Sharp Rubber Duck

How Stupid can they be,
Pork Board Peaks over Breastfeeding

April 21, 2007

Jennifer Laycock is the editor of Searchengineguide.com/. She is also the founder of a breastfeeding blog known as The Lactivist, a project designed to, “… support nursing moms by promoting issues like breastfeeding in public, milk bank donation and child led weaning.” The site provides information and discussion space for moms, serving to focus attention on issues faced by breastfeeding mothers. A CafePress store is used to raise funds for the Mother’s Milk Bank of Ohio selling tee-shirts sporting clever, pro-breastfeeding slogans.

Recently, The Lactivist has attracted unwanted, ham handed attention from lawyers representing the National Pork Board. They have been staring at Jennifer’s breastfeeding blog and appear to be unwilling to politely look the other way. At issue is her use of a tee-shirt slogan that is somewhat similar to one the National Pork Board uses to market their meat. They feel Jennifer’s use of the words, “… the other white milk”, violates and degrades their client’s trademark slogan, “Pork, the other white meat”.

“Apparently the National Pork Board is worried that someone might come to my breastfeeding blog, check out the shirts and worry that when I say "white milk" what I really mean is "thick and juicy, straight from the hog PORK.”, she wrote asking, “Come on now, be honest...were you confused?”

In order to protect the strength of their slogan, the National Pork Board sent Jennifer a cease and desist letter.

National Pork Board considers your use of the slogan “The Other White Milk” to be a trademark infringement and also trademark dilution. The slogan “The Other White Milk”is an obvious attempt to call to mind National Pork Board’s famous mark THE OTHER WHITE MEAT, and it is clearly likely to cause confusion as to whether the products being offered by you under that slogan are associated with or endorsed by or otherwise affiliated with National Pork Board’s long-established promotional campaign for the pork industry. Moreover, even were this use of the slogan, “The Other White Milk” found to be not confusing, which we think is unlikely, this slogan nevertheless damages National Pork Board’s rights in the famous mark THE OTHER WHITE MEAT because the slogan significantly dilutes the distinctiveness of National Pork Board’s mark. (source: PDF of letter from Faegre & Benson LLP associate Jennifer Daniel Collins)

As absurd as it might seem, Ms. Collins might have outlined a solid legal argument but her line of logic seems to fly off the handle in the next sentence in which she implies there are double-d business ambitions behind the breastfeeding blog.

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."

Either Jennifer has been holding a diabolical plan to corner the adult breastfeeding market (one which hinges on her ability to perform a Biblical-sized miracle) very close to her chest or someone has deeper issues with her use of that slogan beyond protection of a trademark.

As Jennifer points out, it is also possible that Ms. Collins is only doing her job to “… zealously protect their trademark so that they can continue to hold on to it.”

According to her post about the C/D, she notes she is willing to drop the tee-shirt. It wasn’t selling well anyway and she doesn’t feel it was the most clever slogan she has ever used. She makes a good point about how easy it is for large companies to silence bloggers with template cease and desist letters if they “… even come CLOSE to the concept of the trademark.”

"Unfortunately, the ease of the Internet makes it really easy to fire off templated legalese emails at anyone and everyone that even comes CLOSE to the concept of the trademark. Big companies know that most bloggers have neither the time nor the resources to fight back, so even if the big company doesn't have a case, they win," Jennifer writes.

The letter from the Pork Board closes with this thinly veiled threat of a sentence, “We trust that after you have reviewed this matter, you will conclude that the better course is to promptly comply with National Pork Board’s demands herein.”

What would you do if you received a letter ending in a sentence like that? Disturbing in at least a half-dozen different ways, one almost expects a misspelling of the French salutation “au revoir” as “abattoir” to follow such a sentence. Don’t piss off the Pork Board.

While we don’t want to pick a fight with the Pork Board, we do want to help out a friend. Jennifer spells out exactly how she wants folks to help out, asking others to write about the issue and if they can find the time to phone or email a few people at the Pork Board. She includes publicly available contact information at the bottom of her blog post.

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