Pork Board Admits It Knows Unicorns Don't Exist, But Claims It Doesn't Matter

from the not-quite dept

We, along with a bunch of other sites, recently discussed the hilarious situation where the National Pork Board sent a 12 page cease-and-desist letter to ThinkGeek for its April Fool’s joke about “unicorn meat,” which it jokingly called “the new white meat” (not even “the other white meat” — which is the National Pork Board’s soon to be changed trademarked slogan). Se7ensamurai writes in to point out the National Pork Board is now defending its decision to send the letter, saying:

“We certainly understand that unicorns don’t exist,” said Ceci Snyder, vice president of marketing for the National Pork Board. “Yes, it’s funny. But if you don’t respond, you are opening your trademark up to challenges.”

Except, that’s not true, and you would think the NPB’s trademark lawyers would point that out. Over aggressive trademark defenders often make statements like the one above about how they “have” to defend their trademark or they risk losing it. But that’s only in cases where the mark is actually likely to cause confusion or is not used in a manner that is clearly fair use (such as a parody, as in this case). So, like unicorns, the NPB’s claim that they had to send this cease-and-desist is nothing more than a myth.

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Companies: national pork board, thinkgeek

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Comments on “Pork Board Admits It Knows Unicorns Don't Exist, But Claims It Doesn't Matter”

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126 Comments
interval (profile) says:

Re: Re:

@LumpyD: “…it sounds like PB’s lawyers are just trying to save face after realizing the whole thing was an April Fool’s prank.”

I think that’s the whole deal in a nutshell. The only thing is the more they irritate that rash the more it makes them look stupid. They should just drop the entire matter, right now, soon as possible, and not look back.

Anonymous Coward says:

Still trying to figure out which legal assistant was typing all this up and thought “Ah ha! We are finally going to get those unicorn bastards!”

I don’t know about everyone else, but I would assume that whoever is typing up/proofing a C&D about unicorn meat, might actually ask where the hell they caught a unicorn in the first place.

BearGriz72 (profile) says:

Re: Spam

Hormel Foods probably supports the idiotic actions of the National Pork Board.

After all if you look at the Picture of the aforementioned Canned Unicorn Meat it looks an awful lot like SPAM (Image1 | Image2)

They are probably worried that Think Geek is violating their Trademark / Trade Dress in the similarity of the packaging.

[/sarcasm]

Drew (profile) says:

A little more from the Washington Post article....

So first we have this from the article (the spokesperson for PB):

‘Pork Board spokeswoman Ceci Snyder said the board’s attorneys are instructed to protect the “Other White Meat” trademark in all cases to avoid future legal challenges to the slogan. “Clearly there’s some fun being had, and we can laugh, too,” Snyder said. “But in the end they’re just following the law.”‘

I don’t understand how wasting money on clearly a parody work avoids future legal challenges to their slogan, let alone how they are following the law. Then if you really think about it if a new product came out and had the slogan ‘The new white meat’, this seems like a completely different phrase and would be a different trade mark…or is the PB trying to claim any phrase that has the phrase ‘the ___ white meat’ in it? But then again the PB has done this in the past as mentioned in the Washington Post article where they sent a C&D in 2007 to someone selling t-shirts for ‘the other white milk’. I seem remember that the ‘moron in a hurry’ can get confused easily, however I don’t think they would get confused (which is how Trademarks are supposed to be judged confusion) between ‘milk’ and ‘pork’. So more than likely the PB is trying to claim that any phrase in commerce that has the phrase ‘the ___ white ___’ conflicts with their trademark slogan. Seems a bit of a stretch to me, what if my slogan for a new paint was ‘the other white…beige’ would they send me a C&D?

Just remember…this is our tax dollars at work.

For reference here are the links for the Washington post article and the ‘milk’ page:
http://www.washingtonpost.com/wp-dyn/content/article/2010/06/22/AR2010062201657.html

http://thelactivist.blogspot.com/2007/02/overzealous-big-pork-stomps-on.html

Anonymous Coward says:

Re: Re: Re:

nope. and because i am not a lawyer, i am smart enough not to second guess other lawyers without consulting with one. free legal advice from a non-lawyer is worth little, and could in fact be dangerous. heck, i am sure in some places, legal advice such as that would be illegal.

interval (profile) says:

Re: Re: Re: Re:

“…i am smart enough not to second guess other lawyers…”

So now one needs to be a lawyer to have common sense? Not everything a lawyer does requires careful analysis and the hindsight of years of legal training; sometimes lawyers do blatantly dumb legal things and it doesn’t necessarily always take another lawyer to see it.

RD says:

Re: Re: Re: TAM again

“nope. and because i am not a lawyer, i am smart enough not to second guess other lawyers without consulting with one. free legal advice from a non-lawyer is worth little, and could in fact be dangerous. heck, i am sure in some places, legal advice such as that would be illegal.”

Good. Then this means that, from here forward and ever more, you will STFU (thats “SHUT THE FUCK UP”) about copyright issues, infringement vs theft, fair use, and any other issues that you yourself either a) are not a lawyer of, or b) have not directly consulted a lawyer of and said so in your postings.

This is YOUR idea man. Live by your own words, or be branded the hypocrite you are.

There! We have now successfully managed to neuter TAM once and for all. He cant comment on these issues unless his OWN conditions are met.

Anonymous Coward says:

Re: Re: Re: Re:

nope. and because i am not a lawyer, i am smart enough not to second guess other lawyers without consulting with one. free legal advice from a non-lawyer is worth little, and could in fact be dangerous. heck, i am sure in some places, legal advice such as that would be illegal.

Where was there legal advise given, as far as I can tell it’s simply a conclusion based on an event and not advice given in context to a current consideration. Also, how do you know the conclusion was incorrect, and how do you know he didn’t consult legal counsel before making his conclusion?

Sounds like you did the exact same thing you accused the author of, however, without the decency of stating you were speaking on behalf of personal opinion.

Drew (profile) says:

Re: Re:

Welcome to a blog, where Opinions are presented…when they are facts usually there is research there. But hey I guess you are all for wasting tax payers money on high priced lawyers who don’t truly understand that parody is covered under the ‘fair use’ doctrine of Trademark law, and just for fun here are some facts for you:

http://supreme.justia.com/us/510/569/case.html

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=2nd&navby=case&no=977063v2&exact=1

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=11th&navby=docket&no=0112200opnv2

Which lawyers are expected to know and be aware of so as to advise their clients on whether moving forward with an action, such as a C&D would likely succeed if it had to move to trial. To me, in my opinion, the lawyers for the Pork Board are not providing good legal advise and merely racking up additional billable hours.

Anonymous Coward says:

Re: Re: Re:2 Re:

let me go no further than to quote wiki:

“The Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc..[15] This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was “fair” and not an infringement. “

perhaps when you link to something, you might want to read it first.

Drew (profile) says:

Re: Re: Re: Re:

Although yes you are right that it is an affirmative defense (thats what I get for responding during training and not reading up a bit first)…where the facts of the plaintiff’s claim are proven but they have a valid ‘reason’. Such things as ‘self-defense’ are in this same class of affirmative defense.

With this in mind if it did go to trial the burden of proof for this is on the defendant. However the plaintiff still should review whether they would likely win if the case went to trial to include if the fair use doctrine came into play.

Anonymous Coward says:

Re: Re: Re:2 Re:

drew, you have to think about the legal system. fair use is an affirmative defense, which means you pretty much have to answer the lawsuit, hire lawyers, appear in court, write a brief, perhaps take a deposition about your mindset at the time, etc. the costs to confirm the status of ‘fair use’ when things are even marginally questionable is well beyond that lulz that you get. in the end, while many here may not like it, the costs of defending this sort of thing could be more than the joke is worth. worse yet, there is a small but notable chance that they would lose, which would make it entirely without the lulz.

Drew (profile) says:

Re: Re: Re:3 Re:

Although that is true, from the defendants perspective that is a large mountain. But you’ve proven my point in a sense, the plaintiff’s also have a large cost scenario here too (probably more as their lawyers would be higher priced) with the same uncertainty of win/lose.

So from the Plaintiff perspective when looking at this specific instance you have an April fools day post and a slogan ‘the new white meat’. Now If I come into the costbenefit analysis of bringing a C&D, to be followed by a law suit; if the initial cost of the C&D is say $5,000 (a rather low estimate I think) then the benefit would have to outweigh this. So the benefit from the C&D would be, what exactly? Having a fictional product (Unicorn Meat) ad taken down? Was this ad costing them in people not buying Pork because they were laughing about Unicorn meat?

So while I see your point that posting a parody may be more costly, I don’t see why the Plaintiff would waste the time/energy/money (my/your/our tax dollars btw) to pursue this from the outset. Let alone that I believe it is ridiculous to assume that because I have a copyright/trademark on the phrase ‘the other white meat’ that this then covers every combination of the phrase ‘the ___ white ___’ (‘the other white milk’ and ‘the new white meat’).

Anonymous Coward says:

Re: Re: Re:4 Re:

well, the other side is not defending your trademark vigorously, and ending up losing other cases in court because you allowed wide use of it by others. $5000 for the pork board is likely not the same sort of cost as $5000 for think geek. i would also think that the lawyers are either on retainer or even in house, which would mean the cost isnt exactly the same.

there are plenty of reasons to do it, some reasons not to. it is meaningless and petty to mock them for following the law, no matter how silly it seems on the surface.

Drew (profile) says:

Re: Re: Re:5 Re:

I did mention I was busy right, so sorry for not doing this research earlier.

Anyway, a little further research actual shows that the Plaintiff MUST take into account Fair use according to the law as fair use is a limitation of copyright; see Title 17, chapter 1, section 107(http://www.law.cornell.edu/uscode/17/107.html).

Further just because a defense is classified as affirmative does not mean that the defendant has broken the law, just that the burden of proof is on them.

Anonymous Coward says:

Re: Re: Re:6 Re:

“Further just because a defense is classified as affirmative does not mean that the defendant has broken the law, just that the burden of proof is on them.” – you are correct. but what this leaves a trademark holder with is few options, just “when in doubt, take action”.

in this case, you get a lawyer with no sense of humor, and away you go. as it is, we are in a discussion not of copyright, but of trademark. trademark requires that holders jealously protect their mark or risk losing it to common use, such as xerox and kleenex have faced.

Anonymous Coward says:

Re: Re: Re:10 Re:

Really? I’m a bit surprised that anyone who has actually looked at trademark cases is unfamiliar with this.

Anyway, here is link to an article commenting on a Third Circuit case (with a link to the opinion) which has some discussion of the “crowded field” issue generally.

http://www.schwimmerlegal.com/2006/01/third_circuit_c_1.html

There’s also the “genericide” issue another commenter discussed above.

Drew (profile) says:

Re: Re: Re:11 Re:

Shockingly enough your link there points to a ‘reverse confusion’ argument, wherein you are correct in that the more similar marks that could easily be confused with the owners mark leads to a weakening of the mark. In this case few of the 10 factors laid out in the decision are met:

“(1) the degree of similarity between the owner’s mark and the alleged infringing mark”
the pairing and order of the words in the two phrases ‘the other white meat’ and ‘the new white meat’ are fairly similar; which could lead to confusion.

“(2) the strength of the two marks, weighing both a commercially strong junior user’s mark and a conceptually strong senior user’s mark in the senior user’s favor”
First the PB’s mark is very strong, however the other is for a non-existent product and would have a very very weak mark.

“(3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase”
As ‘Unicorn Meat’ does not exist and does not have any true price point or place of purchase this point is moot.

“(4) the length of time the defendant has used the mark without evidence of actual confusion arising”
Since ‘the new white meat’ has been introduced and is for a product that does not exist there has been no actual confusion.

“(5) the intent of the defendant in adopting the mark”
The intent here is for satire and to cause a laugh, not to make a profit on a non-existent product.

“(6) the evidence of actual confusion”
No evidence of actual confusion exists here.

“(7) whether the goods, competing or not competing, are marketed through the same channels of trade and advertised through the same media”
The defendant’s goods do not exist and not actively marketed.

“(8) the extent to which the targets of the parties’ sales efforts are the same”
A non-existent product does not have any true sales efforts.

“(9) the relationship of the goods in the minds of consumers, whether because of the near-identity of the products, the similarity of function, or other factors”
I’m not sure how consumers could be confused by ‘pork’ and ‘unicorn’ meat.

“(10) other facts suggesting that the consuming public might expect the larger, more powerful company to manufacture both products, or expect the larger company to manufacture a product in the plaintiff’s market, or expect that the larger company is likely to expand into the plaintiff’s market.”
Again unicorn meat does not exist and there is no market for it.

Therefore the FREEDOM CARD v. CHASE FREEDOM case could not be used in a supportive action as previous case law in support of the PB’s action. Nice try though.

Chronno S. Trigger (profile) says:

Re: Re: Re:7 Re:

“trademark requires that holders jealously protect their mark or risk losing it to common use”

You are wrong. They are only required to defend their trademark if there is customer confusion (as posted in the article). Unicorn meat being “the NEW white meat” will not cause customer confusion as the PB did finally figure out. Thus they did not have to and thus their lawyer (or anyone with an ounce of logic) should have told them not to do it.

Anonymous Coward says:

Re: Re: Re:10 Re:

It’s obviously a joke. I don’t think anybody’s arguing that, so you can put away the CAPSLOCK.

The question is whether there would be some valid reason for saying “don’t do that” anyway.

I think it was a bad idea because of the PR and the silliness of it all, but that doesn’t mean there aren’t any reasons for doing it.

Just repeating IT’S UNICORN MEAT! doesn’t really add to the conversation.

ChurchHatesTucker (profile) says:

Re: Re: Re:3 Re:

“in the end, while many here may not like it, the costs of defending this sort of thing could be more than the joke is worth. “

So the problem is with the legal system, as currently practiced. It’s not with people making a joke. It’s not even with the law, since a competent and ethical (heh) lawyer would anticipate such a defense, and the probable outcome.

If lawyers were personally sanctioned for wasting the court’s time with this kind of crap, you’d see a whole lot less of it.

different anonymous coward :) says:

Re: Re: Re: Re:

That’s the US Code for Copyright, isn’t it? Could you point to the fair use provisions present in United States trademark law, as that’s the relevant legal doctrine?

(Spoiler alert: there aren’t the same fair use provisions written into trademark law in the US as there are for copyright. Thus not only this proof, but the links to Campbell v. Acuff-Rose and the Liebowitz case are not really on point.)

Bruce Ediger (profile) says:

Re: Re:

Why are you so big on lawyer’s advice? Isn’t “take a lawyer’s advice” just a form of Argument from Authority?

What magical property do lawyers bring to situations such as this? Clearly, they can (see the Cease and Desist letter in question) and do perform silly and senseless acts. So they don’t bring “infallibility” to the table.

They don’t even really bring “authority” to the table. They just argue cases, right? They don’t judge the cases themselves, that’s up to a full blown Judge or jury, after he/she/it/them hears both sides of an argument.

So, in 25 lowercase words or less, exactly what does “a lawyer” bring to this situation?

Call me Al says:

I find it amusing, though faintly pitiful, that some commentators assume that lawyers are always correct and always take the right course of action for their client.

Two points to bear in mind:

1) There is constant argument about the law by lawyers and other legal specialists, in many circumstances arguing over the fine point pretty much makes up their entire job and career. Both can’t be correct so clearly lawyers are not infallible.

2) Even where the lawyers are technically correct from a legal standpoint they, and everyone else, should also consider whether it really is the best approach for the company as well. It is possible to become so focussed on the minutae that the big picture is ignored.

They clearly over reacted to this case.

Raymond says:

Re:

When was the last time a lawyer was fired for being too cautious? Say there’s a one in a million chance that this incident will result in trademark invalidation. You can either spend 15 minutes punching out a form letter and reduce the risk to zero, or you can do nothing and take your chances that you won’t be hauled in front of the board of directors to explain why the organization’s slogan is now worthless because you were too freakin’ lazy to spend 15 minutes to send a form letter.

interval (profile) says:

Re: Re: Re:

“When was the last time a lawyer was fired for being too cautious?”

That is one valid point one can make. Another valid question might be “When was the last time a lawyer was reprimanded (by his/her firm) for not taking an opportunity to bill a client? My guess is “All the time”. Regardless of the merit of a particular action that client is contemplating.

ginsu (profile) says:

there's another way

I faced this situation as a lawyer, and thought it was silly to go after a parody site, but I did want to have a bit of cover because the parody was also selling merchandise related to our mark. The parodist invited a cease-and-desist letter – instead I sent a “proceed-and-permitted” letter. Here’s a good summary:
http://www.convergenceculture.org/weblog/2007/01/proceed_and_permitted_second_l.php

I really don’t understand why more lawyers don’t take this approach. Possibly it’s because a sense of humor is required.

Anonymous Coward says:

Re: there's another way

One reason is because if you license somebody to use your trademark withou excercising some control over their use of the mark, you run the risk of losing your trademark rights.

Even if not deemed a license, saying somebody else’s use isn’t likely to confuse can be used by the next guy who claims his use is similar to that permitted use.

average_joe says:

White meat? Not so fast...

The USDA classifies pork as red meat, not white.

http://www.fsis.usda.gov/Fact_Sheets/Pork_from_Farm_to_Table/index.asp

Why is Pork a “Red” Meat?
Oxygen is delivered to muscles by the red cells in the blood. One of the proteins in meat, myoglobin, holds the oxygen in the muscle. The amount of myoglobin in animal muscles determines the color of meat. Pork is classified a “red” meat because it contains more myoglobin than chicken or fish. When fresh pork is cooked, it becomes lighter in color, but it is still a red meat. Pork is classed as “livestock” along with veal, lamb and beef. All livestock are considered “red meat.”

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