Memo to National Pork Board Lawyers

By Alan M. Perlman.

A geek site, as an April Fools prank, launches a new product — unicorn meat – which it calls “the new white meat,” and lawyers for the National Pork Board issue a cease-and-desist order, because they’ve gone to great lengths to copyright “the other white meat” as a synonym for “pork,” and the new product might cause consumer confusion (or “trademark dilution,” as they sometimes call it).

I’m not going to tell those lawyers to lighten up – they get paid big bucks to defend their trademark vigorously, by which I mean they make sure it is associated with their product and no other. As we know, some trademarks become too successful and refer to all members of a class, as with Kleenex, trampoline (rebound tumbling apparatus), aspirin, Xerox (photocopier), Jell-O (gelatin dessert).

Here’s an example I saw live, but I’ll use the Wikipedia version:

An episode of The Simpsons (“The Otto Show”) satirizes the genericized trademark issue when Bart Simpson finds school bus driver Otto homeless:

Bart: Otto-Man? You’re living in a dumpster?
Otto: Ho, man, I wish. Dumpster-brand trash bins are top-of-the-line. This is just a Trash-Co waste disposal unit.

The Dumpster name dates back to the 30s, but there are numerous generic terms, including mobile waste disposal unit.

Sometimes even parts of words turn out to be protectable, as with the Mc- of McDonald’s, which the company successfully sued to protect, even with other roots, e.g., McJobs (the Mc- suggests something low-priced and monotonously standardized, but McDonald’s apparently wasn’t bothered by the negative connotations).

The litmus test is: does the word already exist in the language? Nobody would try to copyright pants as a brand name for trousers. Less obviously, I was once asked to opine on junkyard/junk art. It turned up in dictionaries and all over the Internet, and I had to conclude that it’s already a word, thus not protectable.

But Reebok? Yes, it already exists, but not as a name for a shoe; rather, it cleverly suggests one of the qualities that the shoe presumably imparts to its wearer, i.e., the swiftness of a reebok. So it’s protectable.

As Ronald Butters notes in “Trademarks: Language That One Owns,”2
“Whether a trademark is deemed WEAK or STRONG depends on where it is deemed to fall along a continuum of categories, (1) GENERIC, (2) DESCRIPTIVE, (3) SUGGESTIVE, (4) FANCIFUL, and (5) ARBITRARY, where (1) is the weakest, and (4) and (5) [the fanciful ones like Apple, or the arbitrary ones like Kodak] are the strongest.”

Now back to the Pork Board lawyers. Their complaint is vacuous because no consumer confusion is possible; unicorn meat is not an actual product.

While white meat is not protectable, it is true that “the other white meat”® may indirectly imply the copyrighting of the phrase the ADJ white meat (because the pork folks came up with the novel concept that there is more than one kind of white meat), but if so, the latter is in this case merely a reference point for a parody (remember, unicorn meat doesn’t exist; matters might be different if kangaroo or other real meat were involved), and parody is generally not regarded as a violation of copyright, because

(1) the reference point is known (it must be, if the parody is to be successful),
(2) there is no “consumer confusion,” and – very importantly –
(3) there is no obvious attempt to cash in on the familiarity of the original by dishonestly presenting the parody AS the original.

Still, you have to give the Pork Board lawyers credit. They’re well-paid for this kind of hyper-vigilance.

1See note 2.
2The Routledge Handbook of Forensic Linguistics (NY; Routledge), 2010.

By Alan M. Perlman. All rights reserved. © 2009