New Developments in CMPB's "Got Breastmilk" Offensive

Thanks to David Giacalone, Editor of the unique blawg f/k/a... for alerting us to the latest from the California Milk Processor Board in his December 1st post.

Experts on breasts, babies, and trademark law — along with those interested in jugs and lawyer antics — all wondered why the California Milk Processor Board wanted Alaskan artist and breastfeeding advocate Barbara Holmes to stop using the slogan “got breastmilk?” on her onesies and infant t-shirts. They said Holmes’ slogan infringed on their “got milk?” trademark, but that seemed unlikely. Jill’s Comment brings things into better focus: On October 6, 2008, the Board’s lawyers, Knox Lemmon Anapolsky LLP, filed a trademark application with the PTO for a mark that:

“consists of the wording ‘got breastmilk?’ in all lower case letters in Phenix American font.”

According to the TARR status report for the as-yet-unassigned claim with the Serial Number 77586468, the Board intends to use the “got breastmilk?” mark with the following products:

• baby blankets, children’s blankets and burp cloths
• breast pads and breast-nursing pads
• baby bottles, cups adapted for feeding babies and children, pacifiers, sippy cups, breast milk storage bottles, breast pumps and breast shields
• baby backpacks and baby carriers worn on the body
• clothing, namely, t-shirts, shirts, short-sleeved shirts, long-sleeved shirts, sweat shirts, infant bodysuits, pants, infant sleepers, hats, caps, cloth bibs, socks and infant onesies

For the full post and the latest comments, check out f/k/a...

Turning Your Lemon Into Lemonade

If you’ve ever bought a new car, you know what a rush it is. There’s the new car smell, the feeling of power as you hit the accelerator, and the peace of mind knowing that you’ll have a reliable ride for a long, long time.

But what happens when that new car isn’t so reliable? When you wake up one morning and have to come to terms with the fact that you’ve bought a lemon? http://www.lemonjustice.com offers an overview of Alaska lemon law. The site is run by lemon law attorney Sergei Lemberg.

Sergei notes that every state has a lemon law, but that each of them is different. Under Alaska’s lemon law, some vehicles qualify as lemons and others don’t. If you’ve bought a new vehicle for personal, family, or household use, you’re covered. If you buy an RV, you’re covered. If you buy a motorcycle, you’re covered. If you buy a used car, you’re not covered by the lemon law, but there are regulations about the responsibilities of used car dealers and ways to get a refund or replacement if the dealer violated those regulations.

Now, on to definitions. In order to be considered a “lemon,” your vehicle’s defects have to affect its use, safety, or value. In other words, if it’s something minor, you don’t have a case. According to Sergei, the other catch is that the defects have to start during the first year from the date you take delivery of the vehicle or during the period covered by the manufacturer’s express warranty – whichever comes first. You also need to have taken the vehicle in for repair three times for the same problem or it has to have been out of service for 30 business days for the same problem. Then, you have to notify the manufacturer and give them one final opportunity to repair the vehicle.

Sergei is quick to point out that manufacturers have teams of lawyers that do nothing but fight lemon law claims, and that battling them will be much easier with a lemon law attorney at your side. The good news is that, if your claim is successful, the manufacturer has to pay your attorney fees. That being said, with the help of a lawyer, you can often get a refund, replacement vehicle, or cash settlement without having to go through the entire lemon law process – and get your attorney’s fees covered in the process.

California Milk Processors Board Goes After Talkeetna Breastfeeding Advocate/Artist

When she sat down in her one-room Alaska cabin three years ago to hand-letter some slogans promoting breastfeeding on a dozen or so onesies, Talkeetna artist Barbara Holmes had no idea she was threatening agribusiness-powerhouse, the California Milk Processors Board. But such is the nature of the aggressive approach of CMPB in search of trademark infringement, that Ms. Holmes found herself on the receiving end of a highly-aggressive demand letter earlier this month.

The slogan that CMPB objects to is the playful parody "got breastmilk?". In a July 8 letter, CMPB's attorneys, Knox Lemmon Anapolsky LLP, claim that the slogan infinges upon CMPB's ten-year-old "got milk?" ad campaign. "I Eat at Mom's" and "100% Breastfed" are other slogans Holmes had placed on her advocacy baby clothes pictured at her website. As of this date it appears that CMPB is not yet proclaiming ownership of those phrases.

Holmes has been given a deadline of July 22nd to ship to CMPB "all 'got breastmilk?' onesies and t-shirts"; destroy or remove all depictions of the offending items; and account for all profits generated by the sale of the items. It is not entirely clear from the letter, but apparently Ms. Holmes might be required to go to the newly constructed playground beside the Talkeetna Library and disrobe any children discovered wearing clothing with the offending slogan.

This law firm is representing Ms. Holmes and is sending a reply asserting the artist/advocate's free speech rights, the fair use doctrine's support for parodying of well-known trademarks, and the simple fact that encouraging mothers to breastfeed their infants cannot possibly create any real confusion or "tarnishment" of CMPB's trademarks.

On the facts of this situation, CMPB's trademark infringement claims against a Talkeetna artist/street-vendor would seem to be produced in some California theatre of the absurd. However the sad truth is that corporate America has increasingly sought to use trademark infringement claims as a tool to stifle any and all criticism. A few years ago, CMPB's attorneys sent a similar "Got Milk?" trademark infringement demand letter to People for the Ethical Treatment of Animals (PETA) in an attempt to muzzle their anti-dairy campaign slogan "Got Pus?; Milk Does". In March, a Georgia U.S. District Court Judge issued summary judgment in favor of an individual who was accused of trademark infingement by Wal-Mart for offering to sell T-shirts printed with "Wal-Queda" and other slogans promoting the concept that the mega-stores harm America's communities.see Smith v. Wal-Mart Stores, Inc., Case No. 1:06-cv-526-TCB (U.S.Dist Ct. N.D. GA 3/20/2008)

If all this wasn't bad enough, check today's post by Paul Alan Levy (winning counsel in Smith v. Wal-Mart) at Public Citizen's Consumer Law & Policy Blog about how the Republican National Committee is using trademark infringement claims to stifle other's use of the Republican Elephant & "GOP".

Real Limits Placed on Bona Fide Error Defense- 9th Circuit Reaffirms Strict Liability for Debt Collectors Who Misstate Amount of Debt

This week a panel of the 9th Circuit Court of Appeals handed down an important decision for consumers in Alaska and other western states. The panel reaffirms the Fair Debt Collection Practices Act's requirement that debt collectors must take meaningful actions to assure that the amounts they attempt to collect are accurate.

The question decided was whether the "bona fide error" defense under FDCPA provides debt collectors a wide open escape hatch from accountability or will protect debt collectors only where they actually institute measures to ensure that debtors are asked to pay amounts they actually owe.

In this Arizona district case, Reichert v National Credit Services, No. o6-15503, Slip Op. dated 7/7/2008, Circuit Judge Mary Schroeder, writing for the panel, states

If the bona fide error defense is to have any meaning in the context of a strict liability statute, then a showing of “procedures reasonably adapted to avoid any such error” must require more than a mere assertion to that effect. The procedures themselves must be explained, along with the manner in which they were adapted to avoid the error. ... Only then is the mistake entitled to be treated as one made in good faith. Because NCS submitted only a conclusory declaration stating that it maintained procedures, we hold that it failed to establish a bona fide error defense under the FDCPA.

Public Citizen's Deepak Gupta represented Richard Reichert in this appellate victory for consumers in the 9th circuit states. Consumer rights attorneys will find this reaffirmation and clarification of debt collector's strict liability under FDCPA very useful in protecting harassed debtors from both unscrupulous and sloppy debt collectors.

Climatic Changes Diminish Return of King Salmon to Yukon River

With its shrinking glaciers and significant increases in mean temperatures, Alaska has been called ground zero for observing the effects of global warming. And while the causes and pace of climatic changes affecting our earth are subject to some debate, the observable effects can be very sobering when experienced close up. One example of the unanticipated consequences of global changes is examined in this recent LA Times article about the spread of "ich" disease in the population of wild Yukon chinook (widely known as "king") salmon.
http://www.latimes.com/news/printedition/front/la-na-ichfish15-2008jun15,0,2020280.story

Authors of this blog operated a commercial fishing vessel in Alaska's Yukon delta for most of the last 20 years. The month or two each year we devoted to harvest of Yukon chinooks provided our chief source of income, wonderful food for our table, and great joy. We shared the resource with hundreds of Alaska Native fishing families who converged on the river each June to erect their tents and fish-drying and net-mending racks in a seasonal ritual that likely extends back to the time when mammoths grazed on this Bering Sea coast. Last year, with much regret, we sold our last limited entry gillnet permit and boat. This year the return of the Yukon River's great salmon has been so low that no commercial fishing has been allowed and even the subsistence fishing has been greatly curtailed.

This latest report from the Alaska Department of Fish & Game tells the story of the struggle to manage a diminishing resource. http://csfish.adfg.state.ak.us/newsrelease/view.php?dist=YUS&year=2008&species=400&num=18&printable=1

With boat gas selling for $8/gallon and no income from commercial fishing, Yukon River fishing families are facing hard times. Governor Palin's plan to give each Alaskan a $1,200 check to help with sky-rocketing energy costs is a vitally needed first step, but more will be needed as Alaskans throughout the state seek to adjust to global changes.

Sad Day for Justice in Alaska- Exxon Escapes Most Punitives

It is a sad day for justice here in Alaska where the majority of plaintiffs (including the authors of this blog) in the Exxon Valdez damages case reside. It was nearly 20 years ago that an alcoholic skipper drove the super tanker onto Bligh Reef setting off a chain of destruction that impacted coastal life and economies throughout much of Alaska. Today the U.S. Supreme Court slashed the punitive damages awarded against Exxon to approximately 1/10 of the amount that an Alaska jury had established as punishment for the oil company's reckless behaviour.

WSJ Blog- http://blogs.wsj.com/law/2008/06/25/breaking-news-high-court-rules-in-punis-child-rape-cases/

Anchorage Daily News article- http://www.adn.com/exxonvaldez/story/446057.html

Thus the collective wisdom that resides in a jury has been tossed aside and Exxon is free of any serious threat to its bottom line no matter how recklessly they operate their tankers.

Turning Our Courts into a "Frenetic Debt Collection Machine"

We picked up this story today from Public Citizen's Consumer Law & Policy Blog-

Chicago Court System a "Frenetic Debt Collections Machine"

The Chicago Tribune has this interesting article on the state of debt collections in Chicago, noting that Cook County courts are clogged with more than 119,000 civil lawsuits against alleged debtors. Many of these cases involve mistaken identities or debts that have already been paid.

Even a cursory check of the district court filings at the Alaska State Court's Courtview site will show that Alaska too is cursed with overly-aggressive debt collectors mass filing suits, often on very questionable evidence of debt.

One additional factor driving the debt collection industry in Alaska is that the debt collector who gains a default judgment then can move to attach 80% of the defendant's permanent fund dividend. By Alaska statute, no other personal exemptions can protect that 80% of the dividend, no matter how important the money is to put food on the table or pay the property taxes on the family home.

Anyone facing such a suit, no matter how questionable its foundation, should answer and force the debt collector to prove there actually is a debt owed and that the debt collector has a legitimate right to claim the debt. If you ignore a summons, your problems will get worse.

Empowering Alaskans, One Claim At a Time

Even here on the last frontier, we live in a world where the whims of distant corporations can seem to be in control of our very existence.

We are bound up in a dozen relationships a day with these faceless entities. When things go well, we get what we bargained for. The book or DVD we bought online arrives in the mail; the car we purchased starts even at 20 degrees below zero; and the deal we made to clear up an old debt is honored by both sides.

At other times, the usual transactions of everyday life seem to go haywire. There is a mix-up with an order, a glitch in a payment, or an unforeseen defect in something we purchase. Usually, even then, we manage to connect with someone who helps resolve the problem.

But sometimes, things go very wrong. Like when the young father/businessman gets his truck repossessed because the loan company sticks him for a late fee he doesn't owe. Or when the family vacation to Europe becomes a lot more expensive because the travel agency quoted the wrong price of a rental car in Rome. Or when the collection agency calls six times a day or adds unfair fees and charges to the bill. And on top of it all, even more than the lost money and time, the ultimate frustration for most people is the brush-off; the attitude on the part of some company clone that "we will do whatever we want and there is nothing you can do or say that will change things."

It is then that an email or a call to our backwoods law office can help. Because this is what the LAW is all about. It is to provide a neutral forum where the individual who believes they have suffered a wrong has the absolute right to call the accused transgressor to answer. And for us, it is immensely satisfying to help right even small wrongs, for ultimately any healthy society must give people a sense that justice can be found, at least some of the time, by those who are willing to seek her.

The Internet & Life on Chunilna Creek Homestead

Judy and I first staked "open-to-entry" land in the backwoods North of Talkeetna in 1973. In those days, once we left the flagstop on the Alaska Railroad and treked to the cabin, we were truly cut-off from most communication with the outside.

Messages to bush-dwellers read over an AM radio station or a shaky CB radio network was it for personal communication. Even in the mid-1980s, when some dedicated Anchorage lawyers (including now Palmer Superior Court Judge Eric Smith) represented Chase residents challenging poorly-planned state land "disposals" before the Alaska Supreme Court, the bush and CB message service was our sole means of contact with the lawyers. These radio connections gave us the first news that the supreme court had ruled in our favor against the state in 1986.

Today the internet and cellular links have truly revolutionized life in the backwoods.

Here in the homestead law office we are now able to access search engines and legal research sites at a click of the mouse, file complaints and motions in the U.S. District Court through the ECF system, and email documents to a helpful paralegal in Anchorage for mail or in-person filings in the state courts. When the Alaska appellate courts issue their weekly decisions, they appear in our email inbox instantly.

While our wireless link has its limitations, i.e. it is not fast enough for video, it has opened up the ability to effectively practice law, even in the backwoods of Alaska.

This blog will, from time to time, tell a bit of our story about practicing consumer rights & environmental law in the backwoods. I also will be posting tips, court decisions, and commentaries that might be helpful to consumer/citizens facing the predatory debt-buyer industry.