Nutella Nastygrams Restaurant Promoting Its Product, Opens The Door For Competitors

from the i-drink-your-milkshake dept

It's astounding and depressing how often companies seem to abuse trademark law to pretend it's about complete ownership of a brand, rather than its roots as a consumer protection statute to stop someone from buying a product believing it was made, supported or endorsed by someone else. The latest ridiculous news comes courtesy of the Citizen Media Law Project in Boston, who notes that their local popular-with-the-college-kids "wraps and smoothies" joint, Boloco, has been legal nastygrammed by Nutella. Why? Because of this: their Nutella Milkshake, which they've sold for 14 years:
Andrew Sellars from CMLP points out that the legal basis for this is... questionable at best:
Courts have long confronted this unauthorized-but-accurate use of another company's name. In a 1924 Supreme Court case the court considered a New York company that took a French company's cosmetic powder, blended it with a binding agent, and sold it as a compact including both the New York company's and French company's names on the packaging. The Supreme Court allowed the defendant to do this, provided that the defendant include a prominent disclaimer that the district court in the case initially imposed, informing the public that the two companies are not affiliated. Writing for the majority, Justice Holmes observed:
[W]hat new rights does the trade-mark confer? It does not confer a right to prohibit the use of the word or words. It is not a copyright. . . . A trade-mark only gives the right to prohibit the use of it so far as to protect the owner's good will against the sale of another's product as his. . . . When the mark is used in a way that does not deceive the public we see no such sanctity in the word as to prevent its being used to tell the truth. It is not taboo.

Many courts have adopted this case's approach to this question: you can use the trademark so long as you are not misleading the public into there being an affiliation between you and the company, other than your use of the company's product in your product. For example, a 2004 case from the Southern District of New York allowed a company that makes tuna salad display on the lid of its container – in letters about as large as the company's own brand name – that the salad was "Made with Bumble Bee Tuna," over objections from the famous tuna company.

In response, Boloco has decided to cave and is instead looking for alternatives to Nutella for their shake, even to the point of showing some of the other brands they're considering:
In the end, it's difficult to see how any of this helps Nutella. They show themselves to be a bully, pissing off fans, and Boloco goes looking for competitors to promote in their place. As Sellars concludes in his article:
...when I was in Boloco today (field research!) I couldn't help but see the dozens of jars of Nutella in the back, and thinking about the dozen-or-so other locations around Boston with similar stacks of Nutella jars. Those will be replaced by a competitor's product, in a chain that seems to be growing with each passing month. Not to mention the thousands of Bostonians who have heard about this case and will naturally root for the local guy; you get the feeling that this whole experience is going to leave a bitter taste in [Nutella's] mouths.
Perhaps, next time, they'll realize that bullying may be legal, but it's often not a particularly smart business strategy.


Reader Comments (rss)

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  1. This comment has been flagged by the community. Click here to show it
     
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    average_joe (profile), Oct 18th, 2012 @ 7:34am

    This article presented a chance to use the favorite phrase "fair use." And yet, no mention. Weird. For a blog that sees fair use everywhere, funny that it's not seen when it's actually present.

     

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  2.  
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    Anonymous Coward, Oct 18th, 2012 @ 7:37am

    Trademark lawyers are usually pretty shortsighted...

     

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  3.  
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    Luigi Rosa, Oct 18th, 2012 @ 7:38am

    Hypocrisy

    'Nutella' and 'non-fat' yogurt?

    Like heaving peanut butter on 'low calories' bread slices.

     

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  4.  
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    Richard (profile), Oct 18th, 2012 @ 7:41am

    Re:

    Fair use is primarily a copyright concept - not a trademark concept.

    "Trademark fair use" does exist but usually is referred to in other ways - such as "nominative use".

     

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  5.  
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    Below_Average_Joe, Oct 18th, 2012 @ 7:42am

    Re:

    Ha ha!!!

     

    reply to this | link to this | view in thread ]

  6.  
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    Chris Rhodes (profile), Oct 18th, 2012 @ 7:43am

    Fantastic Business Acumen There

    "How dare they purchase, sell, and advertise our brand! We'll ****ing show them!"

     

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  7.  
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    Below_Average_Joe, Oct 18th, 2012 @ 7:44am

    Re: Re:

    I only read the first 5 words.

     

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  8.  
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    Chris Rhodes (profile), Oct 18th, 2012 @ 7:45am

    Re:

    After you rushed here to find something to criticize, that's the best you could do? Why bother?

     

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  9.  
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    Anonymous Coward, Oct 18th, 2012 @ 7:53am

    Re:

    I thought you were supposed to be a law student? Did you skip the day they covered trademark law? Or did you just flunk out?

     

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  10.  
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    Beech, Oct 18th, 2012 @ 7:54am

    Re:

    My guess would be that "fair use" is a term used in copyright law. Trademark happens to be a different thing from copyright. Therefore, there is no real reason to mention it here.

    The best part is, however, that if they did mention it you would be the first one here bitching about they were using it improperly. Funny. They write an article about fair use, you bitch about it. Write an article about something other than fair use, you bitch about them not talking about fair use enough. An uninformed layman may be fooled into thinking that you come here only to troll!

     

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  11.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 7:54am

    Re:

    How is listing the brand name of a product as an ingredient fair use?

    In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, news reporting, research, teaching, library archiving and scholarship.


    Brand names are trademark, not copyright.

     

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  12.  
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    out_of_the_blue, Oct 18th, 2012 @ 7:55am

    You make the case every day against capitalist monopolies, Mike,

    yet can't seem to grasp that what you really want is a FAIR market with sensible rules enforced, not a totally "free" market. And you're always bewildered by companies pushing the line even to acting against their own interests, as is claimed above. I think that's basically because your libertarian-ized notions of "capitalism" never include bad actors, stupidity, or greed: you who were born at the top have a highly biased view, see only the bright and shiny accumulated wealth, not the sweaty laborers that produced it.

    Anyhoo, here's another project for you, Mike: a succinct statement of trademark to educate public and companies, instead of ad hoc bits when yet another story like this comes up. -- As it will, because as you note, the people who run businesses are remarkably ignorant of the basics, blind to how every day they report... Whoops. I begin to recurse, there.

     

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  13.  
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    jedipunk (profile), Oct 18th, 2012 @ 7:55am

    Nutkao it is.

     

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  14.  
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    Ninja (profile), Oct 18th, 2012 @ 7:58am

    Re:

    Fair use is for copyright. I know you feel the urge to attack anything and everything in Techdirt but at least try harder..

     

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  15.  
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    Anonymous Coward, Oct 18th, 2012 @ 8:00am

    How to destroy a business, stop everybody using your trademark in their own advertising or product listings.

     

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  16.  
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    Ninja (profile), Oct 18th, 2012 @ 8:01am

    Re: You make the case every day against capitalist monopolies, Mike,

    It seems you just started reading Techdirt huh?

    At least you got the writer right this time ;)

     

    reply to this | link to this | view in thread ]

  17.  
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    average_joe (profile), Oct 18th, 2012 @ 8:04am

    Re: Re:

    Fair use is primarily a copyright concept - not a trademark concept.

    Fair use is a trademark concept that has nothing to do with the copyright concept of fair use. Not sure what your point is. Not only is fair use codified in the Lanham Act, there's a rich body of case law developing it. So it's not "primarily a copyright concept." It's a trademark concept, and it's a copyright concept. And the two have nothing to do with each other.

    "Trademark fair use" does exist but usually is referred to in other ways - such as "nominative use".

    The way I learned it, there's two types of fair use in trademark: (1) classic fair use, and (2) nominative fair use. Classic fair use is when the defendant uses plaintiff's mark to describe the defendant's own product. Nominative fair use is when the defendant uses the plaintiff's mark to refer to the plaintiff's product.

     

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  18.  
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    average_joe (profile), Oct 18th, 2012 @ 8:04am

    Re: Re:

    I took trademark law and received the highest grade in the class. What's your point?

     

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  19.  
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    average_joe (profile), Oct 18th, 2012 @ 8:05am

    Re: Re:

    Trademark fair use has nothing to do with copyright fair use.

     

    reply to this | link to this | view in thread ]

  20.  
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    average_joe (profile), Oct 18th, 2012 @ 8:05am

    Re: Re:

    Huh? You're a very confused person.

     

    reply to this | link to this | view in thread ]

  21.  
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    average_joe (profile), Oct 18th, 2012 @ 8:06am

    Re: Re:

    And you have no idea what you're talking about. As usual.

     

    reply to this | link to this | view in thread ]

  22.  
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    average_joe (profile), Oct 18th, 2012 @ 8:07am

    Re: Re:

    I think it's amusing that fair use is actually the issue, and yet there's no mention of fair use. Just making an observation.

     

    reply to this | link to this | view in thread ]

  23.  
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    Qûr Tharkasdóttir, Oct 18th, 2012 @ 8:07am

    Best choice

    Go for the one to the right, it's the best, and it's organic too. And no, Rigoni di Asiago, who also make the best organic jams (preserves) on the European market, are no paying me for this.

     

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  24.  
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    Below_Average_Joe, Oct 18th, 2012 @ 8:08am

    Re: Re: Re:

    "Just making an observation."

    Just making an ass of myself.

    FTFY

     

    reply to this | link to this | view in thread ]

  25.  
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    Chris Rhodes (profile), Oct 18th, 2012 @ 8:08am

    Re: You make the case every day against capitalist monopolies, Mike,

    Are you claiming trademark law exists on a free market?

     

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  26. This comment has been flagged by the community. Click here to show it
     
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    average_joe (profile), Oct 18th, 2012 @ 8:09am

    Re: Re: Re: Re:

    The only one making an ass of themselves is you. Are you really incapable of adding anything to the discussion? Seems that way.

     

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  27. This comment has been flagged by the community. Click here to show it
     
    identicon
    Below_Average_Joe, Oct 18th, 2012 @ 8:09am

    Re: Re: Re:

    "I took trademark law and received the highest grade in the class. What's your point?"

    Get your money back. You got ripped off.

     

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    identicon
    Anonymous Coward, Oct 18th, 2012 @ 8:15am

    Re: Re: Re:

    "received the highest grade in the class"

    Bullshit.

     

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  29.  
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    Below_Average_Joe, Oct 18th, 2012 @ 8:15am

    Re: Re: Re: Re: Re:

    Are YOU really accusing someone of not being capable of adding anything to the discussion?


    LO F'in L.

     

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    average_joe (profile), Oct 18th, 2012 @ 8:16am

    Re: Re: Re: Re:

    Wow, you really are striving for the Most Worthless Poster award. How, pray tell, have I been "ripped off"?

     

    reply to this | link to this | view in thread ]

  31.  
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    Anonymous Coward, Oct 18th, 2012 @ 8:18am

    So who benefits from this?

    Yet another example of a company allowing their lawyers drive their business strategy.
    No surprise that the lawyers choose a strategy which is good for themselves (more legal activity), despite being unlikely to benefit Nutella.

    When are companies like this going to wake up and remember that the goal of their business is to market their brand, not defend their brand. For a consumer product like Nutella, the more you can get your brand in front of consumers the better. If you can get another company to do that for you...GREAT!
    If Nutella was thinking like an entrepeneur, they would be attempting to get other companies to do exactly what Boloco was doing

     

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  32.  
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    Anonymous Coward, Oct 18th, 2012 @ 8:19am

    Re: Re: Re:

    Yeah,. but I teach trademark law and received the Nobel prize for trademark law. I also named all my kids Trademark Law. What's your point.

     

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  33.  
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    TasMot (profile), Oct 18th, 2012 @ 8:20am

    So Now Another Milkshake is coming

    Since it would be truthful, can they list a "NOT Nutella milkshake since Nutella sued us" flavor? and in bigger letters whoever won to be the replacement flavor?

    What I find extremely weird was that when I had a store, we got money from manufacturers to use there name in advertising, aka co-branding. Now this place gets nastygrammed for doing what they've been doing for 14 years. I'm guessing that Nutella needs new laywers.

     

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  34.  
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    average_joe (profile), Oct 18th, 2012 @ 8:24am

    Re: Re: Re: Re:

    Absolutely true. I got a certificate that says so, and it's indicated on my transcript. Why do you doubt this?

     

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  35. This comment has been flagged by the community. Click here to show it
     
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    average_joe (profile), Oct 18th, 2012 @ 8:26am

    Re: Re: Re: Re: Re: Re:

    All you do is annoy. Have you ever added anything of substance to any discussion on Techdirt ever? Link please, if so.

     

    reply to this | link to this | view in thread ]

  36. This comment has been flagged by the community. Click here to show it
     
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    average_joe (profile), Oct 18th, 2012 @ 8:27am

    Re: Re: Re: Re:

    He asked me if I skipped the day they taught trademark law. It wasn't a day, it was a whole class. And not only did I not skip, I earned the highest grade.

     

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  37.  
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    Below_Average_Joe, Oct 18th, 2012 @ 8:28am

    Re: Re: Re: Re: Re: Re: Re:

    Youre so silly, Joe. What a cute little boy. Do your parents know you are on the computer?

     

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  38. This comment has been flagged by the community. Click here to show it
     
    identicon
    Below_Average_Joe, Oct 18th, 2012 @ 8:31am

    Re: Re: Re: Re: Re:

    "Wow, you really are striving for the Most Worthless Poster award."

    Sorry, you already have that esteemed award.

     

    reply to this | link to this | view in thread ]

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    average_joe (profile), Oct 18th, 2012 @ 8:31am

    Re: Re: Re: Re: Re: Re: Re: Re:

    I was wondering the same about you.

     

    reply to this | link to this | view in thread ]

  40. This comment has been flagged by the community. Click here to show it
     
    identicon
    Below_Average_Joe, Oct 18th, 2012 @ 8:32am

    Re: Re: Re: Re: Re:

    "I got a certificate that says so"

    Aww how cute. Did you make that in arts and crafts time? Now have a cookie and juice its nap time soon.

     

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  41.  
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    Below_Average_Joe, Oct 18th, 2012 @ 8:36am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Shhhhh. They dont know.

     

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  42.  
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    The eejit (profile), Oct 18th, 2012 @ 8:38am

    Re: Re: Re:

    I'd actually be interested to learn more about this. Do you happen to have a link handy, please?

     

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  43.  
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    average_joe (profile), Oct 18th, 2012 @ 8:42am

    Re: Re: Re: Re:

    Sure. The "New Kids" case out of the Ninth Circuit has a nice discussion of fair use: http://scholar.google.com/scholar_case?q=971+f.2d+302&hl=en&as_sdt=2,19&case=14061770079 632631584&scilh=0

     

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  44.  
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    E. Zachary Knight (profile), Oct 18th, 2012 @ 8:47am

    Re:

    Does he really need to use the phrase "fair use" when discussing the application of such? The general concept of fair use of trademark was present all throughout the article and is in fact the main point. So your "critique" has no merit.

     

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  45.  
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    Anonymous Coward, Oct 18th, 2012 @ 8:51am

    Re: Re: Re:

    My apologies; I didn't know there was such an animal as trademark fair use. Now I know. And knowing is half the battle.

    http://en.wikipedia.org/wiki/Fair_use_(US_trademark_law)

     

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  46.  
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    Dark Helmet (profile), Oct 18th, 2012 @ 8:59am

    Re: Re:

    Yeah, Joe's complaint smacks of the "The DNC didn't include the word GOD in their platform (despite mentioning faith and religion several times)! ERMEGERD! THEYR HERTS GERD!!!!" nonsense....

     

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  47.  
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    average_joe (profile), Oct 18th, 2012 @ 9:02am

    Re: Re:

    I think if Mike recognized that this was fair use, he would have used the term.

     

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  48.  
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    Ninja (profile), Oct 18th, 2012 @ 9:08am

    Re:

    That. We have similar cases here. There's Ovomaltine (it's a freaking good chocolate powder that's simply amazing in a milkshake. People don't say chocolate powder, they say Ovomaltine. And the company is ok with that. There's also Catupiry, a company that makes a type of cheese that resembles cream cheese (but it's insanely better). Restaurants use the name catupiry in their meal names instead of whatever the name is. And Catupiry is ok with that.

    The result is those companies are insanely well-known and their products widely used. If they really enforced trademark in this way (albeit wrong) the backlash would hurt them much more than any possible tarnishment....

     

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  49.  
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    Anonymous Coward, Oct 18th, 2012 @ 9:09am

    I am not sure that the added value here for Nutella on being in this drink is the same as the value to the shot for using the Nutella name to sell the drink.

    Look at it this way: Which has more marketing value, a Nutella milkshake, a Justins milkshare, or a Choco Butter milkshake? Only one out of the three even rings a bell with me, and that would be Nutella.

    Put another way, if the product was described as "Nut Spread Milkshake" would it be more or less appealing to consumers?

    Now, conversely, does Nutella having their name on this drink drive anywhere near the same benefit to them? What about the potential harm if the drink sucks? Do they have any control over it?

    It's really a no brainer here. Nutella gets little, gives up way more, and didn't even get to choose being in the relationship. I don't blame them for using the lawyers.

     

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  50.  
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    E. Zachary Knight (profile), Oct 18th, 2012 @ 9:10am

    Re: Re: Re:

    No. You think your imaginary construct, which you call Mike, would have used the term.

     

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  51.  
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    Ninja (profile), Oct 18th, 2012 @ 9:11am

    Re: Re: Re:

    Is the term used in trademark law? If so then I apologize, if not eat it. Also, my point stands, you just found a small thing that totally doesn't matter and used it to attack Techdirt. Loser.

     

    reply to this | link to this | view in thread ]

  52.  
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    johnny canada, Oct 18th, 2012 @ 9:12am

    Good one Nutella

    You have now made my DO NOT BUY list

    Just like Sony & Monster Cables

    And I let my friends know

     

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  53.  
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    average_joe (profile), Oct 18th, 2012 @ 9:13am

    Re:

    That's a good point. I was thinking that it's definitely fair use to list Nutella as an ingredient, because that's descriptive and it's true. But calling the drink a "Nutella milkshake" strikes me as possibly not fair use since there the restaurant is using the mark as a mark, and not merely descriptively.

     

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  54.  
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    Jeremy Kane, Oct 18th, 2012 @ 9:13am

    "Decided to cave"

    I disagree with the use of the phrase "decided to cave" to describe Boloco's response to the threat. Fighting a corporation in court would certainly cost a small company more than it can bear, and I'd hardly say it's up to the owner of a small restaurant to be expected to take a righteous stance in the current copyright/trademark/patent mess.

    It would be awesome if the owner chose to fight the cease & desist, but NOT fighting it shouldn't be called "caving". Can we just call it "has decided to agree to Nutella's ridiculous and baseless demand"? That leaves no doubt that Nutella is the problem here, not the owner of Boloco.

     

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  55.  
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    average_joe (profile), Oct 18th, 2012 @ 9:13am

    Re: Re: Re: Re:

    My "imaginary construct" which I "call Mike"? LOL! That made me smile.

     

    reply to this | link to this | view in thread ]

  56.  
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    Ninja (profile), Oct 18th, 2012 @ 9:13am

    Re:

    Which is more valuable to Nutella, the guy use their product while advertising it with a widely known name or change the name to peanut butter milkshake and use the product of a competitor? Notice the drink is sold for over a decade.

     

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  57.  
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    Ninja (profile), Oct 18th, 2012 @ 9:14am

    Re: Re:

    *being sold for over a decade

     

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  58.  
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    average_joe (profile), Oct 18th, 2012 @ 9:14am

    Re: Re: Re: Re:

    Maybe in the future, if you don't know anything substantive about a topic, then perhaps refrain from saying something substantive about it. Just a thought.

     

    reply to this | link to this | view in thread ]

  59.  
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    E. Zachary Knight (profile), Oct 18th, 2012 @ 9:16am

    Re:

    What about the potential harm if the drink sucks?

    If the drink sucked, then no one would buy it and it would no longer be on the menu. Considering that the drink has been on the menu for 14 years, means that it is good enough and popular enough to not harm the Nutella brand in any way.

    It's really a no brainer here. Nutella gets little, gives up way more, and didn't even get to choose being in the relationship. I don't blame them for using the lawyers.

    What? They get nothing out of this? What about all the jars of Nutella the restaurant buys to fill the demand for the drink? What about all the people that go out of their way to buy Nutella in order to make the drink at home? That is not a net gain for Nutella and its brand?

    As for using lawyers, that has done more harm than good for the brand. By sending in the lawyers, Nutella has now alienated itself from a large number of former and potential customers. Now, instead of seeking out Nutella to make their drinks, these former customers will be buying competing brands. That is a net loss to Nutella and its brand.

    What reality do you live in?

     

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  60.  
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    Anonymous Coward, Oct 18th, 2012 @ 9:23am

    Re:

    If I'm reading correctly (I may not be and I'm not well versed in trademark law), this would fall under nominative use and not trademark fair use. They're using the word mark to refer to the actual product since Nutella actually goes in the delicious milkshake.

     

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  61.  
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    Anonymous Coward, Oct 18th, 2012 @ 9:25am

    Question

    Does the Nutella milkshake bring all the boys to the yard?

     

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  62.  
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    Andy Sellars (profile), Oct 18th, 2012 @ 9:29am

    Re:

    First and foremost: thank you, Mike, for highlighting my piece! Very honored.

    "Fair use" in trademark comes up in a few different contexts. Courts are not crystal clear as to the boundaries here, but our legal guide highlights a few of them. These include nominative fair use (using "McDonalds" to talk about McDonalds the company and its products), descriptive fair use (use of a trademark for its non-trademark meaning, such as referring to a deal as the "best buy" without reference to Best Buy), and more general First Amendment defenses (best articulated by Rogers v. Grimaldi and progeny, where courts give the contents of creative works more latitude through more abstract balancing tests).

    I could see this situation cast in the "nominative fair use" light as a few commentators suggested, but I think it actually better fits into a whole different line of cases: the "genuine goods" line, which addresses circumstances where you are using the trademark to refer to the exact same goods as the trademark owner. The goods here are those that come from the Nutella company.

    The contours of both "genuine goods" and "nominative fair use" are similar: in both cases courts have allowed the use of another's trademark, provided that the use doesn't go further to suggest a level of sponsorship that isn't there. As I noted in the particular post, I could see a skilled argument pushing a court either way on this one (though personally I never for a minute thought that Boloco had any sort of "deal" with Nutella). But that's hardly the point, as I think Nutella loses much more than it gains in approaching the issue this way.

     

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  63.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 9:30am

    Re: Re: Re:

    For a bunch of guys that love propping up legacy industries they're sure not too fond of this one. Fourteen years of using your brand in a good way isn't good enough for you?

     

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  64.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 9:33am

    This seems kinda random on Nutella's behalf

    I've seen several Nutella(tm) referenced items in several major cities in two different countries (US and Australia).

    They mainly referring to cheesecakes, icecreams or some other dessert item where they use Nutella(tm) as a major ingredient.

    That Nutella(tm) is striking out now at a random local shake company feels like some local branch exec trying to get some cash. Bear in mind that Nutella is a Ferrero brand (I think) which is Italian (again, this is from memory).

     

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  65.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 9:38am

    Re: Re:

    Strawberry, raspberry etc. milk shake is the same construction as Nutella milk shake, i.e. the ingredient that flavors the milk shake. It is only claiming that Nutella is (now was) an ingredient of the milk shake.

     

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  66.  
    icon
    average_joe (profile), Oct 18th, 2012 @ 9:43am

    Re: Re: Re:

    I dunno. I can't take the guts of a Dell computer and put them in a computer case I built and then sell it as a "Dell computer." I can sell it as an "AJ computer" while listing the Dell parts as components. The critical difference is that one use of the mark is descriptive and the other use is as a mark.

     

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  67.  
    icon
    average_joe (profile), Oct 18th, 2012 @ 9:44am

    Re: Re: Re: Re:

    Good on ya, G.I. AC.

     

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  68.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 10:01am

    Here's the crazy thing this restaurant has to buy Nutella products for this drink. Shouldn't that be a good thing for Nutella?

     

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  69.  
    icon
    Chris Brand (profile), Oct 18th, 2012 @ 10:07am

    Re: So Now Another Milkshake is coming

    Exactly. Aren't all the marketing people from those competitors now trying to figure out what they have to do to get that contract ?

     

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  70.  
    icon
    RonKaminsky (profile), Oct 18th, 2012 @ 10:09am

    You jest...

    > For a blog that sees fair use everywhere

    Everywhere? You jest. Let me see... somehow "fair use" isn't mentioned in the posts on the following, rather common subjects
    • Bad faith/bugily automated takedowns where there is no possible claim for the plaintiff to have rights
    • Legacy industries not understanding the need to adapt their business models
    • Democracy being undermined by lack of transparency on the part of government, especially in the realm of international IP treaties
    • Every post about patents, since "fair use" doesn't apply there
    • Legacy industry using government regulation to block/kill innovative new budding competitors
    • Collateral damage which ensues when actual copyright infringement is stopped by law enforcement
    • Wonderful anecdotes of new business models for artists which have worked
    • Clueless governments trying to prevent "bad things" on the net, like trolling or criticism

    In fact, as I write this, the last 20 RSS topics which I see in my feed include only one post concerning "fair use", and that only peripherally: it was mainly about how abusers of the DMCA practically cannot be punished (in the particular case in the post, the content which was claimed to be infringing was ruled to be a "fair use").

    BTW, "fair use" is everywhere in real life. You should take off your blinders...

     

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  71.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 10:10am

    Re: Re: So Now Another Milkshake is coming

    Here's the crazier thing this restaurant has been doing this for 14 years in promoting Nutella. I assume competitors will be very interested.

     

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  72.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 10:10am

    Re: Re: Re: Re:

    Naming the flavoring is descriptive when it follows the standard convention for milk shaves.

     

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  73.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 10:19am

    Re: Re: Re: Re: Re:

    The truth makes people smile.

     

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  74.  
    icon
    Ninja (profile), Oct 18th, 2012 @ 10:25am

    Re: Re: Re: Re: Re:

    So is it in trademark law? Seems you don't know either. Follow your advice too ;)

     

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  75.  
    identicon
    RD, Oct 18th, 2012 @ 10:29am

    YAAWIJHR

    Yet Another Article Where I Just Hit Report on all of AJ's posts. Once again he brings specious, incorrect, and deceptive arguments always max pro-IP, while brushing aside any counter arguments as "outliers" (the new IP Maximalist Buzz Word) or he knows better becuase he has high grades in law from some school no on has ever heard of (hint: Big Media Butt Fuck U is not a real school), all wrapped up in massive straw-men and ad-hom attacks on anyone who takes issue with his abusive rhetoric.

     

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  76.  
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    Ninja (profile), Oct 18th, 2012 @ 10:30am

    Re: Re: Re: Re: Re:

    It's a copyright case. Actually it's precisely one of the things discussed here at Techdirt, when artist mistake copyright and trademark mixing both. Even the references in the link are from fair use regarding copyright. Thanks for clarifying you don't know what you are talking about.

    And thanks for the link. While I just hovered around using the find ability to check all instances of "fair use" it was enlightening. I'm still trying to define a better term that doesn't confuse copyright with trademark though.

     

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  77.  
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    Ninja (profile), Oct 18th, 2012 @ 10:38am

    Re: Re: Re: Re:

    It is completely different matter. You are selling as if you were the brand. They are selling because they use Nutella in the drink. Not even an idiot in a hurry would think that Nutella is now making milkshakes.

     

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  78.  
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    Ninja (profile), Oct 18th, 2012 @ 10:39am

    Re: YAAWIJHR

    Sounds like a plan, I"ll just stop replying and hit report too heh

     

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  79.  
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    The eejit (profile), Oct 18th, 2012 @ 10:39am

    Re: Re: Re: Re: Re: Re:

    Actually, I disagree with you on this one. AJ has made a positive citation regardless of any confusion between trademark and copyright law, both of which are within the realm of IP).

    Moreover, that report gives more links to other trademark cases which are also relevant, so I have to give AJ props for that one, even if we have a tendency to disagree on other things.

     

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  80.  
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    Ninja (profile), Oct 18th, 2012 @ 10:40am

    Re: Re: Re: Re:

    Oh thanks for the link. And now things get even more confuse.

     

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  81.  
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    The eejit (profile), Oct 18th, 2012 @ 10:42am

    Re: YAAWIJHR

    Hey, be fair now - as whiny as AJ can be sometimes, he's given a citation to back up his assertion. Which is more than I can say for some others who share his views.

     

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  82.  
    identicon
    hobo, Oct 18th, 2012 @ 10:42am

    Re: So Now Another Milkshake is coming

    I don't think the new spread company would want "not Nutella" in their space.

    As for the second point, it is a case of the right hand not knowing what the left hand is doing. One side of a business is looking for ways to get the brand out there, another side is trying to shut down uses of the brand name. While this isn't quite the same situation as the music companies that upload promo videos and then DCMA them, it's not wholly dissimilar either.

     

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  83.  
    icon
    Ninja (profile), Oct 18th, 2012 @ 10:44am

    Re: Re: Re: Re: Re: Re: Re:

    Indeed I'll have to disagree with myself too. It's harder to find trademark fair use material. Even the wikipedia article has only 1 reference.

    It's interesting though, he spews so much BS that we automatically scorn him at every opportunity. Shame on me for this one.

     

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  84.  
    icon
    vprollins (profile), Oct 18th, 2012 @ 10:46am

    Fair Use

    Not to self-promote, but I actually wrote an article about a similar situation involving Braun and certain adult toys: https://law.marquette.edu/ip/v13/Rollins.pdf

     

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  85.  
    icon
    Ninja (profile), Oct 18th, 2012 @ 10:47am

    Re: Re: Re: Re: Re: Re:

    Replying to my own question since you didn't bother to have evidence: http://en.wikipedia.org/wiki/Fair_use_%28US_trademark_law%29

    It is interesting there's very little material on that part of trademark law. Maybe it's even weaker or rarely used as defense?

    Other than that my apologies. You could have avoided much of the animosity if you had not used it just to attack the article and Mike.

     

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  86.  
    identicon
    RD, Oct 18th, 2012 @ 10:53am

    Re: Re: Re: Re: Re: Re: Re:

    "Other than that my apologies. You could have avoided much of the animosity if you had not used it just to attack the article and Mike."

    Why would he, when that is the ONLY reason he comes here anyway?? He got the result he wanted: everyone reacting and piling on him so he can cry "woe is me, I am so persecuted!" just like his *IAA masters.

     

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  87.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 11:25am

    And another thread completely derailed by trolls... I understand and respect Techdirt's commitment to free speech, but sometimes I really wish you guys would ban some of the more obnoxiously prolific trolls who always put some stupid bs as the first post and argue with everyone that corrects them.

    Or at least add a block feature so I don't have to scroll past them all.

     

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  88.  
    identicon
    Gary, Oct 18th, 2012 @ 11:26am

    Re: Re: Re:

    We have to give him this one Wikipedia says he is right,I hate to admit it.

     

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  89.  
    identicon
    Gary, Oct 18th, 2012 @ 11:38am

    Re: Re: Re: Re: Re: Re: Re:

    I agree he could have actually added to the thread in a productive way.

     

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  90.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 11:38am

    Re: Re: Re: Re: Re:

    The responses to you in this thread are just more of the classic TD hypocrisy and douchebaggery.

    They complain about trolls (ie uncomfortable truths) and then promptly display classic troll behavior.

    So typical.

     

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  91.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 11:45am

    Re: YAAWIJHR

    You are truly a loser douchebag of the first order.

     

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  92.  
    identicon
    RD, Oct 18th, 2012 @ 12:02pm

    Re: Re: YAAWIJHR

    "You are truly a loser douchebag of the first order."

    OH MY GAWD HOW WILL I EVER LIVE NOW???

    If you want to see a REAL douchebag, look in the mirror.

     

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  93.  
    icon
    azuravian (profile), Oct 18th, 2012 @ 12:12pm

    Justin's

    Well, I don't have much to say about Nutella's big mistake here, but I will say this:

    Justin's is delicious and would make a much better shake.

     

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  94.  
    identicon
    anon, Oct 18th, 2012 @ 12:14pm

    Re: You make the case every day against capitalist monopolies, Mike,

    Seriously. Maybe you should read back what you have just typed there, for some reason I think you will be a bit ashamed of yourself and maybe, just maybe, next time you decide to do a personal attack on someone else( for no other reason than that he has the moral high ground) you will think twice.

     

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  95.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 12:23pm

    Re: Re: Re: Re:

    It's still a non-point. Does anybody else find themselves repulsed by the fact that the article didn't use the phrase "fair use"? He makes it sound like it's some kind of outrage.

     

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  96.  
    icon
    Some Other AC (profile), Oct 18th, 2012 @ 12:43pm

    Re: Re: Re: Re:

    In addition to the other statements, I will also add these little nuggets for you. Consider any establishment that sells blended ice cream desserts. Examples would be Sonic, McDonalds, Dairy Queen(if you have them), etc... They routinely use Brand Name items when listing these on their menus. Dairy Queen: M&M Blizzard, Butterfinger Blizzard, Kit Kat Blizzard and a decent amount more. McDonalds: Oreo McFlurry, M&M McFlurry. Sonic: Butterfinger Blast, M&M Blast, Oreo Blast.
    These options have been around for decades and yet neither Mars nor Nabisco have gone after these companies. It is possible that there are contracts or agreements in place, but that still does not detract from the premises that the name of the milkshake is descriptive of its ingredients.
    Common Sense(not so common any more) points that this is an ignorant and self abusive move on that part of Nutella.

     

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  97.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 1:20pm

    Re: Re: Re: Re: Re: Re:

    I took Trolling 101 in college and received the highest grade in the class. What's your point?

     

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  98.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 1:32pm

    Re: Re: Re: Re: Re:

    It is an outrage. Quoting Wikipedia is at least fair use.

     

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  99.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 1:37pm

    Re: Re: Re: Re: Re: Re:

    If only it would also set him free.

     

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  100.  
    icon
    Mike Masnick (profile), Oct 18th, 2012 @ 1:43pm

    Re: Re: Re:

    Fair use is a trademark concept that has nothing to do with the copyright concept of fair use

    Kinda funny since this seems to invalidate the whole point you were trying to make that because we discuss copyright fair use all the time, we suddenly need to also mention it here.

    Protip: instead of trying to attack the strawman you've built up in your head that you think is me, trying actually taking the time to look at what we actually say. You might learn something.

     

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  101.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 1:45pm

    Re: You jest...

    Fair use isn't relevant to most posts but it dominates (and should dominate) the ones where it is.

    I never borrrowed it, it was broken when he lent it, and it was working when I brought it back!

    But I do agree with your point anyway.

     

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  102.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 1:54pm

    Re: Re:

    Kleenex will be made available in every one of our modern bathrooms, world wide.

     

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  103.  
    identicon
    SleepyJohn, Oct 18th, 2012 @ 2:09pm

    Re: "Decided to cave"

    Or perhaps: "has decided that Nutella is such a bunch of arseholes that he will no longer use or endorse its products."

     

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  104.  
    identicon
    TroutFishingUSA, Oct 18th, 2012 @ 2:20pm

    Re: Re: Re: Re: Re: Re: Re:

    Seems you're making his point for him.

     

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  105.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 2:24pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    I never complain about trolls on this site. What's your point?

     

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  106.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 2:42pm

    Re:

    I agree. Ninja has got to go.

     

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  107.  
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    Oblate (profile), Oct 18th, 2012 @ 2:52pm

    Re: Re: Re: Re: Re:

    Seems like if Nutella's management had any sense they would shove their current lawyers in a dark hole somewhere, and have their new lawyers sign an exclusive deal with Boloco where they would only use Nutella (sold to Boloco at a discount rate). Maybe even help them develop new varieties.

    So far Nutella has only encouraged Boloco to advertise for Nutella's competitors.

     

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  108.  
    icon
    Not an Electronic Rodent (profile), Oct 18th, 2012 @ 3:24pm

    Re: Re: Re: Re:

    Just for the change of pace you could forgoe the usual pedantic legalese nuances and realise that everyone on the planet who isn't a lawyer would say a "nutella milkshake" is "a milkshake that is made with nutella as opposed to another brand of chocolate nut spread" and that the afor-mentioned non-lawyers are all going to:
    a/ Not think nutella themselves made it
    b/ not care whether nutella themselves made it
    c/ be informed correctly as to the purchasing decision they may be about to make because that's how real language works
    and
    d/ think nutella are a bunch of morons if they happen to hear about this case whether nutella happen to be "legally correct" or not.

    just sayin'

     

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  109.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 4:50pm

    Re: Re: Re: Re: Re:

    Because we don't have access to the documentation. Only your word, which we've found cause to suspect on too many occasions. Besides, this is yet another debate fallacy.

     

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  110.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 4:56pm

    Re: Hypocrisy

    Different kinds of fats can be good or bad for you. Nuts are important to men's health (outside allergies and dietary restrictions). I would suggest this was offered as an alternative to the Jimmy Carter for those with peanut allergies.

     

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  111.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 5:45pm

    Re:

    And yet we all know that this is false. It may be, as Joe would like to think, a good point, but it really isn't. If they were putting some other hazelnut spread in them and calling it Nutella, there would be a case, since that would be deceptive practices. Since that is not what is happening, they really are just trying to bully, and it is backfiring on them.

     

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  112.  
    identicon
    btr1701, Oct 18th, 2012 @ 5:53pm

    Re: Re: Re: Re:

    > I took trademark law and received the highest
    > grade in the class.

    Sure you did. And I'm the Pope of Rome.

     

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  113.  
    identicon
    dl, Oct 18th, 2012 @ 6:41pm

    Re: YAAWIJHR

    As much as I have a problem with AJ I don't like what RD is saying. RD taking is taking the low road by abusing the Report button and I say that that we should Use the report button his/her reply.


    TL:DR RD is being abusive... Report their post instead.

     

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  114.  
    icon
    average_joe (profile), Oct 18th, 2012 @ 8:36pm

    Re: Re: Re: Re:

    Kinda funny since this seems to invalidate the whole point you were trying to make that because we discuss copyright fair use all the time, we suddenly need to also mention it here.

    Protip: instead of trying to attack the strawman you've built up in your head that you think is me, trying actually taking the time to look at what we actually say. You might learn something.


    You see fair use in places that it's not, so when you fail to mention it where it's actually present, that's noteworthy. Go ahead and pretend like you saw it. You and I both know that you just copied Sellars' analysis.

     

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  115.  
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    average_joe (profile), Oct 18th, 2012 @ 8:39pm

    Re: Re: Re: Re: Re:

    Sure you did. And I'm the Pope of Rome.

    There were 14 people in the class, so it's not that great of an accomplishment. But still, I'm proud.

     

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  116.  
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    Bergman (profile), Oct 18th, 2012 @ 10:02pm

    Re: Re: Re:

    too short; didn't read

     

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  117.  
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    Bergman (profile), Oct 18th, 2012 @ 10:10pm

    Re: Justin's

    Agreed. I've tried all the brands in the picture at one time or another, and Justin's is by far the best of them.

     

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  118.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 11:38pm

    Re: Re: YAAWIJHR

    Yes, but why didn't he do that in the first place to begin with instead of turning it into a veiled attack. Then he might have got an insightful tag instead of reported.

     

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  119.  
    identicon
    Anonymous Coward, Oct 19th, 2012 @ 4:20am

    So no more Rum-Cokes at the bars anymore?

     

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  120.  
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    Not an Electronic Rodent (profile), Oct 19th, 2012 @ 6:17am

    Re: Re: Re: Re: Re: Re: Re:

    The impression I get is that freedom's the last thing he wants, preferring to be so tightly girded by law that breathing requires special permission. Or perhaps that's only supposed to apply to "everyone else".

     

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  121.  
    identicon
    Below_Average_Joe, Oct 19th, 2012 @ 12:57pm

    Re: Re: Re: Re:

    See Joe, when you dont throw around the childish insults, you actually get to have a descent conversation with people.

    Its nice... I dont expect it to last, but nice to see you are capable.

    Now throw out more insult laden garbage and I will troll you even harder knowing what you are capable of.

     

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  122.  
    identicon
    Below_Average_Joe, Oct 19th, 2012 @ 1:02pm

    Re: Re: Re: Re:

    Kind of different with food. How many ppl advertise they use Hershey's Chocolate in their recipes? I do agree it may cross a line that Nutella has its brand associated with a product it has no quality control over, but before the legal nastygrams a QA group should have sampled it. May be the best shake they ever had.

     

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  123.  
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    Karl (profile), Oct 19th, 2012 @ 1:18pm

    Weird

    I read this story earlier, and I thought that sign looked familiar. Now I know why: it's the burrito and wrap joint that I used to eat at regularly. I've even ordered the Nutella shake a couple of times. Weird.

    Definitely Nutella is on the losing side with this one.

     

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  124.  
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    nasch (profile), Oct 20th, 2012 @ 2:46pm

    Re: Hypocrisy

    Also pb has fewer calories, fewer carbs, more protein, and more potassium, though also more fat.

    http://www.livestrong.com/article/433062-nutrition-of-nutella-vs-peanut-butter/

     

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  125.  
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    nasch (profile), Oct 20th, 2012 @ 2:55pm

    Re: YAAWIJHR

    If you don't want to see anything from average_joe (or darryl or some others, you can customize it), install Greasemonkey and this script:

    https://docs.google.com/document/d/1_DWYEIhgMK54_sBDMj5UnuW0bHmdADnCY3099_9ffFg/edit

    S hazam, no more aj (unless you want to click to show his posts).

     

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  126.  
    identicon
    Anonymous Coward, Oct 21st, 2012 @ 4:49pm

    Re: Re: Re: Re:

    Intel inside

     

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  127.  
    icon
    RayB (profile), Apr 14th, 2013 @ 1:35pm

    Re: Fantastic Business Acumen There

    It was such a terrific action that I had to send compliments on the ferrerousa website.
    Read about your bullying and stupidity with Boloco and its use of the word nutella. Am extremely pleased that Boloco is now displaying pictures of competitive products and will shortly have depleted its supply of nutella and will prominently display those products instead of nutella. It took you 14 years to recognise the danger of someone using nutella in their products and announcing its use on their menu, thankfully that danger will soon be gone. Great publicity stunt, hope all your efforts work out this well. I am sure you have made the lawyers quite happy, I will not comment on the reaction of the public, but suspect nutella sales are going down the toilet in the northeast.

     

    reply to this | link to this | view in thread ]

  128.  
    icon
    RayB (profile), Apr 14th, 2013 @ 1:42pm

    Re: So Now Another Milkshake is coming

    Ferrero is the maker of nutella, they are the ones that need new lawyers.

     

    reply to this | link to this | view in thread ]


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