The Oatmeal Sued Again - This Time For Trademark Infringement

from the odd...-a-lawsuit-with-some-merit...-who-knew? dept

It just seems unlikely that someone doing business as wholesome breakfast food would find himself facing two lawsuits mere months apart. Matthew Inman, the cartoonist behind The Oatmeal, had just finished staring down a trollish lawyer named Charles Carreon, using a combination of bearsex and charitable donations. Now, Inman finds himself being sued for trademark infringement by Oatmeal Studios, a Massachusetts greeting card company (read the full filing here).
The comic teamed up with the company that owns the Papyrus chain of card and gift shops, Recycled Greetings, to sell paper greeting cards of his Web comics via the The Oatmeal's Web store, along with other novelty items. But that caught the attention of Oatmeal Studios, a Massachusetts greeting card company that says it's been selling greeting cards under that name for 35 years. Oatmeal Studios sued Inman and Recycled Greetings, claiming a trademark on the phrase "Oatmeal Studios." In a complaint filed in Boston federal court earlier today, Oatmeal Studios says that Inman's use of The Oatmeal is too similar, and likely to confuse consumers, who may believe the businesses are related.
As Ars Technica notes, the suit lists only one count of trademark infringement and doesn't ask for any specific dollar amount in terms of damages. The filing asks for an injunction prohibiting The Oatmeal from selling any products or services that are similar to Oatmeal Studios' offerings, along with statutory damages. Inman has not responded publicly to this lawsuit, other than posting a link to Ars Technica's story on his Facebook page.

However, the company bringing the lawsuit has commented on its actions, basically stating that Oatmeal Studios is simply protecting its core business against a larger competitor.
We are a small New England Greeting Card company, founded 35 years ago in Vermont by a woman who loved to design cards and her husband. Oatmeal was the name of their pet rabbit. Over the years they steadily built the business through hard work, and today we have over 2100 outlets nationally, including many small local stores as well as bigger chains.

The Greeting Card industry is very competitive. We were alarmed to hear recently that one competitor, a large greeting card and gift company (and part of one of the world’s largest publicly traded Greeting Card companies), announced the introduction of a new line of cards, "The Oatmeal", to be sold nationally to many of the same customers we serve. They clearly have infringed on the rights that our original founders worked so hard to create decades ago. So, we sent a cease and desist letter and filed a complaint to address this issue. This large company has known about Oatmeal Studios® and competed against us for years, and we are simply trying to protect our name and defend our rights.
Unlike Carreon's desperate (and often comical) legal flailings, Oatmeal Studios very likely has a legitimate case. The Oatmeal's greeting card sideline isn't some informal DIY project. Inman's working with Papyrus-Recycled Greetings (the co-defendant), a division of American Greetings, to produce his line of cards. And while some may argue that Inman's distinctive drawing style would be unlikely to be confused with an unrelated card company's output, this is likely only true for Oatmeal (the comic) fans. Oatmeal Studios also specializes in humorous greeting cards, many of which utilize hand drawn cartoons. As a long-time reader of Techdirt, I can safely say this is one of the saner trademark suits we've covered.

So far, Inman has remained quiet on the subject. The lawsuit contains the usual boilerplate claiming "intent to deceive," but at this point, that doesn't seem to be the case. This could be chalked up to lack of due diligence before diving into the greeting card field, "safe" in the assumption that no one else was actively using the word "Oatmeal" to sell cards. If there are more details in the background, it seems they won't be revealed until the suit proceeds. Inman is being uncharacteristically quiet, but then again, this isn't another edition of Charles Carreon's three ring legal circus.


Reader Comments (rss)

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    fogbugzd (profile), Nov 26th, 2012 @ 7:59pm

    The Internet has made a lot of IP law antiquated. Trademark used to have a geographic component that worked fairly well. If you had a little mom & pop operation you could use it in your area. Physical distribution meant that companies had some control about where goods were distributed, so a court order could often keep a big competitor from moving into that area, but was free to distribute elsewhere.

    Internet companies go everywhere. That means a little mom & pop with an unregistered trademark suddenly have a global mark if they can get a court to block an on-line company. Couple that with the incubation to claim very broad rights and you cause real problems.

     

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      Mike, Nov 27th, 2012 @ 1:57pm

      Re:

      "Trademark used to have a geographic component that worked fairly well."

      Federal registration of a trademark was never geographically limited. You still have to show that you have TM usage in more than one state to qualify for a federal registration.

      Common law rights were limited to the territorial reach of a trademark user. But that's not the case here, since there's a federal registration (see below).

      "That means a little mom & pop with an unregistered trademark suddenly have a global mark if they can get a court to block an on-line company."

      Not the case here. They have a federally registered (2913017) trademark since at least 2003, and probably common law rights well before that.

      "Couple that with the incubation to claim very broad rights and you cause real problems."

      I don't know what that means.

       

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    Forest_GS (profile), Nov 26th, 2012 @ 8:10pm

    Just re-brand the cards with "The Oatmeal Webcomic"

     

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      btrussell (profile), Nov 27th, 2012 @ 4:23am

      Re:

      I make porridge with oatmeal and I think most would see the relationship: Therefore, if I were Mr. Inman, I would just change the name to "Porridge Patch."

      He could then easily incorporate the "bearsex" and Carreon with his business.

       

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    MrWilson, Nov 26th, 2012 @ 8:17pm

    While I agree that they likely have a case under the traditional legal protections of trademark law, this seems like a pretty clear example of why trademark law needs to be updated.

    Oatmeal is a pretty damn generic term, which already counts against them, but it seems a lot harder to confuse brands anymore since a quick google search can clear anything up.

    Doesn't everyone have internet access?

     

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      Zos (profile), Nov 26th, 2012 @ 8:36pm

      Re:

      i just did a quick google search for oatmeal cards.


      the oatmeal came up first, these guys were the rest of the page. i can see a chance for consumer confusion, but i don't think that's worth protectionism.

       

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        Zos (profile), Nov 26th, 2012 @ 8:37pm

        Re: Re:

        *personal opinion ofc, but then again my personal opinion of the law in general is pretty low, so FWIW.

         

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        reboog711 (profile), Nov 26th, 2012 @ 9:32pm

        Re: Re:

        I'm not sure this is protectionism..

        Oatmeal studios doesn't seem to want to prevent "The Oatmeal" from selling cards; it just wants to prevent him from doing so under a name similar to theirs.

        I admit the two names are pretty similar and I can see confusion. If I'm buying greeting cards in a store; it seems unlikely I'll do a Google search to find out more details on specific companies [or not]

         

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          Anonymous Coward, Nov 27th, 2012 @ 6:29am

          Re: Re: Re:

          The real question: Do you really care who your greeting cards come from?

           

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            John Fenderson (profile), Nov 27th, 2012 @ 9:33am

            Re: Re: Re: Re:

            I do. Not only that, but I've long been a big fan of both The Oatmeal website and Oatmeal Studios greeting cards and have warm fuzzy feelings for them both.

            However, I think this is a legitimate case. I don't think there's any "intent to deceive", but the possible confusion is plainly obvious -- even that I had to append "website" and "greeting cards" to my sentence above to make my meaning clear supports this.

             

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      Anonymous Coward, Nov 27th, 2012 @ 11:12am

      Re:

      "Oatmeal is a pretty damn generic term, which already counts against them"

      Not when it's applied to greeting cards. In that context it would be considered "arbitrary," which is on the opposite end of the spectrum from generic.

       

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        MrWilson, Nov 27th, 2012 @ 5:31pm

        Re: Re:

        Considering that companies like Monster Cable, Apple, and T-Mobile have tried to assert trademark control over basic words or shapes or colors regardless of whether the companies they sued or threatened were even in the same market, any similarity between companies that use generic terms that you can find in the dictionary or any images you can find in a children's book or any colors you can find in a box of crayons is to be expected and therefore shouldn't warrant a trademark dispute.

        If you didn't make up an entirely new word, don't be surprised if someone somewhere happens to offer a similar product under a similar name. That's not a strong basis to bar them from entering the market unless you can prove intentional efforts to deceive the public. I don't see Inman starting the Oatmeal site years ago with the express purpose of competing in the greeting card market, so the similarity of the names is incidental.

         

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    Wally (profile), Nov 26th, 2012 @ 8:59pm

    I was wandering when we would hear about Iinman again. I'm disapointed that it won't be as entertaining reading about it though. Tim Cushing, this is a great article.

    Personally, there are so many public domain images that go into e-cards, it makes me wonder how some are trademarked.

     

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      Anonymous Coward, Nov 27th, 2012 @ 12:30pm

      "All publicity is good publicity" ....thats what marketeers say

      Inman is an attention whore, business wise speaking and a little on the personal level.

      People disregard he is a viral marketeer, SEO and proven scam artist. They also disregard all the facts concerning him and buy into the narrative he spams out there.

      I too "was wandering when we would hear about Inman again."
      Never once did I think, IF "we would hear about Inman again"
      (or the Oatmeal, especially when he could possibly make $1 million in sales this Christmas )
      The Oatmeal, generated sales of $70,000 in a day(Black Friday 2010) and $1,000 on a typical day.(2010)




      INB4 Inman donates other peoples money to charity.... to fight this*.


      Poor cartoonist ~Versus~   Evil greeting Card Empire
      in.....3.....2......

       

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    Anonymous Coward, Nov 26th, 2012 @ 9:20pm

    I have a question:
    Has anyone ever bought a greeting card based on the name of the company selling the cards? I thought everyone bought greeting cards based on the pictures and words and such on the cards.

    Either I'm drastically underestimating the real value of brand names in the greeting card business, or this entire lawsuit is a stupid waste of time and money for everyone involved.

     

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      reboog711 (profile), Nov 26th, 2012 @ 9:35pm

      Re:

      Hallmark is a pretty strong brand name in the card business. My mom has specifically gone into Hallmark stores to buy Hallmark cards.

      I think any kind of business can develop relationships with customers.

       

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      Wally (profile), Nov 26th, 2012 @ 10:28pm

      Re:

      "I have a question:
      Has anyone ever bought a greeting card based on the name of the company selling the cards? I thought everyone bought greeting cards based on the pictures and words and such on the cards."



      Hallmark and American Greetings were the first two companies that came to mind. Outside of those two companies in my area, you've got Wal-Mart. To be honest, I am always inclined to get Hallmark cards because they usually have the best ones that fit my wife's and I relationship.

       

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      Berenerd (profile), Nov 27th, 2012 @ 4:38am

      Re:

      I was thinking the same thing. The only company I know of is Hallmark and I think Shoebox. hell, I lived in VT for 10 years and NH for another 15+ I have never heard of this greeting card company before now.

       

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      Wally (profile), Nov 27th, 2012 @ 4:56am

      Re:

      To answer your first question, I always buy Hallmark or American Greetings cards. Hallmark has a chain of franchised stores.

      To answer your second question, it could very well be a giant waste of time and resources.

       

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      art guerrilla (profile), Nov 27th, 2012 @ 6:30am

      Re:

      excellent point, anonymouse...
      when you flip through cards at the store and like one, do you turn it over and go, 'nah, it's Brand X cards, i don't buy *them*...' i don't think so...
      you browse the cards and pick the ones you like, not based on the brand name... (for 99.99% of us)

      having said that, have to agree that it is pretty close to infringing on the pre-existing brand... seems like a couple minutes of googling would have revealed this potential stumbling block, and wonder why a big company like American Greetings would do their due diligence...
      (*unless*, they *really* are being evil and purposefully messing with this other mom/pop card company...)
      art guerrilla
      aka ann archy
      eof

       

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      John Fenderson (profile), Nov 27th, 2012 @ 9:36am

      Re:

      Has anyone ever bought a greeting card based on the name of the company selling the cards?


      I do this. Brands indicate style. I know that certain brands, like Hallmark, are very unlikely to be appealing to me and I skip right past their stands when I'm looking for a greeting card.

       

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      Anonymous Coward, Nov 27th, 2012 @ 11:03pm

      Re:

      I'm actually very fond of Papyrus card stores, which seems to be American Greeting's upscale line--beautiful cards, better designed than Hallmark's cards. Until now I didn't even know American Greetings owned them.

       

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    Martijn, Nov 26th, 2012 @ 10:43pm

    "We are a small New England Greeting Card company, founded 35 years ago in Vermont by a woman who loved to design cards and her husband."

    She designed her husband?

     

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    mdpopescu (profile), Nov 26th, 2012 @ 11:07pm

    Wrong

    While trademarks have a bit of merit in a sane legislation, the injured party here is the customer: he is the one who might be duped by the name. Someone who buys a Louis Vuitton knockoff knows that he's buying a knockoff and is fine with it; it is insane to allow LV to prevent that transaction on the grounds that it helps the customer. Same thing here: if someone buys a "The Oatmeal" greeting card while wrongly believing he bought a "Oatmeal Studios" one can show actual harm, instead of the alleged potential harm this suit is trying to prevent.

     

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    Anonymous Coward, Nov 26th, 2012 @ 11:38pm

    I agree with the dark lord here, this one appears to be a case where the laws were designed and intended to not happen, for the protection of the people.

     

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    PaulT (profile), Nov 27th, 2012 @ 1:08am

    "As a long-time reader of Techdirt, I can safely say this is one of the saner trademark suits we've covered."

    Yet, it still boils down to someone being sued because a company they were probably unaware of chose to name their company after a common breakfast food first...

    It's definitely saner than most, but I'd argue that the chance of real consumer confusion is minimal. Does anyone really buy a greeting card based purely on the name of the company that produced it, as opposed to the design and/or written sentiments?

     

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      Berenerd (profile), Nov 27th, 2012 @ 4:41am

      Re:

      Well, I think sane is, they are not asking for $14 billion per card sold, they are actually asking them to stop using the name. Though I think a letter would have been a better start, but eh, their kids probably told them NONO SUE THEM!! LEAVE US MORE MONEY WHEN YOU DIE!!!

       

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      rick (profile), Nov 27th, 2012 @ 8:33am

      Re:

      No, they chose to name their company after their rabbit, who was named after a common breakfast food, first.

       

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    Malor (profile), Nov 27th, 2012 @ 2:21am

    This lawsuit is absolutely legitimate

    This is precisely what trademark law is for; Oatmeal Studios has been building up their brand equity for thirty-five years. They have registered Oatmeal Studios as their trademark in the greeting card space. They absolutely have the legal right to tell The Oatmeal to bug off.

    Further, I'd say they have the moral right, too. As a store manager choosing what cards to carry, if I saw these new "Oatmeal" cards, I might very well think that Oatmeal Studios had lost their freaking minds, and refuse to buy anything more from them. The Oatmeal's humor is, um, let's call it specialized, lest I offend those of you who actually like that drivel^H^H^H^H^H^H controversial content.

    For better or worse, his stuff is incredibly memorable, and I can't imagine Oatmeal Studios would be able to reasonably differentiate themselves from the newcomer, at least in the minds of people who aren't paying very close attention to the issue (ie, almost everyone, everywhere.) Since they're already in that market, it's up to Inman to make the differentiation, not them.

     

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      Wally (profile), Nov 27th, 2012 @ 5:06am

      Re: This lawsuit is absolutely legitimate

      Does it still make it right for you, first party, to sue for trademark infringement asking for stop and desist using a name if you were generally unknow to the second party?

       

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      Anonymous Coward, Nov 27th, 2012 @ 7:52am

      Re: This lawsuit is absolutely legitimate

      Registering such a generic term should not be reguarded as protectable in principle. Oatmeal studios as a brand was heading for a showdown if and only it took 35 years for such a generic, common food that has always been a shared food brand and being lucky to not have endured the legitimate grind of companies that endure far worse catstrophes in the normal course of manufacturing that 'oatmeal' that is not apparently grown or manufactured by 'oatmeal studios'.. This, hopefully is a case of two simultaneously bad ideas coming to an end. The legitimacy of registration of such a common word as oatmeal is way too iffy in the first place in this commentor's opinion mainly because they aren't even in the oatmeal business. I mean.. in the first place, naming your business oatmeal studios and having 'nothing to do with oatmeal'? I guess its a free country though, still, sometimes..

       

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        Anonymous Coward, Nov 27th, 2012 @ 11:18am

        Re: Re: This lawsuit is absolutely legitimate

        Terms are only "generic" when applied to the goods they represent. Using terms in connection with wholly unrelated goods/services (i.e. "Oatmeal" with greeting cards) is not an example of a generic trademark.

        If the opposite were the case, famous brands like Apple (for computers/electronics), Target (for retail services), and Amazon (for online retail services) would be unprotectable.

         

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    Malor (profile), Nov 27th, 2012 @ 2:24am

    Oh, and:

    Does anyone really buy a greeting card based purely on the name of the company that produced it, as opposed to the design and/or written sentiments?

    Well, people probably don't, but someone's making the decision about what cards are on the shelf to buy. Seeing a few cards from Inman could lose Oatmeal Studios all business controlled by that person for a long time, maybe permanently, since even professionals would be likely to mix the two up.

     

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    McCrea (profile), Nov 27th, 2012 @ 3:21am

    Itsy Bitsy

    A running theme in these comments seems to be that 2100 outlet stores is a tiny operation.

    Goddamn, I have to upgrade my ambitions.

     

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    Mesonoxian Eve (profile), Nov 27th, 2012 @ 3:46am

    Then shouldn't the rabbit be suing the card store?

    Faith in humanity: -1
    Hope the Mayans were right: +1

     

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    Anonymous Coward, Nov 27th, 2012 @ 4:43am

    This is simply another case of trademark of an existing word being a bad idea. If this was Monster Comics creating Monster comic greeting cards, being sued by Monster Studios, we would all have a different view.
    If the customers of the comic know it as The Oatmeal, what else would they put on the card?

     

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      The Infamous Joe (profile), Nov 27th, 2012 @ 5:22am

      Re:

      The difference is that Monster Cable doesn't sell greeting cards.

      I think this is a great example of technology (yet again) throwing a monkey wrench in existing law, and I also think they have a valid claim, under the current law.

      I wonder, if he put on the back of his greeting cards, next to his brand name, that he wasn't affiliated with their company, if that would make them feel better? It's pretty hard to have customer confusion when the confusion is cleared up, point blank, on the product, right?

      Otherwise, I feel like Inman is going to have to change his greeting card brand.

       

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    Anonymous Coward, Nov 27th, 2012 @ 4:55am

    I'm so confused ... are all of these "Greeting Card" companies the same company?

     

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    Anonymous Coward, Nov 27th, 2012 @ 5:17am

    Note to self, do not name a business/website I start 'Oatmeal' anything, or anything vaguely similar to any greeting card company. Otherwise I will be forced to do business with that one company if I ever want to sell greeting cards.

    To side with the greeting card company basically creates that precedent that you have a monopoly over any company with a vaguely similar name in a completely different business.

     

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      dennis deems (profile), Nov 27th, 2012 @ 7:07am

      Re:

      The precedent already exists. That's why you can't start a restaurant named McDonald's, a movie studio named Disney, or a band named The Beatles. Why are so many people struggling with this concept?

       

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    BentFranklin (profile), Nov 27th, 2012 @ 6:28am

    The comments in this thread are disappointing.

    Same name + same business = trademark violation

    It's that simple.

    Just because Inman was the victim of one asshole doesn't make him the victim in every instance. In my opinion, his MS-Paint artwork sucks and his bearsex cartoon was tasteless in a way reminiscent of goatse. If I owned Oatmeal Studios I would be horrified to have any of that associated with me.

    This is the least threatening and least problematic aspect of any kind of IP. Retarget your weapons onto any of the numerous examples of abuses of copyrights, patents, and yes, trademarks. This isn't one of them.

     

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    Eat this, Nov 27th, 2012 @ 7:23am

    Oatmeal

    That is what, an unprotectable, all too common, fair use word, 'oatmeal' as a tradename? Good luck with that.

     

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    Matthew (profile), Nov 27th, 2012 @ 7:26am

    Did they try talking it out?

    Did they try giving him a call and working it out like adults first? If not, then whether or not they have a case, they are assholes.

     

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    80sRelic (profile), Nov 27th, 2012 @ 9:15am

    What's in a name?

    What's that shyster's name? Was it Carreon or Carrion? Sounds rather offal to me!

     

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    nospacesorspecialcharacters (profile), Nov 27th, 2012 @ 10:21am

    Re: This lawsuit is absolutely legitimate

    Legitimate use of trademark law, yes. But wouldn't it have been a much greater story and PR win for all concerned if Oatmeal Studios had written to Inman first with a letter that said "Hey, we really like your work but are worried about the conflicting trademarks. Is there any way you could find to change the name for your greetings cards and differentiate?"

    If Inman's response was then an FU (via webcomic) it would be fine to sue and you get to look reasonable... However I very much doubt Inman would respond that way and he'd probably be very amicable about it... Both companies get a PR boost.

    Instead, whilst justified, both companies get a slightly bloody nose and neither win more of each others customers.

     

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      Michael, Nov 27th, 2012 @ 11:45am

      Re: Re: This lawsuit is absolutely legitimate

      Don't forget, Inman is not the only party to this. Honestly, it is very forgivable for "The Oatmeal" to have simply not done their diligence when deciding to start selling cards under their name, but a major player in the greeting card business just rolled over a direct competitor's name.

      You could forgive "Apple Orchards" accidentally stepping on Apple's toes by selling play store apps for finding fruit, but if they partnered with Microsoft to do it, you would expect someone to have said "hey, wait a minute here".

      Now, it may be true that contacting Inman may have been a good approach, but we do not know if they did and we do not know if they contacted the other card manufacturer. There could already be some bad blood there.

      Watching this play out will hopefully answer the "who is the jerk?" question.

       

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    eh..., Nov 28th, 2012 @ 7:15pm

    I get it, but it's kind of like Chuck Shwartz being sued by Planters because he called his cartoon peanuts.

    If anything, the "blame" should be on the card company itself, not Matt Inman.

     

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    kitsune361, Dec 1st, 2012 @ 9:16am

    Sounds to me...

    Judging by that statement, I fear that Inman is getting swept up into this dispute by his greeting card publisher. The mom & pop greeting card company appears to have a pretty good case and seems to be aiming for pretty reasonable terms (stop using our name, plzthxbai); probably why Inman or American Greetings are being so tight lipped about it. The wrath of the internet can turn on a dime if the sharks smell an asshole.

    I'd never heard of Oatmeal Studios (the greeting card company) before this, hopefully they can hash something out and have this turn into a good thing for both of them. If they work this out civilly it'd could be some good publicity for all parties.

    Maybe, in honor of his last claim to internet fame Inman can call his card imprint "BearLove greeting cards" there's a lot you can do with a name like that and humor like Inman's. Only issue with this is if they've already started manufacturing... then there's money involved and in MBA land if ((cost_of_suing_claimant_out_of_business) < (cost_of_disposing_of_and_reprinting_cards)) guess what's going to happen. Maybe they can pull a White Wolf and just throw a sticker of the imprint/logo on the back of the card. (see: http://en.wikipedia.org/wiki/Trinity_%28role-playing_game%29 )

     

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