Pity the National Pork Board. In order to fulfill its perceived obligations under trademark law, the pork producers association on Tuesday issued a demand to a breastfeeding Web site to cease selling T-shirts that say "The Other White Milk," a riff on trademarked pork industry slogan "The Other White Meat."
As might be expected from someone who runs a site called The Lactivist, blogger and work-at-home mother Jennifer Laycock took the fight public. She posted the National Pork Board's cease and desist letter on her site in an entry titled "Overzealous Big Pork Stomps On Breastfeeding Blogger." Online outrage followed.
Cindy Cunningham, assistant VP of communications for the National Pork Board, acknowledged "obviously there have been some posts out there about [the cease & desist letter]" and emphasized that her organization isn't opposed to breastfeeding. "What this really is, is a business decision," she says. "We have had 'The Other White Meat' trademarked for over 20 years ... and we need to by law make sure that we're defending the trademark."
Indeed, trademark law appears to have been written so as to guarantee employment for attorneys. Trademark holders that fail to police their marks risk losing trademark protection.
This mandate keeps the National Pork Board busy. "We do this on a very regular basis," says Cunningham. "Often several times a week."
Laycock recognizes that companies need to look after their trademarks but takes umbrage at the National Pork Board's approach. "What I'm ticked about is that rather than taking two seconds to send me a nice e-mail to request that I remove it, they came in guns a blazin' with a lawyer-crafted nasty gram"
And the National Pork Board's position isn't helped by its attorney's insinuation that Laycock is engaged in some perverse campaign "to promote the use of breast milk beyond merely for infant consumption"
Lee Carl Bromberg, co-founder of Bromberg & Sunstein LLP, a Boston-based law firm specializing in intellectual property issues, observes that the National Pork Board might have tried other approaches before firing off a cease and desist letter. "A lot of discretion can be applied to a trademark policing program," he says. "Some things you decide you have to go after because they're so close to the bone that you have to protect you turf." Others, he said, can be dealt with in other ways or ignored.
"The underlying issue is confusion," says Bromberg. "Are consumers likely to be confused? It seems kind of a stretch."
Given the sociopolitical aspects of breastfeeding and the parodic nature of "The Other White Milk," Laycock may have a First Amendment defense. "At a certain point trademark rights run into First Amendment limits," says Bromberg. "If your use is really kind of a cute play on words and a parody of the original, then that's not an infringement."
The Internet has made legal challenges into public declarations of war and companies with grievances do themselves a favor by exercising care in how they seek redress.
Bromberg acknowledges that the Internet has changed the game for attorneys but points out that it's a double-edged sword. The fact that The Lactivist exists online means that it has the potential for worldwide reach, he says, in contrast to someone selling a T-shirt at a flea market.
"But the other edge," Bromberg says, "is watch out where you throw your spear because you might look like a real fool."