Intellectual Property Law

The Most Thorough Trademark Policing Ever

By Tim Armstrong, Derek Bambauer, and William McGeveran.

One of the stupendous librarians at the University of Minnesota Law School sent me a news story that shows just how far some trademark policing will go. Specifically, to Talkeetna, Alaska, which, according to Wikipedia, has a population of 772 and lies a two-and-a-half-hour drive north of Anchorage. (Cue Michelle Shocked ballad.) The extraordinary zeal of this particular cease-and-desist letter shows itself, not just in the number of miles it was sent, but in the extremely minor violation it protested. As the Anchorage Daily News explains:

Talkeetna batik artist Barbara Holmes heard from the group behind the “got milk?” brand this month.

Holmes made the mistake of advertising T-shirts and “onesies” — those snappable one-piece underclothes for babies — hand-lettered with the words “got breastmilk?”

She whipped up 10 of the little things from her downtown Talkeetna home with an outhouse and no running water. She sold six at a holiday fair in the senior center two years ago, then moved on to other projects.

The letter from the board’s Sacramento law firm showed up a few weeks ago.

Wow. You can’t make this stuff up! Every fact makes the story more absurd: ten … hand-lettered … parody onesies .. sold at the senior center holiday fair … by a woman in Talkeetna,Alaska with no running water. Hand-lettered!

Unlike many recipients of C&Ds, Ms. Holmes has retained a spunky local lawyer (himself out of central casting: a former commercial salmon fisherman with long white hair and beard and a David-and-Goliath plaintiff-side practice who blogs as “Alaska Backwoods Lawyer.”) His letter in reply refuses the demand by counsel for the California Milk Processing Board that Ms. Holmes send them all the equipment used to make the offending products and an accounting of her profits.

Morals of the story:

1. Partly influenced by aspects of trademark law that encourage overactive policing, too many brand managers authorize their lawyers to churn out C&Ds without even thinking.

2. Worse, trademark law can allow markholders to pick and choose which messages earn their disapproval. There is no shortage of “Got Milk?” parodies out there — try going to a mall and not seeing one on a t-shirt. But only some get singled out by the Milk Board, including animal-rights critics and at least one other breastfeeding one.

3. We need to rethink trademark fair use.

Full post as published by Info/Law on July 29, 2008 (boomark / email).