CafePress Takes Down T-Shirt Calling Donald Trump A Cheeto-Faced Shitgibbon, Saying It Violates Frito-Lay's Trademark

from the trademark-at-work dept

As you probably heard in the news, last week, Presidential candidate/reality TV star Donald Trump took a bit of a detour from the campaign trail last week to fly to Scotland to open his new golf course. That the timing of the trip coincided with the Brexit referendum for the UK to exit the EU was just the wacky icing on the bizarre global political cake we’re all now eating (bad metaphor apology). As you also probably heard, Trump talked about how wonderful the Brexit stuff was, and how much the people in Scotland must be thrilled, apparently missing the fact that Scotland, somewhat overwhelmingly, voted to stay in the EU. And because this is Scotland, and Scotland is awesome, folks there took to Twitter for a series of increasingly funny insults:

There are a bunch more at the Quartz link, but a pretty good one came from @MetalOllie, also known as Hamfisted Bun Vendor, who is English, rather than Scottish, but got into the spirit quite well:

As I write this, it has over 6,000 retweets and over 7,000 likes. Not bad. Based on all of this, Jay Lender, a writer/director for SpongeBob SquarePants, Phineas and Ferb… and also his own movie, They’re Watching, created an image in the style of Shepard Fairey’s famous (and legally disputed) Obama Hope poster.

After some discussion Jay and MetalOllie teamed up to put the image on t-shirts at CafePress. I have no idea if anyone was actually buying it, but earlier today Lender announced that CafePress had shut down the page for trademark infringement. Whose trademark? Frito-Lay’s, the makers of Cheetos, of course!

It’s not at all clear if Frito-Lay made this request or if it’s just CafePress worrying about future Frito-Lay concerns. Lender asked CafePress for clarification, and all they sent back was a link to Frito Lay’s corporate contact page, telling him to contact Frito Lay to ask for authorization, implying that Cafe Press made this decision on its own. But, really, there appears to be a ton of other merchandise hosted at CafePress that mentions Cheetos in some form or another, so if the company is suddenly concerned about trademark threats from Frito-Lay, it seems to be targeting rather selectively.

Lender pushed back on CafePress’s decision to take down the store, and received some rather ridiculous “suggestions” for replacement terms:

If you can’t read that, it says:

The use of “Cheeto” infringes on Frito Lays trademark. If would be different if you used “cheese puff” or “cheese-snack”-faced in your design.

You may forward your notice of authorization from Frito Lay, giving you permission to use “Cheeto” or “Cheetos” in connection with the sale of commercial merchandise to us via email….

Yes. Really. Nothing like having CafePress ruining your jokes for you with its bizarre interpretation of trademark law.

As we’ve discussed many times in the past, CafePress is frequently targeted by bogus takedowns concerning political speech and the company doesn’t exactly have the best record in dealing with such takedowns. But this seems just blatantly ridiculous on so many levels.

Either way, to argue that this is trademark infringing is crazy. No one is confusing the t-shirt or the image above as coming from Frito-Lay. I don’t care how much of a moron in a hurry you might be, there’s no consumer confusion here. For CafePress to declare absolutely that the use of Cheeto as an adjective here (not even as a noun!) is infringing on Frito-Lay’s trademark is just… wrong. Second, this is pretty clearly protected political speech — whether or not you agree with it or even think it’s funny. Yes, CafePress has a right as a private company to refuse to host any shirts it dislikes, but at the very least it should come out and say that’s why it’s shutting down the shirt, rather than hiding behind a bogus “trademark” claim from Frito-Lay.

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Companies: cafepress, frito-lay

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Comments on “CafePress Takes Down T-Shirt Calling Donald Trump A Cheeto-Faced Shitgibbon, Saying It Violates Frito-Lay's Trademark”

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75 Comments
Jeffrey Nonken (profile) says:

As a certified Moron in a Hurry, I assure you that I looked at the poster and the first thing I did not think of was “Oh hey, Frito-Lay is behind this T-shirt!”

In order to level the playing field and mitigate confirmation bias I showed only the poster to a colleague, a more junior but very talented Moron in a Hurry, and asked him what he thought. He agreed that it never occurred to him that the food company had anything to do with it.

Anyway, sorry to snark and run, but I’m in a hurry.

Anonymous Anonymous Coward says:

What a decision to have to make

It would be strange if Frito-Lay were to admit a relationship with that particular phraseology. Would the world consider it agreement or disagreement, and which would be worse.

Since the tshirt designer and CafePress are not selling snack food, there IS NO HARM to any food related mark.

I.T. Guy says:

Funny? Maybe it’s a regional thing but I didn’t think they were funny.

“we never got our country back, we wanted to remain, bolt ya hamster heedit bampot, away and boil yer napper”

and

“Scotland voted to stay & plan on a second referendum, you tiny fingered, Cheeto-faced, ferret wearing shitgibbon. “

Meh.

And I am sorry but exactly what attributes of a cheeto is supposed to resemble Trump’s face? Kind of like calling him a poopy head.

DannyB (profile) says:

Re: Donald Trump is as bad as...

When I say, for example, that Microsoft Windows 10 is a steaming pile of horse excrement with a fresh topping of festering goat vomit, I am not trying to cause confusion in the market by my use of their trademarks. I am using the trademark properly in order to ensure that there can be no possible confusion of which company or product I am referring to.

Now if I were to hypothetically compare Trump to the same thing, I don’t think there would be any copyright, trademark or other complaints that anyone could make. Maybe defamation. But only if I were to actually make such a comparison which I am not.

BernardoVerda says:

Re: Re: Donald Trump is as bad as...

Firstly, I’m pretty sure that neither “horse excrement” nor “goat vomit” are protected by anybody’s trademark.

Secondly, I’m pretty sure that neither “horse excrement” nor “goat vomit” can be defamed either by some implied association with, or by direct comparison to, that Donald Trump character. (Otherwise, we’d probably already have heard from them.)

DannyB (profile) says:

We certainly don't want to create any market confusion

I can definitely see the resemblance between Trump and Cheeto-faced. But perhaps one could use a more generic term. Cheesy Poofs? But then the owners of South Park may complain.

I don’t think the Trump face and Cheeto face comparison would cause market confusion for Cheetos customers or potential customers.

Cooper's Loincloth says:

Double Standard?

What if someone made a Hillary T-Shirt which compared her to a dishonest, power mad, feces-loving rodent and Disney complained that the ears on the picture violated trademark? Would anyone be bothered if it was pulled off of CafePress for *any* reason? Or would it be considered a “wild accusation” and sexist to boot?

Rules for thee and not for me, perhaps?

I don’t much care for either candidate, but the hypocrisy on the left is just too much sometimes.

Mike Masnick (profile) says:

Re: Double Standard?

What if someone made a Hillary T-Shirt which compared her to a dishonest, power mad, feces-loving rodent and Disney complained that the ears on the picture violated trademark? Would anyone be bothered if it was pulled off of CafePress for any reason? Or would it be considered a “wild accusation” and sexist to boot?

Yes. Yes, we would care. https://www.techdirt.com/articles/20140609/17534527530/hillary-clinton-pac-sends-bogus-takedowns-over-parodies-zazzle-cafepress.shtml

So, please, before making bullshit assumptions, maybe try to use the search engine.

Rules for thee and not for me, perhaps?

Assume too much, perhaps?

Cooper's Loincloth says:

Re: Double Standard?

Wow, touched a nerve there did I?

Maybe you might consider the fact that I was responding to the comments and NOT your article. You were pretty clear (reading comprehension FTW) that your opinion on bogus takedowns was that they were, well, bogus. One either side, even. Why would I look up something that was pretty obvious?

Now, you obviously found mocking trump more personally amusing than someone mocking Hillary, but that’s pretty reasonable – oligarchy vs. shitweasel has a clear humor gap. Your butt hurt response to a message not directed at you is a bit troubling tho, but hey, still understandable – it was posted to your article.

I’m going to stand by my assertion that folks on the left are MUCH less tolerant than almost everyone else of people who don’t agree with them, and the hipocracy of their stance is annoying. That’s MY opinion, based on what I’ve personally seen and read and experienced. Notice: all the best riots occur when the left tries to silence blowhards like Trump. When’s the last time a bunch of people started a riot at a Hillary event?

Wendy Cockcroft (user link) says:

Re: Double Standard?

Hillary is emphatically NOT left wing. She’s actually a right wing neocon war hawk owned by the banks. She should be made to wear logo patches like a racing driver. We’re not keen on her here on TD: don’t get us started on her IT and IPR policies. She hasn’t got a clue and I’m not sure anyone has ever explained the concept of demmocracy to her.

That she’s not frothing at the mouth building walls to keep the Mexicans out merely means she’s not as far to the right as you are.

Bernie Sanders is a leftie.

Mike Masnick (profile) says:

Re: Re:

“a bogus “trademark” claim from Frito-Lay.”

No.

Cheeto is a registered trademark, so I have no idea what you’re talking about.

Why you’re surprised that Frito-Lay would not want to be associated with this (or Donald Trump in general), is strange.

That’s not how trademark law works. But thanks for playing (and revealing your ignorance of the law). Trademark does not allow you to block any use of the word just because you dislike it. It only applies in cases where there is likely to be consumer confusion as to the origin of the products (i.e., if people think that Frito Lay actually made those shirts). That’s not the case here, and thus the trademark claim does not apply.

Separately, as the article notes (did you even read it?), it looks like Cafe Press made this decision, rather than Frito Lay.

Mike Masnick (profile) says:

Re: Re:

And by a ton, Masnick means 5. But hey, that sounds honest, right?

The image is just part of the page. By my count, there are 44 products in the Cafe Press store with a variation on the word “Cheeto”

But, you know, I’m sure it’s more fun to slam me based on your own failure to read than to actually read.

That sounds honest, right?

Mike Masnick (profile) says:

Re: Re: Re: Re:

OK, here’s your chance to prove you’re not intellectually dishonest: Post a list of the 44 items.

I posted a link IN THE STORY that you appear to have totally missed. http://www.cafepress.com/+cheetos+gifts

That says there are 62 products, but not all of them actually say Cheeto/Cheetos/Cheetoh or whatever. So I simply went through and counted the ones that did, and it’s 44. I can’t believe you’re challenging this rather than just admitting you were wrong. Got the link and count.

Mike Masnick (profile) says:

Re: Re: Re:3 Re:

Now post your list of the 44 or admit you’re an intellectually dishonest bullshitter.

Ah. I get it. You’re being a pedantic asshole. Because you’re not counting those that say cheetoh instead of cheeto.

Just because I don’t have a stick up my ass about exactly how one spells cheetoh doesn’t make me dishonest. The examples used clearly refer to the cheese puff, not the tiger. Either way, it’s clear that CafePress allows it in other contexts. So the only one being dishonest here is you in pretending there’s some massive distinction. That’s not how it works.

Anonymous Coward says:

Re: Re: Re:4 Re:

Yes, you intellectually dishonest buffoon, because a cheetoh is a tiger and those shirts were about cats, not cheese puffs.

But you don’t care, because all you wanted was to say that there were “a ton” of references to Frito-Lay’s Cheeto puff on Cafe Press when, in reality, there aren’t.

Playing loose with the facts is something you do all the time and everyone knows it.

Anonymous Coward says:

Re: Re: Re: Re:

You know, instead of having to resort to word crimes for character assassination, wouldn’t your IP-driven efforts be better aimed at other causes? Like resolving the Malibu Media anti-piracy crusade machine? Though I suppose you would have a problem deciding between Colette Field and Keith Lipscomb. Which bottom-feeder to felch?

Tanner Andrews (profile) says:

Cheeto-Faced Ferret-Wearing Shitgibbon

I think you have a correct use of the trade mark.

A trade mark is intended to assist consumers in distinguishing particular products and their origins. If I were to sell a snack under the Cheeto name, it would be infringement; the same is true if I were to sell malted battery acid under the Pepsi name. But if I were to say that I want a lunch consisting of Cheeto snacks and Pepsi malted battery acid, I should be correctly using the marks.

Here, the writer is correctly using the trade mark to identify a particular product from a particular vendor. That is the intent of trade marks.

Sure, Pepsi could say that it does not want to be associated with a Cheeto-faced ferret-wearing shitgibbon, but that is a political issue largely unrelated to the question of whether the use of the Cheeto name is correct to identify a particular product from a particular vendor.

Assume also that I insult Cafe Press at this point.

No2GOP (profile) says:

Cafe Press Seems Right Leaning

It has been my experience with designs on Cafe Press that they allow much more if the content is right leaning as opposed to left leaning.

I had an anti-Trump sticker that violated no copyrights nor any of their rules, turned down… even after I sent copies of my graphics proving no copyrights were violated. And I see similar items on there that are anti liberal, all the time!

~Frustrated.

Phil K says:

Laughable for all the wrong reasons

I’d call all this juvenile pathetic and lots of far more insulting and more personal terms.
Fortunately the vast majority of the population is now seeing you all for what you’ve ALWAYS been
I particularly like the cowardly masked thugs who attempt to bully (as long as they outnumber 10 to 1) spitting in peoples face, attacking them, then screaming and running to the same police they mock and celebrate when they’re murdered by their racist BLM pals
You all need two ot three promotions to get to “arrogant turd” level

fairuse (profile) says:

Do not take a cat to a food fight

I have been seeing what I think is reckless cat breeding for "wild look".

he Cheetoh’s parent breeds are the Ocicat and the Bengal, which is actually a direct descendant of the wild Asian Leopard Cat… from one breeding site.

The Bengal Cat is the result of a long research program to save ALC DNA. This abuse of 10 years of research is just stupid.

My 1st Bengal was half wild, handful. Current Bengals are tame. A proper Bengal costs $2000. This knockoff is a third of that price.

Follow the money.

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