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Jennifer Laycock Threatened With Lawsuit


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#1 cre8pc

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Posted 01 February 2007 - 04:40 PM

This just floors me.

Jen's breastfeeding website reports that the USA Pork industry has threatened her with a lawsuit because she used the slogan "the other white milk" on a t-shirt promoting breastfeeding awareness.

The money she generates from her t-shirts go towards a breastmilk bank (where it can be stored and used by babies who need it, have mom's who can't nurse, etc.)

So far, that particular t-shirt earned $8

And she was ordered to remove it for a trademark violation?

Overzealous Big Pork Stomps on Breastfeeding Blogger

Blogging Mom Threatened by the Pork Industry over T-shirt Slogan

What is going on here?

#2 AbleReach

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Posted 01 February 2007 - 05:06 PM

What floors me is that it took Big Pork this long to spot her. They should hire Jen for her SEO-related branding smarts! First, they'd have to get enough of a sense of humor to be able to differentiate between a wholesome market segment and a fetish. Sheesh!

#3 Cath

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Posted 01 February 2007 - 05:16 PM

No idea what's going on, but it seems quite obvious that Jennifer Daniel Collins and the National Pork Board don't have enough porker related work to do.

I simply can't see the connection between breast milk and pigs, pigs have only ever made me think of bacon butties :)

I wish Jennifer all the breast :D in her fight if she decides to go ahead.

#4 bragadocchio

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Posted 01 February 2007 - 05:45 PM

A company that made a non-dairy hemp-based milk, Tierra Madre, LLC, was using the trademarked term "The Other White Milk" from July 17, 2000 to March 13, 2003, when they abandoned it. Don't know the backstory, but it looks like they may have abandoned it because of an action of the US Drug Enforcement Agency to ban hemp based products than included "harmless trace amounts of THC."

Here's the latest filing from the Pork folks on the trademark:

Word Mark THE OTHER WHITE MEAT

Goods and Services IC 016. US 002 005 022 023 029 037 038 050. G & S: COOKBOOKS, BROCHURES ABOUT PORK, PENS, PENCILS, CRAYONS, BUMPERSTICKERS, AND STICKERS. FIRST USE: 19970000.

FIRST USE IN COMMERCE: 19970000
IC 025. US 022 039. G & S: SHIRTS, T-SHIRTS, SWEATSHIRTS, APRONS, JACKETS, AND HATS. FIRST USE: 19970000. FIRST USE IN COMMERCE: 19970000

IC 043. US 100 101. G & S: PROVIDING AN INTERNET WEB SITE FEATURING FOOD PREPARATION/COOKING INFORMATION REGARDING PORK AND ACCOMPANYING RECIPES. FIRST USE: 20000600. FIRST USE IN COMMERCE: 20000600

Standard Characters Claimed
Mark Drawing Code (4) STANDARD CHARACTER MARK
Design Search Code
Serial Number 78648718
Filing Date June 10, 2005
Current Filing Basis 1A
Original Filing Basis 1A
Published for Opposition May 23, 2006
Registration Number 3129186
Registration Date August 15, 2006
Owner (REGISTRANT) National Pork Producers Council CORPORATION IOWA 10664 Justin Drive Urbandale IOWA 50322
(LAST LISTED OWNER) NATIONAL PORK BOARD BOARD CREATED UNDER A FEDERAL STATUTE UNITED STATES 1776 N.W. 114th Street Clive IOWA 50325

Assignment Recorded ASSIGNMENT RECORDED
Attorney of Record David W. Grace
Prior Registrations 1486548
Type of Mark TRADEMARK. SERVICE MARK
Register PRINCIPAL



There are two other variations of that which are listed as live over at the USPTO. This one does include use of the phrase on tshirts and other clothes. But the phrase is "the other white meat" and not "the other white milk."

This appears to be a non-competing, non-commercial use of a phrase that is similar to the trademark, which might be a defense in many cases, though Courts might ignore those criteria for especially famous trademarks.

She should talk to a lawyer before doing too much more. Who knows, but the best step might be to trademark the phrase "the other white milk."

#5 cre8pc

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Posted 01 February 2007 - 06:08 PM

Is it standard procedure to send letters making demands and threatening lawsuits, or is there such a thing as having a civil discussion first?

What boils me is how the Pork industry handled this matter by being a bully to a small-time operation, over a shirt that up until now, hardly anyone had even heard of.

Like where in the heck is Jen supposed to get the money to defend herself? She really had no choices here, in my mind, but to sit down, shut up and obey.

#6 test-ok

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Posted 01 February 2007 - 06:10 PM

I wouldn't doubt the Pork industry is just looking for some free advertisement...if this get picked up by some news channel.
I can't see how she is copyright infringing on their slogan. "the other white milk" isn't their slogan...which makes me think they have a different reason behind it. But then again if a lawyer is involved somewhere it could be for a couple of wild reasons.


Is it standard procedure to send letters making demands and threatening lawsuits, or is there such a thing as having a civil discussion first?

A lot of big bully type companies do that.

Edited by test-ok, 01 February 2007 - 06:12 PM.


#7 EGOL

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Posted 01 February 2007 - 06:29 PM

I think that those porkers needs their butts whipped. Who do they think they are?

#8 test-ok

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Posted 01 February 2007 - 06:40 PM

Isn't the phrase "Pork the other white meat" and not "The other white meat" or do they claim each and every word? if so thats kinda piggish of em.

#9 Guest_joedolson_*

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Posted 01 February 2007 - 06:41 PM

Man, that's really crappy.

I don't think that the lawsuit has any feet - but as you said, how on earth can Jennifer afford to defend herself?

I haven't got any serious problems about lawsuits with grounds - but this just doesn't cut it.

#10 bragadocchio

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Posted 01 February 2007 - 06:59 PM

The National Pork Board is overseen by the USDA, and is comprised of members from the pork industry who are appointed to positions on the board.

That means that complaints to our representatives in Washington, DC, may have some effect on this.

It's worth firing a few letters off to those folks.

The sale of the trademark to the National Pork Board last year appears to be kind of shady, too.

I'd like to know more.

#11 Karl Ribas

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Posted 01 February 2007 - 07:03 PM

The thing that really bothers me about this whole ordeal is that, as Kim said, the T-Shirt sales go towards a really worthy cause. It's not like Jennifer's directly profiting from it (especially if she's only made $8). What kind of message is the Pork Industry trying to send by picking on a small, non-competing company promoting such a cause? Sounds to me like a PR nightmare to me.

#12 cre8pc

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Posted 01 February 2007 - 07:15 PM

Danny Sullivan has weighed in.

National Pork Board Goes After Breastfeeding Search Marketer

Frankly, the letter to Jennifer tarnishes the National Pork Board's reputation more than her T-shirts could possibly have done.


To contact the Pork Industry, use this form

I just did :unsure:

#13 Karl Ribas

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Posted 01 February 2007 - 07:21 PM

That's a great run-down! I'm glad Danny has commented on this event. I think more people should... maybe something good will come of it.

#14 Mano70

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Posted 01 February 2007 - 07:50 PM

I see this is at the front of Digg now, and I also see users from Digg have sent mails/are pointing to the Pork industries contact form. Hopefully Digg can be a good experience for Jen.

#15 EGOL

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Posted 01 February 2007 - 08:17 PM

lol... if you search google for... "The Other White Meat".. you will see that there are lots of other takes on the exact slogan ... Here's just one...
http://www.prankplac...tshirts_cat.htm

#16 AbleReach

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Posted 01 February 2007 - 09:01 PM

Searching Cafe Press for "the other white meat" gives similar results.

#17 rmccarley

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Posted 01 February 2007 - 09:45 PM

I think I'll be unpopular but I think the pork people should protect their message. This is what copyright and trademark laws are for. It's unfortunate that we can't pick and choose "good" organizations to exclude from this rule but some people would say some of the above references are ok too.

MHO

#18 DianeV

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Posted 01 February 2007 - 10:02 PM

Ick. I wish they'd left cats out of it (the items at CafePress).

I don't see how this can hold up. Their trademark references meat, not milk, and Jennifer's use of it can hardly be confusing to anyone.

#19 A.N.Onym

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Posted 01 February 2007 - 10:04 PM

I am not sure, Randall. I'd imagine a couple of companies with very, very different products can use the same byline - not company name, mind you - quite safely. Each will be targeting its own audience and it shouldn't be that problematic

#20 cre8pc

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Posted 01 February 2007 - 10:17 PM

I think Jen's got a concern about what the Pork lawsuit is REALLY over and the subtle, or not, meaning or intent:

"In addition, your use of this slogan also tarnishes the good reputation of the National Pork Board's mark in light of your apparent attempt to promote the use of breastmilk beyond merely for infant consumption, such as with the following slogans on your website in close proximity to the slogan "The Other White Milk." "Dairy Diva," "Nursing, Nature's Own Breast Enhancement," "Eat at Mom's, fast-fresh-from the breast," and "My Milk is the Breast."

Go back and read that again. "apparent attempt to promote the use of breastmilk beyond merely for infant consumption."

Do they think I'm trying to an promote an adult breastfeeding fetish??!


As in, somebody at the Pork place has some breast issues :unsure:

Lawyers are paid a lot of money. Sadly, that apparently doesn't allow time for actual research before sending the cannons.

#21 A.N.Onym

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Posted 01 February 2007 - 11:26 PM

I'd figure an Internet marketer would have handled the issue much more professionally than any high-paid lawyers.

#22 Kal

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Posted 02 February 2007 - 01:09 AM

I think I'll be unpopular but I think the pork people should protect their message. This is what copyright and trademark laws are for. It's unfortunate that we can't pick and choose "good" organizations to exclude from this rule but some people would say some of the above references are ok too.


I agree that the Pork Board should be able to defend their trademark-protected slogan. But the point wasn't really about whether they had a case or not (surely it's only a slim one if they do). The point as I see it was their ignorance. Their legal counsel didn't bother to research The Lactivist or the fact that the store aids a non-profit org. They didn't consider the innocent humor behind the t-shirt slogans. They simply assumed that Jenn's t-shirts were promoting some kinky breastmilk fetish and sent a heavy-handed C&D without any prior consultation or polite inquiry. By doing so, they offended Jennifer and ostracized plenty of other breast-feeding moms in the process.

Edited by Kal, 02 February 2007 - 01:10 AM.


#23 rmccarley

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Posted 02 February 2007 - 03:21 AM

It's protecting their intellectual property and anyone using it - for good or ill, in fun or in serriousness - dilutes the power of that property. Pork spent a lot of money to research, test and then promote that slogan.

Legally it seems Pork has a strong case. The issue here seems to be whether or not this is good PR. And I have to again say... yes.

One of my past clients is a big furniture chain. One day my partners and I met with the VP - a very smart guy. He told us that there were 6 lawsuits pending against this chain for "accidental falls" on the property. He also said he could settle out of court for about $50,000 total but that he wouldn't do that. He's willing to spend millions of dollars to fight these people. The reason being, he doesn't want his stores to be a mark for future con-persons. He wants a reputation as a down-and-dirty, fight to the last breath (or dollar) business that has zero tollarance for scams.

Is this bad PR? Is it bad business?

Or is it an investment.

Sometimes you take a short-term knock to win a long-term benefit. In my past client's case it was freedom from scam artists. In Pork's case it is ownership of their slogan. And if they are that serrious about their slogan, and they care that much about it I'm forced to consider "what else do they care about?"

Probably (hopefully) the product. These people care so much about their industry they are willing to take on lactating women!

That is an incredible statement.

PS. In a back-handed way they may have helped Jenn out a great deal... you can't buy this kind of PR. And people are talking about it and forming oppinions and emotional responses. People want to Defend This Organization. :unsure:

Edited by rmccarley, 02 February 2007 - 03:24 AM.


#24 A.N.Onym

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Posted 02 February 2007 - 03:25 AM

They can argue what they want, Randall, but they could have tried a polite e-mail approach first and I am (almost) sure Jennifer would have removed the slogan and the t-shirt (not necessarily demanding the bought t-shirt to be returned, though).

I, for one, don't argue them protecting their trademark at all, but how they are doing it. I guess time will tell, but if Jen got over 20 blog mentions in a single night, how great attention do you think it will get?

Edited by A.N.Onym, 02 February 2007 - 03:27 AM.


#25 eKstreme

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Posted 02 February 2007 - 03:27 AM

Maybe we should kick up a stink as fellow bloggers. I say contact the Electronic Frontiers Foundation (EFF) as they have been known to help the little guys with legal representation.

Also, contact popular law websites and explain the situation to them. Not sure, but Groklaw is a good candidate. OUT-LAW.COM is probably a more likely ally.

And anyone see a good Slashdotting potential here?

Come on! Bring it on!

Pierre

#26 Kal

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Posted 02 February 2007 - 03:30 AM

These people care so much about their industry they are willing to take on lactating women!

But that's my point: I don't think they realized the t-shirts were to support lactating women. The letter's condescending tone reads as though they consider Jenn's t-shirts to be sexually explicit and deliberately targeting the Pork slogan. They didn't even take the time to research their complaint thoroughly. They're being hypocrits by offending with their message about being offended themselves.

#27 JohnMu

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Posted 02 February 2007 - 04:23 AM

I don't understand how "the other white meat" could go so far as to also cover "the other white milk" - do they have a trademark on all other "the other white X"? "the other white paper", "the other white snow", "the other white smoke", "the other white guy"? I understand that if she were to use "the other white meat" then it certainly would be a problem, but like this? And if this is still a problem, how much would you have to change to avoid the trademark?

I also wonder how it would be handled internationally ... if Jennifer were say based in the UK and used a UK-based T-shirt-printing shop?

John

#28 A.N.Onym

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Posted 02 February 2007 - 05:10 AM

Let's make it more interesting. I can host a site in Russia and put that phrase on it. I wonder how far they can reach :)

Edited by A.N.Onym, 02 February 2007 - 05:10 AM.


#29 egain

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Posted 02 February 2007 - 05:27 AM

"That is an incredible statement.

PS. In a back-handed way they may have helped Jenn out a great deal... you can't buy this kind of PR. And people are talking about it and forming oppinions and emotional responses. People want to Defend This Organization. smile.gif"

Never thought of it that way. The All PR is good PR could prove true here.

However back to the subject, I can understand the issues behind it however there does seem a bit over the top. As a parent myself, any promotion of breast feeding should be encouraged, and it seems a shine, such drastic action has been taken, when a more common sense approach probably would have been better for all parties involved.

#30 rmccarley

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Posted 02 February 2007 - 05:44 AM

As a parent myself, any promotion of breast feeding should be encouraged

I agree. In fact I call my wife at work every day to remind her to pump. But that's just it - the response is emotional, especially for those who know how important breast milk is for both mom and baby.

But that doesn't stop the practical matters... like laws and commerce.

It's absurd situation. It should have been handled better on both ends. But because it wasn't both parties will get more attention.

Just curious... how different do you think the response would be if the Cows came calling because Jenn had done something with the Got Milk slogan?

It's a more direct competitor (of sorts).

#31 A.N.Onym

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Posted 02 February 2007 - 05:48 AM

Human milk is more suitable for children, so cows are not exactly direct competitors. But yeah, they could quabble. But that's what the market is: would you sue your competitor just because he is your competitor?

#32 wiser3

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Posted 02 February 2007 - 08:55 AM

Claiming the slogan "the other white milk" infringes on the pork industries slogan is like saying everything we've writtin in this thread is copyrighted becasue every word of it has already been written - in the dictionary.

#33 cre8pc

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Posted 02 February 2007 - 09:16 AM

I can't find a way to defend the Pork Industry, and I'm trying to be objective. I can't, however, when a simple phone call to Jen would have saved time, money, embarressment, etc.

She IS a nursing mom. Anyone who knows anything about nursing knows that stress can have an effect on milk production in nursing mom's. Jen absolutely doesn't need this so called PR. She's caring for an infant right now, as well as mothering a toddler. How dare the Pork industry make assumptions about her t-shirts, as they did?

As stated elsewhere, parody is protected. Comedians bend and corrupt slogans all the time. "Where's the beef" no longer just refers to hamburgers. :naughty:

High paid lawyers are supposed to do their research. When they don't, they can scare and traumatize people and get away with it.

Years ago I received a letter of intent to sue me by a legal firm. I was a single mom, barely above poverty level for a family of 3 and struggling to succeed on my own. Why was I in trouble? I had registered a business name in my state that looked similar to another name for a company that did apparently do something wrong.

I had to prove I had never done business under the name I had registered, which was no easy task. The law firm was mean at first, until they finally realized I was indeed telling the truth. I had only owned a name, I had not started a company with it, done business or done anything past just owning a name. They finally let me go, but let me tell you, I'll never forget that experience.

To send out letters threatening lawsuits without making sure all facts are accurate and true is pathetic and shouldn't be tolerated. I think Jen is doing exactly what she needs to do, by letting everyone see what has been done to her.

#34 rynert

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Posted 02 February 2007 - 09:43 AM

I received a letter this morning from Jennifer Daniel Collins, an attorney at Faegre & Benson that represents The National Pork Board. It stated, for the most part, that my use of the phrase "the other white milk" violates their trademark on the phrase "the other white meat."


My response would have been along the lines of : "Sorry, you have miss-read, my slogan is 'the other white milk', not 'the other white meat'. Hope that clears things up."


Had they come back again I would have told them I would see them in court.

I once got a letter from Stelios' solicitors telling me I can''t use a domain called easyanything.tld as it infringes on their ''easy' trademark.. Told them where to go and heard no more. At the time lots of other small businesses just got scared and handed them over, once it hit mainstream news they stopped the aggressive tactics.

#35 DianeV

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Posted 02 February 2007 - 11:10 AM

I suspect that the pointing out in this thread that the publicity could result in some good public relations for Jen is an attempt at noting what could be the silver lining in this dark cloud.

I am not against anyone protecting his/her/its trademarks. However, in my view, not being a lawyer, there's a difference between "meat" and "milk" — unless (as someone pointed out here) the Pork industry is trying to claim the right to "the other white ____", which I suspect is going overboard in claiming the right to trademarks which they clearly do not own, particularly for uses that differ widely from their own (e.g., they promote a type of meat; Jennifer's talking about human milk).

Kim makes a point, too, regarding parody.

I'm sorry that Jen is being subjected to difficult times. However, I'm thinking that she needs to discuss with an intellectual property lawyer.

#36 cre8pc

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Posted 02 February 2007 - 05:41 PM

Jen sent word that her story will be featured on TV (local TV station).

Quick news here

#37 A.N.Onym

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Posted 03 February 2007 - 03:37 AM

I have written to the Pork Industry and have received a reply from their "communicator". I wonder if this is a canned reply. Here's what was at the end of the message:

We apologize if our response seemed impersonal or harsh; that was not our intent. We will use all feedback that we receive to improve our communication processes in the future.


a) I suspect the templated response is no cure now
b ) Good luck with improving your communication by processing all the feedback you receive

#38 rmccarley

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Posted 03 February 2007 - 05:08 AM

I'm not saying Pork is good human beings but they are being good businesspeople. "The other white milk" is obviously a play on "the other white meat". That's the entertainment value. And using that slogan for parody is ok untill you start to proffit from it by... selling t-shirts.

Kim, if a porn website used "usability effect" as their slogan would it be ok? After all, it is just a parody, and the words "usability effect" are just words found in any dictionary. Thinking like a human you might let it slide. But think like an SEO - that would be an obvious grab at your market... and your mindshare. Now say that same site donates procedes from the site to AIDS research. Does it make a difference?

#39 cre8pc

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Posted 03 February 2007 - 12:17 PM

Kim, if a porn website used "usability effect" as their slogan would it be ok? After all, it is just a parody, and the words "usability effect" are just words found in any dictionary.


It's not trademarked and it wouldn't bother me. Technically, we who earn our livings on the Internet, owe a lot to the porn web industry, including black hat seo. Few want to admit that or acknowledge that of course :(

The "cre8" is used all over the place by people. I don't own the trademark on that either. Nor would I do that.

The Pork industry lost my respect because they didn't bother to contact her with respect, professionalism or politeness. They went after an $8 t-shirt that few had ever heard of until they made a huge stink over it. Had they just contacted her calmly, this could have been handled very differently. Esp. if they have a real case. Why approach her like she's a criminal?

They didn't and showed their greed and ignorance instead.

For people and businesses to get along, they need to make an effort to try to get along.

They also made reference to thinking her intent with the slogans was something it is not. That infuriates me the most.

In my mind, there are some very serious things going on that the Internet is being used for. Bomb builidng instructions. Terrorist code. Home videos of everything you could possibly think of, that you don't want your kids seeing.

I don't see the Pork industry attacking politicians for the use of the phrase "pork barrel politics". Or kids calling other kids "porkers". Or all the other ways in which pork is used that has nothing to do with bacon.
Neither does breast milk.

PS - There responses to those writing in are canned. Danny Sullivan ran the same thing as well at SEland.

Dang it. Now I have all these naughty ideas for advertising "usability effect" :naughty:

#40 cre8pc

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Posted 03 February 2007 - 01:45 PM

Ian has a fantastic legal look here:

Copyright, Trademarks and Pork Milk?

There is a lot of difference between a copyright and a trademark. One difference is, you can't have a copyright on a short sentence or phrase (like "The Other White Meat") because it's not long enough to have a significant amount of creativity to warrant it.

It doesn't matter if they had a team of professional marketers and spent a 100 million, or someone came up with it for free while half asleep after eating too many donuts during a meeting. It's not long enough to be creative enough to fall under copyright law.


The idea behind a trademark is to identify the holder of the trademark clearly. That's pretty much it. All of the other rules revolve around this concept.

Therefore, if someone other than the holder of the mark begins to use it, there may be confusion as to who the source is. Further, if a trademark holder fails to prevent others from using it, they may be deemed to have abandoned the mark.

So it's serious business and you need to protect it. Zipper, yo-yo, aspirin, and escalator all began as trademarks that were deemed abandoned because of a failure to protect the mark. You also have to use it, or it may be deemed to be abandoned.

It's pretty clear that pork.org are using it, since they have an entire website called http://www.theotherwhitemeat.com/ and the registered trademark symbol is all over it. I can't imagine anyone contesting this in good faith. Since they are apparently sending out C&C's to everyone they can find, I'm not about to argue they have abandoned it due to failure to protect it.

There is one other issue with Trademark law that is relatively new to the US (1995), and is the concept of dilution. Up until then, you'd have to show that there was a possibility of consumer confusion in order for trademark law to kick in.

One thing none of the posters quoted above seemed to realize is that trademark is exclusive to a TRADE and a TERRITORY, not a mark. You can have "Fred's Garage" properly and legally trademarked in 2 different States by two different people. It this was about creativity or hard work or whatever, then that could not happen. That's the territory.

Further, until Apple computers decided to get into the music business, they had little to fear from Apple Records, being in 2 very different industries back in the 80's. That's the trade.

Unless the Lactivist went into the pork-promoting business, traditional trademark law would not have been an issue.

But with the concept of dilution, the issue becomes fuzzy again. The idea behind dilution is to protect not only the trade and territory use, but also the distinctiveness of a mark. The idea is that if enough people use marks similar to yours, even through fair use and so forth, that the value of your mark would be diminished, and therefore should be protected. This brings us back to that "hard work and fairness" exception I mentioned earlier.


Well worth reading his whole post. It's nice to get some perspective.



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