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