The other white milk
It seems that the pork industry is being threatened with a very vile threat, one that stands to undermine what it stands for. The threat is coming from a woman who is a work-at-home mom who sells t-shirts from her blog. The threat is real enough that They Who Represent the Pork Industry have sent this woman letter threatening lawsuit unless she backs off.
What did she do that frightens them so much?
Why, she had the audacity (and wit) to make up a CafePress shirt for breatfeeding moms that reads: “the other white milk.” Heaven forbid.
She has the whole story, along with PDFs copies of the letters they sent her, on The Lactivist Breastfeeding Blog. And she does a smackingly great job of pointing out the idiocy of their position RE: her threat, so I won’t attempt to duplicate it.
But the fact that this could happen, that it happens all the time, that we have yet another example of big business trying to control the world, just ticks me off. (Not to mention that they’re picking on a breastfeeding advocate and breastfeeding already has enough hurdles in the U.S.) It’s like a ring of Big Brother Bullies who go around intimidating people just because they’re bigger and because they’re pathologically afraid of anything that could possibly, conceivably hurt their bottom line, no matter how remote the chances. And for some reason, it seems that big corporations have more power to squelch free speech (and wit and benign but deadly funny permuatative creativity) than the government itself.
So I would like to stand behind Jennifer the Lactivist by spreading the word about Big Pork’s ridiculous overreaction. You can write to the Pork board or their various marketing, PR, & communications persons by going to the Lactivist Blog–she has links to contact them directly. You can buy one of her great t-shirts. You can start an email chain or or let the local press know or write a blog post (like me!). Or just roll your eyes and think, ‘those !@#$%s! (Just don’t say ‘pigs’, or they might sue.)
“The Other White Milk?” *lol* That’s hysterical! And, um, yes, the pork industry people are just being weird. o.O
Comment by Proud Daughter of Eve — February 2, 2007 @ 8:18 pm
wow, thanks for the post. I am SO going to get one of those T’s
Comment by G — February 2, 2007 @ 8:29 pm
I think the pork industry’s wealth would be better spent investing in a sense of humor!
The “Lactivist” - I love it!
Comment by Patti — February 2, 2007 @ 8:36 pm
Too bad more states don’t have SLAPP suit laws; she could really nail those corporate pigs. I hope she gets a good PR agent and milks this lawsuit for all the publicy she can squeeze.
Comment by Christian — February 2, 2007 @ 9:01 pm
Here’s the feedback link:
http://www.pork.org/ContactUs/
Fire away!
Comment by Rich — February 2, 2007 @ 9:32 pm
The porkers sent a response to my “feedback”; here it is (didn’t really address my points, but it seems they’ve gotten enough feedback to create a form letter for this specific circumstance):
From: “Steve Murphy, Chief Executive Officer” (communicator@pork.org)
Subject: Response from the National Pork Board
Friday, February 2, 2007
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
Comment by Artemis — February 3, 2007 @ 10:46 am
ha! i love it! i’ll definitely get a shirt! (i can’t wait till my baby is old enough for us to wear our matching shirts… mine is a nursing tee that reads “supply” and hers is a oneise that reads “demand.”)
artemis, thanks for sharing that reply. it seemed quite bizarre, considering what they’re referring to.
Comment by just me — February 3, 2007 @ 11:10 am
This is a good example of a plausible legal decision that is a horrible business decision.
The Pork board has, ironically, probably done more damage to their reputation and goodwill by trying to police the trademark than would have occurred if they had just left things alone.
Given that the t-shirt is pretty likely permissible within the parody exception to trademark infringement, they would have done better to have saved their cease and desist for someone who was an actual threat to their mark.
Comment by obi-wan — February 3, 2007 @ 12:28 pm
If you want the shirt, then you’d better order it today, since it looks like she’s not going to fight it, and the ultimatum says they need to destroy all stock by Feb 5.
Comment by Christian — February 3, 2007 @ 12:32 pm
here’s an idea:
we all make our own homemade versions of the shirt, and then send a charitable donation to the Lactivist cause.
in protest.
and for fun.
and to support the cause.
Comment by G — February 3, 2007 @ 1:15 pm
oh… and then send pics of the homemade shirts to the Pork board.
Comment by G — February 3, 2007 @ 1:30 pm
I’m aesthetically opposed to any shirts with cheeky writing on them, but this is ridiculous. I liked the one that said nip/suck. What a weird country where fake boobs in pasties on tv is less offenseive than real breasts feeding babies.
Comment by mere — February 3, 2007 @ 2:00 pm
Agreed with #12. They think that a woman’s breast in a baby’s mouth is more offensive than a woman’s breast packaged up like a thing for sale
I’ve not taken any course in IP law or in trademark law particularly, but when I read the linked PDF of the complaint, something seems intuitively wrong when those pig-lawyers speak of “the other white meat” as an advertising “slogan.” It’s obvious that she’s not using the language to advertize any product. When lawyers stretch language into absurdity like that, that’s usually sign that they are trying to distort the facts to make a legal point.
I would guess that some legal firm or division is getting paid by the hour, without much supervision from the board. They are being overzealous, writing up unnecessary demand letters to justify billing their client for more hours.
Comment by Christian — February 3, 2007 @ 3:16 pm
obi-wan—Last night DH and I were trying to remember the case that sets precedent for parody exceptions. We aren’t lawyers, we think you are (do we remember right?), and therefor we are now bugging you to tell us the name of the case if you remember it. It’s driving us nuts!
Comment by Janet — February 3, 2007 @ 4:14 pm
The part that really bothered me was this bit from the letter she recieved:
In other words- “resistance is futile.”
Comment by Starfoxy — February 3, 2007 @ 4:16 pm
That’s why they call it a demand letter, rather than a suggestion letter.
Comment by Christian — February 3, 2007 @ 4:30 pm
did the Dairy board ever put up any sort of fight over their “Got Milk” slogan?
and the did it’s appropriation really do any damage to the image or wealth of the the milk producers of America?
Comment by G — February 3, 2007 @ 7:37 pm
By the way, the campaign seems to have worked. See the update at the lactivist’s site: http://thelactivist.blogspot.com/2007/02/update-on-pigsteria-mothers-milk-bank.html
Comment by Kaimi — February 3, 2007 @ 9:35 pm
what gets me is this part:
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.
ummm… are they really saying the shirts are promoting a weird breastfeeding fetish?!
Comment by makakona — February 3, 2007 @ 11:29 pm
depending on how this all goes down… I wonder what is going to happen to Jennifer Daniel Collins, and the the law firm of Faegre & Benson.
to the law firm, probably no effect at all… but if Jennifer is a low man on the totom pole at F&B, and the publicity gets messy enough to need a scapegoat… well, who knows.
Comment by G — February 4, 2007 @ 12:36 am
Janet - you’re probably thinking of the Hustler v. Falwell case (the subject of the movie “The People v. Larry Flynt”).
Comment by ECS — February 4, 2007 @ 8:45 am
Last night DH and I were trying to remember the case that sets precedent for parody exceptions.
Janet — I’m not sure which one you are thinking of. There may be several. Among my favorites is Jordache Enterprises v. Hogg Wyld, Ltd, holding on parody grounds that a line of large-sized women’s jeans called “Lardache” did not infringe the “Jordache” blue jeans mark.
Or LL Bean Inc. v. Drake Publishers, holding that High Society magazine’s sexually explicit burlesque of the LL Bean catalog did not infringe (dilute) the clothing manufacturer’s trademark.
Janet - you’re probably thinking of the Hustler v. Falwell case (the subject of the movie “The People v. Larry Flynt”)
Perhaps, although Hustler is really a defamation/intentional infliction of emotional distress case, not a trademark case.
I wonder what is going to happen to Jennifer Daniel Collins
I wonder what she is doing in a trademark practice anyway — her bio on the Faegre website says she came to the firm from DoS civil rights work, and has no apparent trademark experience (and graduated from, frankly, a not particularly good law school). Associate inexperience may have been part of the problem, although the incident of course also says something about whoever was supposed to be supervising her.
Comment by obi-wan — February 4, 2007 @ 2:44 pm
this lawsuit is a big let down
Comment by mere — February 4, 2007 @ 2:56 pm
“Hustler v. Falwell”
I’m always amused at how some of the free speech buffs fail to cite the truly significant holding of that case, i.e. that “bad taste” is a fundamental constitutional right.
Comment by Christian — February 4, 2007 @ 3:08 pm
I thought the Pork Board’s response in #6 made sense. It is trademark infringement, and they do have to defend their trademark. They opened a can of worms with this defense, but I can see their point.
Then again, I’m a lawyer and think like one occasionally. I do think the “parody” defense may carry the day, but then again, it isn’t really a parody, it’s a blatant rip-off of their slogan. The only reason her t-shirt slogan is clever is because the Pork Board paid to make their slogan popular. But G’s point in #17 was good - the dairy industry hasn’t protested much as “Got Milk?” has been ripped off by everyone.
The Pork Board isn’t attacking breastfeeding. Good grief, relax about that.
Comment by Melinda — February 5, 2007 @ 10:48 pm
Seems to me that having its slogan associated with breast milk could only help the pork industry. Those lawyers should offer Lactivist a $1 licence for limited noncommercial use of that adapted slogan. No erosion if she’s using it by permission, right? Or am I misunderstanding something?
Comment by Christian — February 5, 2007 @ 11:28 pm
Then again, I’m a lawyer and think like one occasionally. I do think the “parody” defense may carry the day, but then again, it isn’t really a parody, it’s a blatant rip-off of their slogan.
I’m a lawyer and I think like one pretty much continually. Do the research (you can start with the cases I cited to Janet). The t-shirt slogan is clearly a parody as that term is defined in trademark law. Although trademark law in this country is completely out of control, the First Amendment isn’t quite dead yet.
Parodies by definition are, as you put it, “rip-offs” of popular slogans, dependent on the investment made by the owner of the mark to make it popular — the popularity and investment are the reason that there is something to parody.
I think it is also clear that most of the screaming and yelling is about the way that the mark was policed, not the fact that the owner is policing the mark. The mark could have been policed in this instance without the kind of cease and desist letter that was sent. The paragraph trying to assert tarnishment is especially offensive — it very much reads as an attack on breast feeding.
Basically, the Pork Board (and their counsel) richly deserve all the bad PR they’ve gotten. The dairy people were smarter. Hopefully other mark owners will notice who got burned and who came out ahead.
Comment by obi-wan — February 6, 2007 @ 9:41 am
Thanks, ECS and obi-wan–I’m not sure which case we had in mind, but I don’t think it was the Larry Flynt one since I’d have remembered him!
Comment by Janet — February 6, 2007 @ 10:13 am
If the Pork Board had been smart, they would have taken the parody for the compliment it is, and lapped it up (so to speak).
Comment by Space Chick — February 6, 2007 @ 1:31 pm
I’ve gotten a reply to all my emails to the lawyer and the pork board members. My notes to them were to ask whether they really, truly looked forward to the image of mothers and children picketing supermarkets, carrying signs showing big, mean, whiskery, ornery, tusked boars threatening poor little mamas and their babes-in-arms? They hasten to assure me that they in no way meant to denigrate mothers and children and the benefits of breastfeeding. It wasn’t exactly a backpeddle because they repeated their client’s right to enforce a trademark claim, but it did make me chuckle to see how transparently afraid they were of the negative press they’ve created!
I think Lactivist should create a new t-shirt with the kind of image I just described, of a mother being terrorized by a huge ugly mean porker. Maybe with a quotation from the lawyer’s letter as a caption.
Comment by Ardis Parshall — February 6, 2007 @ 1:47 pm
space chick- hehehehehe…
but maybe that would have been to close to, how did they put it?… something about using breastmilk for purposes beyond… etc etc etc…
Comment by G — February 6, 2007 @ 1:48 pm
Thanks, ECS and obi-wan–I’m not sure which case we had in mind, but I don’t think it was the Larry Flynt one since I’d have remembered him!
Janet — I don’t want to assume that you are confused, but if I had to guess, I would guess that you were thinking of Campbell v. Acuff-Rose, a Supreme Court copyright parody case holding that 2 Live Crew’s hip-hop send-up of Roy Orbison’s “Oh Pretty Woman” was a fair use.
Fair use/parody in copyright is NOT the same as parody in trademark — for one thing, “fair use” in trademark law is something quite different. I don’t think there is a trademark parody case similarly famous to Campbell. And as I say, I don’t want to assume that you have copyright and trademark mixed up. But Campbell is a case that people are likely to have heard of.
Comment by obi-wan — February 6, 2007 @ 3:32 pm
There is a happy ending to this story after all! Hooray! (Hat tip to Kaimi)
Comment by Starfoxy — February 7, 2007 @ 6:06 pm
When my mother went back to college in about 1960, she came home one day and told us that her class had discussed the advantages of breast milk. One male student had offered that an advantage was that it came in more attractive containers.
Comment by Trueheart — February 15, 2007 @ 12:18 pm