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:
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.
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 ;-).
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