Saturday, February 03, 2007

Aggessive trademark protection

I am a criminal defense lawyer- I have represented killers and rapists, thieves and thugs. And none of them are nearly so slimy as IP attorneys.

A stay-at-home-mom in Ohio and breastfeeding activist has gotten a C&D letter from the National Pork Board, because her Cafepress store carried a t-shirt that reads "The Other White Milk." I say carried because it seems that shirt may have been taken down. Oh, and all the sales go directly to the Mother's Milk Bank of Ohio.

I understand that they have to protect their trademark, but this paragraph actually infuriated me:

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.
Your apparent attempt to promote the use of breastmilk beyond merely infant consumption? It would appear that the good people at the National Pork Board have profoundly dirty minds, as well as being utterly humorless prigs, in light of their apparent attempt to be human beings.

That alone is bad enough, but let us not forget that not all hog farmers actually like the slogan- pork becomes white when factory farmed- organic pork, raised on pasture, is actually red. In fact, a majority of hog farmers voted to undo the slogan, only to have been saved by the Bush Administration.

So who benefits from aggressively protecting this trademark? Not the hog farmers, not the public, certainly a stay-at-home-mom in Ohio. So let me ask the Pork Council's lawyer, Jennifer Daniel Collins with Faegre & Benson a question that people ask me, defender of killers and rapists, all the time- how can you sleep at night?

Friday, February 02, 2007

Super Copyright Nonsense

There is a story making the rounds that the No Fun League has sent C&D letters to various churches planning to host Super Bowl parties. Apparently a church in Indiana was planning to host a "Super Bowl Bash" as a fundraiser. The NFL faxed a letter advising that the words "Super Bowl" are trademarked and that the league prohibits charging admission to watch the game. So far, the League was perfectly within its rights- so, the Pastor changed the name of the party and dropped the fee for admission.

Not good enough. The NFL claimed that the law prohibited displaying the game on a television larger than 55 inches. Legally, the NFL is correct- the Copyright Act generally holds that watching television is not an infringement, unless:

[In] an establishment other than a food service or drinking establishment, and... if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches.... 17 USC 110(5)(B)(i)(II).
This just demonstrates how technology is now outpacing the law. I'm sure there was a time when 55 inches seemed like the largest television possible, but you can now HDTVs twice that size. In any event, it hardly makes sense that infringement is based on the television you are watching on. This is a bad law that will need to be fixed, and soon.

Thursday, February 01, 2007

Tyranny of the Uncool

By now you have probably heard about the Great Aqua Teen Hunger Force Fake Bomb Scare. If you haven't, I can summarize it this way- to promote the upcoming ATHF movie, viral marketers placed LED Mooninites around various cities, including Boston (where quite frankly, I would expect them to know better). Somebody who had never heard of ATHF and who did not recogize a little pixelized Space Invader flipping the bird as a cartoon character panicked and called in a possible bomb threat. The bomb squad was called out, much merriment ensued yadda yadda yadda.

Two people have been arrested and are now facing felony charges of placing a hoax device.

What I find so interesting about this case is that if you know what the Mooninites are, then it is clearly not a hoax device at all. However, some square who didn't get the joke decided it was a bomb (which if you ask me also makes him stupid- who places a bomb in plain view and then lights it up in bright green LEDs?). In other words, a person can be charged if somebody thinks it looks like a bomb, not whether the maker thinks it looks like a bomb.

These are interesting times for street artists and culturejammers. There is the Obey the Giant meme, there's Mark Jenkins' brilliant (and slightly creepy) tape sculptures, and there is Invader's use of the Space Invaders Mooninites (to bring it all back around to the ATHF). It is understood among street artists that some people will not get the point- I would argue that causing confusion is the point of most street art. Here, someone who didn't get the joke interpreted it in the worst possible way, and now two people face jail based on that man's stupidity.

Creativity is often lost on the masses. I would not expect someone whose cultural experience is limited to Oprah, Tom Clancy, and pretty pictures to get ATHF. I would not expect someone to get a felony charge for it either.