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".