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Sunday, June 10, 2007

More Trouble With Trademarks: Pork and Pork Byproducts

The National Pork Board was formed within the U.S. Department of Agriculture via the Pork Promotion, Research and Consumer Information Act of 1985. It is funded by the "Pork Checkoff" program,  basically a tax  placed on pork producers and importers, the constitutionality of which the Supreme Court addressed a couple of years ago. The money raised via the Pork Checkoff is used to encourage consumers to eat pork and pork facsimiles posing as pork. Oddly, the National Pork Board website is a dot org rather than a dot gov, which is rather tricksy.

In 2006, the National Pork Board purchased the rights to the trademark "The Other White Meat" from a private entity, the National Pork Producers Council, for $60 million.  The valuation of this mark, and the propriety of the sale is questioned here.  Once it held the trademark, the Board apparently hired a private law firm to "defend" it.   In February of  2007,  a  lawyer representing the National Pork Board sent a cease and desist letter to a breastfeeding promotion blog called The Lactivist that offered a number of tee shirts for sale, including one that said:  "Breast, the other white milk." Here is an excerpt from The Lactvist's rendition of what transpired:

... I received a letter this morning from Jennifer Daniel Collins, an attorney at Faegre & Benson that represents The National Pork Board. It stated, for the most part, that my use of the phrase "the other white milk" violates their trademark on the phrase "the other white meat." As such, they've demanded that I remove the shirt, demanded that the image of the shirt be removed from any site I know of, demanded that I destroy any shirts that exist with the logo and demand that I not at any point in the future use the phrase in a commercially profitable way.

(Want to read ALL the demands? Download the C&D as a PDF file.)

Apparently the National Pork Board is worried that someone might come to my breastfeeding blog, check out the shirts and worry that when I say "white milk" what I really mean is "thick and juicy, straight from the hog PORK." Come on now, be honest...were you confused? Because I sort of thought I was comparing breastmilk (which just happens to be white) with the milk of a variety of other animals (cows? goats?) that happen to produce white milk (not kangaroos though, their milk is pink) and that often gets fed to infants INSTEAD of breast milk.

Wait, it gets better...

As best I can tell, the issue that REALLY has their panties in a wad is expressed in this quote from the cease and desist letter:

"In addition, your use of this slogan also tarnishes the good reputation of the National Pork Board's mark in light of your apparent attempt to promote the use of breastmilk beyond merely for infant consumption, such as with the following slogans on your website in close proximity to the slogan "The Other White Milk." "Dairy Diva," "Nursing, Nature's Own Breast Enhancement," "Eat at Mom's, fast-fresh-from the breast," and "My Milk is the Breast."

Go back and read that again. "apparent attempt to promote the use of breastmilk beyond merely for infant consumption."

Do they think I'm trying to an promote an adult breastfeeding fetish??! ...

Ultimately The Lactivist caved and took her "Other White Milk" shirt off her website store, replacing it with this one:Originalwhiteshirt_2

See also. It is clear from her description of the settlement agreement, in which she repeatedly refers to the National Pork Board as a big company, a big corporation and "big business"  that she incorrectly believes that it is a private entity, rather than an arm of the federal  government. As noted above, I think the Board is intentionally confusing on this point.  In any event, The Lactvist's sale of  tee shirts bearing the "Other White Milk" slogan was not a trademark use, so it should not have been deemed infringing, and it was a parody use  that ought to be protected by the First Amendment.   Trademark holders love to pretend that if they aren't aggressive about objecting to all non-permissive uses of their trademark,  their trademark rights will sizzle and fry, but that is generally an inaccurate and self-serving reading of the Lanham Act.  It's understandable that The Lactvist capitulated to the Board's piggish demands, given the attorneys fees that might have been required to fight them, but this will further embolden the Board to overprotect the trademark in other contexts. Someday I hope the Board gets a taste of its own byproducts, perhaps in the form of a lawsuit by Harley-Davidson. Now that it has triumphed over a parody tee shirt, perhaps the National Pork Board will begin focus on developing a newer, more sophisticated  advertising campaign, like this classy entry from Canada:

Pork_2

Posted by Ann Bartow on June 10, 2007 at 09:52 PM in Constitutional thoughts | Permalink

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Possibly this is the most appropriate post to attract spam such as the above ever.

Posted by: Ann Bartow | Jun 11, 2007 10:16:14 AM

Indeed, those are nice symbolic representations of what spam truly is.

Posted by: Patrick S. O'Donnell | Jun 11, 2007 10:22:19 AM

Only goyim would think that somebody could be confused between meat and milk. We Jews have the distinction down pret-ty well.

Posted by: RavDin | Jun 11, 2007 1:18:12 PM

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