Pork Board Admits It Knows Unicorns Don't Exist, But Claims It Doesn't Matter

from the not-quite dept

Fri, Jun 25th 2010 6:27am — Mike Masnick

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.

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Filed Under: pork, trademark, white meat
Companies: national pork board, thinkgeek

126 Comments

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LumpyDog (profile), 25 Jun 2010 @ 6:29am

After reading the full write-up from ThinkGeek, it sounds like PB's lawyers are just trying to save face after realizing the whole thing was an April Fool's prank.
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Dark Helmet (profile), 25 Jun 2010 @ 6:33am

Re:
Making them, of course, look all the more stupid....
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Rose M. Welch (profile), 25 Jun 2010 @ 6:41am

I realize that, traditionally, the attorneys vet everything that the rest of the company does, but that needs to change. We need to move to a system where a PR guys vets everything that attorneys want to do, before they can do it.
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Anonymous Coward, 25 Jun 2010 @ 6:51am

Re:
The lawyers claim you have to respond to these supposed infringements purely because it keeps them in a job...
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Anonymous Coward, 25 Jun 2010 @ 7:10am

Olde Will had the right idea
Kill all the lawyers.
[ link to this | view in thread ]
Anonymous Coward, 25 Jun 2010 @ 7:11am

Lawyer needs money badly.
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Anonymous Coward, 25 Jun 2010 @ 7:23am

Still trying to figure out which legal assistant was typing all this up and thought "Ah ha! We are finally going to get those unicorn bastards!"

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.
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Joel (profile), 25 Jun 2010 @ 7:24am

Psssshhh...
Unicorn meat is so 2004.

"The OTHER NEWER BETTER white meat!" Brought to you by the National Pikachu Board and it's members.
[ link to this | view in thread ]
Berenerd (profile), 25 Jun 2010 @ 7:29am

And then there is...
...Theother red meat...bloody lawyers....
[ link to this | view in thread ]
pr, 25 Jun 2010 @ 7:29am

Pork?
I thought cat was the other white meat.
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ChurchHatesTucker (profile), 25 Jun 2010 @ 7:30am

Spam
Isn't Hormel (makers of SPAM) on the NPB? Maybe they can advise these clowns about how to manage your trademark sanely.
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Drew (profile), 25 Jun 2010 @ 7:34am

A little more from the Washington Post article....
So first we have this from the article (the spokesperson for PB):

'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
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Anonymous Coward, 25 Jun 2010 @ 7:40am

claims that they didnt have to send a c&d and should have just ignored it are your opinion, no a fact. are you a lawyer too mr masnick?
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Hephaestus (profile), 25 Jun 2010 @ 7:45am

Re: Psssshhh...
Pikachu is a rodent so his meat is more red brown ....
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The Groove Tiger (profile), 25 Jun 2010 @ 7:49am

Re:
are you a lawyer?
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Anonymous Coward, 25 Jun 2010 @ 7:53am

Re: Re:
nope. and because i am not a lawyer, i am smart enough not to second guess other lawyers without consulting with one. free legal advice from a non-lawyer is worth little, and could in fact be dangerous. heck, i am sure in some places, legal advice such as that would be illegal.
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Anonymous Coward, 25 Jun 2010 @ 7:53am

Re:
Memo: unicorns do not exist.

Therefore, yes, it is a waste of time, money, and reputation to defend their mark in this situation.
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Drew (profile), 25 Jun 2010 @ 7:54am

Re:
Welcome to a blog, where Opinions are presented...when they are facts usually there is research there. But hey I guess you are all for wasting tax payers money on high priced lawyers who don't truly understand that parody is covered under the 'fair use' doctrine of Trademark law, and just for fun here are some facts for you:

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.
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shmengie (profile), 25 Jun 2010 @ 7:55am

The NPB...
It's the other RIAA.

(Yeah, I know, it's not really a direct analogy. Doesn't make it less funny...)
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btrussell (profile), 25 Jun 2010 @ 7:56am

Re:
Do you need to be a lawyer to know the law?
Yes, then most are ignorant of the law and it is an excuse for breaking the law.
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Anonymous Coward, 25 Jun 2010 @ 7:57am

Re: Re:
"fair use" is an affirmative defence, if i remember correctly. there is violation, but he violation may be accepted as legal and not in violation if the case goes to a court of law, right?
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Drew (profile), 25 Jun 2010 @ 8:00am

Re: Re: Re:
Nice, but no, if you need a refresher try Wikipedia (and if you want to try and disclaim what they say then look at their 'source documents'):
http://en.wikipedia.org/wiki/Fair_use
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Danny, 25 Jun 2010 @ 8:06am

Re:
That's a proctect company secret.
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Anonymous Coward, 25 Jun 2010 @ 8:06am

Re: Re: Re: Re:
let me go no further than to quote wiki:

"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.
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Anonymous Coward, 25 Jun 2010 @ 8:07am

Re: Re:
no, but when you get down to splitting legal hairs, it is probably much better to get the advice of a lawyer than to do something stupid and then really need one after.
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Drew (profile), 25 Jun 2010 @ 8:11am

Re: Re: Re:
Although yes you are right that it is an affirmative defense (thats what I get for responding during training and not reading up a bit first)...where the facts of the plaintiff's claim are proven but they have a valid 'reason'. Such things as 'self-defense' are in this same class of affirmative defense.

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.
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Anonymous Coward, 25 Jun 2010 @ 8:17am

Re: Re: Re: Re:
drew, you have to think about the legal system. fair use is an affirmative defense, which means you pretty much have to answer the lawsuit, hire lawyers, appear in court, write a brief, perhaps take a deposition about your mindset at the time, etc. the costs to confirm the status of 'fair use' when things are even marginally questionable is well beyond that lulz that you get. in the end, while many here may not like it, the costs of defending this sort of thing could be more than the joke is worth. worse yet, there is a small but notable chance that they would lose, which would make it entirely without the lulz.
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btrussell (profile), 25 Jun 2010 @ 8:25am

Re: Re: Re:
The difference between pork and unicorn meat is "splitting hairs?"
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interval (profile), 25 Jun 2010 @ 8:26am

Re:
@LumpyD: "...it sounds like PB's lawyers are just trying to save face after realizing the whole thing was an April Fool's prank."

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.
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interval (profile), 25 Jun 2010 @ 8:30am

Re: Re: Re:
"...i am smart enough not to second guess other lawyers..."

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.
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interval (profile), 25 Jun 2010 @ 8:32am

Re: Re: Re: Re: Re:
Simply having a burden of proof isn't proof that a use is infringement. Your man has no straw, counselor.
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Esahc (profile), 25 Jun 2010 @ 8:36am

Re: Re: Re:
So Mr. NoCaps,

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?
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RD, 25 Jun 2010 @ 8:36am

Re: Re: Re: TAM again
"nope. and because i am not a lawyer, i am smart enough not to second guess other lawyers without consulting with one. free legal advice from a non-lawyer is worth little, and could in fact be dangerous. heck, i am sure in some places, legal advice such as that would be illegal."

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.
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Drew (profile), 25 Jun 2010 @ 8:38am

Re: Re: Re: Re: Re:
Although that is true, from the defendants perspective that is a large mountain. But you've proven my point in a sense, the plaintiff's also have a large cost scenario here too (probably more as their lawyers would be higher priced) with the same uncertainty of win/lose.

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').
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davebarnes (profile), 25 Jun 2010 @ 8:55am

Can you prove that Unicorns don't exist?
Maybe they do and that means that the Pork Board must defend its trademark: the not new white meat.
[ link to this | view in thread ]
Joel (profile), 25 Jun 2010 @ 8:57am

Re: Re: Psssshhh...
Well if you look at the unicorn meat pics it is not white either...lol
[ link to this | view in thread ]
Drew (profile), 25 Jun 2010 @ 8:59am

Re: Can you prove that Unicorns don't exist?
Well with the admission from the Pork Board:

"We certainly understand that unicorns don't exist," said Ceci Snyder
[ link to this | view in thread ]
Stuart, 25 Jun 2010 @ 9:01am

Re:
Yeah. That is the answer. More PR spokeshole fuckwads speaking and running things.
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Anonymous Coward, 25 Jun 2010 @ 9:07am

Re:
Actually, it is a fact, as that is what the law says. But you are TAM, and you hate facts, so your post is not surprising.
[ link to this | view in thread ]
Anonymous Coward, 25 Jun 2010 @ 9:10am

Re: Re: Re:
Except the law is quite clear on how trademarks need to be defended. But why would you understand the law, TAM, since that would require you to invest more than 30 seconds of effort?
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Anonymous Coward, 25 Jun 2010 @ 9:10am

Re: Re: Re: Re: Re: Re:
well, the other side is not defending your trademark vigorously, and ending up losing other cases in court because you allowed wide use of it by others. $5000 for the pork board is likely not the same sort of cost as $5000 for think geek. i would also think that the lawyers are either on retainer or even in house, which would mean the cost isnt exactly the same.

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.
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Anonymous Coward, 25 Jun 2010 @ 9:12am

Re: Re: Re:
nope. and because i am not a lawyer, i am smart enough not to second guess other lawyers without consulting with one. free legal advice from a non-lawyer is worth little, and could in fact be dangerous. heck, i am sure in some places, legal advice such as that would be illegal.

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.
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ChurchHatesTucker (profile), 25 Jun 2010 @ 9:15am

Re: Re: Re: Re: Re:
"in the end, while many here may not like it, the costs of defending this sort of thing could be more than the joke is worth. "

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.
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Drew (profile), 25 Jun 2010 @ 9:31am

Re: Re: Re: Re: Re: Re: Re:
I did mention I was busy right, so sorry for not doing this research earlier.

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.
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Drew (profile), 25 Jun 2010 @ 9:33am

Re: Re:
Proof is in the pudding: Title 17, chapter 1, section 107 of the US Code (http://www.law.cornell.edu/uscode/17/107.html)
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Call me Al, 25 Jun 2010 @ 9:34am

I find it amusing, though faintly pitiful, that some commentators assume that lawyers are always correct and always take the right course of action for their client.

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.
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ginsu, 25 Jun 2010 @ 9:46am

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.
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Raymond, 25 Jun 2010 @ 9:54am

When was the last time a lawyer was fired for being too cautious? Say there's a one in a million chance that this incident will result in trademark invalidation. You can either spend 15 minutes punching out a form letter and reduce the risk to zero, or you can do nothing and take your chances that you won't be hauled in front of the board of directors to explain why the organization's slogan is now worthless because you were too freakin' lazy to spend 15 minutes to send a form letter.
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JEDIDIAH, 25 Jun 2010 @ 9:59am

Re: there's another way
Yes... it should go something like the sudo t-shirt from ThinkGeek.
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Anonymous Coward, 25 Jun 2010 @ 10:14am

Re: Re: Re: Re: Re: Re: Re: Re:
"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." - you are correct. but what this leaves a trademark holder with is few options, just "when in doubt, take action".

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.
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different anonymous coward :), 25 Jun 2010 @ 10:16am

Re: Re: Re:
That's the US Code for Copyright, isn't it? Could you point to the fair use provisions present in United States trademark law, as that's the relevant legal doctrine?

(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.)
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Anonymous Coward, 25 Jun 2010 @ 10:18am

Re: Re: Re:
Moron.
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Anonymous Coward, 25 Jun 2010 @ 10:21am

Re: Re: Re: Re: Re:
So you don't think unicorn meat is parody? What the fuck!
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Anonymous Coward, 25 Jun 2010 @ 10:23am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Unicorn meat! Seriously, what the fuck! It's unicorn meat, it's not real! Unicorns don't exist! Why do you need lawyers involved in a joke? Unicorn meat!
[ link to this | view in thread ]
Anonymous Coward, 25 Jun 2010 @ 10:23am

Re: Re: Re: Re: Re: Re:
If only shooting healthy lawyers cured sick kids.
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Anonymous Coward, 25 Jun 2010 @ 10:24am

Re: Re: Re: Re:
To a fucking moron, yes, yes it is.
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Rose M. Welch (profile), 25 Jun 2010 @ 10:38am

Re: Re:
It's the answer to problems like this.

Attorney: But we can sue!!!

PR Guy: No. Go back to your office.
[ link to this | view in thread ]
Anonymous Coward, 25 Jun 2010 @ 10:38am

Everybody criticizing the Pork Board about this issue seems to ignore the dilution issue.
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Anonymous Coward, 25 Jun 2010 @ 10:41am

Re: Re: Re: Re:
Lawyers certainly don't have a monopoly on commen sense.

But it's a good idea to take legal opinions from non-lawyers with a grain of salt.
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Anonymous Coward, 25 Jun 2010 @ 10:43am

Re: Re: Re: Re: Re: Re:
No, he thinks the prior commenter shouldn't say fair use is not an affirmative defense without knowing one way or the other.
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Anonymous Coward, 25 Jun 2010 @ 10:44am

Re: Re: Re: Re: Re: Re:
No court's time was wasted in this matter
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Anonymous Coward, 25 Jun 2010 @ 10:45am

Re:
I'd be shocked if this letter took only 15 minutes to draft and send.
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Drew (profile), 25 Jun 2010 @ 10:46am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
True enough that link does cover copyright and not trademark...so where in trademark law or case law does it state that holders must "jealously protect their mark"?
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Anonymous Coward, 25 Jun 2010 @ 10:47am

Re: there's another way
One reason is because if you license somebody to use your trademark withou excercising some control over their use of the mark, you run the risk of losing your trademark rights.

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.
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Drew (profile), 25 Jun 2010 @ 10:49am

Re: Re: Re: Re:
True enough, so where in 15 U.S.C. § 1114 does it state that a use not in commerce is a violation of trademark? 'http://www.bitlaw.com/source/15usc/1114.html'
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Anonymous Coward, 25 Jun 2010 @ 10:50am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The idea is that the more similar marks that are out there, the less distinctive and strong each such mark is.

So a trademark owner can protect and/or strengthen its mark by keeping other users out of its "space."
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Blatant Coward (profile), 25 Jun 2010 @ 10:55am

Re: Re:
Or prove Unicorns don't exist.

...tasty tasty unicorns...
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Drew (profile), 25 Jun 2010 @ 10:57am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"The idea is that the more similar marks that are out there, the less distinctive and strong each such mark is."

I must have missed this idea clause in the trademark law and case law I've looked, could you point out where this is?
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Chronno S. Trigger (profile), 25 Jun 2010 @ 11:05am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
"trademark requires that holders jealously protect their mark or risk losing it to common use"

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.
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Anonymous Coward, 25 Jun 2010 @ 11:06am

Re: Re: Re: Re: Re: Re: Re:
Fair enough but still, it's fucking unicorn meat!
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Anonymous Coward, 25 Jun 2010 @ 11:07am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
It's not even a real fucking product because unicorns don't exist! Some lawyers are just more stupid than other lawyers.
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Anonymous Coward, 25 Jun 2010 @ 11:08am

Re: Re: Can you prove that Unicorns don't exist?
I don't think they do understand that.
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Anonymous Coward, 25 Jun 2010 @ 11:09am

Re: Re: there's another way
For unicorn meat!?!
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Anonymous Coward, 25 Jun 2010 @ 11:10am

Re:
How does on dilute unicorn meat? You know, "the new white meat" and not "the other white meat" and did you know that: http://en.wikipedia.org/wiki/White_meat
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mipsalawishus, 25 Jun 2010 @ 11:13am

Lawyers
...the other white meat.
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Anonymous Coward, 25 Jun 2010 @ 11:19am

Re:
It really is the closest thing to an apology you get in these cases.
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Greg, 25 Jun 2010 @ 11:26am

Re: Re: Re:
How about this instead:

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.
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Greg, 25 Jun 2010 @ 11:33am

Re: Re: Re: Re: Re:
More salt please. Pour it into the open wounds so the stupid advice from the lawyers sting less.
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interval (profile), 25 Jun 2010 @ 11:35am

Re:
"When was the last time a lawyer was fired for being too cautious?"

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.
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BearGriz72 (profile), 25 Jun 2010 @ 11:39am

Re: Re: Re: Re:
Problem: Where to find a guy with Common Sense...
Common Sense is no longer allowed in corporate America.
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average_joe (profile), 25 Jun 2010 @ 12:28pm

White meat? Not so fast...
The USDA classifies pork as red meat, not white.

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."
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Greg, 25 Jun 2010 @ 12:56pm

Re: Re: Re: Re: Re:
Agreed, but those who attain management level are the one's that leave common sense behind.

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
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Bruce Ediger (profile), 25 Jun 2010 @ 1:07pm

Re:
Why are you so big on lawyer's advice? Isn't "take a lawyer's advice" just a form of Argument from Authority?

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?
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Anonymous Coward, 25 Jun 2010 @ 1:16pm

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Really? I'm a bit surprised that anyone who has actually looked at trademark cases is unfamiliar with this.

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.
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Gwiz, 25 Jun 2010 @ 1:18pm

Re:
15 minutes of a lawyer's time which probably equates to 15 HOURS of billable time.
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Anonymous Coward, 25 Jun 2010 @ 1:18pm

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"Unicorn meat being "the NEW white meat" will not cause customer confusion as the PB did finally figure out."

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.
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Anonymous Coward, 25 Jun 2010 @ 1:20pm

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"Except the law is quite clear on how trademarks need to be defended."

Not really. Lots of judgment calls involved.
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Anonymous Coward, 25 Jun 2010 @ 1:22pm

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More importantly, what makes you think this use was not "in commerce?"

"Use in commerce" is a *really* broadly interpreted term (i.e., anything Congress can regulate via the commerce clause of the Constitution counts).
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BearGriz72 (profile), 25 Jun 2010 @ 1:22pm

Re: Spam
Hormel Foods probably supports the idiotic actions of the National Pork Board.

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]
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Anonymous Coward, 25 Jun 2010 @ 1:25pm

Re: Re: Re: there's another way
Regardless of the "product" (e.g., online comedy websites), if you don't exercise any control over a licensee, you're risking your mark.
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Anonymous Coward, 25 Jun 2010 @ 1:27pm

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FOR FUCKING UNICORN MEAT!?!
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Anonymous Coward, 25 Jun 2010 @ 1:29pm

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Here's the first one: Are unicorns real? No? Well, we should proceed as if they are real . . . .
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Anonymous Coward, 25 Jun 2010 @ 1:31pm

Re: Re: Re: Re: there's another way
Wouldn't want to lose a trademark to a mythological fucking creature, as that would be fucking crazy!
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Anonymous Coward, 25 Jun 2010 @ 1:33pm

It's official, intellectual property laws have lost their connection to common sense, and what are laws that lack common sense? That's right, they're fucking useless to the general public.
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Anonymous Coward, 25 Jun 2010 @ 1:43pm

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It's obviously a joke. I don't think anybody's arguing that, so you can put away the CAPSLOCK.

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.
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Anonymous Coward, 25 Jun 2010 @ 1:46pm

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That's an easy call.

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.
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Anonymous Coward, 25 Jun 2010 @ 1:48pm

Re: Re:
for one, and understanding of the difference between law, fact, and legal opinion.
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Anonymous Coward, 25 Jun 2010 @ 1:52pm

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And neither does saying there are "reasons for doing it" which is clearly unreasonable because, it's unicorn meat. It's not real. It doesn't exist.
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Anonymous Coward, 25 Jun 2010 @ 1:53pm

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Maybe you could call them? Have a conversation to determine if sending out a cease $ desist letter might not be the smartest thing to do?
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Anonymous Coward, 25 Jun 2010 @ 1:55pm

Re: Re: Re:
What's real and mythological, well, that's a different story.
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The Groove Tiger (profile), 25 Jun 2010 @ 2:10pm

Re: Re: Re:
"heck, i am sure in some places, legal advice such as that would be illegal."

how do you know. are you a lawyer?
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The Groove Tiger (profile), 25 Jun 2010 @ 2:12pm

Re: Re: Re: Re: Re:
Lawyers have common sense?
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Anonymous Coward, 25 Jun 2010 @ 2:15pm

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They should probably consult a lawyer before answering that question.
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Anonymous Coward, 25 Jun 2010 @ 2:29pm

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Honestly, most of the lawyers I know have more sense than most of the non-lawyers.
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Anonymous Coward, 25 Jun 2010 @ 2:31pm

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Care to support the "unicorn meat doesn't exist therefore there could not be any reason for complaining" conclusion?
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Anonymous Coward, 25 Jun 2010 @ 2:33pm

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Sure could. Or you could do nothing. I'm just saying it's not always "quite clear" either as a matter of law, business, or PR what a company should do in cases like this.
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ChurchHatesTucker (profile), 25 Jun 2010 @ 4:03pm

Re: Re: Re: Re: Re: Re: Re:
Yet.
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Anonymous Coward, 25 Jun 2010 @ 4:37pm

Re: Re:
Lawyers yet another white meat.....
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Anonymous Coward, 25 Jun 2010 @ 4:46pm

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You're insane.
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Anonymous Coward, 25 Jun 2010 @ 4:47pm

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Not quite clear for unicorn meat? Really? Have people become that stupid?
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Anonymous Coward, 25 Jun 2010 @ 5:13pm

Re:
Please explain how a non existent product that was never actually for sale that featured a non existent creature and phrase that was not trademarked by the Pork Board could seriously dilute their Mark?
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Karl (profile), 25 Jun 2010 @ 5:15pm

Re: Can you prove that Unicorns don't exist?
Or "The not-quite-so-fresh white meat."
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Karl (profile), 25 Jun 2010 @ 5:22pm

Re: Can you prove that Unicorns don't exist?
"The Used White Meat"
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interval, 25 Jun 2010 @ 5:55pm

Re:
"Everybody criticizing the Pork Board about this issue seems to ignore the dilution issue."

Until you read the law and realize you can't dilute a non-existent product.
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Anonymous Coward, 25 Jun 2010 @ 6:30pm

Re: Re:
But I thought unicorns were real? Oh well, back to my job being an intellectual property lawyer . . . .

Now, where did I leave my flying horse?
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RadialSkid, 25 Jun 2010 @ 6:45pm

Not to mention "The new white meat" isn't even the Pork Board's trademarked phrase.
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Anonymous Coward, 25 Jun 2010 @ 7:25pm

Re:
I don't think it really matters to these giant fuckwads.
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The Groove Tiger (profile), 26 Jun 2010 @ 1:40am

Re: Re: Re: Re: Re:
You have to be a lawyer to be able to answer if you're a lawyer or not. Because if you're not a lawyer, you might be a lawyer and not realize it, because of your lack of lawyer powers to detect lawyers.
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monkyyy, 26 Jun 2010 @ 9:58am

did one of the lawyers kids come crying to him about wanting the horrible people who did this sued?
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Anonymous Coward, 26 Jun 2010 @ 11:02pm

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Such a well-thought-out response.
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Anonymous Coward, 26 Jun 2010 @ 11:05pm

Re: Re: Re: Re: Re: there's another way
Indeed. Even crazier if a unicorn were putting up comedy websites featuring unicorn meat ads.
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Anonymous Coward, 27 Jun 2010 @ 11:13am

Unicorns don't exist. Why the complaint for a non-existant product? Because they're fucking morons, that's why.
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Anonymous Coward, 27 Jun 2010 @ 11:16am

Re: Re: Re: Re: Re: Re: there's another way
Yeah, it was just a plain old human being putting up the fake unicorn meat ads, so quick, let's protect our precious trademark because consumers might get confused between pigs and unicorns!
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Mark Richard, 27 Jun 2010 @ 7:08pm

unicorn meat
Actually, unicorn meat is very gamy. Properly cooked, it's not at all like pork. It's just another internet myth that it's like pork --somewhat like the silly idea that the original vuvuzelas were unicorn horns. (Anyone who's ever blown a unicorn's horn knows it sounds much more like an alto sax.)
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Drew (profile), 28 Jun 2010 @ 7:26pm

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Shockingly enough your link there points to a 'reverse confusion' argument, wherein you are correct in that the more similar marks that could easily be confused with the owners mark leads to a weakening of the mark. In this case few of the 10 factors laid out in the decision are met:

"(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.
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Drew (profile), 28 Jun 2010 @ 7:28pm

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So the closest you could say in this instance is that the april's fools joke brought ad revenue to the site? Since the product in question does not exist in any real sense this would be a very flimsy argument.
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