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Now NutriBullet is Threatening to Sue Me…

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No reputable blogger should ever have to add a category to their blog called "lawsuits." Yet that's what I'm doing with this post.

Last night, I got the following threatening email from NutriBullet:

Dear Domain Administrator,

Nubribullet, LLC is the owner of the well-known trademark and trade name Nutribullet. As you are no doubt aware, Nutribullet is a trademark used to identify products, services, activities and events related to Nutribullet, LLC.

The trademarks, emblems, words and phrases of Nubribullet, LLC are exclusively used by Nutribullet, LLC and any other use by a third party constitutes trademark infringement.

In connection to Nutribullet, LLC proprietary rights over its famous trademark we are notifying you of the following:

It has come to our attention that our trademark Nutribullet appears as a metatag, keyword, visible or hidden text on the web site(s) located at:

http://www.lazymanandmoney.com/things-i-like-nutribullet-super-blender/

without having obtained prior written authorization from our Client. This practice infringes upon the exclusive intellectual property rights of Nutribullet, LLC.

Also, by using such trademark, you have intentionally attempted to attract Internet users to your web site(s) or other online location(s), by creating a likelihood of confusion with the Nutribullet, LLC trademark as to the source, sponsorship, affiliation, or endorsement of your web site(s), online location(s), products or services.

We trust that you will remove all metatags, keywords, visible or hidden texts including trademark presently appearing on the above-cited web site(s) and any other web site(s), or draw this issue to the attention of the appropriate person(s).

As part of our Nutribullet, LLC Trademark Enforcement Program, be assured that we will continue to monitor your web site(s) to verify your compliance with this letter. Failure to do so will force us to defer this issue to our Trademark Lawyer for further actions.

Should you require additional information or wish to further discuss this issue, please do not hesitate to contact the undersigned.

Sincerely,
Nutribullet, LLC
11755 Wilshire Blvd, Suite 1200
Los Angeles, CA 90025
Phone [removed] Fax [removed]
[See image for email]

You can see an image of this communication here.

This email is fairly confusing on several levels. First, I wrote a pretty positive article concluding with, "So far, [NutriBullet is] like the Sodastream, a great product that worked its way into our lives and helped us be a little healthier than we would otherwise." Second, I direct people to a place, Amazon.com, where they can by the product helping their sales.

When I wrote a similar article about SodaStream (read review), including the trademark in the keywords, the employees of the company printed it out and shared it through the office. When I wrote about True Orange the company emailed me to thank me and asked if they could me send me free product. These companies get it. When you get good, free promotion, enjoy it and, if you want to be polite, thank the person for the help.

Long, long-time readers may find that this sounds familiar. Yep, The Consumerist famously covered me when MonaVie threatened to sue me for the exact same thing. The Consumerist did a little research into such lawsuits:

"We spoke to Fred von Lohmann, a senior staff attorney with the Electronic Frontier Foundation, who said that he thinks MonaVie 'has the losing end of this argument.' In an online trademark infringement case, von Lohmann explained, the plaintiff has to demonstrate that a consumer might be misled into believing the defendant’s site is actually the plaintiff’s. In this case, he said, 'there’s no chance that anyone could be confused into thinking that [LazyMan] is the official MonaVie site.'"

The same logic applies here. There is no chance that someone would be mislead into thinking my site is the official NutriBullet website. That covers the "source" part of their complaint. As for "sponsorship, affiliation, or endorsement" I don't see using a meta-keyword would convey that impression to users. I have yet to come across the Internet user who looks at meta keywords to determine if there is an affiliation. If such an Internet user did exist I could see how they'd be confused, because that simply isn't what meta keywords are for.

When MonaVie brought up the point, I thoroughly debunked their claim.

The complaint also makes the point, "Also, by using such trademark, you have intentionally attempted to attract Internet users to your web site..." I use the NutriBullet trademark in the title of my article as well... and yes one could say that intentionally used it to attract Internet users to my web site. That's an argument that at least makes sense as people read the title and then come to the site. By the time someone reads my meta-keywords on my site, they have already been attracted to my site (presumably by the title or someone else directing them to my site).

Now there is a (poor) case to be made about search engines using meta keywords, which could also attract users to my site. However, years ago, Google declared, "Google does not use the keywords meta tag in web ranking." Also there's legal precedent: "the judge ruled that since the keyword META tags do not influence search results, having trademarked terms in them are immaterial." So we can throw that out as a reasonable explanation for the letter... unless NutriBullet is unaware of the case law.

Finally in any legal precedent that I can find about using trademarks in meta keywords, the complaints are from competitors. For example, it is reasonable to see how it can be misleading if VitaMix uses NutriBullet trademarked name on its site. However, no such case could be made as I'm not a competitor and I don't even promote a competing product in the article.

I wonder if Consumer Reports got a threatening letter for using the NutriBullet trademark in their review. Do you think that USA Today contacted Starbucks and Kraft about using their trademarks in the meta keywords before writing this new story this morning? I'm going to venture that they did not. I'm also going to venture that neither Kraft or Starbucks is going to threaten to sue USA Today for the article. (As a side note, I didn't confuse the article to be sponsored or affiliated with either Kraft or Starbucks, did you?) I trust that USA Today and their legal team knows what they are doing is legal.

Perhaps the saddest part here is that the letter isn't coming from NutriBullet themselves. It's coming from a company that is supposed to be representing their best interests. However, if I talked to NutriBullet's public relations person, I doubt they'd say that sending legal threats to bloggers giving them positive reviews is in their best interest.

It's not a big deal for me to remove the keyword, but I don't want to set a dangerous precedent. I don't see where there is any infringement or confusion. As a service to readers I have a section at the end of every article that reads, "This post deals with: [Wordpress tags] ... and focuses on: [Wordpress Category]." (Note: I should probably swap them.) The point of this is to aid readers who want to read similar articles on the topic. If I write multiple articles on NutriBullet as I have now, people can click on it and read all of them. The meta keywords are generated from these WordPress tags throughout my site and thus I would have specially code my site for this one article or take away the useful service to readers.

P.S. NutriBullet, if you really didn't want me to use your company's trademarked term to attract visitors to my website, you shouldn't send emails like this to bloggers. It's pouring gasoline on the fire... and not in a good way.

P.P.S. See what I did with the tags on this post ;-).

Last updated on November 26, 2014.

This post deals with:

... and focuses on:

Lawsuits

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18 Responses to “Now NutriBullet is Threatening to Sue Me…”

  1. contrarian says:

    Lazy – seems obvious to me that Nubribullet intends to begin marketing their product through MLM, and knowing what a royal pain in the ass you are to proprietors of pyramid schemes, all they are doing is firing a ‘nutria- bullet’ across your bow. Consider yourself warned. LOL

  2. Dear Debt says:

    Sounds like they don’t have a clue when it comes to marketing! This is good promotion and you weren’t saying anything negative. What?! I’m so confused.

  3. Lazy Man says:

    I’m confused too. It’s why I wrote the article.

  4. Kostas says:

    Joining in on the confusion, it was a positive post! Hello, free advertising! What a shame they did this to you.

  5. GaryM says:

    Very likely it was one idiot lawyer who should have been kicked out of law school in the first year. But I’d comply with their request and leave the post up but replace all occurrences of the name with “name redacted”. If they’re going to be nasty to people who give them free advertising, why give it to them?

  6. Debt Free says:

    Man, all I can say is ‘what a bunch of hooey’ and typical Lazyman blog posts.

    contrarian says:
    November 13, 2013 at 8:14 pm
    Lazy – seems obvious to me that Nubribullet intends to begin marketing their product through MLM, and knowing what a royal pain in the ass you are to proprietors of pyramid schemes, all they are doing is firing a ‘nutria- bullet’ across your bow. Consider yourself warned. LOL

    Contrarian’s baseless, not to mention clueless post, he/she must have some sort of insider information to make such a statement.

    Dear Debt says:
    November 14, 2013 at 1:30 am
    Sounds like they don’t have a clue when it comes to marketing! This is good promotion and you weren’t saying anything negative. What?! I’m so confused.

    Nutribullet doesnt have a clue when it comes to marketing??? It’s Dear Debt that has no clue, Capital Brands LLC which owns the Nutribullet brand has sales in excess of $100 million a year. What are your yearly sales Dear Debt?

    Lazy Man says:
    November 14, 2013 at 11:29 am
    I’m confused too. It’s why I wrote the article.

    It’s obvious they don’t want to be affiliated with this blog, it’s their company, their trademark, their prerogative.

    Kostas says:
    November 14, 2013 at 1:35 pm
    Joining in on the confusion, it was a positive post! Hello, free advertising! What a shame they did this to you.

    Again, they obviously don’t want to be affiliated with this blog. I don’t blame them and here is a big red flag asto why NO companies would not be affiliated with Lazyman, or allow their name to be used on this blog.

    Lazyman supports SodaStream. He even named them as having PRODUCT OF THE YEAR back in 2010

    http://www.lazymanandmoney.com/sodastream/

    Here is why every company mentioned on Lazyman and every advertiser should file a law suit against him, and you as a reader should boycott SodaStream and the Lazyman blog.

    SodaStream manufactures and distributes home carbonating devices and flavorings for soft drinks. Its products are sold in 39 countries and can be found in retail stores like Macy’s, Bed Bath and Beyond, Bloomingdale’s, Coop, Carrefour and Migros. The company’s main production site is in the illegal West Bank Settlement of the Mishor Edomin Industrial Zone, where the company conceals the fact that its products are manufactured in a settlement by using ‘Made in Israel’ labels. As an Israeli settlement manufacturer, it exploits Palestinian land, resources and labor.

    Click the link below for more info about this exploitive and untruthful company that Lazyman supports.

    http://www.globalexchange.org/economicactivism/campaigns/sodastream

  7. […] Now Nutribullet is Threatening to Sue Me… – The life of a blogger can be tricky, even beyond the technical issues; Lazy Man and Money is ‘enjoying’ his second legal battle regarding a blog post, this time for a positive review… […]

  8. Lazy Man says:

    Looks like Debt Free is one of those pyramid scheme MLM supporters that Contrarian was joking about above.

    Debt Free said,

    “Man, all I can say is ‘what a bunch of hooey’ and typical Lazyman blog posts.”

    What’s a bunch of ‘hooey’ about this post? Why don’t you expand on what you mean? That’s like someone saying ‘it’s a bunch of hooey’ about the Earth being round, but not explaining why you hold such a unsupportable view. The only thing you add is that it is typical of my blog posts. I have some 1700 blog posts and very rarely are they about companies trying to sue me… and that’s despite the fact that MLM companies are extremely litigious. A leader in free speech in digital publications, Chilling Effects, has commented here to take notice about it. This is anything buy typical for anyone.

    Debt Free said,

    “Contrarian’s baseless, not to mention clueless post, he/she must have some sort of insider information to make such a statement.”

    It was a joke referring to how litigous the MLM companies are in trying to silence me.

    Debt Free said,

    “What are your yearly sales Dear Debt?”

    Your appeal to authority is fallacious. When a notable movie critic say that a movie is terrible, the producer of the movie should never respond with, “How many movies have you made?” Only someone of low intelligence would make that kind of argument.

    Debt Free said,

    “It’s obvious they don’t want to be affiliated with this blog, it’s their company, their trademark, their prerogative.”

    It’s not their prerogative. If the NY Times wants to write an article about IBM, there isn’t a thing IBM can do about it. They can’t say, “we don’t want to be affiliated with that publication.”

    Finally it isn’t clear why they wouldn’t want to be affiliated with this blog considering the mainstream media coverage it has received.

    Debt Free said,

    “Again, they obviously don’t want to be affiliated with this blog. I don’t blame them and here is a big red flag asto why NO companies would not be affiliated with Lazyman, or allow their name to be used on this blog.

    Lazyman supports SodaStream. He even named them as having PRODUCT OF THE YEAR back in 2010…”

    Umm, well SodaStream is sold in Bed, Bath, and Beyond… about 5 steps away from where I bought my NutriBullet in the same store. If they didn’t want to be affiliated with Sodastream, that’s the place to start. Bed, Bath, and Beyond even has a special relationship with SodaStream where they allow customers to exchange the used carbonation tanks. How many millions of people will walk by both of them this year? Far, far more than someone reading about both articles on my site.

    Finally, if you read my article about SodaStream, it is “Product of the Year”, not Manufacturing Company Ethical Practices of the Year. I can’t vouch for the validity of any of that stuff going on in the Middle East area. That’s not what my article is about. My article is about the product, and I stand by the fact that it is a great product. How many people in the US love Apple products and yet there is considerably more controversy surrounding the production of their products. Last I checked, it didn’t stop just about every consumer electronics publication awarding the iPhone with their highest award sometime over the last 5-6 years or so… and the iPod years before that. I guess every consumer electronics publication is now evil and no company would want to affiliated with them.

    Debt Free, your comment should go in the Aaron Hernandez Hall of Fame of bad reasoning.

  9. […] to shut down criticism, but Nutribullet, the as-seen-on-TV “nutrition extractor,” has fired off a letter to the Lazy Man and Money citing trademark violations in a largely positive r…. (H/t to Techdirt reader Wayne for sending this […]

  10. […] England, it's become clear that winter is coming (Does Game of Thrones have a trademark on that? I don't want to get sued?). With that in mind, it seems natural to look towards saving some money on energy to offset some […]

  11. contrarian says:

    I fully intend to file a lawsuit against ‘Debt Free’ for disparagement. His defamatory remark about me and my comment is entirely without merit. His false and malicious statement is a willful attempt to discredit my sense of humor while impugning the intent of my post. He is intentionally misleading others with his defamatory statement causing other like-non-minded morons to misunderstand my comment, depriving them of their constitutional protected right to a good laugh. Furthermore, I have suffered a severe brain injury having being forced to read and attempt to unravel his nonsensical and incoherent blather, causing irreparable damage to my faith in humanity, while at the same time shaking my confidence in the public school systems ability to educate our nations youth with a level of literacy and critical thinking beyond that of a 3rd grader. I am also naming you, LazyMan, in my lawsuit for justifying Debt Free’s ignorant comment with a response, and thus subjecting your readership to this vapid discourse.

    Respectfully,
    – Contrarian

  12. Sandy says:

    I was looking for a thumbs up button on some of the comments. I laughed through a few of them.

    My mom wanted one of these things. I told her that it was too expensive for the size. I’d rather do Blend Tech or Vitamixx or something.

  13. Lazy Man says:

    Sandy, I’ve been looking for a plugin that will give me a robust comment rating system for some time.

  14. […] Man @ Lazy Man and Money writes Now NutriBullet is Threatening to Sue Me – No reputable blogger should ever have to add a category to their blog called […]

  15. Carleen says:

    I own a site dedicated to Nutribullet recipes and recently got a trademark infringement notice. I also happen to be an attorney and am fairly well versed in trademark law. My site is completely nominative fair use, plus a person from the company had previously told me that there were no issues with the name in the title. Then, they also have purchased ads on the site. So, they would also be legally estopped from claiming infringement. Anyway, I think companies sometimes hire out poorly trained third parties to send these types of notices. I don’t know if that was the case with yourself or with me, but I suspect it. I responded to the infringement claim I was sent and explained why there was no infringement. I got no response. It all left me feeling disheartened though given that I obviously often recommend the product and liked it enough to build a website around recipes for it. Now I’m tempted to change the site to a general smoothie site and quit recommending them so much. I’m simply not a big fan of companies pulling this type of thing with bloggers.

  16. Lazy Man says:

    I received the same lack of response when I explained that their basis for their claim lacked any legal merit… and that I was actually supporting them.

    I think they got a little zealous and didn’t realize what they were doing.

  17. Vogel says:

    Dimwitted litigious assholes! I was all set to buy a Nutribullet on the strength of Lazy Man’s glowing recommendation. Now — F no!!!

    I might be willing to reconsider if the company eats crow, apologizes profusely, and sends you a bunch of free stuff as an apology.

  18. Lazy Man says:

    I think there are similar products out there by Ninja and others. I like the convenience of the concept as it is easy to clean.

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