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ThinkGeek's Best Ever Cease-and-Desist Letter

Posted by kdawson on 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.

13 of 264 comments (clear)

  1. Before having a knee-jerk anti-lawyer moment... by Angst+Badger · · Score: 4, 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.

    --
    Proud member of the Weirdo-American community.
    1. Re:Before having a knee-jerk anti-lawyer moment... by RuralJuror · · Score: 5, Informative
      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.

    2. Re:Before having a knee-jerk anti-lawyer moment... by initialE · · Score: 4, 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.

      --
      Starbucks, Harbuckle of Breath.
    3. Re:Before having a knee-jerk anti-lawyer moment... by DRJlaw · · Score: 2, 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.

    4. Re:Before having a knee-jerk anti-lawyer moment... by millertimebjm · · 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/

      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

    5. Re:Before having a knee-jerk anti-lawyer moment... by Capsaicin · · Score: 3, 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?

      --
      Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
    6. Re:Before having a knee-jerk anti-lawyer moment... by snaggen · · 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.

  2. Re:Why did this make the front page? by sheetsda · · 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!

  3. Re:The Letter, Please... by genfail · · Score: 2, Informative

    The first page is posted here http://www.thinkgeek.com/blog/2010/06/officially-our-bestever-cease.html

  4. Re:Isn't Satire Protected? by RuralJuror · · Score: 4, Informative
    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...

  5. Parodies of trademarks are not protected by michaelmalak · · Score: 3, Informative
    Dot-com dead pool brakes for Ford

    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.'"

  6. Re:Oh, c'mon! by quickOnTheUptake · · Score: 4, Informative

    He was apparently distinguishing those who admire unicorns from a distance from those who play games with them: Being swift-footed goes hand in hand with being able to jump high, which is absolutely necessary when playing unicorns' favorite game: leapfrog.

    --
    Mod points: Guaranteed to remove your sense of humor.
    Side effects may include gullibility and temporary retardation
  7. In case anyone didn't read Thinkgeek's response... by raving+griff · · Score: 2, Informative

    ...it includes a coupon code for $10 off a $40+ order good until the 30th.