On Friday afternoon, MonaVie sent Corey Whitlaw an "official-ish" Cease and Desist Order (CDO) to my Lazy Man and Money e-mail address on the basis of his use of their trademark in my metatag keywords. I had an idea that the CDO might be coming. MonaVie had publicly tipped their plans in this Consumerist article. I thought I'd take a few thousand words to informally and unofficially organize some thoughts on the CDO that Corey received.
There are too many other things to go into regarding this CDO without harping on how MonaVie did not answer replies to their original CDO... then discussed a completely new course of potential legal action action with an uninvolved 3rd party (the Consumerist) without informing Lazy Man and Money. Oh wait I just harped on it. Oops.
I have so many reasons to disagree with MonaVie on this CDO. It's going to be a very, very long article. If at any point you find yourself falling asleep, please skip to the section at the end titled How You Can Help. You can really make a difference and it won't cost you a penny.
User-Visible Content vs. Meta-Tags
Before I get to the CDO itself, I'd like to mention something that got a little neglected in the aforementioned Consumerist article. Specifically this part:
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 on an older article if you don't believe me).
I've had a section at the end of every article:
This post deals with:
... and focuses on:
The metadata keywords are generated from this user-visible content called tags. These tags serve considerable benefit for my readers. Metatag keywords and user-visible content are one in the same for my site and have been prior to MonaVie contacting me.
MonaVie's Cease & Desist
Now let me get to the CDO (slightly reformatted for cleaner HTML):
Sent via Electronic Mail
September 11, 2009
Re: Cease and Desist - Trademark Infringement
Dear Mr. Whitlaw:
The MonaVie Legal Department is in receipt of your correspondence to the MonaVie Compliance Department. It has come to our attention that you are using our trademark name MonaVie in your source code to promote the following website:
For your convenience, we have copied and pasted the use of our trademark name on the View Page Source from this website (www.lazymanandmoney.com):
<meta name="keywords" content="lending club,portfolio,alternative income,blogging,football,patriots,chase,credit cards,rewards programs,lay-offs,monavie,ted kennedy,law suit,trademark infringement,spreadsheets,budget planning,envelope system,jar system" />
<meta name="description" content="Is MonaVie a Scam? Hundreds of people weigh in on MonaVie, MonaVie's business model, and whether you should buy MonaVie." /><meta name="keywords" content="monavie, mona vie, monavie scam, mona vie scam, monavie juice, acai, acai scam,acai,acai scam,mona vie,mona vie scam,monavie scam" />
When an individual types in MonaVie at www.google.com, in the search box, and clicks on Google Search, the first page of Google that appears is:
The use of our trademarks in www.lazymanandmoney.com in the source code constitutes trademark infringement and you must immediately cease and desist. See Brookfield Communications v. W. Coast Entm’t Corp., 174 F.3d 1036, 1062 (9th Cir. 1999); Promatek Indus., LTD v. Equitrac Corp., 300 F.3d 808, 813 (7th Cir. 2002); Fairbanks Capital Corp. v. Kenney, 303 F. Supp. 2d 583, 590-91, 95 (D. Md. 2003).
MonaVie wishes to settle this situation amicably and therefore requests that you immediately remove our trademark name from your source code. Additionally, we request that you respond to this email within five (5) business days to confirm this action via email to: [email protected].
Failure to comply with our requests may result in legal action.
MonaVie LLC Legal Department
(Wow, I really need to change the keywords for my home page - it's embarrassing that it has all the varied topics of the last two weeks or so in there.) These keywords, are for the most part, auto-generated by All in One SEO Pack. In the specific case of my MonaVie article, I had added additional keywords manually when I ran into a technical issue with that plugin. That's why you see some keywords twice in the CDO. Realizing that error from my past, I've removed the manual ones so now the keywords should be:
<meta name="description" content="Is MonaVie a Scam? Hundreds of people weigh in on MonaVie, MonaVie's business model, and whether you should buy MonaVie." />
<meta name="keywords" content="acai,acai scam,mona vie,mona vie scam,monavie,monavie scam" />
I would like to thank MonaVie for pointing out the problem there. I don't think this will make them feel better since I'm still using their trademarked term in the keywords of my site.
When an individual types in MonaVie at www.google.com, in the search box, and clicks on Google Search, the first page of Google that appears is:
My initial reaction to this is... wait?!?! I'm getting a CDO because when you type your product name name into a third party website (Google in this case), that third party website chooses to show the article I published. Though I have daily fantasies about having control as to what appears on this third party website, they are just that... fantasies. I can not help it if the 3rd party website believes that my article and the 3200 comments constitute useful information for it's visitors. That third party website could even make the case that there's more information about MonaVie on my website than on MonaVie's own.
I'd like to throw out a crazy idea for MonaVie. How about taking legal action against the third party (Google) for the content on their website?
How Google Uses Meta Tags and Keywords
There was an implication that my use of trademarked meta tags and keywords is the reason why Google chooses to publish my article as one of the more definitive sources on MonaVie. Is the fact that I'm on the first page of Google a result of these trademarked meta keywords and descriptions? Let's see what Google has to say:
While the use of a description meta tag is optional and will have no effect on your rankings, a good description can result in a better snippet, which in turn can help to improve the quality and quantity of visitors from our search results. (source)
So descriptions aren't the reason I'm the first page. The only issue that MonaVie could have here is me using it to influence clickthrough. However, my meta description of:
"Is MonaVie a Scam? Hundreds of people weigh in on MonaVie, MonaVie's business model, and whether you should buy MonaVie."
is extremely relevant to my article. What alternative to their trademarked term could I use there? Do I use something like "purple juice drink" and "purple juice company"? Well that causes customer confusion. I also think that I'm very fair in asking an open question.
What about meta keywords? Let's look at the comments of the first article:
Glen at Webstart said...
I notice that you do not mention the keywords meta tag - does this mean that Google totally ignores it?
December 4, 2007 3:37 AM
John Mueller said...
Thanks for asking, Glen! You're right in that we generally ignore the contents of the "keywords" meta tag. As with other possible meta tags, feel free to place it on your pages if you can use it for other purposes - it won't count against you.
So meta descriptions and keywords don't impact the rankings in Google. MonaVie can't claim that I'm on the first page because of those meta keywords and descriptions as Google directly contradicts this. So the question becomes, "Why bring up Google ranking at all in a CDO of meta tags?" It's completely irrelevant. There are US court precedents that agree with me on this, which I'll show later.
Define "Source Code" For Me...
The use of our trademarks in www.lazymanandmoney.com in the source code constitutes trademark infringement...
I'm going to be a little picky on this one. However, when legal battles ensue, the battle is often won and lost on picky details. "Source code" on the web refers to all of the HTML document that I publish - including user-visible content. So it looks like MonaVie is back their original CDO saying that I can't use their name even in user-visible content. Perhaps their legal team should replace "source code" with "metatag keywords and descriptions."
Precedents MonaVie Cites
Now on to the precedents mentioned... I should state that I haven't talked officially with legal representation and haven't read the cases in full, but I have looked at the synopses of them. I'm basing these free-flowing thoughts on those synopses. I think this may be enough to make my point here (this, like everything in this article is an informal reaction and doesn't necessarily constitute a legal response to the CDO). I'll try to make it brief, but you might just want to gloss over some of the legal mumbo-jumbo if that's not your thing:
Brookfield Communications v. W. Coast Entm't Corp. (1999) - Using this summary, here's what I found:
Plaintiff owned the federally registered mark "MovieBuff for a database of information pertaining to the motion picture and television industry. When defendant, a large video rental store chain, attempted to launch a website at "www.moviebuff.com" where it would provide a similar searchable entertainment database, plaintiff filed suit for trademark infringement and dilution.
Analysis: Both clients are trying to use the same term for competing products. That causes customer confusion and I can understand the issue. I don't see how it's relevant to my use of MonaVie's trademark as I'm not a competitor of MonaVie's. When I use MonaVie's trademark, I use it to refer to the company and product that MonaVie has trademarked.
Plaintiff also sought relief enjoining defendant from using the "MovieBuff" mark as metatags or buried HTML code. The court determined that use other than as a domain name was not likely to cause consumer confusion. If a consumer entered the term into a search engine, the results would probably pull up both defendant's and plaintiff's websites, and the consumer could choose between the two. Furthermore, even if defendant's site was chosen, it would prominently display defendant's own mark, and a consumer would not likely be confused. The court explained, however, that use of "MovieBuff" as metatags was likely to cause initial-interest confusion, which is actionable. A consumer intending to find plaintiff's website might instead stumble upon defendant's site and decide to stay there, despite having full knowledge that it is not the plaintiff's website. The court thus found that use of the plaintiff's mark as metatags constituted a type of misappropriation of goodwill, and it enjoined such use. Finally, the court addressed the defendant's fair-use defense. It held that defendant was free to use the term "movie buff" in a descriptive sense. It could not, however, use the term without a space between the two words"”a crucial distinction that changes the meaning of the term from describing a "motion picture enthusiast" to designating the source of plaintiff's goods and services. The court noted that defendant was not barred from using plaintiff's mark to describe the plaintiff's product. It could, for example, include some form of comparative advertising on its website.
Analysis: I bolded two parts above. I think MonaVie's issue may be with the first bolded part. I respect that, but if a consumer is looking to buy juice they go to MonaVie's website. If they are looking for commentary on that juice, they come to mine. A consumer wouldn't stay on my website if their intention is to buy juice - since you can't buy any there.
The second bolded part seems to be exactly what I'm doing, right? So the court noted, that I wouldn't be barred from using MonaVie's mark to describe MonaVie's product. That seems very cut and try to me.
I'd also like to note that this is case involves Internet law that is 10 years old. That will come up a little later.
Promatek Indus., LTD v. Equitrac Corp. (2002) - Using this summary, here's what I read. Promatek owns the trade mark for a product called Copitrak. Equitrac a competitor in the cost recovery business (from the summary), services and maintains Copitrak equipment. Here is what the court ruled:
Initial interest confusion, which is actionable under the Lanham Act, occurs when a customer is lured to a product by the similarity of the mark, even if the customer realizes the true source of the goods before the sale is consummated. (citation omitted). The Ninth Circuit has dealt with initial interest confusion for web sites and meta tags and held that placing a competitor's trademark in a meta tag creates a likelihood of confusion. - This is true in this case, because by Equitrac's placing the term Copitrack in its meta tags, consumers are diverted to its web site and Equitrac reaps the goodwill Promatek developed in the Copitrak mark. That consumers who are misled to Equitrac's web site are only briefly confused is of little or no consequence... What is important is not the duration of the confusion, it is the misappropriation of Promatek's goodwill.
Analysis: Oh #$@*%, I'm screwed. Actually, let's remember that these are competitors in a similar business. If you asked someone what Lazy Man and Money is about they would tell you it's a personal finance blog. It provides news and commentary... it does not sell juice. I have over 1000 articles and prior to MonaVie's legal threats fewer than 5 of them were related to MonaVie. One couldn't begin to make an argument that my core business is close to MonaVie's while both these customers where in the cost recovery business.
I address this case and the relevance of meta tags later. For now, let's just say that meta tags in 2002 and 2009 have completely different roles. Customers are not diverted from MonaVie's website to mine via due to the use of meta tags.
I don't know what this court was thinking when it said that meta tags create a likelihood of consumer confusion. As MonaVie points out in that Consumerist article, they are not user-visible content. Seems pretty bizarre to me.
Lastly, I wanted to find out what repair shops are doing for keywords... so I went to Google and typed in appliance repair. The first site: RepairClinic.com includes the following trademarked terms in their bookmarks: frigidaire, whirlpool, maytag, general electric, kenmore, amana, ge, kitchen aid, magic chef, jenn air, sears, broan, tappan, thermador, sharp, westinghouse, dacor, fedders, admiral... Well you get the idea. Surely if business harm is being done to one of those very big companies they'd be knocking on Repair Clinic's door, right?
Fairbanks Capital Corp. v. Kenney (2003) - Using this summary, I'm thoroughly confused why MonaVie would include this article in the CDO. The defendant included the plantiff's trademarked term in the domain name - that's not applicable to me. Maybe this is what MonaVie thinks is relevant:
The court found that it was "highly likely that large numbers of reasonably alert users of the World Wide Web who are searching for Fairbanks' website, using commonly available search engines, will land on defendants' website instead of on Fairbanks' site, and that for several moments after landing on defendants' site, such users will experience genuine confusion over the source of the information being provided at the site."
Analysis: It's highly unlikely that someone using Google (the search engine named in the CDO) will land on my website INSTEAD of MonaVie's, which is the #1 result. Secondly, not even for a few moments would "a resonably alert user of the World Wide Web experience genuine confusion over the source of the information being provided at the site." My trademarked logo and design look nothing like MonaVie's and have nothing to do with juice.
The statement on Kenney's website "Welcome to the Fairbanks Resource Site" was particularly problematic because it indicated that plaintiff owned, sponsored, or otherwise controlled the website.
Does my title of "MonaVie Scam?" indicate that MonaVie owns, sponsors, or otherwise controls this website? No it does the opposite.
The court denied plaintiff's motion for injunctive relief as to cybersquatting. In addition to failing to prove that the FAIRBANKS mark was distinctive or famous, plaintiff failed to establish that Kenney had a bad-faith intent to profit from the FAIRBANKS mark because "Kenney's overarching motivation for creating and maintaining the website is to voice his strong criticisms about Fairbanks, provide a forum for others to voice criticisms, and, if possible, prevent others from ending up in his situation."
So there you go, I do not have bad-faith intent to profit from MonaVie because I voice criticisms and provide a forum for others voicing criticisms.
More Recent Precedent I'd Like to Cite
Overall Analysis: The dates of some of these precedents alone might make them irrelevant. For instance, the first precedent relies on meta keywords and tags having an impact on search engines. They may have been true back in 1999, but as we saw with Google that's not true today. In fact, though I had this sentence already written, I found that a recent court already agrees with me: Search Engine Land says that the US Courts rule that meta keywords don't matter. Specifically it's case of the Standard Process v. Banks:
Like the plaintiff in Promatek, Dr. Banks used Standard Process trademarks in the metatags of his website. However, today "modern search engines make little if any use of metatags." 4 J. Thomas McCarthy on Trademarks and Unfair Competition Â§ 25:69 (4th ed. 2003). As more and more webmasters "manipulated their keyword metatags to provide suboptimal keyword associations, search engines progressively realized that keyword metatags were a poor indicator of relevancy." Accordingly, search engines today primarily use algorithms that rank a website by the number of other sites that link or point to it. See 4 McCarthy on Trademarks Â§ 25:69.
You might remember Promatek mentioned there as the 2nd precedent that MonaVie mentions. This most recent case seems to directly reverse that precedent.
Is MonaVie Protecting Its Trademark?
I'm not an expert in trademark law. However, I did speak with a lawyer (whose specialty is NOT trademark law) and he made a point similar to one made in the comments of the article on the Consumerist. Specifically, if MonaVie is going to claim that my use meta keyword and description tags constitute infringement, they should have to prove that they've sent CDOs to all other organizations using them in the same manner. If they have not sent out CDOs to those literally thousands of sites, they have failed to protect their trademark and thus can't use it.
That may sound odd at first, but the concept makes sense. MonaVie shouldn't be allowed to pick and choose which articles it wants to allow. For instance, MonaVie shouldn't be able to come after me and allow Newsweek to use it's trademark in descriptions. If meta keywords and descriptions did impact search engines, this would allow them to manipulate the results in search engines to show only favorable articles. I hate when people play the patriotic cause card, but that just seems un-American to me.
How You Can Help
I've said in the past that I'm a fan of most everything Joss Whedon. I hoped I'd never have a use for one of the great soliloquies in Serenity. However, with only a few word changes, I think it delivers my message.
My MonaVie article is 18-months-old. MonaVie is trying to bury it. They fear what the commenters in that article know. And they were right to fear it because there's a whole universe of folk who are gonna know it, too. They're gonna see it. Somebody has to speak for these people. You all got on this blog for different reasons, but you all come to the same place. So now I'm asking more of you than I have before. Maybe all. Sure as I know anything I know this, they will try again. A year from now, 10, they'll swing back to the belief that they can bully people with lawyers... And I do not hold to that. So no more running. I aim to misbehave.
I ask that you spread word of this story. It doesn't matter if you have a website or blog, a Twitter or Facebook account, if you participate in forums or just e-mail your friends... spreading the story anywhere will help. (Just don't spam people, we all hate spam.) Perhaps even more important to spreading the word on this CDO, spread my article on MonaVie to promote all the information in the comments that MonaVie wants to prevent people to see. If you help me out with this request, contact me and I will acknowledge your effort in a future post (likely this weekend).
Please leave any comments on my previous MonaVie post: MonaVie Scam?
One Response to “MonaVie Sends a Second Cease & Desist”Previous: Personal Finance Links (Just Links Edition)
Next: MonaVie Sends a Second Cease & Desist