IP policing and negative publicity; or, stop acting like a boob, you pig!

A number of websites (including Feminist Law Profs and my friends at Feminist Mormon Housewives) have been discussing the recent Pork-versus-Breastfeeding-Moms kerfuffle. The original post (just your average tale of Big Pork against a poor Lactvist blogger, really) set out the basic facts:

The Lactivist is being threatened with a lawsuit. Why? Because I was selling a shirt that said “the other white milk.”

The Lactivist is a blog about breastfeeding and human milk banking. It’s mostly a gathering place for breastfeeding moms to come and share their thoughts and experiences and to keep up to date on the latest issues in the fight for the rights of a child to eat in public. To help fund the site (and to raise money for the non-profit milk banks) I have a CafePress store that sells t-shirts with funny pro-breastfeeding slogans. Things like “Milk on Tap” and “That’s my baby’s lunch you’re staring at.”

Thus the shirt that read “the other white milk.”

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.

In a lot of ways, this sounds like a run-of-the-mill C&D letter. Not all that unusual, and not much of a legal reach. Perhaps the shirts are protected by an exception (parody, anyone?), but perhaps not. The lawyers could have been more tactful, yes — but then, if sending tactless C&D letters were a crime, there would be a lot of lawyers in prison. Overall, I can’t say that this was a bad legal decision. Just a very bad business decision.

Within days, the post had drawn scores of inbound links from outraged blog posts, and had amassed nearly three hundred comments. The comments on many blogs (including the Lactivist’s) quickly escalated, turning into a free-for-all against pork consumption in general. The Pork Board must have received hundreds of angry e-mails, because e-mail correspondents began to receive a customized form response, reading in part,

The Other White Meat® is a pork industry trademark whose value was built slowly and thoughtfully over 20 years, paid for by producer’s hard-earned dollars. Any infringement on that mark would substantially lessen its value and impact for US pork producers. . . . The National Pork Board takes no issue with your important cause. Our interest here was in protecting US pork producer’s investment in The Other White Meat® trademark. We apologize if our response seemed impersonal or harsh; that was not our intent.

In any event, the negative publicity seems to have had an effect. The Lactivist notes in a recent update that, “I have received an apology from Steve Murphy, the CEO of the National Pork Board and we are currently working toward a resolution.”

Hmm. I don’t see how the legal merits of the C&D changed any in the past three days. But apparently, the negative publicity was enough of a factor to bring the Board to the table.

Chalk one up to the power of the blogosphere.

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