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Jennifer Laycock Threatened With Lawsuit


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#41 rmccarley

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Posted 03 February 2007 - 03:08 PM

Isn't that what I was talking about? :(

But setting the Law aside is it ethical to build or promote a product, service or business on the back of another company's hard work and spent money? Does having "a cause" make a difference? Does scale or scope of the operation? Does it matter if they are in a competing field?

#42 cre8pc

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Posted 03 February 2007 - 04:11 PM

Update from Jen:

I have received an apology from Steve Murphy, the CEO of the National Pork Board and we are currently working toward a resolution.

Apology or not, for those who were outraged by this, bacon will never quite be the same.

#43 JohnMu

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Posted 03 February 2007 - 04:34 PM

What is it about pork that people can't stop making puns about? Looking through the links to Jennifer is like going to an amateur comedy festival with a theme :(

John

#44 Cath

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Posted 03 February 2007 - 09:47 PM

Could this theme be called, hamming it up ? :( (sorry John)




#45 A.N.Onym

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Posted 03 February 2007 - 10:01 PM

I am both glad and disappointed that it is over. It couldda been a nice touch to all the 'save pork' - 'eat vegetables' campaign. Ah well.

Jenn's site is around #6-8 for 'national pork board' - pretty good, but could be better.

#46 DianeV

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Posted 03 February 2007 - 10:04 PM

Here comes another one that might not be too popular.

I haven't wanted to say too much here because I have mixed feelings about it, and because I'm no whiz at trademark/copyright law, so any speculation I might put forth based on a faulty understanding of the law is worth pretty much zero.

It's easy to get riled up about perceived injustices. A couple of days later, I wonder whether this incident would have gotten as much reaction if Jennifer was not a friend, a mom, a breastfeeding mom, or "one of us", so to speak. What if, instead, the person "borrowing" the mark was a known site scraper? Would his/her receiving a cease & desist letter have caused the same level of reaction, or any reaction at all?

Don't get me wrong. I'm all for Jennifer coming out of this unscathed, and I suspect it was a pretty traumatic experience, and (I'm guessing) it was probably a relief for her to know that she had friends who would stand by her.

However, the thing is, we do know that there are laws in place and, as far as I know, ignorance of the law is not a defense. I mean, I could borrow the Apple mark "Think Different" -- think of all the clever things one could do with that slogan. But regardless of anything, I would know that I was playing upon a slogan established by someone else, and that there could be a problem with that. If it were me, I'd probably have talked to a lawyer beforehand, as I like to avoid such situations; I'd far prefer a $300 telephone conversation than a shocking letter at my door.

So. I've read the C&D and, in my view, it isn't that rough. They didn't land a zillion-dollar lawsuit on her head; rather, they simply asked her to stop — that is, they asked her to cease display of the slogan, ask that she request disabling/termination of any other display of the slogan at other websites not under her control, destroy the goods, and agree never to offer for sale (or otherwise commercially promote) any product/service under the slogan — and they they put forth their arguments as to why she should do so. A telephone call is a nice idea, but it wouldn't do because, simply, that turns it into a "he said/she said", and lacks the necessary paper trail regarding what happened, let alone anything that Jennifer could have shown to her own lawyers beyond trying to recollect a telephone conversation. This is the kind of thing lawyers do to notify party(ies) of a problem, and is really the nicest way they could have proceeded without resorting to a non-paper trail scenario. No zillion-dollar lawsuit; just a legal statement and a request to stop and to help clean up what, to them, is damaging to their slogan.

Now, as it turns out, Jen says that "I have received an apology from Steve Murphy, the CEO of the National Pork Board and we are currently working toward a resolution.. What does that mean, exactly? From my reading, it doesn't mean that they're dropping all interest in protecting their mark because there would be no need to work toward any resolution.

Now, as much as I feel for Jen (whom I don't personally know) and hope she bears up okay under this, I also kind of feel for the pork industry. These are American food providers. Being a rancher(?) isn't the easiest life, in my view, and this pork industry organization is there to help promote and protect what they do. As a result of trying to defend what they own, they now find themselves under an onslaught of negative publicity that could go wildly viral. I do not know whether that apology was because the CEO of the National Pork Board felt sorry for Jen, or realized that what Jen posted on her blog and/or what others (for she she is a friend, a mom, a breastfeeding mom, or "one of us", so to speak) posted on her behalf was already resulting in bad publicity and possible damage to the industry. For all I know, maybe he's just a nice guy. I don't know.

I do hope that this comes to a good resolution, for all parties, because I hate to see Jen too traumatized over this. But I also hate to see a group of American food providers taking a hit unjustly because they tried to protect what was theirs.

#47 A.N.Onym

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Posted 03 February 2007 - 10:14 PM

Diane, that's exactly the reason the company should have tried to solve the matter personally before sending the letter. If it failed, they could have sent the letter.

As much as I feel sorry for the innocent pork ranchers involved in the dispute, the pork board had and has the power to influence their image both in positive and in a negative way.

#48 DianeV

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Posted 03 February 2007 - 11:14 PM

You may be right, A.N.Onym. It's all unfortunate.

#49 Brad

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Posted 04 February 2007 - 07:22 AM

. A couple of days later, I wonder whether this incident would have gotten as much reaction if Jennifer was not a friend, a mom, a breastfeeding mom, or "one of us", so to speak. What if, instead, the person "borrowing" the mark was a known site scraper?


Diane I think you are right. But this is the way of the world (and it is the way the world should be), our reputation does matter, our ability to make friends and earn the loyalty of others does matter, the fact that we are not anonymous does matter, what we do and say, who we help and who we hurt - all that matters. That's just real human social networking.



I respectfully submit that if nobody throws a life preserver to a drowning site scraper they have only themselves to blame. ;-)


The part of the C&D I didn't like is when they tried to impute some sort of smutty agenda on Jennifer - that crossed a line with me.

#50 cre8pc

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Posted 04 February 2007 - 12:18 PM

What if, instead, the person "borrowing" the mark was a known site scraper? Would his/her receiving a cease & desist letter have caused the same level of reaction, or any reaction at all?


No. ;)

My personal outrage is that the letter was written to insinuate that the mere association with breasts or breastfeeding anywhere near pork products would cause "confusion" over a trademark.

Mothering magazine has a forums, where Jen is more of a lurker and not well known. Her situation was reported there, to the thousands of mothers on that board (Mothering's target tends to be strongly opinionated and sometimes radical on certain topics). Jen was not treated with 100% support there. Even though, she did finally speak up. Many women felt the pork industry had a tiny case but it was ignored when they realized the same thing I did - that the lawsuit is over "confusion of message" between pork and breastmilk.

I know not everyone will "get" the whole breastfeeding activism side or the emotional responses, but those who are proponents of natural health might understand.

As you say, if it was a site scraper being threatened with a lawsuit, less would happen. But I think not because of what site scrapers do, but because there is no human emotional response to their cause (other than to wanting to :) them. And, the intent is corrupt to begin with, whereas Jen's was not.

Matt Bailey has pointed out to Jen that the fury might be better be placed to the law firm that wrote the letter to her. Her apology is from the pork industry CEO, who didn't write that letter and probably never saw it. Companies trust their law firms to do the job properly. This was my other reason for outrage, personally. I felt the law firm did not do their research. I've worked for a company that routinely sent out C&D's to website owners who ripped off code from us. The legal people came to us, the actual coders, on a regular basis to make sure they had their facts in order first.

As Ian points out, this was not a copyright issue and the trademark violation is vague. In my mind, if Jen did violate a trademark, she did so by accident. It was a t-shirt that raised funds for a breastmilk bank. Not exactly a popular stop at CafePress ;-) A phone call or less frightening letter may have settled this.

The CEO probably realizes this should have been handled differently. I'm just guessing, but I want to believe he see's the bigger picture and not the evil threat their letter portrays Jen to be. He hopefully has the sense to recognize that intent is a factor to be considered.

#51 DianeV

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Posted 04 February 2007 - 07:31 PM

Okay. Sorry for the delay; it's a working weekend.

At any rate, just to be clear, I'm all for supporting friends in their time of need and otherwise. I think it's truly the way to go, and I am not in favor of letting friends suffer alone under an attack. So, you're right, Brad.

And, Kim, you're right, too. I don't think this was handled particularly well by the Pork Board's lawyers, although I'll also say that I don't know who made the decision to proceed in that manner; for all I know, the lawyers were instructed directly by the Pork Board. Maybe yes, maybe no -- but I also suspect that both were mightily surprised by the rather loud and widespread eruption that followed; I guess they now know a little more about Web culture and the blogosphere and the nature of friends.

As to the "adult" accusation, you're right that it was quite ridiculous and that the truth could have been determined by a two-minute reading of TheLactivist.com. I kind of wonder, in that case, why the inappropriate accusation. I did find something the other day about trademark dilution at http://www.bitlaw.co...k/dilution.html which may shed some light on it, although it makes little sense that they'd completely miss the point of TheLactivist.com:

Proving dilution of a mark:

Under the Dilution Act, famous marks are protected against the dilution of the distinctive nature of the mark. There is no need to prove a likelihood of confusion, nor is there any need to show competition between the goods of the plaintiff and the defendant. Therefore, it is possible to use a dilution cause of action against users of the same mark even when the defendant's goods and services bears no relation to the goods or services of the famous mark.

Dilution causes of action are normally brought when the defendant's use of the mark causes either
"Blurring", by which the connection in consumers' minds between the plaintiff's mark and the plaintiff's goods or services is weakened; or
"Tarnishment", which means that the defendant's use is unsavory or unwholesome, or the mark is used in connection with inferior products.


And, lastly, I'm very much into natural health. We pretty much go that route, and also eat almost entirely organic -- and pay the price for it, but ya gotta do what ya gotta do.


(Edited: forgot the quote command)

Edited by DianeV, 04 February 2007 - 07:36 PM.


#52 projectphp

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Posted 05 February 2007 - 03:01 AM

I can't believe how lucky she is! Seriously, what an absolute coup!

I can't believe she got so much from this. In fact, I am so impressed I have half a mind to write an isos post on "Trademark Violation Marketing For links". I think the idea is so good (and mildly amusing).

I mean, seriously, as bad as it sounded, the worst case scenario, and I mean this from the start, is that she would have to take the t-shirt down.

That was the worst case scenario.

Best case, she got brazillions of free links (check), heaps of free (man I love that price) publicity, both personally (she is a writer, after all), for the product range and for the "cause", and she gets to keep selling a suddenly far hotter product that is probably in at least some demand.

I know this is gonna sound crass, but I just don't understand the downside, and didn't from the start. There isn't a PR person, heck, a 1st year Marketer, who couldn't spin this "Mother promoting Natural, healthy lifestyle for the benefit of others threatenned by callous, pig killing big business' into a positive. And isn't that exactly what happenned?

Jen was always going to be the winner in all this, and it truly is probably close to the best thing that could happen to anyone in her position (that is, promoting a cause).

The only downside was that she never got to be on either Oprah or the Today show, who usually jump on these sorts of stories. Man, I love Oprah, and that would have been so "Sweet".

#53 JohnMu

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Posted 05 February 2007 - 07:22 AM

I just stumbled upon a different way of handling a similar situation: While this is obviously more a parody than the "Milk" shirts, I think they did a lot to make it a win-win situation for both sides:

"Second Life" vs "First Life" - http://www.darrenbar...l#comment-75509 (or http://tinyurl.com/2qeu7y ):

It has come to our attention that the website located at http://www.getafirstlife.com/ purports to appropriate certain trade dress and marks associated with Second Life and owned by Linden Lab.
...
Moreover, Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody. Indeed, any competent attorney is well aware that the outcome of sending a cease-and-desist letter regarding a parody is only to draw more attention to such parody, and to invite public scorn and ridicule of the humor-impaired legal counsel.
...
In conclusion, your invitation to submit a cease-and-desist letter is hereby rejected.
...
Notwithstanding the foregoing, it is possible that your use of the modified eye-in-hand logo for Second Life, even as parody, requires license from Linden Lab, especially with respect to your sale of goods with the parody mark at http://www.cafepress.../getafirstlife/. Linden Lab hereby grants you a nonexclusive, nontransferable, nonsublicenseable, revocable, limited license to use the modified eye-in-hand logo (as displayed on http://www.getafirstlife.com/ as of January 21, 2007) to identify only your goods and/or services that are sold at http://www.cafepress.../getafirstlife/.

A different kind of response and a sure way of getting positive publicity for both sides.

John

#54 Feste

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Posted 05 February 2007 - 03:40 PM

I am not a lawyer but it is very very difficult to copyright a slogan although trademark rights may come into play. The quandry is that pork is not milk and thus her use of 'milk' clearly seperates the product in 'trade' Pork is not milk whichever way one may try to ham it up

Copyright and trademark are significantly different legal questions. The govrenment cannot normally obtain copyright protection as they are not in "business" (National Security notwithstanding and, boy, what a loophole THAT is)

These guys are just being big bullies. Since there is no reasonable expectation that she intends to extract milk from a pig and market her product using a pork slogan their grounds for prosecution could be viewed as malicious and thus non-reviewable

Any lawyers out there?

#55 wiser3

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Posted 06 February 2007 - 09:30 AM

I'll bet this is all about money. Not for the pork industry, but for the lawyers. Most large corporations and large industry groups have general orders with there lawyers to seek out any copyright or trademark infringements and defend them.

So the lawyers constantly have one of their minions, not a laywer but someone that does all the actual work, looking for any possible infringements, no matter how minor, and report it to the lawyers.

Once they find something, no matter how minor or stupid it is, the lawyers greed kicks in as they see this as a great excuse to add up hundreds of easy billable hours.

Now, i'll sit back and wait for the notice that i'm being sued for lible.

#56 JohnMu

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Posted 06 February 2007 - 10:03 AM

This kind of thing has turned into a business in Germany (I don't know about the other european countries, it isn't like this in Switzerland): lawyers can send out notices ("Abmahnungen") to people (website owners) about trademark abuse - without explicit permission or orders from the trademark owner (at least that is how I understand it, I'm glad I don't live in Germany any more :)). Those notices are generally billed to the person who abused the trademark (often around 1'000 EUR and up) and if they do not comply, they will pass the case on to a court to get handled.

The crazy thing about this is that they are even going after people who run forums - based on the content found in the forums (eg if a user posts something that is problematic). Could you imagine?

John

#57 Respree

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Posted 06 February 2007 - 12:24 PM

I'm not so sure if I'd come down so hard on lawyers. Yes, they're simply doing what they are paid to do -- vigorously protect the company's intellectual properly, no matter how seemingling insignificant.

However, they do not operate and a vacumn and, ultimately, the final decision to pursue litigation proceedings lies with senior management of the company.

#58 bwelford

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Posted 06 February 2007 - 03:50 PM

Well of course, Garrick, there are lawyers and there are lawyers. Unfortunately lawyers are trained to operate in an adversarial role and many seem to feel most comfortable when going with this role almost as a knee-jerk reaction. Unfortunately it often seems to work for them.

The best lawyers know that it's best to keep the iron fist within a velvet glove.

#59 projectphp

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Posted 06 February 2007 - 05:38 PM

Lets compare and contrast the two antagonists in this story:

Pork:
1. Sells dead animal that is perceived (rightly or wrongly) to not be especially healthy.
2. Is a massive business.
3. Has a lot of money.


Jen's site:
1. Is run not-for-profit.
2. Is run to benefit others.
3. Is a "natural" and "healthy" product attached to a "cause" (cause == people with conviction; people who are motivated to do something).
4. Run by a woman (that makes a difference, IMHO, as our reaction to women in such a position of being threatenned is very different to a man).
5. Is run by an internet savvy person - which means she has friends with blogs; friends who can mobilize very quickly.

Throw on top of this the use of everyone's least favourite professionals, lawyers for big business, and you have such a heart-wrenching story, it can only gonna turn into bad PR.

Any lawyer who thinks that the story of this letter being sent is not going to generate negative publicity, heck, even no publicitiy, and doesn't inform the client of such, is 15 types of stoopid. And any client that signs off on such a letter being sent is 30 kinds of dumb.

I don't know who of the Lawyer or signer-offerer is to blame, but the Lawyers do have an obligation to do what clients ask for, and an obligation, if they find such breaches, to report them to the client. Hopefully, with a warning of the consequences, but informed nonetheless.

In any case, whomever signed off on sending that letter needs a size 13 workboot up their butt.

The firstlife example above is a far better example of handling something like this well. The lawyers actually gave the dude permission to use the trademark (in a limitted context), and kept the very influence makers (the mass of bloggers) happy with a good story. Bravo!

#60 rmccarley

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Posted 06 February 2007 - 06:11 PM

4. Run by a woman

Yup. Pork never stood a chance.

#61 cre8pc

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Posted 06 February 2007 - 06:20 PM

Um yeah...we've been frying up the bacon and singing that "'Cause omma wooooman. w.o.m.a.n." song for years :naughty:

#62 projectphp

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Posted 06 February 2007 - 06:44 PM

:rofl:

"Dear Kim,

We recently saw a post where you admitted performing houshold chores to the song "I'm A Woman".

As you are aware, music in the workplace inccurs a royalty fee, and due to recent changing social conditions, work in the home is now viewed as the same as work outside the home. We are therefore extending royalty claims to housework, and as such, we write to you to demand the $0.02 that you now owe us in royalties for the use of this song.

Please make out a cheque to Big, Nasty, Heartless Lawyers, NYC NY.

Sincerely,
Robert Roberts III"

#63 JohnMu

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Posted 08 February 2007 - 05:02 PM

Just link-dropping :)

While researching DMCA complaints I stumbled upon the entry for The Lactavist at chillingeffects: http://www.chillinge...i?NoticeID=6418

It has all sorts of questions and answers below it - a great resource. I can't tell if it's all valid legal information, but it looks pretty good :)

John



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