...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.
/////.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.
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.
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.
Except for the fact that there was NO INFRINGEMENT. Once again, the trademarked phrase was never actually used by ThinkGeek, and the only thing (at least) the first page of the C&D stated as far as actual infringement was on the part of other parties using it while referencing Unicorn Meat, which isn't ThinkGeek's liability.
I am not a lawyer, however, just an entertained American with common sense, which I understand has no place in the court room.
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.
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
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.
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.
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.
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
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?
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.)
Without impugning your qualifications as an IP lawyer, I politely suggest you may have forgotten about dilution and tarnishment. Consider Anheuser-Busch v. Balducci Publications [audiocasefiles.com]: Balducci never sold "Michelob Oily", nor was it a real product. However, it was still a use of a mark in commerce (in a magazine) that was likely to confuse.
Similarly, ThinkGeek is in commerce, and a parody ad on their site still serves to draw attention and potential buyers to their other products. Accordingly, section 32 of t
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
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.
[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.
my guy says with a 12 page C&D, somebody gets paid by the hour, and was in on the fact its a parody.
I know they must defend thier TMs, but 12 pages? geez.
I can see it now:
exec: "we need to defend our TM. send them a C&D THIS INSTANT!"
lawyer: "but sir, I am not so sure..."
exec: "Nevermind YOU! DO IT!"
lawyer: "ok, but this could take a while sir, it could be VERY complex." (picks up phone and dials) hello, travel agent? extend my vacation to the french Riviera by a week, and upgrade my room to a suite
Well, the other thing they could do is send a letter giving Think Geek the rights to parody their slogan. That still acknowledges that they are protecting and licensing their products. Oh well
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:Before having a knee-jerk anti-lawyer moment... (Score:5, Insightful)
/////.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)
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.
Re: (Score:2)
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.
Re: (Score:1)
Except for the fact that there was NO INFRINGEMENT. Once again, the trademarked phrase was never actually used by ThinkGeek, and the only thing (at least) the first page of the C&D stated as far as actual infringement was on the part of other parties using it while referencing Unicorn Meat, which isn't ThinkGeek's liability.
I am not a lawyer, however, just an entertained American with common sense, which I understand has no place in the court room.
Re: (Score:2)
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.
Re: (Score:2)
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)
Contrary to some popular opinions, The Pork Board is not nearly as humorous entity as some are made to believe it is.
Re: (Score:1)
Thanks.
Re: (Score:2)
"Bay-beh, it's the other, other white meat!"
Re: (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.
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]
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.
Re: (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. Th
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: (Score:2)
Funnily enough, it might be different if they were shipping something, even if it was just a novelty can of dog food.
What if it was a can of pork?
Re: (Score:2)
It will be a ground for a lot of real lawsuits - for example from people that avoid pork.
Re: (Score:2)
Can unicorn's meat be kosher?
Re: (Score:2)
Unlikely. Horse meat can not be kosher. Presumably unicorns don't chew their cud or have cloven feet.
Re: (Score:2)
Mod parent up. Not only did he clarify the point I was missing, he did it politely.
Re: (Score:2)
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.)
Without impugning your qualifications as an IP lawyer, I politely suggest you may have forgotten about dilution and tarnishment. Consider Anheuser-Busch v. Balducci Publications [audiocasefiles.com]: Balducci never sold "Michelob Oily", nor was it a real product. However, it was still a use of a mark in commerce (in a magazine) that was likely to confuse.
Similarly, ThinkGeek is in commerce, and a parody ad on their site still serves to draw attention and potential buyers to their other products. Accordingly, section 32 of t
Re: (Score:2)
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]
Re: (Score:2)
Re: (Score:2)
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.
Re: (Score:2)
We could always send them off on the "B" Ark, and tell them that a giant space goat was about to eat the Earth...
Re: (Score:2)
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)
This was probably the most fun they had all year.
Re: (Score:2)
And it's not like the lawyers didn't know it is stupid. This was probably the most fun they had all year.
Oh yes, they probably smiled all the way [...]
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: (Score:2)
woops, forgot this: http://www.darrenbarefoot.com/archives/2007/01/i-got-a-proceed-and-permitted-letter-from-linden-labs.html [darrenbarefoot.com]
Re: (Score:3, Insightful)
[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
Re: (Score:2)
...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.
Re: (Score:2)
my guy says with a 12 page C&D, somebody gets paid by the hour, and was in on the fact its a parody.
I know they must defend thier TMs, but 12 pages? geez.
I can see it now:
exec: "we need to defend our TM. send them a C&D THIS INSTANT!"
lawyer: "but sir, I am not so sure..."
exec: "Nevermind YOU! DO IT!"
lawyer: "ok, but this could take a while sir, it could be VERY complex." (picks up phone and dials) hello, travel agent? extend my vacation to the french Riviera by a week, and upgrade my room to a suite
Re: (Score:2)
Well, the other thing they could do is send a letter giving Think Geek the rights to parody their slogan. That still acknowledges that they are protecting and licensing their products. Oh well
Re: (Score:2)
This may be, but I would hardly call 12 pages a "token" C&D. Them lolyers must've been hungry.