Olive Garden Asks Olive Garden Reviewer Not To Refer To Olive Garden Due To Trademarks

from the penne-for-your-thoughts? dept

At some point, even the dimmest of lawyers will understand that parody and fair use are not infringement. There may be all sorts of reasons why big companies send dubious cease-and-desist letters over protected speech. Sometimes it’s because lawyers are misinformed. Sometimes it’s to silence criticism.

But in an odd and all around hilarious exchange between the company that owns the Olive Garden chain of restaurants and the owner of a website that reviews Olive Garden dishes, I can’t think of a single reason why a sane lawyer would want to fire off the following letter to allofgarden.com.

To Whom It May Concern:

As you are likely aware, Darden is a full-service restaurant company, and owns and operates over 1,500 restaurants through subsidiaries under the Olive Garden®, LongHorn Steakhouse®, The Capital Grille®, Yard House®, Seasons 52®, Bahama Breeze®, and Eddie V’s Prime Seafood® brands and has a portfolio of over 650 trademarks in over 70 countries related to the same (collectively “Trademarks”.)

In connection with Darden Corporation’s proprietary rights over its famous trademark(s) we are notifying you of the following:

Darden Corporation has recently learned that the trademark Olive Garden appears as a metatag, keyword, visible or hidden text on the web site(s) located at the below listed URL(s) without having obtained prior written authorization from Darden Corporation. This practice infringes upon the exclusive intellectual property rights of Darden Corporation.

http://allofgarden.com/

As a trademark owner, Darden Corporation is obligated to enforce its rights by taking action to ensure that others do not use its trademarks without permission. Unauthorized use of the trademark(s) could create a likelihood of confusion with Darden Corporation’s trademark as to the source, sponsorship, affiliation, or endorsement of your web site(s), online location(s), products or services.

In light of the above, we request that you respond to this e-mail within ten (10) days, informing us that you have removed all metatags, keywords, visible or hidden texts including trademark(s) presently appearing on the above-cited website(s) and any other website(s), or draw this issue to the attention of the appropriate person(s).

Thank you in advance for your anticipated cooperation in this matter.

Sincerely,

Darden Corporation
brandenforcements@mm-darden.com

There’s much to unpack there. First, claiming trademark infringement for use of marks in metatags and simple text within a website is a highly dubious practice. But when even the most cursory glance at allofgarden.com makes it clear that it’s a site dedicated to reviewing Olive Garden, it should be immediately obvious that even the most direct reference to the chain would be squarely covered by fair use. Even the name of the site, something of a homophone of the Olive Garden name, would be covered as parody, if not as part of the site’s status as a review site. Even more strangely, it’s not as though this is one of those so-called “sucks sites” dedicated to simply slamming Olive Garden at every turn. Some reviews, such as this one, are purely positive, devoid of snark at all.

But if Malone is a talented reviewer of chain-based “Italian” food, he’s a savant in responding to frivolous legal threats, as he has happily posted his response on his website for all to see.

Mr. Forcements — may I call you Branden? Since this an asynchronous mode of communication, I’m going to assume you are magnanimously acquiescing, and I will refer to you as Branden forthwith — I received your email yesterday.

I am not aware of any law against reviewing food and describing it using the name of the company from which it was procured. Some might even call it Nominative Fair Use. I have helpfully included a link to Wikipedia™, The Free Encyclopedia™, for more information on this concept, in case you are new. Just click on the blue words to access the HyperLink™, and you will be transported there in great haste.

With that in mind, can you be more specific about what you would like me to do? If you want me to remove references to the Olive Garden from my blog, which, I remind you, solely consists of references to Olive Garden, I’m afraid I must decline.

If you are asking me to simply add TradeMark® Symbols™ I must also decline, as I do not know the alt keycode for writing them.

Perhaps you are asking me to take down my blog entirely. In doing so, Darden Corporation would commit its largest crime against humanity since they started charging extra for toppings. Seriously, $2.99 for two lousy meatballs? And you’re saying I ripped you off?

Please respond within nine (9) days, in limerick form.

Wishing the whole Forcements family a pleasant day,

Vincent “Vino” Malone
Olive Garden Connoisseur
Age 29 and a Half

Every part of this response is pure gold, from the intentional misreading of the emailer’s name to the refusal to comply with every request and link with the reasons why. Malone is being a pleasant pain in the ass in this response, yes, but it’s funny. It’s also now public, thanks to Malone’s posting of it. And, most importantly, the request from Olive Garden is a silly one when viewed with an eye towards the law.

Still, I have to admit I’m slightly hoping that Branden Forcements replies in limerick form as requested, just to see what they come up with. If Olive Garden wants to get on the right side of this thing quickly, that limerick will be in the form of an apology.

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Companies: darden corporation, olive garden

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Comments on “Olive Garden Asks Olive Garden Reviewer Not To Refer To Olive Garden Due To Trademarks”

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40 Comments
steve says:

No Mike, it’s not fair use! Fair use is a defence in copyright infringement. It has no applicability with trademarks.

What the corporate lawyer is missing in this case is something even more basic, that everyone is allowed to use trademarks freely when *referring to what the trademark identifies*.

The principle here is more like, trademarking a term does not entitle the owner to prevent anyone from using it unless they’re identifying some other product or service (in same or similar category).

Mike Masnick (profile) says:

Re: Re:

No Mike

I didn’t write this.

it’s not fair use! Fair use is a defence in copyright infringement. It has no applicability with trademarks.

Nominitive fair use is a concept in trademark law. You should look it up.

What the corporate lawyer is missing in this case is something even more basic, that everyone is allowed to use trademarks freely when referring to what the trademark identifies.

You know what the legal term is for "everyone is allowed to use trademarks freely when referring to what the trademark idenetifies"? It’s… (drumroll)… "nominitive fair use."

Which technically means "this is allowed because I’m just naming the thing" — which is the same thing you were saying.

It’s shorter than your version too.

https://en.wikipedia.org/wiki/Nominative_use

Anonymous Coward says:

Re: Trademark Fair Use [was ]

No Mike, it’s not fair use! Fair use is a defence in copyright infringement. It has no applicability with trademarks.

International Trademark Association (INTA) Fact Sheet—

Fair Use of Trademarks (Intended for a non-legal audience)
(updated January, 2016):

1. What is fair use?

 . . . In some circumstances, however, someone may use another party’s trademark if the use is considered a “fair use.” This “fair use” exception is recognized throughout most of the world.

2. What are the types of fair use?

In general, there are two types of fair use: descriptive fair use and nominative fair use. . . .

Peter says:

Re: Re:

Nominative Fair Use was explained in the letter, with a super helpful Wiki link where the first sentence explains its use in Trade marks.

It was actually IN THE LETTER!

I am starting to think making commentators answer questions to prove they have read the article before posting is a super good idea.

PaulT (profile) says:

Re: Re:

“No Mike”

“by Timothy Geigner”

You know, even if you were correct about the rest of your assumptions – and you’re not – you don’t get to claim superior knowledge when you directly attack someone who didn’t write the article you’re responding to. If you can’t get a fact correct that’s stated in bold type at the top of this page, why should anyone believe any other “fact” you claim?

Anonymous Coward says:

This is boilerplate text from that enforcement agency.

You see that “mm” in the email address? That means MarkMonitor. Yes, the same MarkMonitor that sent a cease and desist to a thousand year old village for daring to use a name before a hotel chain that MM represents (https://www.techdirt.com/articles/20150504/07402630883/1000-year-old-village-told-to-stop-using-name-because-trademark-claim-hotel-chain-founded-there.shtml)

But hey, it’s not like MM has to worry about any repercussions for sending bogus takedown notices…

John85851 (profile) says:

File a counter-suit

I wish some enterprising lawyer would take up this case and counter-sue:
1) No, Darden doesn’t have to “enforce” its trademark to keep it. The counter-suit should go after the lawyers that told the executives that this was true OR go after the lawyers who send robo-letters.

2) Even if this was true, who in the world thinks it’s a good idea to file a takedown notice against a review site… and a review site with good reviews?
What would happen if he took his site down and replaced it with “Olive Garden sucks” instead of the good reviews?

Anonymous Coward says:

Followup: Resolution Reached

News today via Cyrus Farivar at Ars Technica, “Olive Garden apologizes to AllOfGarden blog, offers $50 gift card” (Wednesday, July 26, 2017):

"We’ve reached resolution / I received absolution"

The man behind the AllOfGarden.com blog wrote Tuesday that he has been granted a "total pardon"—as he described it in a four-stanza limerick. . . .

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