Company 'Thanks' Blogger For Positive Review By Sending C&D Claiming 'Unauthorized Trademark Use'

from the i'm-only-common-sense-and-what-is-this dept

Fri, Nov 15th 2013 9:39am — Tim Cushing

We've seen trademark claims being abused in efforts to shut down criticism, but Nutribullet, the as-seen-on-TV "nutrition extractor," has fired off a letter to the Lazy Man and Money citing trademark violations in a largely positive review. (H/t to Techdirt reader Wayne for sending this in.)

Understandably, Lazy Man is baffled by Nutribullet's quasi-C&D letter. Here's the letter in its entirety. (Screenshot of original email here.)

Dear Domain Administrator,

Nubribullet, LLC is the owner of the well-known trademark and trade name Nutribullet. As you are no doubt aware, Nutribullet is a trademark used to identify products, services, activities and events related to Nutribullet, LLC.

The trademarks, emblems, words and phrases of Nubribullet, LLC are exclusively used by Nutribullet, LLC and any other use by a third party constitutes trademark infringement.

In connection to Nutribullet, LLC proprietary rights over its famous trademark we are notifying you of the following:

It has come to our attention that our trademark Nutribullet appears as a metatag, keyword, visible or hidden text on the web site(s) located at:

http://www.lazymanandmoney.com/things-i-like-nutribullet-super-blender/

without having obtained prior written authorization from our Client. This practice infringes upon the exclusive intellectual property rights of Nutribullet, LLC.

Also, by using such trademark, you have intentionally attempted to attract Internet users to your web site(s) or other online location(s), by creating a likelihood of confusion with the Nutribullet, LLC trademark as to the source, sponsorship, affiliation, or endorsement of your web site(s), online location(s), products or services.

We trust that you will remove all metatags, keywords, visible or hidden texts including trademark presently appearing on the above-cited web site(s) and any other web site(s), or draw this issue to the attention of the appropriate person(s).

As part of our Nutribullet, LLC Trademark Enforcement Program, be assured that we will continue to monitor your web site(s) to verify your compliance with this letter. Failure to do so will force us to defer this issue to our Trademark Lawyer for further actions.

Should you require additional information or wish to further discuss this issue, please do not hesitate to contact the undersigned.

Sincerely,
Nutribullet, LLC

As Lazy Man points out, not only was the review positive but he linked to places where the product could be purchased. Normally, this sort of clumsy trademark C&D is deployed by unhappy companies seeking to bury criticism. He contrasts Nutribullet's reaction to other companies whose products have received good reviews from his site.

When I wrote a similar article about SodaStream, including the trademark in the keywords, the employees of the company printed it out and shared it through the office. When I wrote about True Orange the company emailed me to thank me and asked if they could me send me free product. These companies get it. When you get good, free promotion, enjoy it and, if you want to be polite, thank the person for the help.

Beyond the nonsense about "metatags" and "keywords" (more on that in a bit), there's the ridiculous assertions and stipulations made and requested by Nutribullet's "Trademark Enforcement" team.

First, the claim that Lazy Man "intentionally" used Nutribullet's trademark to attract users to his site (everything posted at nearly any website is designed to "attract users") is standard IP bully myopia. To tiny minds like these, the entire internet is out to profit on its hard work and, therefore, bloggers like Lazy Man must be stopped before they bankrupt Nutribullet by using its name in a review of its product.

It takes the crazy train further off the rails by insisting Lazy Man is only doing this to create confusion in potential customers' minds. By using the name of the company in a review of the company's product, Lazy Man is somehow implying that he is Nutribullet or an approved spokesman. (This somehow adds up to Nutribullet losing business from a positive review, but you have to use Trademark Math to arrive at this conclusion.)

Neither of those claims stand up to any scrutiny at all. Skipping past these ridiculous claims, one stumbles across the absurd demands of Nutribullet.

We trust that you will remove all metatags, keywords, visible or hidden texts including trademark presently appearing on the above-cited web site(s) and any other web site(s)...

Worded this way, it appears Nutribullet wants Lazy Man to police the internet itself to keep it Nutribullet-free. This lends more credence to the assumption that Nutribullet's legal "team" has no idea what the hell it's doing. (Confirmation appears further down in the post...)

Returning to the "metatag" issue -- it's as least as moronic as any other "issue" raised by Nutribullet, as Lazy Man (who's had previous experience with bogus "metatag" claims) explains.

There is no chance that someone would be mislead into thinking my site is the official NutriBullet website. That covers the "source" part of their complaint. As for "sponsorship, affiliation, or endorsement" I don't see using a meta-keyword would convey that impression to users. I have yet to come across the Internet user who looks at meta keywords to determine if there is an affiliation. If such an Internet user did exist I could see how they'd be confused, because that simply isn't what meta keywords are for.

Not so fast, Nutribullet would likely exclaim. What about search engines?

Now there is a (poor) case to be made about search engines using meta keywords, which could also attract users to my site. However, years ago, Google declared, "Google does not use the keywords meta tag in web ranking."

Still not satisfied. How about getting some actual law involved?

Also there's legal precedent: "the judge ruled that since the keyword META tags do not influence search results, having trademarked terms in them are immaterial." So we can throw that out as a reasonable explanation for the letter... unless NutriBullet is unaware of the case law.

It seems very likely Nutribullet is unaware of this precedent, as well as generally being unaware of the proper response to complimentary reviews. Granted, this isn't Nutribullet itself speaking, but it is its legal representation. Not keeping a close eye on those supposedly watching out for your best interests often results in exactly this sort of PR fiasco.

The legal team, by the way, is none other than MarkMonitor. [Screenshot of email shows originating address is "brandprotection@mm-capitalbrands" -- the registrar of that domain being MarkMonitor.] Nutribullet's hired gun is apparently unable to distinguish between helping and hurting its employer, much as it has been unable to distinguish between infringing URLs and HBO's official content when sending DMCA notices.

As the news of this letter spreads around, it won't be MarkMonitor who ends up looking bad. Nutribullet itself will be the company losing out -- the one remembered as the entity that greets good reviews with legal threats. Nutribullet may think it's receiving IP protection, but all it really seems to have acquired is a sloppy contractor who can damage Nutribullet's reputation more effectively than it can protect its IP.

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Filed Under: reviews, trademark, trademark bullies
Companies: markmonitor, nutribullet

36 Comments

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That Anonymous Coward (profile), 15 Nov 2013 @ 9:53am

From the parent company of DtecNet (6 Strikes).
Perhaps someone at Thomson Reuters Corporation would care to explain why one of their companies is once again attempting to screw over a paying client.

Perhaps it is part of a master plan of all publicity is good.

We've secretly replaced all of your unpaid good reviews with stories about the douchbaggery done in your name, let's see if they notice.

Oy Nutribullet, LLC... you might want to demand a refund and a list of everyone they emailed so you can start kissing ass to save your brand.

We protect your brand by making sure no one will ever think good things about it... we're MarkMonitor.
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JWW (profile), 15 Nov 2013 @ 9:56am

His Next Review
His next review will be easier to do than the first one.

I'd assume it would go something like this:

Nutribullet is a company run by douchbags. Do not buy any of their products.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 15 Nov 2013 @ 9:56am

So, previously rewarded reviewer gins up notice for positive review...
Too close to possibly intended effect. All publicity is good publicity, especially at stage where just need the name out: bad associations fade over time, but brand recognition remains. If I can think of it, so can others. It's just you puppies who never suspect.

And it's amplified here, even though mere anomaly with no wider application, I guess to show the evils of trademark.
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Anonymous Coward, 15 Nov 2013 @ 10:03am

The trademarks, emblems, words and phrases of Nubribullet, LLC are exclusively used by Nutribullet, LLC and any other use by a third party constitutes trademark infringement.

According to that no one else can use the word Nutribullet in any context without the companies permission. Expect the cease and desist to this site any day now.
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DMC, 15 Nov 2013 @ 10:06am

Nominative Trademark Fair Use
Just learned about this in Trademark class yesterday...

http://en.wikipedia.org/wiki/Nominative_use
[ link to this | view in thread ]
Anonymous Coward, 15 Nov 2013 @ 10:09am

Holy cow! I read the word "Nutribullet" on Techdirt, got confused, and thought I was on Nutribullet's official website for a moment.

Seriously though, someone needs to fire a Nutribullet at these clowns.
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That Anonymous Coward (profile), 15 Nov 2013 @ 10:14am

Re:
How about a tweet suggesting they look for a new brand protection company? :)
This one isn't very good.
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Pixelation, 15 Nov 2013 @ 10:19am

I'd send them a nice letter. In it I would state..."I am removing the positive review of your product and any associated terms from my blog. The reason is not that I'm worried about losing in court, the reason is F-U."
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DH's Love Child (profile), 15 Nov 2013 @ 10:20am

Re: Re:
Perhaps we need to write some reviews of MarkMonitor. It would be entertaining to see if their filters can catch it. :)
[ link to this | view in thread ]
That Anonymous Coward (profile), 15 Nov 2013 @ 10:23am

Re:
The sad thing is the company they represent would never see it.
It takes something getting attention before companies notice they are paying to get screwed.
Like demanding sections of HBO be delisted for infringing on the rights of... HBO.
No one will make the DMCA better, so need to shame the companies into hiring companies that ACTUALLY look at what they send out in the clients name.
[ link to this | view in thread ]
That Anonymous Coward (profile), 15 Nov 2013 @ 10:24am

Re: Re: Re:
They've not come after me yet that I am aware of, and I have said some harsh things about them.
[ link to this | view in thread ]
Anonymous Coward, 15 Nov 2013 @ 10:36am

Failure to do so will force us to defer this issue to our Trademark Lawyer for further actions.

Maybe they should try bringing this issue to their Trademark Lawyer BEFORE claiming trademark infringement? Because just sending this letter probably means the person receiving the letter can sue them for summary judgement.
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Chris Brand, 15 Nov 2013 @ 10:43am

Re:
Right. And then post the C&D letter in its place, saying simply "They asked me to take down the review, so I did". Let your readers make of that what they will. If people assume that the review was negative, well who's fault is that ?
[ link to this | view in thread ]
OldMugwump (profile), 15 Nov 2013 @ 11:29am

Re: Nominative Trademark Fair Use
Yah. Just because a lawyer (or somebody pretending to be a lawyer - there are lots of little hints in that letter that reveal the author has no legal training) says something doesn't mean it's true.

People need to learn to trash these C&D letters when they make ridiculous claims that couldn't possibly stand up in court.
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Phoenix84 (profile), 15 Nov 2013 @ 11:31am

Nubribullet, LLC is the owner of the well-known trademark and trade name Nutribullet. As you are no doubt aware, Nutribullet is a trademark used to identify products, services, activities and events related to Nutribullet, LLC.

1) Well-known, I doubt it. I didn't know about it. Granted that is a small selection size.
2) They couldn't even spell the company name correct.
[ link to this | view in thread ]
Anonymous Coward, 15 Nov 2013 @ 11:35am

Trademark, Patent law, and copyright law are all so totally fucked up. Fix that shit already.
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Keroberos (profile), 15 Nov 2013 @ 12:24pm

Re:
They don't do that because a Trademark Lawyer costs much more money then they are paying the person that sends these C&Ds out. This would make their business model unsustainable.
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jackn2, 15 Nov 2013 @ 12:27pm

I tried the nutribullet(TM) or (R), it sucks when compared to the Vitamix (R).
[ link to this | view in thread ]
jackn2, 15 Nov 2013 @ 12:30pm

Nutribullet is a trademark used to identify products, services, activities and events related to Nutribullet, LLC.

Unfortunately for NutriBullet, this isnt how it works. I doubt they have even spoken to a trademark lawyer to date.

activities and events, that's funny.
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anonymouse, 15 Nov 2013 @ 12:49pm

Nutribullet fuck you
Simple solution to this folks, google "alternative to nutribullet" and there are a few machines that actually look better than their system based on the same principle and doing exactly the same thing, the difference is only in the price, the alternatives are much cheaper and from reviews i have read they last , unlike the nutribullet which seems to have a lot of issues people have complained about.

Way to go Nutribullet you have just let the cat out of the bag that there are better systems than yours.
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anonymouse, 15 Nov 2013 @ 12:53pm

Re: Re: Re: Re:
Well this is the perfect place to let us all know and everyone who reads this story know about your bad experience with nutribullet, give us an honest review of the bad things, we dont want to advertise their system just point out what is wrong with it nothing positive as that could be seen as trying to attract views.
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Anonymous Coward, 15 Nov 2013 @ 12:54pm

Re: Re:
Avoid NutriBullet products, they threaten to sue paying customers! #NutribulletSuesCustomers
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Anonymous Coward, 15 Nov 2013 @ 12:58pm

Re:
Failure to do so will force us to defer this issue to our Trademark Lawyer for further actions.

He should mail their product and a copy of the letter to their corporate headquarters explaining that he does not want to use products from such a shitty company and they can have their junk back.
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John Fenderson (profile), 15 Nov 2013 @ 1:03pm

Re: Re: Re: Re: Re:
Bad thing #1: They send crappy C&Ds out to their friends.
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Anonymous Coward, 15 Nov 2013 @ 1:19pm

Public apology in 3..2..
[ link to this | view in thread ]
Anonymous Coward, 15 Nov 2013 @ 1:21pm

C&D for positive review?
This product most be pretty fucking awesome.
[ link to this | view in thread ]
dawog (profile), 15 Nov 2013 @ 2:06pm

tl;dr
tl;dr
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Pixelation, 15 Nov 2013 @ 4:20pm

First rule of Nutribullet; "No one talks about Nutribullet".
[ link to this | view in thread ]
scotts13 (profile), 15 Nov 2013 @ 4:35pm

Not their usual review
This type of response can only come from a company that cannot imagine their product got a favorable review. "Hey, Ed, somebody reviewed our POS again!" "Damn, send out another letter."
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Jeffrey Nonken (profile), 15 Nov 2013 @ 5:36pm

Response to: Anonymous Coward on Nov 15th, 2013 @ 11:35am
This isn't about any of those.
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PaulT (profile), 16 Nov 2013 @ 2:13am

Re:
First time I've heard of them too. Suffice to say, I don't think I'll be handing them my money at any point in the future, either.
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ChrisB (profile), 16 Nov 2013 @ 8:07am

Re: C&D for positive review?
Juicers and extractor are not healthy. The reason fruits and vegetables are good for you is fibre. Fruit without fibre is basically a glass of fructose. You know, the crap in high fructose corn syrup that causes diabetes?

Blender, like vitamix, are the only way to go.
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ShivaFang (profile), 16 Nov 2013 @ 11:12am

Sincere endorsement!
I love the new product that I bought. I cannot tell you it's name, because that would be a trademark violation. I cannot tell you what it does because that would be a patent violation.

But I can tell you that I love it, and I hope everyone will purchase one! It really saved my day today!
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Pragmatic, 18 Nov 2013 @ 3:44am

Re: So, previously rewarded reviewer gins up notice for positive review...
So when are you planning to vacation in Chernobyl, Cathy?

All publicity is good publicity, right?
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Wally Lipton, 20 Nov 2013 @ 1:31pm

Timing
Just in time for xmas too. I was looking at random stuff to buy for the white elephants I do, but now this one is off the list. Good job!
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chad vavra, 6 Jan 2014 @ 7:24pm

I just got the same letter, different company
Dear Web Host:

VIVUS, Inc. is a pharmaceutical company that develops innovative
therapies in the field of sexual health and is the owner of the famous
trademark STENDRA™. As you are no doubt are aware, this trademark
is used to identify, advertise and promote VIVUS, Inc.'s products and
activities and is protected around the world under U.S. and international
trademark law.
In connection to VIVUS, Inc.'s rights over the STENDRA trademark, we are
notifying you as the Hosting Provider of the following:
It has come to our attention that our trademark(s) appears as a metatag,
keyword, visible or hidden text on the web site(s) located at:

http://www.#####.com/vanilla/discussion/69346/buy-stendra-
overnight-delivery-purchase-stendra-onl ine-eovveu

without having obtained prior written authorization from VIVUS, Inc. This
practice infringes upon the exclusive intellectual property rights of
VIVUS, Inc.
Also, by using such trademark(s), the web site has intentionally
attempted to attract Internet users to the web site(s) or other online
location(s), by creating a likelihood of confusion with the QSYMIA
trademark as to the source, sponsorship, affiliation, or endorsement of
the web site(s), online location(s), products or services. We have
attempted to contact the registrant of the website but have received no
response. Therefore, we request that access to the URLs listed above be
immediately disabled by the Hosting Provider.
VIVUS, Inc. reserves all rights, remedies and causes of action it may
have in this matter.
Should you require additional information or wish to further discuss this
issue, please do not hesitate to contact the undersigned.

Sincerely,

Sandra Wells
Senior Director Legal Affairs

VIVUS, Inc.
1172 Castro Street
Mountain View, CA 94040
brandprotection@mm-vivus.com
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