Friday, July 18, 2008
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".
Saturday, July 12, 2008
Real Limits Placed on Bona Fide Error Defense- 9th Circuit Reaffirms Strict Liability for Debt Collectors Who Misstate Amount of Debt
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.
Tuesday, July 1, 2008
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.