to send their complaint.

      That's not to say that the law isn't stupid

      It isn't stupid enough to pe

    • by rhizome (115711)

      ...consider that companies can also lose their trademarks if they abuse them. That's not to say it happens very often, but it's an available remedy.

  • Interesting (Score:4, Interesting)

    by Locke2005 (849178) on Monday June 21, 2010 @06:30PM (#32647474)
    How many people has the California Milk Processor Board sued for the literally hundreds of infringements of their "Got ____?" Trademark?
  • I love it. Since this was an april fools joke they are totally protected by parody law. Stupid stupid lawyers... LOL too funny

  • by ChipMonk (711367) on Monday June 21, 2010 @06:33PM (#32647504) Journal
    "We're sorry your lawyers can't tell the difference between real copyright/trademark violations, and protected parody."

    Anything else is a waste of bits.
    • Well, they can't tell the difference between red meat (mammalian) and white meat (fowl), so at least they're consistent.

    • They could have just not responded, and then later claimed it got stuck in their "spam" folder.

      Stupid lawyers probably wouldn't get it anyway.

    • Thing is with trademarks you have to defend them or loose them. Parody rules don't matter with trademarks as you still have to show that you are actively trying to protect the mark or slogan. You are much better off to send the C&D because then if it is brought up in a later court case, you can show that you were actively trying to protect the mark.

  • by zill (1690130) on Monday June 21, 2010 @06:33PM (#32647506)
    Unicorn meat is murder!

    Stop the needless killing of endangered species!
  • by Trip6 (1184883) on Monday June 21, 2010 @06:36PM (#32647528)

    I thought articles and comedy bits that were clearly satirical were protected under the first amendment. They aren't trying to make money with the white meat phrase except to add to the humor of the article, so what would the damages be?

    • by RuralJuror (1836050) on Monday June 21, 2010 @06:46PM (#32647602)
      You're thinking of copyright. They're not arguing copyright infringement, they're arguing trademark infringement.

      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...

  • New slogan? (Score:3, Funny)

    by Locke2005 (849178) on Monday June 21, 2010 @06:50PM (#32647636)
    So what are they planning on replacing "Pork: The other white meat" with?

    Pork: Hardly anybody gets Trichinosis these days!

    Pork: Now with Bacon!

    Pork: You know you love to do it!

    Pork: If you were a Christian, you could be eating it now!
    • Re: (Score:3, Insightful)

      by compro01 (777531)

      Pork : Not just for Congress anymore!

    • The weird shit is that my mom always use to tell me to thoroughly cook pork so we don't get Trichinosis. Meanwhile in those days I had no problems eating raw ground beef. And chicken - don't get me started there... I never seem to hear anything about contaminated pork these days....
    • by sxedog (824351) on Monday June 21, 2010 @08:53PM (#32648542)

      Actually, in Saskatchewan the Pork Producers came up with This slogan:

      "Pork. The one you love!"

      Unfortunately, they forgot the period on the signs they marketed all over the province...

  • Finally,,, (Score:5, Funny)

    by The Other White Meat (59114) on Monday June 21, 2010 @06:55PM (#32647684)

    my Nick is relevant to a Slashdot story.

    ThinkGeek FTW!

  • Dot-com dead pool brakes for Ford [cnet.com]

    Under the Federal Trademark Dilution Act of 1995, a person can be held to have infringed upon a trademark for "tarnishing" it by using it in a negative context. The famous example is a case in which the slogan "Enjoy Cocaine" was used in Coca Cola's distinctive script and was judged an infringement without the more typical trademark litmus test of creating confusion in the marketplace.

    "Parody under the law doesn't magically fend off trademark infringements," said Gregory Phillips, attorney with Howard Phillips and Andersen. "In our view, this is the same thing as 'Enjoy Cocaine.'"

    • by hguorbray (967940)
      yeah -except the trademarked phrase is 'The Other White Meat' and TGs is The 'New White Meat'

      can't believe no one has pointed this out yet

      -I'm just sayin'
      • by Sabriel (134364)
        they have, and you may also note that the post you reply to refers to a parody case in which the parody was done in the style of the parodied trademark, just as (in my not-a-lawyer opinion) "the new white meat" is being in the style of "the other white meat". That said, in my same non-lawyer opinion, parody should be a defence against trademark infringement just as it is copyright infringement.
        • by Skapare (16644)
          However, after seeing this ad, I was going to go out and buy some pork. But then I saw the stupid C&D and have now decided to boycott all pork. And I'm sure my Jewish and Muslim friends will join in.
        • The way trademark law is, you HAVE to defend it or loose it. And The New White Meat is close enough to warrant a C&D just to show that you are trying to protect the trademark.

          It is not copyright. If you don't defend your copyright you don't loose it until the alotted time expires. Same with a patent. But Trademarks are different. There are no set time limits on Trademarks meaning if you do not actively defend them, you loose 'em at any time.

          If you are a trademark holder, you can't afford to write a

  • LOLROFL

  • Some people are born stupid, others work at. Lawyers prove you can do both!
  • Next they'll be suing Mike Myers for Fat Bastard's "Baby: The other, other white meat!"
  • by Skapare (16644) on Monday June 21, 2010 @09:20PM (#32648710) Homepage

    ... and that lawyers always get easily confused (like confusing the word "new" with the word "other"). Numerous surveys have been conducted and found that less than 2% of the public gets these two words confused, while 44% of those on drugs, and 73% of lawyers, will get these two words confused.

    The moral of the story is that lawyers always get confused, so you have to always write all text in legalese.

    • The moral of the story is that lawyers always get confused, so you have to always write all text in legalese.

      Close, but the true moral of the story is that you are herewith obligated, under statutes pertinent to your jurisdiction, to retain the services of a qualified legal professional, registered in your jurisdiction to prepare, submit, review, approve, publish and otherwise process all documents using terminology carefully worded to minimize any risk of exposure to further recrimination or liability. (at $85 per word or $1500 per hr charged in 6 minutes blocks, whichever is greater)

      sign, here, here, and here and initial here


      ...and here

  • ... that there are now THREE kinds of white meat. So the NPB's use of "The Other White Meat" now constitutes fraud and falsification of the facts. Maybe they should retire that term.

  • by raving griff (1157645) on Monday June 21, 2010 @09:48PM (#32648882)
    ...it includes a coupon code for $10 off a $40+ order good until the 30th.

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