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» The Ornery American Forum » General Comments » Corporate pigs cry over spilt milk

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Author Topic: Corporate pigs cry over spilt milk
Pete at Home
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The pork industry faces a new sinister threat: a work-at-home mom with a sense of humor. The porkmasters are threatening this creative blogger unless her blog stops selling a t-shirt for breastfeeding moms that reads: “the other white milk.” http://thelactivist.blogspot.com/2007/02/overzealous-big-pork-stomps-on.html

[ February 02, 2007, 10:03 PM: Message edited by: Pete at Home ]

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Carlotta
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I couldn't find a link to buy that shirt. (I have some friends who would love it - I don't know if I'd actually have the guts to) Did I miss it?
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Pete at Home
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It's not that well organized. This page has a phone number for orders, and pictures of the shirts.

http://www.cafepress.com/thelactivist

Click on the shirts, and then click the next link to get to the order page.

eg: "don't be lactose-intolerant"
http://www.cafepress.com/thelactivist/1124854

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Pete at Home
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"my kid sucks" http://www.cafepress.com/thelactivist/1124867
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LoverOfJoy
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What is the policy on parody and fair use? From a quick search it doesn't seem like there's a hard fast rule. Things judges seem to consider is whether its use is commercial, whether there is "tarnishment" involved, and whether there is intent to confuse or mislead the public.

The t-shirts are for commercial purposes but it's obvious there's no intent to confuse the public on whether it's about pork or breast milk. And since it is used to promote breast feeding, it doesn't seem intent on tarnishing pork in any way.

Back when I was an undergrad, I was on the university's married student activities board. We decided to make t-shirts for the board that had the MSA logo on the front and "Got Married" on the back. It got a chuckle out of some people but I don't think it either tarnished the milk image or confused people into thinking we were talking about milk. And in our case we weren't doing it for commercial purposes either.

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Pete at Home
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quote:
"In addition, your use of this slogan also tarnishes the good reputation of the National Pork Board's mark in light of your apparent attempt to promote the use of breastmilk beyond merely for infant consumption, such as with the following slogans on your website in close proximity to the slogan "The Other White Milk." "Dairy Diva," "Nursing, Nature's Own Breast Enhancement," "Eat at Mom's, fast-fresh-from the breast," and "My Milk is the Breast."
Say what?
quote:
your apparent attempt to promote the use of breastmilk beyond merely for infant consumption
[Confused]
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Pete at Home
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quote:
Thank you for your email to the National Pork Board. We appreciate you taking the time to send us an email regarding our communication with "The Lactivist" webstore on CafePress.com about our trademark rights.

It is important to understand that our lawyer’s correspondence to Ms. Laycock was in no way intended to challenge or demean breastfeeding or those who support it. This correspondence is about defending our trademark and the National Pork Board's responsibility to protect pork industry investments on behalf of the 70,000 US pork producers we represent. The Other White Meat® is a pork industry trademark whose value was built slowly and thoughtfully over 20 years, paid for by producer’s hard-earned dollars. Any infringement on that mark would substantially lessen its value and impact for US pork producers.

It’s also important to understand that the National Pork Board cannot pick and choose which infringement challenges it decides to address. We have a responsibility to the industry to challenge all viable infringements (and we do so on a weekly basis) or face the possibility of losing trademark protection and allowing the industry’s valued trademark to become public domain, and thus worthless.

Again, the National Pork Board takes no issue with your important cause. Our interest here was in protecting US pork producer’s investment in The Other White Meat® trademark. We apologize if our response seemed impersonal or harsh; that was not our intent. We will use all feedback that we receive to improve our communication processes in the future. Thank you for bringing your concerns to our attention.

Sincerely,


Steve Murphy
Chief Executive Officer
The National Pork Board

I wonder if that's true, that they've got to fight it, even if they've got no case with the whole parody issue?
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LoverOfJoy
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Even if they'd have to for larger groups I doubt they'd have to for some small blog. It's hard to imagine that a judge would say that since they didn't defend their trademark against some small podunk website that they may not have even noticed they can't defend their trademark against some porn site they find out about.
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The Drake
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One of the issues here that might complicate things is the status of the "Pork Board"

While one company might just say, "Aw, forget it.", I wonder if the consortium status makes it more difficult for someone to call things off.

As for the bloggers main complaint, that they were threatened, I wonder if they've ever read anything any lawyer ever sent. I can't recall any lawyer phrasing that started, "we were just wondering if you would mind..."

It always threatens dire penalties, in my experience.

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Jesse
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If they hadn't made the ridiculous accusations regarding intent to promote consumption beyond the infant market...the letter could be taken a bit more seriously.

I think they probably thought they could just scare her into dropping the shirt. It's a common tactic.

edited to add

Great thread title, Pete.

[ February 03, 2007, 10:48 AM: Message edited by: Jesse ]

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Pete at Home
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I made the same point on a friendly blog, Drake -- that this is why they call it a demand letter rather than a suggestion letter. Still, in this case the tone may have bought them some bad PR.

Good news, though. Apparently the mom got herself some legal defense, received an apology, and now is working through to resolution from the pork board. http://thelactivist.blogspot.com/2007/02/update-on-pigsteria-mothers-milk-bank.html

The page also has an interesting list of blogs that have covered this. I bet it starts hitting news sources soon. Oh hello, it already did:

Information Week points out National Pork board Stumbles Into Hornet's Nest of Bloggers

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Pete at Home
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Here's another. Nice puns!
http://www.webpronews.com/topnews/topnews/wpn-60-20070202SearchMarketersDeclareWarOnPork.html

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Eric
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I've been trying to become independently wealthy so that I could go back to school, get a law degree, and take on cases like this on a pro bono basis.

I'm just having a hard time with the independently wealthy part.

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velcro
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I know that if you don't defend against trademark infringement, you risk losing it. The key seems to be the "responsibility to the industry to challenge all viable infringements". You would think the lawyers could file something noting the infringement but pointing out themselves why it is not viable, and they would have their butts covered without ticking people off.
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Pete at Home
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If it wasn't viable, or was barely arguably viable seems to me that they could still protect themselves by less heavy-handed means.

Instead of requiring her to destroy the tshirts and promise to never use that phrase again, they could simply require that she sign a statement saying that she was only promoting the practice of infant breastfeeding, had no plans to use the phrase "the other white milk" to market any products. They could also ask her to send them $1 in exchange for a limited licence to use that spoof of their trademark (only for promoting breastfeeding), etc.

If any arguable use of their trademark exists under an explicit license, then as I understand, there's no erosion of their rights.

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scifibum
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Another blogger made the point that while the pork board came off stupid (especially by accusing lactivist with promotion of breastmilk as some kind of fetish) this is basically standard practice in trademark protection, and it probably wouldn't have garnered so much ire if it hadn't happened to someone who promotes breastfeeding. The pro-bf crowd (borrowing a hot turn of phrase from another thread [Wink] ) perceives this as an attack on breastfeeding, rather than on a point of trademark law.

Personally, I agree with the general consensus that confusion or tarnishment is unlikely, and so I would guess that no infringement has occurred. Of course I'm not a lawyer. [Smile]

If someone was selling this shirt just to make a few bucks on cafepress, and had no association with pro-bf lobby, would anybody care (about the pork board's actions)?

[ February 05, 2007, 12:32 AM: Message edited by: scifibum ]

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