Copyright, Trademarks and Pork Milk?

Reading the comments in Jennifers Lactivist blog about her pork problems is almost painful. Actually, it is painful.

In the old days, no one knew what the law was (so the government actually had to pass a law saying that they were deemed to know). Today, probably due to too much television, it seems that they now think they do, but don't.

Having a legal background, it's a pet peeve of mine to see people make statements that are outrageously false or at best on extremely shaky ground as if it were the absolute truth. You'd never hear a lawyer talk like that. Why? because they know better.

Some Examples (usually from anonymous posters):

...you knowingly and flagrantly infringed upon their copyright and trademark...

...Jen, you did violate trademark law.... Derivative works are *not* protected under the law...Trademark law exists to prevent people from cashing in on other people's work. ..

..You women are acting ignorant. This is just a simple case of copyright infringement. It doesn't matter if you are humorously promoting breast feeding infants, or if you are selling auto parts. I have nothing to do with the pork industry, but I am in advertising...You just can't use that phrase, even if you replace a word, because of U.S. Copyright laws...

There are a few common misconceptions here I'd like to clear up.

The Copyright, Creativity And Hard Work Issue

There is a lot of difference between a copyright and a trademark. One difference is, you can't have a copyright on a short sentence or phrase (like "The Other White Meat") because it's not long enough to have a significant amount of creativity to warrant it.

It doesn't matter if they had a team of professional marketers and spent a 100 million, or someone came up with it for free while half asleep after eating too many donuts during a meeting. It's not long enough to be creative enough to fall under copyright law.

To quote the US Copyright Office (which has jurisdiction):

What's Not Protected?

..

Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.

...

So this isn't a copyright issue. That also means it's not a creativity issue. If there was enough creativity to be protected, then copyright would apply.

So pronouncements about "fairness" or "stealing hard work" and so forth are not relevant. A trademark is a trademark, and it doesn't matter if it's creative, boring, free, expensive or any of that stuff. Talking about it just muddies the waters and tells people you don't actually know what you are talking about. Same with talking about derivatives - it applies to copyright, not trademark.

Trademark law does concern itself with fairness, but only related to trade (commerce). You can spend almost no time or effort on a trademark and it's not suddenly "worth less", and if you spend a bunch of money to hire someone to make one for you (or buy it, like these pork.org did), it's not "worth more".

It's a trademark, and it's either valid or not. The amount of work or money you put into it is not an issue. There is an exception to this, related to "world famous brands" which I'll get into later on.

The "You Have to Protect Your Trademark" Issue

This one has more substance to it. The idea behind a trademark is to identify the holder of the trademark clearly. That's pretty much it. All of the other rules revolve around this concept.

Therefore, if someone other than the holder of the mark begins to use it, there may be confusion as to who the source is. Further, if a trademark holder fails to prevent others from using it, they may be deemed to have abandoned the mark.

So it's serious business and you need to protect it. Zipper, yo-yo, aspirin, and escalator all began as trademarks that were deemed abandoned because of a failure to protect the mark. You also have to use it, or it may be deemed to be abandoned.

It's pretty clear that pork.org are using it, since they have an entire website called http://www.theotherwhitemeat.com/ and the registered trademark symbol is all over it. I can't imagine anyone contesting this in good faith. Since they are apparently sending out C&C's to everyone they can find, I'm not about to argue they have abandoned it due to failure to protect it.

There is one other issue with Trademark law that is relatively new to the US (1995), and is the concept of dilution. Up until then, you'd have to show that there was a possibility of consumer confusion in order for trademark law to kick in.

One thing none of the posters quoted above seemed to realize is that trademark is exclusive to a TRADE and a TERRITORY, not a mark. You can have "Fred's Garage" properly and legally trademarked in 2 different States by two different people. It this was about creativity or hard work or whatever, then that could not happen. That's the territory.

Further, until Apple computers decided to get into the music business, they had little to fear from Apple Records, being in 2 very different industries back in the 80's. That's the trade.

Unless the Lactivist went into the pork-promoting business, traditional trademark law would not have been an issue.

But with the concept of dilution, the issue becomes fuzzy again. The idea behind dilution is to protect not only the trade and territory use, but also the distinctiveness of a mark. The idea is that if enough people use marks similar to yours, even through fair use and so forth, that the value of your mark would be diminished, and therefore should be protected. This brings us back to that "hard work and fairness" exception I mentioned earlier.

I won't get into whether I think this is a good idea or not right now, but this is where we are.

• It's not a copyright issue.
• It's not a creativity issue.
• It's not a money or hard work issue.
• It's not a traditional trademark issue (wrong trade)

But it could be a trademark dilution issue. So let's look at that. In this case, it doesn't matter if there is a geographic overlap or competition, what matters is the value of the mark itself (a departure from previous laws and rulings).
You can fall afoul of this if it can be shown one or more of:

1. Blurring - the removal of the brands distinctiveness
2. Tarnishment - use on poor quality products or in a unwholesome or unsavory context.

Any lawyer making a case creates a checklist for what triggers the act and goes through the list, trying to show something for each item on the list, which is probably where the claim, as weak as it is, about the "tarnishment" of their reputation came from.

In order to comply with the First Amendment in the US, there are some exceptions to this. Note that these are NOT DEFENSES - they are EXCEPTIONS. I noted that at least one poster said something to the effect of, "you broke the law, even if you think you have a defence".

The difference between a defence and an exception in this context is that a defence says that you broke the law, but there is a special punishment (which can actually be a lack of punishment).

An exception is an area where the law doesn't apply, period. There is no breaking of the law, and no defence necessary (assuming you can show that the use is excepted).

I know this sounds like almost the same thing, and in practice it pretty much acts like it, but since this whole case is about words and their use, there is little room for sloppy use of them.

So, what are the excepted areas?

First, you need to show that the mark is considered to be "famous" for the dilution concept to apply.

Since very few people outside of the US have heard of it, you could argue that. On the other hand, they sure paid a lot for it, so someone must have thought it was well known enough to be worth millions. I'd lean towards it being famous, myself.

Once you have done that, these are the exceptions:

1. "fair use" of a mark in the context of comparative commercial advertising or promotion;
2. non-commercial uses, such as parody, satire and editorial commentary; and
3. all forms of news reporting and news commentary.

So *I* can use "The Other White Meat" because I'm reporting and commenting. Bully for me!

The National Poultry Association, I suppose, could probably use it to compare whether or not pork really counts as "white" meat compared to chicken.

The Bottom Line

So that leaves the Lactivist, with everything else pared down to this:

Does the shirt/quote in question trigger the dilution act, and if it did, does it fall under a non-commercial use, such as parody or satire?

That's it. That's the issue. All the other copyright, trademark, yadda, yadda means nothing, and it boils down to the following:

1. Does the use trigger the Federal Trademark Dilution Act of 1995 - ie does it cause blurring or bring disrepute to the brand holder?
2. If the act is triggered, was this a non-commercial use such as parody or satire?

If it fails either, then there is no issue. If it passes both, then there is a big problem.

One thing blurring things here is the "non-commercial" part of the second part, since the shirts were being sold through CafePress. Does the fact that the funds were donated to charity make it non-commercial, or does the fact that money is changing hands make it commercial? Does the fact that CafePress make money off it matter?

This post is getting long, so I'm going to go look up some more case law and finish this later.

Ian