Saturday, August 14, 2010

With Arrogance Comes Stupidity

We have been over-run lately with stories of corporate malfeasance. Bank bonuses to the very slimebags who made it necessary to rescue the industry to begin with are actually expected to go up by as much as 15% this year. Everyone’s least-favorite corporation (this week), BP, just got hit with the largest fine in OSHA history—over $50 million—not for their casual disregard for employee welfare on the Deepwater Horizon well where 11 men died, not for the 2005 Texas City refinery explosion that killed 15 and injured nearly 200, but because after the Texas City catastrophe they couldn’t be bothered to improve safety at the plant.

A Mine Safety and Health Administration official has pretty much stated that Massey Energy is once again lying about the causes of the disaster that killed 29 miners in West Virginia. Target and Best Buy have both come under fire for taking advantage of the outrageous Citizens United Supreme Court ruling and sending pots of money to MN Forward, an ostensibly pro-business group that oh-so-curiously seems to support almost exclusively Republicans, and virulently anti-gay ones, at that. Honestly, if I boycotted every company that richly deserves it, I’d have to become a hermit.

What all these stories have in common is the signature legacy of a generation of Reaganomics and the wrong kind of libertarianism: arrogance. BP and Massey don’t care about safety because even if they have to pay the occasional fine, it’s still—in their judgment—cost-effective to cut corners. BP made $14 billion in 2009; the huge—to us—fine imposed by OSHA works out to less than a fortnight’s profits: not income, profits. Target may think its pious proclamations or support for gay rights will immunize them against a boycott, but it’s more likely that they believe, probably correctly, that consumers really have no options: where are they going to take their business, Wal-Mart?

Besides, they’re all worth gazillions. Massey Energy, far and away the smallest of the corporations mentioned by name here, had a stockholder equity of over a billion dollars in 2009. And rich people just think differently than the rest of us: they think they’re entitled, they’re actually less likely to be generous, and they are often proud of what the rest of us would call character flaws (wonderful parody of this phenomenon here).

All of which brings us to the Pillsbury Douchebag Doughboy, who is throwing his pudgy weight around, issuing a cease-and-desist order to a small Salt Lake City cookie bakery called My Dough Girl: change your name or we’ll sue you. The case has been around for several months—there’s discussion on the my dough girl vs pillsbury corporation Facebook page (not to be confused with the store’s own Facebook page) from as early as May—but the case has really gone viral in the last couple of weeks, highlighted, perhaps by a great piece on Fox News’s Shepard Smith’s video blog on Wednesday, in which he asserts that “middle fingers are in order for this big company.” (What’s this guy doing on Fox instead of a real network?)

Poor General Mills (owners of Pillsbury). This corporation, with a mere $23.3 billion in market value, is threatened by a Utah bakery with an owner and a handful of part-time employees. “Unfortunately, we needed to protect our trademarks—and we did,” sniffs the corporate minion on Pillsbury’s own Facebook site. The MSM has dutifully fallen into line behind Goliath in this battle. Note the spin in ABC’s story:
Even though it may seem as if these massive corporations are frivolously bullying relatively insignificant competitors, all companies, large or small, have to protect their trademarks at every turn, lest they lose them, said James Rittinger, an intellectual property attorney with the New York City law firm of Satterlee Stephens Burke & Burke.

“Trademark law, unlike copyright law, where you can pick and choose who you want to sue, requires the trademark holder to police its mark,” Rittinger said. “Otherwise, the mark can become weakened—diluted, in trademark parlance—or even lost.”

Large companies are often criticized for picking on mom-and-pop shops, but really they have no choice, Rittinger said.

“If they do not take action, they severely jeopardize the strength of their valuable trademarks,” he said.

Added White Plains, N.Y.-based trademark attorney Thomas Wilentz, “Anyone starting a new business or coming out with a new product has to do an extensive trademark search…. You wouldn't buy a house without doing a title search.”
Notice anything missing there? Like the fact that General Mills doesn’t have a freaking case, for example? Or the fact that Mr. Rittinger and Mr. Wilentz are full of crap? Both assume facts not in evidence, to use what may or may not be actual legal terminology (but if it’s good enough for generations of TV lawyer shows, it’s good enough for me). Tami Cromar, the owner of My Dough Girl, did indeed do the appropriate searches, but no doubt determined that since no rational person would confuse her company with Pillsbury, she was on safe legal footing. And indeed she would be in a just universe. Does this look like a just universe to you?

I’m not a lawyer, but, as was once said of me in a different context by one of my favorite professors, I know something and I can read. I understand that copyright law and trademark law work differently, and that the owner of a trademark must actively protect that mark's exclusivity. This doesn’t mean, however that Pillsbury controls every variation on the word “dough.”

A blog called The IPKat concentrates on copyrights, trademarks, patents, and similar issues. True, it’s headquartered on the other side of the Atlantic, but they seem to know whereof they speak. One of their most interesting observations really cuts to the heart of the matter: “in common American nomenclature, the Doughboy is only ever referred to with the ‘Pillsbury’ precursor.” That is, there’s some question about whether Dough Creatures of any gender are actually covered by the trademark.

IPKat continues:
Further it seems impossible to envisage a scenario where a consumer gets in their car to drive to the grocery store to pick up a can of Pillsbury croissants, drives past My Dough Girl in Salt Lake City, gets confused, stops and purchases their products instead. Economically speaking, as well, if you are in the market for a Pillsbury Doughboy product it is highly unlikely you will be stopping at a gourmet cookie shop instead.
Since, according to a Harvard Law website, “the standard [for trademark infringement] is ‘likelihood of confusion,’” IPKat’s delightfully snarky scenario would seem to apply. The Harvard site also lists the kinds of factors generally employed in such cases: “(1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent.” I’m not sure what is meant by “the strength of the mark,” but apart from “the proximity of the goods,” there doesn’t seem to be much of a case here.

The “marks” bear literally nothing in common. My Dough Girl may have a punning name, but Ms. Cromar says that the name actually derives from a term for World War II era pin-up girls. The cookies themselves are named for the pin-ups—Virginia, Trudy, Penelope—and the store’s logo, prominently displayed on their website, bears as much resemblance to the Pillsbury Doughboy as a picture of a cake would. There is precisely zero evidence of actual confusion, I’m guessing relatively few people order their Poppin’ Fresh products on the web or by phone or by dropping by the plant, and even the Pillsbury people don’t seem to want to try to make the case that Ms. Cromar has any intent to deceive the population. In other words, Pillsbury has no case. None. Zero. Nada. Zilch. They’d have as good a complaint against Homer Simpson for saying “Doh.”

But they’ll get their way, because it’s easier and cheaper for Ms. Cromar to capitulate than to fight against a corporation willing to waste tens if not hundreds of thousands of dollars pursuing frivolous lawsuits. General Mills and their goons know that, of course. We can but hope that someday they'll accidentally pick on someone who can fight back. And, indeed, Ms. Cromar already has a history of losing in court when she has the better case. Friday she posted this on My Dough Girl’s Facebook page:
I am a cyclist, another passion of mine. A few years ago I was hit by a car, the driver admitted to making a wrong turn and was cited. I spent 18 months recovering, his lawyers were fantastic! They won, the lawyers took all the money, I was left with medical bills, a broken heart, a broken bike, and a broken spirit.
[I’m taking on faith that she’s better at baking than at punctuation, but you get the idea.]

No one can blame her that she has apparently decided not to fight, even though the estimated costs of the rebranding run into the tens of thousands of dollars. [EDIT: according to a post by an admin at the my dough girl vs pillsbury corporation Facebook page, a settlement has been signed.] It’s a lot easier to urge others to stand up to The Man than it is to do so oneself. Not everyone can be Nelson Mandela or Václav Havel, or even Shirley Sherrod (who, it will be remembered, did in fact resign her position before coming out swinging after someone else demonstrated that she wasn’t the racist that Andrew Breitbart and the whores at Fox News portrayed her as being).

When we get right down to it, Pillsbury/General Mills is pursuing this course of action not because they have to to protect their trademark, but because they can. No sentient being could possibly confuse Pillsbury with My Dough Girl. The people at General Mills know that as well as anyone. But they just can’t help themselves. To a certain personality type, strutting around bullying the little guy is a show of manliness. To me, it’s a pretty sure sign that someone is compensating for something. [Insert vulgar anatomical reference here.]

What separates what Pillsbury is doing in this case from what other arrogant corporate Leviathans have done recently, however, is significant: there is literally no rationale for their actions. In all those other cases mentioned above, it’s possible to at least see the thinking: if we cut these safety corners, we’ll improve our bottom line; if we give ridiculous bonuses to our executives, they won’t be tempted to move to a different firm; if we throw money at political candidates, we might get a friend in high places. The rest of us might find those reasons unethical, but at least we understand them. Pillsbury, however, even if they “win,” won’t have eliminated a real threat to their trademark; they’ll simply have created a shit-storm of negative publicity. Certainly if I were a General Mills stockholder, I’d be pretty upset that management is wasting money on lawyers and generating bad press to eliminate a phantom threat rather than—hell, I don’t know—developing new products, or improving employees’ job satisfaction, or (best of all) increasing my dividends.

Boycotts seldom work. People have short attention spans, and before long they’ll start missing those crescent rolls. I doubt that I account for $20 a year worth of profit for General Mills. If I brought every one of my Facebook friends with me, and they all contributed that same amount to General Mills’s profit margin, and we all kept up the boycott for a full year, we’d cost the corporation about 6 ½ minutes’ worth of profit. On the other hand, sometimes you just do things to make yourself feel good. We’re getting low on cereal. The next box won’t be Wheaties or Cheerios.

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