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pecan 3.14159265

September 11, 2009 1:25 PM

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I've never seen a company make such a half-hearted and nonsensical threat against the Internets. Come on, MonaVie, where's your spirit? Have you not had enough acai berry supplement today?

MonaVie, if it's telling the truth, has a new employee who gave that acai berry a big ol' bear hug, and jumped the gun on something that really wasn't a big deal and wasn't really a problem - if this person had taken even a minute to think it out, and consider Wikipedia and other sites that are full of MonaVie trademarks. Lazy Man had it right - MonaVie shouldn't have gone after him, and had no reason to.

\"Just take [the metadata] down,\" he said. \"Every search engine expert I've spoken to says metadata doesn't do anything anymore.\"

Tell me, MonaVie, why do you care if it doesn't do anything? Is it possible that you got embarassed by your new hire, and are trying to save face, lest the armies of the Internet go after you with fury?

Maybe Lazy Man should threaten to write a song about it.

2 replies

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HillSA23

September 11, 2009 1:29 PM

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@pecan 3.14159265: Just to be clear -- that quote isn't from someone at MonaVie. It came from Fred von Lohmann (senior staff attorney with the Electronic Frontier Foundation).

It's hard to tell from your post whether or not you picked up on that. =)

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pecan 3.14159265

September 11, 2009 1:35 PM

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@HillSA23: Yeah, I saw that, and I guess I wasn't clear. But I still don't get why MonaVie even cares if the metadata is irrelevant. Maybe it doesn't think it's irrelevant.

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HiPwr

September 11, 2009 1:34 PM

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Bloggers = \"news organization?\"

4 replies

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Rectilinear Propagation

September 11, 2009 2:16 PM

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@HiPwr: Don't bloggers have some of the same legal rights as reporters?

IIRC, there was a case a while back over whether or not a blogger has to reveal their source.

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HiPwr

September 11, 2009 2:22 PM

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@Rectilinear Propagation: I think this is a huge gray area right now. In some instances, they are given some of the same protections as regular media (like revealing sources), but in other cases, they hide behind being bloggers (as in the cases where they make shit up).

I think it has to be better defined. Either any yahoo that manages to register a website and starts pontificating, speculating, & reporting is automatically considered the \"press\", or not.

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September 11, 2009 2:00 PM

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@HiPwr: Haven't you noticed? When Consumerist makes bad/misleading/erroneous claims, they are a 'blog', not a 'news organization'. When they want protection/reporter's rights, they are a 'news organization', not a 'blog'.

Its very important that they make these distinctions, as to get the bets of both worlds.

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JulesNoctambule

September 11, 2009 3:02 PM

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@Radi0logy: What exactly are the 'bets of both worlds', as you say, and who is winning?

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MauriceCallidice

September 12, 2009 2:52 AM

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@JulesNoctambule: I think they're what Hannah Montana places in Vegas.

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Nytmare

September 11, 2009 1:43 PM

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@pecan 3.14159265: When my cat knocked the vase off the shelf she picked up her kitten sister and plopped her among the shards then hid under the bed. Oh yeah my story is as believable as theirs.

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September 11, 2009 1:50 PM

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How is metadata different from, say, a glossary or index at the back of a book? A table of contents in a magazine? Aren't those things allowed in fair-use settings?

2 replies

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September 11, 2009 3:00 PM

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@ScarletsWalk: Fair use is a copyright defense, not trademark. Lazy isn't using the mark in trade nor in a trademark sense, so this isn't infringement. He's also using as little of the trademark as necessary (for instance just the text, not the logo) for commentary, comparison and critique so his use falls under first amendment free speech.

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RPHP

September 11, 2009 3:47 PM

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@fantomesq: There is a fair use defense in trademark law. Of course this doctrine is very different from the fair use defense in copyright law.

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September 11, 2009 4:13 PM

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@RPHP: Fair enough, we learned it as nominative use of trademarks, to distinguish it from the fair use copyright claim. My analysis above holds as a nominative use of trademark,

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RPHP

September 11, 2009 4:58 PM

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@fantomesq: true.

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GMFish

September 11, 2009 1:55 PM

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\"While businesses have a right to protect their trademarks from abuse, the news media are typically exempt from such restrictions provided the trademarks are used as part of \"news reporting and news commentary.\"\"

This is incorrect, or at least poorly written. You make it sound as if only journalists or bloggers have any first amendment rights to criticize companies. We all do. I can say \"Coke sucks and tastes like shit\" all day long and no Court in the US could or would stop me.

The purpose of trademarks is to protect consumers from buying an inferior product or service under a confusingly similar name or mark to that of a higher quality product or service.

Me saying \"Coke sucks and tastes like shit\" in no way confuses consumers into buying an inferior product because I'm not selling such a product. I'm merely voicing my opinion which is protected by the first amendment. And that is true whether I'm a blogger, journalist, or just a citizen of the US.

4 replies

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stuny

September 12, 2009 12:28 PM

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However, I think you have just invited a libel lawsuit from Coke unless you can prove that it tastes like sh*t.@GMFish:

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September 11, 2009 3:39 PM

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@GMFish: You are, of course, correct that the use of trademarks to voice your opinion or report on a company's activities is protected speech. I was referring to the Trademark Dilution Revision Act of 2006, which, as a commenter on Lazy Man pointed out, provides specific exemptions to \"all forms of news reporting and commentary.\" This doesn't abridge any existing rights; it merely emphasizes them for certain types of commentary.

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September 11, 2009 3:02 PM

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@GMFish: Your use of Coke above is not used in a trademark sense, so it doesn't fall under the purview of infringement.

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MauriceCallidice

September 12, 2009 2:57 AM

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@fantomesq: It most certainly is used in a trademark sense. He is referring to a specific product of The Coca-Cola Company (ie. Coca-Cola, as opposed to say R.C. Cola or Pepsi), by using a specific term (\"Coke\") which that company has trademarked as a reference to that product.

Now, if he was using \"coke\" to refer to cocaine, that would not be using it in a trademark sense.

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Cant_stop_the_rock

September 11, 2009 2:05 PM

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\"We were surprised to see an email like this sent to a blogger. While businesses have a right to protect their trademarks from abuse, the news media are typically exempt from such restrictions provided the trademarks are used as part of 'news reporting and news commentary.'\"

The news media are also expected to follow journalistic standards and ethics, which very few bloggers do. I wish people would stop confusing bloggers with journalists.

Also, what GMFish said.

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LazyManAndMoney

September 11, 2009 2:09 PM

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I'd like to thank the Consumerist for not only covering this story, but also talking to MonaVie and the EFF on my behalf.

Here's an extra bonus sub-plot. There was a comment left on the post that the Consumerist links to here. That comment called me an \"annoying douche\" as well as \"fat\" and having \"no lover.\" I traced the IP address of the person leaving that comment to MonaVie's offices:

[www.lazymanandmoney.com]

3 replies

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HiPwr

September 11, 2009 2:49 PM

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@LazyManAndMoney: You're surprised by this? These people are making money off of this; it's their livelihood. Of course they think you are a \"douche.\"

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Rectilinear Propagation

September 11, 2009 3:35 PM

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@HiPwr: Not surprised, amused.

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LazyManAndMoney

September 11, 2009 5:50 PM

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@Rectilinear Propagation: Yeah, I'll go with amused. After reading all 3200+ comments on the article that MonaVie doesn't want you to read ([www.lazymanandmoney.com]), things like this just aren't surprising to me.

However, people that just heard of MonaVie might find this behavior surprising.

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pecan 3.14159265

September 11, 2009 2:18 PM

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@LazyManAndMoney: Looks like that person's been drinking the acai Kool-Aid.

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Front_Towards_Enemy

September 11, 2009 2:09 PM

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gee, maybe MonaVie should give a call to chash4gold and ask them for some expert advice on how to commit extremely dopey act on teh intertubes.

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September 11, 2009 2:25 PM

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Is anyone seeing the flaw in Doug Whitehead's argument? He has no problem with Lazy's right to free speech, but is trying to quash it, and not the other people who are doing the same things that he is being sued for???

2 replies

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billy

September 11, 2009 8:53 PM

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@strathmeyer: Well, it's clear that the TM is used in a variety of places on the blog. When the blog criticizes MonaVie and uses its TMs, there is clear precedent that MonaVie can not restrain the blog's criticism. That's why MonaVie clarified that it's not what the complaint is about.

The complaint is about the metatags. According to EFF's article, that's a gray area and (I assume) the defense to the use of the marks in metatags is probably different.

The bottom line is that just because MonaVie has no problem with Lazy's right to free speech in one area doesn't mean that there is no legitimate issue with Lazy using the mark in other situations.

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September 11, 2009 3:12 PM

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@SPENCERG: I'll second that. Most consumerist articles would have stopped with the unverified complaint but to have sought and received both MonaVie's AND EFF's input? Well done!

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SPENCERG

September 11, 2009 2:36 PM

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Wow, this was a very educational article, and well researched. I think it is rare that we are able to get all sides to a story like this one.

Good job, Marc!

And to add to the discussion, I agree that MonaVie was out of line and I believe they are trying to use \"strongarm\" tactics to silence at least this one critic.

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September 11, 2009 2:50 PM

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I am equally as befuddled as Lazy is when MonaVie shared this info with Consumerist first. Then again, they did offer you inside information in something that you might've eventually written about, in turn showcasing a product I've never heard about. How's that old saying go? There's no such thing as bad press. Don't worry MonaVie, all Consumerist.com alerted me to was a product to stay the hell away from.

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September 11, 2009 3:04 PM

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@JulesNoctambule: *snortle*

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Sneeje

September 11, 2009 3:06 PM

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In order for MonaVie to prevail with a trademark claim, not only do they have to prove that LazyMan's website would be confusing to the end customer, they would also have to prove that the use is \"in commerce\" so Lazyman would have to be getting significant commercial gain from the specific use of the trademark.

I don't see how either test would succeed.

2 replies

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billy

September 11, 2009 9:05 PM

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@Sneeje: The EFF article states that in terms of metatags, the courts laid down a somewhat broader way to infringe on TM. The court called it the \"initial interest confusion\" concept (or test). I'm wondering if MonaVie would argue that anybody looking for its company would, instead, come across Lazy's \"product,\" that being his blog, and, therefore, Lazy would be cashing in on MonaVie's \"goodwill.\" This has been played out in other internet cases, too, but in terms of competitors, not bloggers.

I realize that it's a bit of a stretch for MonaVie to make that claim (especially if search engines don't use metatags), but that's the only way I see this case going. I don't think that the article implies that it's Lazy's intention.

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September 11, 2009 9:32 PM

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@billy: Lazy's \"product\" is his blog?!? He's not using their trademark to describe his blog and their is not hint of ownership or sponsorship. If this is their theory, its not infringement because there is no product in the stream of commerce.

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billy

September 11, 2009 9:54 PM

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@fantomesq: Well, I said it was a stretch.
But, in the context of \"initial interest confusion\" there is a lot of weight put behind the infringing company's trading on the \"goodwill\" of another company's mark (see Playboy v. Netscape). If it can be shown that Lazy is making money via the blog (there are ads on the site), why couldn't (theoretically) be shown that Lazy is trading on MonaVie's goodwill on the theory of \"initial interest confusion\"? This is (again) a stretch, unproven, and in a relatively new part of trademark law.

My above-theory is the only way *I* could think of that MonaVie could use to wedge itself into a trademark case. Also, I don't think it would be successful (I don't think that it's Lazy's intention to trade on MonaVie's goodwill).

Do you have any ideas what MonaVie's theory of the case may be?

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LazyManAndMoney

September 11, 2009 9:47 PM

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@fantomesq: Thanks fantomesq. I agree that if I had a juice company and used MonaVie's keywords for that purpose it would be wrong. I'm simply following best practices and using metatags to describe the content.

If that @billy's admittedly \"stretchy\" definition of cashing in on \"goodwill\" is true, then we need to redefine how monetization of news is done in the United States. Think of your nightly news station. Do we prevent them from mentioning a trademarked term, because the term might bring in viewers, which allow them to cash in via commercials on that trademark's \"goodwill\"?

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billy

September 11, 2009 10:07 PM

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@LazyManAndMoney: A nightly news organization tends to mention trademarked terms in the context of news. Courts don't want to tell news agencies what they can or can not say and they are extremely lenient for news organizations (see First Amendment and fair use in trademarks and copyright).

If the nightly news, instead, said that the nightly broadcast was being brought to you by corporation XYZ and flashed XYZ's logo on the screen without XYZ's permission, you can bet that XYZ would have a good trademark violation case and the station would probably not be able to use the defense of \"commentary\" or \"criticism\" as it would be able to do if the mark was part of a news story. In that sense, the news station could be said to have been trading on XYZ's goodwill (ie watch us b/c we're associated with this product).

It's not a matter of whether the mention of a mark \"might bring in viewers\" as you suppose. It's a matter of whether the mark is used in criticism or commentary vs trading on another mark.

In your situation, LazyMan, the metatags are NOT being used to further your criticism or commentary, so that fair use defense is out the window. So, what are the tags there for? As I supposed, the only thing I can think of is that MonaVie would say that the tags (somehow, someway) might cause initial interest confusion. Whether they can prove that is a different story.

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LazyManAndMoney

September 11, 2009 11:05 PM

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@billy: @billy: @Billy, I see what you are saying here. I don't know how my article of MonaVie could be used as anything other than commentary or criticism.

I would compare my use of metatag keywords to a teaser for the nightly news program like, \"MonaVie is gathering juice devotees, news at 11.\" Such mentions of trademarked terms are allowed and they aren't really considered news, just a description of the news segment at 11.

I would default to the purpose of metatag keywords in the first place. They are used to describe the content. That's what my meta keywords and meta description do. What should I use for meta keywords in an article asking if MonaVie is a scam? Should I use \"purple juice\"? Should I use \"the juice that can not be named\"? Talk about causing confusion (though in a different way).

(I don't mean to seem ungrateful, I am enjoying this point as it's a little outside the box. I like exploring these kind of edge-cases.)

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billy

September 11, 2009 11:23 PM

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@LazyManAndMoney: I think that if you are able to convey what you use metatags for, you're doing great.

I'm only suggesting what MonaVie *might* do in the context of other cases that involve metatagging and the internet. Because MonaVie is not stupid enough to come at you with a straight TM infringement case, it's worth it to read those cases which deal with metatags directly because they've already indicated that it's what they're upset about. Any good judge would refer to those cases, too. Those cases (as noted by EFF and mentioned above) are not traditional TM cases. MonaVie has a better chance at coming up with a viable case (as opposed to a frivolous charge) if they follow those grey area cases where the law is not necessarily settled. SO, that's where I got all the arguments about goodwill and what it might take to prove that your website is somehow touching a commercial stream.

BTW: I don't know if it's the same for TMs, but in copyright it wouldn't matter if YOU made money or not. The effect of the infringing use upon the potential market for or value is also considered. It's something to think about.

Good luck.

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September 11, 2009 3:16 PM

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To Doug Whitehead:

I am not going to listen to you. You are a fat, lazy, sit on computer with no lover asswipe attorney. You're an annoying douche.

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GitEmSteveDave_IsPyroclastic

September 11, 2009 3:32 PM

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I have a scrolling LED sign in my back window that I mostly use as a rolling singles ad. But I've been tempted to put \"MonaVie is a scam and pyramid scheme\" on the sign, and scroll it when I pass by someone with their car decked out in MonaVie ads and then pull in front of them. Mostly to see their reaction. Brian Dunning over at Skeptoid did an episode on them, and he got tons of the people they schemed telling him that he shouldn't judge the juice until he tried a CASE, and they could give him a great price!

1 replies

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September 14, 2009 3:19 PM

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@GitEmSteveDave_HazGreenLEDNameTag:

Sounds like every \"Zomg my son joined Cutco, what should I do?\" thread out there! (My suggestion = seppuku)

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Greasy Thumb Guzik

September 11, 2009 3:42 PM

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Is MonaVie a division of Monster Cable?

1 replies

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LazyManAndMoney

September 11, 2009 5:35 PM

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@Greasy Thumb Guzik:

LMAO... great analogy. At least I've never heard anyone on the Internet claim that Monster Cable will cure cancer, autism, fibromyalgia, etc. Monster Cable has that going for them.

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September 11, 2009 4:52 PM

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Frankly, if enough bloggers simply posted 'MonaVie is a scam and a pyramid scheme' then that would be inevitably the top result for any search on the company's name. And this occurrence makes that eventuality closer to reality. Good job, scam lawyers!

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September 11, 2009 5:34 PM

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What do you think the odds are that a judge or jury would know what the fuck metadata is?

Hint: It's very close to zero

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September 11, 2009 6:56 PM

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Awesome. I just saw the name \"acai berry\" for the first time today. It was in a spam ad in the form of an answer on Yahoo Answers.

I didn't pay much attention to it because spam is, well, spam. I was going to link to the question but it has already been removed.

Good job making sure the interweb recognizes you for what you are MonaVie. Is there a chance this company is a subsidiary of Cash4Gold?

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CapitalC

September 11, 2009 7:44 PM

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Is there a difference between \"monavie\" and \"MonaVie\" in terms of trademarking?

2 replies

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billy

September 11, 2009 9:39 PM

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@CapitalC: That depends on a lot of factors. I would imagine that the company has a mark in the name as well as any special capitalization or logos.

But that's not the end of the story. If someone used a mark that would cause a likelihood of confusion (and there are many factors) it might be seen as infringement. For example, Koke used as a soft drink would infringe Coke used as a soft drink even though Coke probably doesn't have Koke TM'd. In the same way, \"monavie\" might cause a likelihood of confusion with \"MonaVie\" regardless of registration.

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September 11, 2009 11:27 PM

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@billy: I wonder what would happen if I opened a store selling MonaVie cables. ;)

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LazyManAndMoney

September 11, 2009 8:09 PM

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I'd like to respond to one part of this article.

\"The company's concern, [MonaVie council Doug Whitehead] said, has nothing to do with user-visible content on the Lazy Man site, but instead is all about the site's metadata, which includes MonaVie's name.\"

I'd like to point out that the metadata is user-visible content for all posts on my site. It's been that way for over a year now (check Google Cache if you don't believe me).

I've had a section that says:

\"This post deals with:
[Wordpress tags]
... and focuses on:
[Wordpress Category]\"

The metadata keywords are generated (in part, I occassionally add more) from this user-visible content.

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calchip

September 11, 2009 8:21 PM

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What I don't get is how these companies like MonaVie haven't figured out that any time they try to silence a critic, it's going to backfire and generate far, far more publicity than the original negative article or website by itself would have done.

3 replies

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September 11, 2009 9:15 PM

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@calchip: Part of copyright (or) trademark law (iirc) is that they have to protect their trademark or copyright. If they let enough things slide, a court could essentially rule against them in a case by way of not protecting their trademark.

They have to fight every battle to protect themselves even if it means bad publicity or the like.

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varro

September 11, 2009 9:55 PM

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@RobertBaron: Nope. Trademarks are only lost through disuse in commerce, which can be proven by not defending against infringers. However, the mere fact that someone may have infringed a trademark does not invalidate the trademark.

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LazyManAndMoney

September 11, 2009 9:38 PM

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@RobertBaron: If you are correct, (and I think you might be) one would assume that they've protected themselves against Newsweek, Wikipedia and others who use their trademark in the exact same way I do.

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September 11, 2009 9:44 PM

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@LazyManAndMoney: They probably do. But it probably doesn't get the press like you've gotten. Newsweek, at least, also likely has a pretty powerful cadre of their own lawyers which nips these types of things in the bud pretty quick.

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LazyManAndMoney

September 11, 2009 9:57 PM

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@RobertBaron: If Newsweek has gotten the cease and desist order (CDO), they haven't complied. The fact that Newsweek still has their metatags intact tells me that the argument either has no merit and their told them to ignore it, MonaVie hasn't sent them a CDO, or the CDO is in progress.

If it's the first case, I shouldn't have reason to worry. If it's the second case, then we know that MonaVie isn't protecting it's trademark and just handpicking the ones they don't like (maybe because they are one man shops like myself). If it's the third case, well then I'd like to talk to Newsweek and see how they are handling it.

It's conjecture on my part, but I think it's more about the critical nature of my article, the fact that I'm one person, and that it ranks well in Google which makes me an attractive target for them. We'll see if they are going after everyone.

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September 12, 2009 12:39 AM

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@LazyManAndMoney: There's also probably the issue that the courts and the laws are struggling to deal with New Media. Newsweek might not be getting any flack from them, but that's only because the battle fought a hundred years ago. We've really only just begun figuring out what the current laws mean in regard to new media. Everyone on both sides is fighting the battle to determine where IP law goes with new technology.

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September 11, 2009 9:19 PM

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I like the ballsy move of adding the \"Monavie\" tag to this...on wikipedia, that's called WP:POINTy.

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billy

September 11, 2009 9:31 PM

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trademark, yes.
copyright, no.

1 replies

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billy

September 11, 2009 10:09 PM

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@billy: Oh, I wish there was an \"erase\" button.

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Difdi

September 12, 2009 10:38 AM

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This reminds me of a series of incidents years back, where the gaming company TSR (now bought out by Wizards of the Coast) attempted to remove all customer-created content that even referenced TSR's intellectual property by issuing cease & desist letters to sites hosting such content (at the time, generally FTP servers).

Not only were most of the claims questionable at best as to whether TSR actually had a case (game mechanics and rules can be patented, but not copyrighted, despite TSR's claims...and TSR didn't hold any such patents), in many cases, their lists of what files on the sites violated their rights, included such things as .message files, user profiles and quite a few unrelated files.

It seems to be a standard thing, for people who write cease & desist letters to be technologically illiterate...

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September 14, 2009 3:20 PM

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Video Professor should send these guys a free DVD on the Streisand Effect...

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