Officially our best-ever cease and desist | Hacker News Reader

Officially our best-ever cease and desist

thinkgeek.com

252 pointsandreyf33 comments

I found out that a lot of law firms, once retained for trademark purposes essentially operate on autopilot with low paid paralegals churning out c&d's at anything that moves in order to rack up billable hours. Many times the actual trademark holder isn't even aware of how their lawyers might be about to embarrass them next.

Never underestimate the greed of billable hours in an idle lawyer's hands.

Wow, I wonder how much money that cost them. Lawyers aren't cheap.

Lawyers on retainer get paid whether they do anything or not.

Opportunity cost.

Having your retained lawyers do this keeps them too busy to, e.g., go after the National Cannibals Club ("the other other white meat").

So at the end of the day, you've got to increase your stable of lawyers on retainer.

A big company or organization, especially one such as the National Pork Board, has lawyers on retainer.

The research on this was probably done in a previous C&D -- all told C&Ds are a pretty cheap alternative if they help prevent litigation. When in doubt, C&D.

IANAL, YANAL, etc. But I still want to ask: suppose regular people start using the phrase "the other white meat" in various discussions. I used to refer to the Nitro Ruby Web framework as the other white meat in discussions that inevitably mentioned Rails. Suppose, as a reaction to this nonsense, it was used everywhere, all time, so as to dilute any special association with a particular product.

I realize in the land of the free you can get sued by near anyone over near anything, but how likely/risky is it that blatant use of this phrase in on-line discussions would lead to legal action or threats from pork lawyers (AKA swine swine :) )?

While this may not be the case that sparks a populist reaction, would encouraging people to wilfully apply some trademarked phrase as often as possible work as a protest?

Ironically, the idea of spamming the on-line world with misapplied trademark usage made me think of Hormel, who handled their trade-name issues like thoughtful people. The pork people may have blown a chance to make something positive out this for themselves. At the very least, thuggish behavior doesn't help. There are nicer ways to defend trademarks.

The standard is "likelihood of confusion." so if you call Nitro the other white meat then someone will have to be confused and think you are talking about a meat product. Also I believe you would have to be using the name in trade(sell a book titled Nitro the other white meat or some such) On the other hand it would not be likely to dilute their TM since generic-ness is usually in reference to a class of products. Nitro not being in the same class should not dilute the name for the meat industry. aka Apple music vs Apple computers.

That's ridiculous. Neither unicorn, nor the american white eagle, nor even the albatross comes close to pork. Mmmmm, pork.

I take it you didn't try baby seals .. half-alive.

The sad thing is, the NPB may have had a valid point here. Unlike most forms of intellectual property, trademark rights do degrade if you don't defend the mark and it is deemed to be diluted. I'm not sure the ThinkGeek guys got this, since they referred to parody as a defence, and that would normally be used in connection with copyright. So we can all have a good laugh, but there might be a real point about the appropriateness of various legal standards for defending intellectual property rights as well.

Exactly!

Because a few jokes about unicorn meat will degrade America's appreciation of pork. Certainly.

No, but they might degrade the exclusive identity of pork as "the other white meat."

If enough people were to make jokes about "the other white meat" referring to various products, the pork board could theoretically lose the trademark altogether.

Except the screen grab showed the text as being "the new white meat", which is what has me a bit confused.

Well, IANAL, but I'm pretty sure it doesn't need to be a word-for-word copy. The bar is "confusingly similar." See f.ex: http://www.registeringatrademark.com/trademark-law-basics.sh...

Ah, yeah, when I'm writing code, I frequently do something like:

Foo *f = Other Foo();

They're so confusingly similar. ;-) But more seriously, I do agree with your point, if there's confusion (or the possibility), they would have to defend the trademark. I guess I just have a different bar for "confusing" than others.

I was making "$foo, the other white meat" jokes about 15 years ago in Jr High. I'm pretty sure its diluted already.

Cats, the other white meat.

What I find particularly interesting is that the slogan "The Other White Meat" is targeted specifically to infringe upon the marketplace position of chicken as "white meat".

The NPB is completely fine with messing up chicken, but is concerned about the Unicorn Meat market infringing on pork products.

I agree with you. In fact, it's glorious that trademark is qualitatively different from copyright. It lets us see what the world would be like if copyright degraded, for example.

In this case, we see that, because trademark does degrade if not defended, well, it has to be defended (no matter how silly it seems to do so). No doubt the Pork Board thought it was silly, but they really have little choice. If trademark was like copyright or a patent right, then they could have chosen to simply ignore this without much risk of losing their rights.

There is a parody defence for trademarks as well, normally it's disallowed if it's done for commercial purposes (typically a company poking fun at a competitor), but it seems to depend very much on the judge who's hearing it.

But ThinkGeek uses the phrase "The New White Meat" not "The Other White Meat". Does trademarking "The Other White Meat" mean that no other product can ever refer to itself as "White Meat"?

You can't change one word to a close synonym and then claim that your branding is totally different. "The New White Meat" is obviously something that could be confused with "The Other White Meat."

In this case there is no product. While it did not make it through trial, The North Face vs. The South Butt seems more intrusive: http://www.msnbc.msn.com/id/36334733/ns/business-consumer_ne...

There is already an established market for "White Meat" and ThinkGeek is just breaking into it. It's not their fault Pork has created a binary market. It would be akin to Bing entering the search eng... Ah fudge it, it's Unicorn Meat!

It says in the actual C&D itself, 'a number of other websites that refer to this product use the wording "The Other White Meat" in connection with the product' which would be the "infringing" phrase (from Facebook and TheFrisky).

Now, those links and link text weren't on Thinkgeeks's site, but that fact only serves to make this look even more hastily done and less well-thought-out.

mean that no other product can ever refer to itself as "White Meat"?

I'm pretty sure chicken might have a word or two to say on that topic...

Although they don't seem to be all that well-informed on the topic, ironically, parody is a valid defense here — because they aren't actually marketing a competing product, I don't see how they could be infringing on the National Pork Board's mark.

The irony is that "The other white meat," although catchy enough to have a found a long-term place in popular culture, is no longer a great promotion slogan for pork. The obsession with lower-fat foods has faded with time. Food writers complain that present-day pork doesn't have enough fat. However, even if they choose not to use it at all, the NPB will continue to defend their trademark (never mind whether this case truly infringes).

It seems a little absurd that trademarks can be used like this - I can understand for product names, and slogans, but surely if the words are different - then you're just trademarking the _idea_.

So, if I get it right, if you refer to any meat as being white meat but not chicken, then you infringe upon the National Pork Board's trademark? Just checking, I'd never heard of the slogan 'til today (not from US).

Offtopic, but one of the best things about Thinkgeeks site is the footer. Scroll all the way down to the bottom :)

Oh, shit. Guess I am in trouble now. Posted this about a week ago in an unrelated copyright violation: http://codercofounder.wordpress.com/2010/06/12/product-manag...

Unicorn meat is not only white, it is also kosher / halal.

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