it’s not swearing
it’s the only language
those cows understand
… by DeVar Dahl – from A Piece of Egg Shell (Magpie Haiku Poets, 2004)
Just a bunch of boobs? What were Knox Lemmon Anapolsky LLP, lawyers for the California Milk Processors Board, thinking when they sent a heavy-handed cease-and-desist letter to Alaskan artist and breastfeeding adovocate Barbara Holmes? The letter claimed that her hand-lettered baby onesies and t-shirts asking “got breastmilk?” infringed on the Milk Board’s “got milk?®” trademark. (See “‘Got milk’ lawyers huff at Talkeetna artist’s parody” (Anchorage Daily News, July 25, 2008); via Overlawyered.com; and see “Legal Blog Watch;” Language Log; and ) According to Paul Bratton, her “Alaska Backwoods Lawyer“:
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 [Ed. Note: a total of either 6 or 16 shirts].
Click to see Barbara Holmes’ “one-woman operation” Mountntop Designs, where you can see a lot of her products and learn more about her. Her baby bugs clothing page does not have the Got Breastmilk? design.
Given the over-weaning ubiquity of the internet and the gleeful cattiness (and adolescent prurience) of the blawgisphere, the Board’s lawyers must have known that coming down hard on a sympathetic “Little Guy” like Holmes, with so little apparent legal justification and no competitive urgency, would earn them universal ridicule and condemnation. (see, e.g., The Legal Watercooler, “Attorney needed course in P.R.;” and Info/Law, “The most thorough trademark policing ever“) Are they just churning for billable dollars or out of their client’s control? Maybe not.
At their website, Knox Lemmon proclaims:
“Our practice encompasses business counseling and business litigation. Our business counseling lawyers work closely with our business litigators to exchange ideas and develop strategies for success. This close working relationship between our business counselors and business litigators benefits our clients’ interests because it takes account of the practical realities facing today’s businesses. (emphasis added)
Let’s accept their bragging as true: CMPB’s trademark lawyers know what they’re doing. They knew the near-frivolous C&D letter to the Alaskan artist concerning breastmilk would generate a gigantic response among the legal community and the press. They counted on it to achieve:
Their ultimate goal: Informing anyone else planning to free-ride on the fabulous success of the Got Milk? campaign — for commercial gain or make a point with stinging parody (as PETA tried to do last year) — that the Milk Board would protect its “beloved trademark” with a vengeance.
If so, they might be right and have benefited their client. But, that won’t stop me from concluding that this attack on Barbara Holmes and her onesies is silly as a matter of law and one more example that we’ve become an “overlawyered” nation.
In his post “got confusion?,” Linguistics professor Roger Shuy of Language Log asks and explains “[W]hat sort of claim could CMPB hope to make if it formally charges that “Got Breastmilk?” infringes its own trademark and will confuse consumers about the quality, nature, and origin of the product?:”
The three most common questions in trademark disputes are:
* Do the two names sound alike?
* Do the two names mean the same thing?
* Do the two names look alike?
In recent years some trademark cases also charge dilution, meaning that the reputation of the original mark has been diluted, tainted, blurred, or eroded by a second user, thereby causing consumers to be confused about the quality and origin of the products.
Professor Shuy walks us through the above questions and — even without himself having seen a photo of Holmes’ onesies (a b&w version appears above) — sure convinced me that the chance for confusion is next to zero.
According to lawyer Bratton:
“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.”
As several commentators have pointed out, Barbara Holmes — who has stated “It’s silly, but scary at the same time” she said. — herself probably makes the best pithy response to the Milk Board’s trademark claim:
“They say I’m going to confuse milk consumers,” she said. “How can you get confused between a boob and a bottle of milk from the store? They’re two different kind of jugs.”
Judging from their past practice, this seem like the kind of case that would interest our friends David, Hanno and Manfred at the Antitrust Review weblog. Perhaps they could help us understand the intersection of Intellectual Property and Antitrust laws, and whether the Milk Board could reasonably claim that human breastmilk poses a competitive threat to the bovine variety.
If the gang at the Knox Lemmon law firm are into etymology as much as Prof. Yabut is, they might want to point out in rebuttal that any kind of jug makes people think of milk and/or breasts. [The Got Milk? campaign has always featured both breasts and moustaches prominently in their ads.] You see, the slang term “jugs” for breasts apparently was inspired by milk jugs — but, the word jug meaning a container for liquids seems to come from the early English word for maidservant. As they say at Etymology Online:
. . jug: “deep vessel for carrying liquids,” 1538, jugge, variant of jubbe, of unknown origin, perhaps from jug “a low woman, a maidservant” (mid-16c.) . . . . Jugs for “woman’s breasts” first recorded 1920 in Australian slang, short for milk jugs.
passing the jug
of many hands
… by Jim Kacian from from Presents of Mind (1996)
my hand curves
to fit your breast …
the windowsill, snowladen
…. by Michael Dylan Welch – from Open Window, haiku and photographs
Give ’em jug: Despite the possible etymological justification, I’d say the Milk Board’s lawyers deserve JUG – the term used in Catholic schools (including my Jesuit high school, as discussed here) for detention. Although some wags have opined that JUG is an acronym for “Justice Under God,” I’m inclined to think the word comes from the Latin word “Jugum” (burden or yoke), which led to the following meanings of the word (per The American Heritage® Dictionary of the English Language: Fourth Edition. 2000):
jug n. 3. Slang A jail.
jug v. 2. Slang. To put into jail.
I’ll let my intelligent readership draw its own conclusions about the likelihood of confusion or dilution, and otherwise muse upon the many meanings of jug.
afterwords (July 30, 2 PM): Coincidentally (and maybe a wee bit ironically), August 1 through 7 is World Breastfeeding Week. To celebrate, Linda at the courageously-named Got Milk?: Make Life Sweeter weblog is having a “Got Milk? Contest,” and is seeking recipes for a “sweet dish with milk as an ingredient.” She wants bloggers to post about their entry and is taking direct entries from those without weblog. (via Crunchy Domestic Goddess)
(update: July 31, 2008): I wonder when the lawyers at Knox Lemmon will get around to harassing the Oshkosh, Wisconsin breastfeeding advocates selling this Got Breastmilk? Onesie.
update (Dec. 1, 2008): Thanks to a Comment below from Jill Jalen, we have learned that the Milk Board is seeking a trademark for “got breastmilk?”. See our follow-up post.
For those who came here looking for more one-breath poetry, here a jug-full by f/k/a‘s family of haiku poets:
the baby finds
……………………. by Yu Chang from Upstate Dim Sum
praising the hostess
in his moustache
. . . by Randy Brooks – from School’s Out
of mother’s breast
………. by alice frampton – New Resonance 3; Haiku Canada Newsletter XVI:3
the cow’s udder
hangs in the pond
my best moo
all the cows
stop and look
… by DeVar Dahl – A Piece of Egg Shell (Magpie Haiku Poets, 2004)
fine print on her tee-shirt
she glares at me
… by dagosan — with photo haiga – at MagnaPoetsJF (Sept. 28, 2007)
she tests the milk
on her wrist
.. by w. f. owen — Haiku Notebook
spreading along the grout lines
… by Carolyn Hall – Heron’s Nest 11:5
our son spills his milk,
not an iota
of reaction from him
… by Tom Clausen – from Homework (2000)
bristled pine –
the autumn moon
has a moustache!
…. by Laryalee Fraser – Simply Haiku Vol. 2:2
in the pharmacy window
a breast pump display
… ed markowski – Bear Creek Haiku
.. p.s. Got Time? A friendly warning from the f/k/a Gang: I’ve again learned an important lesson this week. To wit, unless you’ve got nothing to do but hang out in a pasture chewing your cud, there are two weblogs you need to avoid, Legal Blog Watch and Overlawyered.com. Bob and Carolyn at LBW and Walter and Fred Overlawyered simply stuff far too much interesting stuff into their blawgs every single day — finding the most intriguing law-related stories from across the internet. They’re much too distracting and titillating for anyone with a deadline or in a rush. And, if you’re trying to mend your procrastinatin’ ways, stay away from the above-mentioned sites (and from Simple Justice, too).
one button undone
in the clerk’s blouse I let her
steal my change
.. by George Swede – from Almost Unseen (Brooks Books, 2000)
The above post is a great example of how easily one can be led astray. I’m not usually fixated on jugs — being a “leg man,” who is lactose intolerant, and addicted to caffeine rather than alcohol — but, Walter pointed me to this story, as did Carolyn, and I was hooked, spending far too much time chasing down this story and its penumbra.
So, don’t say you weren’t warned. If you can only afford one dalliance at a time, you better stick with f/k/a and stay away from that very seductive pair of bloogs.