Pork Board Admits It Knows Unicorns Don't Exist, But Claims It Doesn't Matter
from the not-quite dept
We, along with a bunch of other sites, recently discussed the hilarious situation where the National Pork Board sent a 12 page cease-and-desist letter to ThinkGeek for its April Fool's joke about "unicorn meat," which it jokingly called "the new white meat" (not even "the other white meat" -- which is the National Pork Board's soon to be changed trademarked slogan). Se7ensamurai writes in to point out the National Pork Board is now defending its decision to send the letter, saying:"We certainly understand that unicorns don't exist," said Ceci Snyder, vice president of marketing for the National Pork Board. "Yes, it's funny. But if you don't respond, you are opening your trademark up to challenges."Except, that's not true, and you would think the NPB's trademark lawyers would point that out. Over aggressive trademark defenders often make statements like the one above about how they "have" to defend their trademark or they risk losing it. But that's only in cases where the mark is actually likely to cause confusion or is not used in a manner that is clearly fair use (such as a parody, as in this case). So, like unicorns, the NPB's claim that they had to send this cease-and-desist is nothing more than a myth.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: pork, trademark, white meat
Companies: national pork board, thinkgeek
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
I think that's the whole deal in a nutshell. The only thing is the more they irritate that rash the more it makes them look stupid. They should just drop the entire matter, right now, soon as possible, and not look back.
[ link to this | view in chronology ]
Re: Re:
...tasty tasty unicorns...
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Attorney: But we can sue!!!
PR Guy: No. Go back to your office.
[ link to this | view in chronology ]
Re: Re: Re:
Attorney: But we can sue!!!
A guy with common sense: No, go back to your office or you will be summarily dismissed from employment for such a stupid idea.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Common Sense is no longer allowed in corporate America.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Those of us at the worker/peon level still have it (at least most of us) and we will be the one's to inform said attorney's to STFU
[ link to this | view in chronology ]
Olde Will had the right idea
[ link to this | view in chronology ]
[ link to this | view in chronology ]
I don't know about everyone else, but I would assume that whoever is typing up/proofing a C&D about unicorn meat, might actually ask where the hell they caught a unicorn in the first place.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Psssshhh...
"The OTHER NEWER BETTER white meat!" Brought to you by the National Pikachu Board and it's members.
[ link to this | view in chronology ]
Re: Psssshhh...
[ link to this | view in chronology ]
Re: Re: Psssshhh...
[ link to this | view in chronology ]
And then there is...
[ link to this | view in chronology ]
Pork?
[ link to this | view in chronology ]
Spam
[ link to this | view in chronology ]
Re: Spam
After all if you look at the Picture of the aforementioned Canned Unicorn Meat it looks an awful lot like SPAM (Image1 | Image2)
They are probably worried that Think Geek is violating their Trademark / Trade Dress in the similarity of the packaging.
[/sarcasm]
[ link to this | view in chronology ]
A little more from the Washington Post article....
'Pork Board spokeswoman Ceci Snyder said the board's attorneys are instructed to protect the "Other White Meat" trademark in all cases to avoid future legal challenges to the slogan. "Clearly there's some fun being had, and we can laugh, too," Snyder said. "But in the end they're just following the law."'
I don't understand how wasting money on clearly a parody work avoids future legal challenges to their slogan, let alone how they are following the law. Then if you really think about it if a new product came out and had the slogan 'The new white meat', this seems like a completely different phrase and would be a different trade mark...or is the PB trying to claim any phrase that has the phrase 'the ___ white meat' in it? But then again the PB has done this in the past as mentioned in the Washington Post article where they sent a C&D in 2007 to someone selling t-shirts for 'the other white milk'. I seem remember that the 'moron in a hurry' can get confused easily, however I don't think they would get confused (which is how Trademarks are supposed to be judged confusion) between 'milk' and 'pork'. So more than likely the PB is trying to claim that any phrase in commerce that has the phrase 'the ___ white ___' conflicts with their trademark slogan. Seems a bit of a stretch to me, what if my slogan for a new paint was 'the other white...beige' would they send me a C&D?
Just remember...this is our tax dollars at work.
For reference here are the links for the Washington post article and the 'milk' page:
http://www.washingtonpost.com/wp-dyn/content/article/2010/06/22/AR2010062201657.html
http: //thelactivist.blogspot.com/2007/02/overzealous-big-pork-stomps-on.html
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
So now one needs to be a lawyer to have common sense? Not everything a lawyer does requires careful analysis and the hindsight of years of legal training; sometimes lawyers do blatantly dumb legal things and it doesn't necessarily always take another lawyer to see it.
[ link to this | view in chronology ]
Re: Re: Re: Re:
But it's a good idea to take legal opinions from non-lawyers with a grain of salt.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
If the law seas that I have to bend over and get ass raped, I'm supposed to comply without argument until I can afford a lawyer? Are you a member of the Taliban?
Seriously WTF?
[ link to this | view in chronology ]
Re: Re: Re: TAM again
Good. Then this means that, from here forward and ever more, you will STFU (thats "SHUT THE FUCK UP") about copyright issues, infringement vs theft, fair use, and any other issues that you yourself either a) are not a lawyer of, or b) have not directly consulted a lawyer of and said so in your postings.
This is YOUR idea man. Live by your own words, or be branded the hypocrite you are.
There! We have now successfully managed to neuter TAM once and for all. He cant comment on these issues unless his OWN conditions are met.
[ link to this | view in chronology ]
Re: Re: Re:
Where was there legal advise given, as far as I can tell it's simply a conclusion based on an event and not advice given in context to a current consideration. Also, how do you know the conclusion was incorrect, and how do you know he didn't consult legal counsel before making his conclusion?
Sounds like you did the exact same thing you accused the author of, however, without the decency of stating you were speaking on behalf of personal opinion.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
how do you know. are you a lawyer?
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
Therefore, yes, it is a waste of time, money, and reputation to defend their mark in this situation.
[ link to this | view in chronology ]
Re:
http://supreme.justia.com/us/510/569/case.html
http://caselaw.lp.findlaw.com/scripts/getc ase.pl?court=2nd&navby=case&no=977063v2&exact=1
http://caselaw.lp.findlaw.com/cgi-bin /getcase.pl?court=11th&navby=docket&no=0112200opnv2
Which lawyers are expected to know and be aware of so as to advise their clients on whether moving forward with an action, such as a C&D would likely succeed if it had to move to trial. To me, in my opinion, the lawyers for the Pork Board are not providing good legal advise and merely racking up additional billable hours.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
http://en.wikipedia.org/wiki/Fair_use
[ link to this | view in chronology ]
Re: Re: Re: Re:
"The Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc..[15] This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was "fair" and not an infringement. "
perhaps when you link to something, you might want to read it first.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
With this in mind if it did go to trial the burden of proof for this is on the defendant. However the plaintiff still should review whether they would likely win if the case went to trial to include if the fair use doctrine came into play.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
So from the Plaintiff perspective when looking at this specific instance you have an April fools day post and a slogan 'the new white meat'. Now If I come into the cost\benefit analysis of bringing a C&D, to be followed by a law suit; if the initial cost of the C&D is say $5,000 (a rather low estimate I think) then the benefit would have to outweigh this. So the benefit from the C&D would be, what exactly? Having a fictional product (Unicorn Meat) ad taken down? Was this ad costing them in people not buying Pork because they were laughing about Unicorn meat?
So while I see your point that posting a parody may be more costly, I don't see why the Plaintiff would waste the time/energy/money (my/your/our tax dollars btw) to pursue this from the outset. Let alone that I believe it is ridiculous to assume that because I have a copyright/trademark on the phrase 'the other white meat' that this then covers every combination of the phrase 'the ___ white ___' ('the other white milk' and 'the new white meat').
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
there are plenty of reasons to do it, some reasons not to. it is meaningless and petty to mock them for following the law, no matter how silly it seems on the surface.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
Anyway, a little further research actual shows that the Plaintiff MUST take into account Fair use according to the law as fair use is a limitation of copyright; see Title 17, chapter 1, section 107(http://www.law.cornell.edu/uscode/17/107.html).
Further just because a defense is classified as affirmative does not mean that the defendant has broken the law, just that the burden of proof is on them.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re:
in this case, you get a lawyer with no sense of humor, and away you go. as it is, we are in a discussion not of copyright, but of trademark. trademark requires that holders jealously protect their mark or risk losing it to common use, such as xerox and kleenex have faced.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
So a trademark owner can protect and/or strengthen its mark by keeping other users out of its "space."
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I must have missed this idea clause in the trademark law and case law I've looked, could you point out where this is?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Anyway, here is link to an article commenting on a Third Circuit case (with a link to the opinion) which has some discussion of the "crowded field" issue generally.
http://www.schwimmerlegal.com/2006/01/third_circuit_c_1.html
There's also the "genericide" issue another commenter discussed above.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"(1) the degree of similarity between the owner’s mark and the alleged infringing mark"
the pairing and order of the words in the two phrases 'the other white meat' and 'the new white meat' are fairly similar; which could lead to confusion.
"(2) the strength of the two marks, weighing both a commercially strong junior user’s mark and a conceptually strong senior user’s mark in the senior user’s favor"
First the PB's mark is very strong, however the other is for a non-existent product and would have a very very weak mark.
"(3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase"
As 'Unicorn Meat' does not exist and does not have any true price point or place of purchase this point is moot.
"(4) the length of time the defendant has used the mark without evidence of actual confusion arising"
Since 'the new white meat' has been introduced and is for a product that does not exist there has been no actual confusion.
"(5) the intent of the defendant in adopting the mark"
The intent here is for satire and to cause a laugh, not to make a profit on a non-existent product.
"(6) the evidence of actual confusion"
No evidence of actual confusion exists here.
"(7) whether the goods, competing or not competing, are marketed through the same channels of trade and advertised through the same media"
The defendant's goods do not exist and not actively marketed.
"(8) the extent to which the targets of the parties’ sales efforts are the same"
A non-existent product does not have any true sales efforts.
"(9) the relationship of the goods in the minds of consumers, whether because of the near-identity of the products, the similarity of function, or other factors"
I'm not sure how consumers could be confused by 'pork' and 'unicorn' meat.
"(10) other facts suggesting that the consuming public might expect the larger, more powerful company to manufacture both products, or expect the larger company to manufacture a product in the plaintiff’s market, or expect that the larger company is likely to expand into the plaintiff’s market."
Again unicorn meat does not exist and there is no market for it.
Therefore the FREEDOM CARD v. CHASE FREEDOM case could not be used in a supportive action as previous case law in support of the PB's action. Nice try though.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
You are wrong. They are only required to defend their trademark if there is customer confusion (as posted in the article). Unicorn meat being "the NEW white meat" will not cause customer confusion as the PB did finally figure out. Thus they did not have to and thus their lawyer (or anyone with an ounce of logic) should have told them not to do it.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Says you.
Also, they did not just assert an infringement (i.e. likelihood of confusion) issue in their letter, but a dilution argument as well.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The question is whether there would be some valid reason for saying "don't do that" anyway.
I think it was a bad idea because of the PR and the silliness of it all, but that doesn't mean there aren't any reasons for doing it.
Just repeating IT'S UNICORN MEAT! doesn't really add to the conversation.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
So the problem is with the legal system, as currently practiced. It's not with people making a joke. It's not even with the law, since a competent and ethical (heh) lawyer would anticipate such a defense, and the probable outcome.
If lawyers were personally sanctioned for wasting the court's time with this kind of crap, you'd see a whole lot less of it.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
Yes, then most are ignorant of the law and it is an excuse for breaking the law.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
Not really. Lots of judgment calls involved.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
The harder call is what you do when someone is using your mark (or a variation of it) in a creative and/or joking way.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
(Spoiler alert: there aren't the same fair use provisions written into trademark law in the US as there are for copyright. Thus not only this proof, but the links to Campbell v. Acuff-Rose and the Liebowitz case are not really on point.)
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
"Use in commerce" is a *really* broadly interpreted term (i.e., anything Congress can regulate via the commerce clause of the Constitution counts).
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
What magical property do lawyers bring to situations such as this? Clearly, they can (see the Cease and Desist letter in question) and do perform silly and senseless acts. So they don't bring "infallibility" to the table.
They don't even really bring "authority" to the table. They just argue cases, right? They don't judge the cases themselves, that's up to a full blown Judge or jury, after he/she/it/them hears both sides of an argument.
So, in 25 lowercase words or less, exactly what does "a lawyer" bring to this situation?
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
The NPB...
(Yeah, I know, it's not really a direct analogy. Doesn't make it less funny...)
[ link to this | view in chronology ]
Can you prove that Unicorns don't exist?
[ link to this | view in chronology ]
Re: Can you prove that Unicorns don't exist?
"We certainly understand that unicorns don't exist," said Ceci Snyder
[ link to this | view in chronology ]
Re: Re: Can you prove that Unicorns don't exist?
[ link to this | view in chronology ]
Re: Can you prove that Unicorns don't exist?
[ link to this | view in chronology ]
Re: Can you prove that Unicorns don't exist?
[ link to this | view in chronology ]
Two points to bear in mind:
1) There is constant argument about the law by lawyers and other legal specialists, in many circumstances arguing over the fine point pretty much makes up their entire job and career. Both can't be correct so clearly lawyers are not infallible.
2) Even where the lawyers are technically correct from a legal standpoint they, and everyone else, should also consider whether it really is the best approach for the company as well. It is possible to become so focussed on the minutae that the big picture is ignored.
They clearly over reacted to this case.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
That is one valid point one can make. Another valid question might be "When was the last time a lawyer was reprimanded (by his/her firm) for not taking an opportunity to bill a client? My guess is "All the time". Regardless of the merit of a particular action that client is contemplating.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
there's another way
I faced this situation as a lawyer, and thought it was silly to go after a parody site, but I did want to have a bit of cover because the parody was also selling merchandise related to our mark. The parodist invited a cease-and-desist letter - instead I sent a "proceed-and-permitted" letter. Here's a good summary: http://www.convergenceculture.org/weblog/2007/01/proceed_and_permitted_second_l.php
I really don't understand why more lawyers don't take this approach. Possibly it's because a sense of humor is required.
[ link to this | view in chronology ]
Re: there's another way
[ link to this | view in chronology ]
Re: there's another way
Even if not deemed a license, saying somebody else's use isn't likely to confuse can be used by the next guy who claims his use is similar to that permitted use.
[ link to this | view in chronology ]
Re: Re: there's another way
[ link to this | view in chronology ]
Re: Re: Re: there's another way
[ link to this | view in chronology ]
Re: Re: Re: Re: there's another way
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: there's another way
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: there's another way
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Until you read the law and realize you can't dilute a non-existent product.
[ link to this | view in chronology ]
Re: Re:
Now, where did I leave my flying horse?
[ link to this | view in chronology ]
Lawyers
[ link to this | view in chronology ]
White meat? Not so fast...
http://www.fsis.usda.gov/Fact_Sheets/Pork_from_Farm_to_Table/index.asp
Why is Pork a "Red" Meat?
Oxygen is delivered to muscles by the red cells in the blood. One of the proteins in meat, myoglobin, holds the oxygen in the muscle. The amount of myoglobin in animal muscles determines the color of meat. Pork is classified a "red" meat because it contains more myoglobin than chicken or fish. When fresh pork is cooked, it becomes lighter in color, but it is still a red meat. Pork is classed as "livestock" along with veal, lamb and beef. All livestock are considered "red meat."
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
unicorn meat
[ link to this | view in chronology ]