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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.

32 of 264 comments (clear)

  1. Acronym? by Locke2005 · · Score: 5, Funny

    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!"?

    --
    I've abandoned my search for truth; now I'm just looking for some useful delusions.
    1. Re:Acronym? by arashi+sohaku · · Score: 5, Funny

      I thought SPAM stood for Squirrels, Possum, and Muskrat... could be regional...

      --
      No .sig for me, I'm trying to quit.
  2. 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 gad_zuki! · · 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.

    2. 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.

    3. 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.
    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
  3. 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!

  4. Interesting by Locke2005 · · Score: 3, Interesting

    How many people has the California Milk Processor Board sued for the literally hundreds of infringements of their "Got ____?" Trademark?

    --
    I've abandoned my search for truth; now I'm just looking for some useful delusions.
    1. Re:Interesting by grcumb · · Score: 5, Funny

      How many people has the California Milk Processor Board sued for the literally hundreds of infringements of their "Got ____?" Trademark?

      Dunno. Got Citation?

      --
      Crumb's Corollary: Never bring a knife to a bun fight.
  5. You are all missing the real issue here! by zill · · Score: 4, Funny

    Unicorn meat is murder!

    Stop the needless killing of endangered species!

    1. Re:You are all missing the real issue here! by selven · · Score: 3, Funny

      Unicorns are already extinct. I think the idea is that if we kill and eat enough of them we'll get an integer underflow glitch and we'll be back up to 2.1 billion unicorns in the world.

    2. Re:You are all missing the real issue here! by grahamwest · · Score: 3, Funny

      Yes but if it's a 64bit int we might wind up with 8 quintillion of them - we'd be neck deep or something!

      --
      Graham
  6. Isn't Satire Protected? by Trip6 · · Score: 3, Insightful

    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?

    --
    I hate being bipolar; it's awesome!
    1. 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...

  7. Re:Good but... by spazdor · · Score: 3, Funny

    Actually, there's a shorter name for those.

    --
    DRM: Terminator crops for your mind!
  8. Re:Good but... by rootofevil · · Score: 5, Funny

    i dunno, baconless bacon double cheeseburger doesnt look shorter to me.

    --
    turn up the jukebox and tell me a lie
  9. Oh, c'mon! by StefanJ · · Score: 4, Funny

    Are you deliberately ignoring the fact that Slashdot's audience are rapid unicorn enthusiasts?

    1. Re:Oh, c'mon! by A+nonymous+Coward · · Score: 4, Funny

      Are you saying there are slow unicorn enthusiasts?

      --
      Infuriate left and right
    2. 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
    3. Re:Oh, c'mon! by Robin47 · · Score: 5, Funny

      Are you saying there are slow unicorn enthusiasts?

      Only impaled ones.

  10. Finally,,, by The+Other+White+Meat · · Score: 5, Funny

    my Nick is relevant to a Slashdot story.

    ThinkGeek FTW!

    --

    --- Generation X: The first generation to have SIG lines inferior to their parents... ---
  11. Re:Why did this make the front page? by Fluffeh · · Score: 4, Insightful

    Companies get their panties in a bunch. We laugh at them. Film at 11.

    It's actually an interesting insight into the bureaucratic mindset of the average idiot.

    Pork Boss: Smith! Get over here now! There is some company using a slogan on some food that's really similar to ours!
    Smith: Uhhh, boss, I don't think that Unicorn meat really exis...
    Pork Boss: What? Smith! NOW! Get our lawyers on the horn! This can't go ahead!
    Smith: Uhhhh, right on it boss.
    *ringing phone*
    Pork Lawyer: WHAT? Oh my, I will draft a letter IMMEDIATELY, this can't go on, who owns Unicorn Meat anyhow? Do they have a strong lobby group?
    Smith: Uhhhh, again, I don't think that it's really real, I mean it's unicorn mea...
    Pork Lawyer: Nonsense! This is outrageous. I will have them by the balls on this one. The letter will be out in the afternoon mail run! *click* Suzie, send a bill to the Pork Board for a cease and desist. Slap on a few extra hours work too will ya darling? Cheers!

    All that can now be heard is the soft sad crying of Common Sense in the corner.

    --
    Moved to http://soylentnews.org/. You are invited to join us too!
  12. Re:Good but... by blair1q · · Score: 4, Funny

    It's not got much spam in it...

  13. 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.'"

  14. Re:The Letter, Please... by ccandreva · · Score: 3, Funny

    I'ld like to read a transcript of the phone call where they told them unicords don't exist.

  15. Re:New slogan? by sxedog · · Score: 4, Funny

    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...

    --
    If it ain't broke, DON'T fix it.
  16. Re:Why did this make the front page? by Jurily · · Score: 4, Insightful

    That sequence *is* actually common sense, but for everyone independently: the lawyer wants billable work, the manager wants to get ahead by impressing their higher-ups, and Smith isn't really getting paid enough to object strongly.

    Extrapolate to millions of people and you get Corporate America.

  17. Re:ThinkGeek should have known better ... by BluBrick · · Score: 3, Funny

    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

    --
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    The doctor said I'm not supposed to get Slashdot in it!
  18. Re:The Letter, Please... by bronney · · Score: 3, Funny

    Son,

    Just because you can't see it doesn't mean it doesn't exist.

    Yours truly,
    Flying Sky Daddy

  19. Re:Why did this make the front page? by bartwol · · Score: 4, Insightful

    Smith isn't really getting paid enough to object strongly

    It doesn't matter how much you pay an employee...if it's a public company or institution, the employee won't speak up. The only tangible benefit to speaking up is it saves the company legal fees. But those savings do not pass to the individual employee. What does pass to the individual employee who tries to avoid legal action (i.e. risk mitigation) is that if the risk comes to fruition, that person is humiliated for having decided to take the risk. So the employee has to weigh a potential benefit to the company against the risk of his own personal humiliation.

    Unless he's an owner and the legal fees are coming out of his own pocket, he'll [almost always] avoid any possibility of personal humiliation, and instead, allow (or even favor) the company taking legal action, no matter how much he gets paid. (CEOs and other high-paid execs of public companies are often the worst offenders, being most concerned about their personal images.)

    You just can't beat the economics of spending other people's money.