The sad thing is, the NPB may have had a valid point here. Unlike most forms of intellectual property, trademark rights do degrade if you don't defend the mark and it is deemed to be diluted. I'm not sure the ThinkGeek guys got this, since they referred to parody as a defence, and that would normally be used in connection with copyright. So we can all have a good laugh, but there might be a real point about the appropriateness of various legal standards for defending intellectual property rights as well.
There is a parody defence for trademarks as well, normally it's disallowed if it's done for commercial purposes (typically a company poking fun at a competitor), but it seems to depend very much on the judge who's hearing it.
I agree with you. In fact, it's glorious that trademark is qualitatively different from copyright. It lets us see what the world would be like if copyright degraded, for example.
In this case, we see that, because trademark does degrade if not defended, well, it has to be defended (no matter how silly it seems to do so). No doubt the Pork Board thought it was silly, but they really have little choice. If trademark was like copyright or a patent right, then they could have chosen to simply ignore this without much risk of losing their rights.
No, but they might degrade the exclusive identity of pork as "the other white meat."
If enough people were to make jokes about "the other white meat" referring to various products, the pork board could theoretically lose the trademark altogether.
Ah, yeah, when I'm writing code, I frequently do something like:
Foo *f = Other Foo();
They're so confusingly similar. ;-) But more seriously, I do agree with your point, if there's confusion (or the possibility), they would have to defend the trademark. I guess I just have a different bar for "confusing" than others.
What I find particularly interesting is that the slogan "The Other White Meat" is targeted specifically to infringe upon the marketplace position of chicken as "white meat".
The NPB is completely fine with messing up chicken, but is concerned about the Unicorn Meat market infringing on pork products.
Although they don't seem to be all that well-informed on the topic, ironically, parody is a valid defense here — because they aren't actually marketing a competing product, I don't see how they could be infringing on the National Pork Board's mark.
But ThinkGeek uses the phrase "The New White Meat" not "The Other White Meat". Does trademarking "The Other White Meat" mean that no other product can ever refer to itself as "White Meat"?
It says in the actual C&D itself, 'a number of other websites that refer to this product use the wording "The Other White Meat" in connection with the product' which would be the "infringing" phrase (from Facebook and TheFrisky).
Now, those links and link text weren't on Thinkgeeks's site, but that fact only serves to make this look even more hastily done and less well-thought-out.
You can't change one word to a close synonym and then claim that your branding is totally different. "The New White Meat" is obviously something that could be confused with "The Other White Meat."
There is already an established market for "White Meat" and ThinkGeek is just breaking into it. It's not their fault Pork has created a binary market. It would be akin to Bing entering the search eng... Ah fudge it, it's Unicorn Meat!
