I've never seen a company make such a half-hearted and nonsensical threat against the Internets. Come on, MonaVie, where's your spirit? Have you not had enough acai berry supplement today?

MonaVie, if it's telling the truth, has a new employee who gave that acai berry a big ol' bear hug, and jumped the gun on something that really wasn't a big deal and wasn't really a problem - if this person had taken even a minute to think it out, and consider Wikipedia and other sites that are full of MonaVie trademarks. Lazy Man had it right - MonaVie shouldn't have gone after him, and had no reason to.

"Just take [the metadata] down," he said. "Every search engine expert I've spoken to says metadata doesn't do anything anymore."

Tell me, MonaVie, why do you care if it doesn't do anything? Is it possible that you got embarassed by your new hire, and are trying to save face, lest the armies of the Internet go after you with fury?

Maybe Lazy Man should threaten to write a song about it.

@pecan 3.14159265: Just to be clear -- that quote isn't from someone at MonaVie. It came from Fred von Lohmann (senior staff attorney with the Electronic Frontier Foundation).

It's hard to tell from your post whether or not you picked up on that. =)

Bloggers = "news organization?"

@HillSA23: Yeah, I saw that, and I guess I wasn't clear. But I still don't get why MonaVie even cares if the metadata is irrelevant. Maybe it doesn't think it's irrelevant.

@pecan 3.14159265: When my cat knocked the vase off the shelf she picked up her kitten sister and plopped her among the shards then hid under the bed. Oh yeah my story is as believable as theirs.

How is metadata different from, say, a glossary or index at the back of a book? A table of contents in a magazine? Aren't those things allowed in fair-use settings?

"While businesses have a right to protect their trademarks from abuse, the news media are typically exempt from such restrictions provided the trademarks are used as part of "news reporting and news commentary.""

This is incorrect, or at least poorly written. You make it sound as if only journalists or bloggers have any first amendment rights to criticize companies. We all do. I can say "Coke sucks and tastes like shit" all day long and no Court in the US could or would stop me.

The purpose of trademarks is to protect consumers from buying an inferior product or service under a confusingly similar name or mark to that of a higher quality product or service.

Me saying "Coke sucks and tastes like shit" in no way confuses consumers into buying an inferior product because I'm not selling such a product. I'm merely voicing my opinion which is protected by the first amendment. And that is true whether I'm a blogger, journalist, or just a citizen of the US.

@HiPwr: Haven't you noticed? When Consumerist makes bad/misleading/erroneous claims, they are a 'blog', not a 'news organization'. When they want protection/reporter's rights, they are a 'news organization', not a 'blog'.

Its very important that they make these distinctions, as to get the bets of both worlds.

"We were surprised to see an email like this sent to a blogger. While businesses have a right to protect their trademarks from abuse, the news media are typically exempt from such restrictions provided the trademarks are used as part of 'news reporting and news commentary.'"

The news media are also expected to follow journalistic standards and ethics, which very few bloggers do. I wish people would stop confusing bloggers with journalists.

Also, what GMFish said.

I'd like to thank the Consumerist for not only covering this story, but also talking to MonaVie and the EFF on my behalf.

Here's an extra bonus sub-plot. There was a comment left on the post that the Consumerist links to here. That comment called me an "annoying douche" as well as "fat" and having "no lover." I traced the IP address of the person leaving that comment to MonaVie's offices:

[www.lazymanandmoney.com]

gee, maybe MonaVie should give a call to chash4gold and ask them for some expert advice on how to commit extremely dopey act on teh intertubes.

@HiPwr: Don't bloggers have some of the same legal rights as reporters?

IIRC, there was a case a while back over whether or not a blogger has to reveal their source.

@LazyManAndMoney: Looks like that person's been drinking the acai Kool-Aid.

@Rectilinear Propagation: I think this is a huge gray area right now. In some instances, they are given some of the same protections as regular media (like revealing sources), but in other cases, they hide behind being bloggers (as in the cases where they make shit up).

I think it has to be better defined. Either any yahoo that manages to register a website and starts pontificating, speculating, & reporting is automatically considered the "press", or not.

Is anyone seeing the flaw in Doug Whitehead's argument? He has no problem with Lazy's right to free speech, but is trying to quash it, and not the other people who are doing the same things that he is being sued for???

Wow, this was a very educational article, and well researched. I think it is rare that we are able to get all sides to a story like this one.

Good job, Marc!

And to add to the discussion, I agree that MonaVie was out of line and I believe they are trying to use "strongarm" tactics to silence at least this one critic.

@LazyManAndMoney: You're surprised by this? These people are making money off of this; it's their livelihood. Of course they think you are a "douche."

I am equally as befuddled as Lazy is when MonaVie shared this info with Consumerist first. Then again, they did offer you inside information in something that you might've eventually written about, in turn showcasing a product I've never heard about. How's that old saying go? There's no such thing as bad press. Don't worry MonaVie, all Consumerist.com alerted me to was a product to stay the hell away from.

@ScarletsWalk: Fair use is a copyright defense, not trademark. Lazy isn't using the mark in trade nor in a trademark sense, so this isn't infringement. He's also using as little of the trademark as necessary (for instance just the text, not the logo) for commentary, comparison and critique so his use falls under first amendment free speech.

@GMFish: Your use of Coke above is not used in a trademark sense, so it doesn't fall under the purview of infringement.

@Radi0logy: What exactly are the 'bets of both worlds', as you say, and who is winning?

@JulesNoctambule: *snortle*

In order for MonaVie to prevail with a trademark claim, not only do they have to prove that LazyMan's website would be confusing to the end customer, they would also have to prove that the use is "in commerce" so Lazyman would have to be getting significant commercial gain from the specific use of the trademark.

I don't see how either test would succeed.

@SPENCERG: I'll second that. Most consumerist articles would have stopped with the unverified complaint but to have sought and received both MonaVie's AND EFF's input? Well done!

To Doug Whitehead:

I am not going to listen to you. You are a fat, lazy, sit on computer with no lover asswipe attorney. You're an annoying douche.

I have a scrolling LED sign in my back window that I mostly use as a rolling singles ad. But I've been tempted to put "MonaVie is a scam and pyramid scheme" on the sign, and scroll it when I pass by someone with their car decked out in MonaVie ads and then pull in front of them. Mostly to see their reaction. Brian Dunning over at Skeptoid did an episode on them, and he got tons of the people they schemed telling him that he shouldn't judge the juice until he tried a CASE, and they could give him a great price!

@HiPwr: Not surprised, amused.

@GMFish: You are, of course, correct that the use of trademarks to voice your opinion or report on a company's activities is protected speech. I was referring to the Trademark Dilution Revision Act of 2006, which, as a commenter on Lazy Man pointed out, provides specific exemptions to "all forms of news reporting and commentary." This doesn't abridge any existing rights; it merely emphasizes them for certain types of commentary.

[www.gpo.gov]

Is MonaVie a division of Monster Cable?

@fantomesq: There is a fair use defense in trademark law. Of course this doctrine is very different from the fair use defense in copyright law.

@RPHP: Fair enough, we learned it as nominative use of trademarks, to distinguish it from the fair use copyright claim. My analysis above holds as a nominative use of trademark,

Frankly, if enough bloggers simply posted 'MonaVie is a scam and a pyramid scheme' then that would be inevitably the top result for any search on the company's name. And this occurrence makes that eventuality closer to reality. Good job, scam lawyers!

@fantomesq: true.

What do you think the odds are that a judge or jury would know what the fuck metadata is?

Hint: It's very close to zero

@Greasy Thumb Guzik:

LMAO... great analogy. At least I've never heard anyone on the Internet claim that Monster Cable will cure cancer, autism, fibromyalgia, etc. Monster Cable has that going for them.

@Rectilinear Propagation: Yeah, I'll go with amused. After reading all 3200+ comments on the article that MonaVie doesn't want you to read ([www.lazymanandmoney.com]), things like this just aren't surprising to me.

However, people that just heard of MonaVie might find this behavior surprising.

Awesome. I just saw the name "acai berry" for the first time today. It was in a spam ad in the form of an answer on Yahoo Answers.

I didn't pay much attention to it because spam is, well, spam. I was going to link to the question but it has already been removed.

Good job making sure the interweb recognizes you for what you are MonaVie. Is there a chance this company is a subsidiary of Cash4Gold?

Is there a difference between "monavie" and "MonaVie" in terms of trademarking?

I'd like to respond to one part of this article.

"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 if you don't believe me).

I've had a section that says:

"This post deals with:
[Wordpress tags]
... and focuses on:
[Wordpress Category]"

The metadata keywords are generated (in part, I occassionally add more) from this user-visible content.

What I don't get is how these companies like MonaVie haven't figured out that any time they try to silence a critic, it's going to backfire and generate far, far more publicity than the original negative article or website by itself would have done.

@strathmeyer: Well, it's clear that the TM is used in a variety of places on the blog. When the blog criticizes MonaVie and uses its TMs, there is clear precedent that MonaVie can not restrain the blog's criticism. That's why MonaVie clarified that it's not what the complaint is about.

The complaint is about the metatags. According to EFF's article, that's a gray area and (I assume) the defense to the use of the marks in metatags is probably different.

The bottom line is that just because MonaVie has no problem with Lazy's right to free speech in one area doesn't mean that there is no legitimate issue with Lazy using the mark in other situations.

@Sneeje: The EFF article states that in terms of metatags, the courts laid down a somewhat broader way to infringe on TM. The court called it the "initial interest confusion" concept (or test). I'm wondering if MonaVie would argue that anybody looking for its company would, instead, come across Lazy's "product," that being his blog, and, therefore, Lazy would be cashing in on MonaVie's "goodwill." This has been played out in other internet cases, too, but in terms of competitors, not bloggers.

I realize that it's a bit of a stretch for MonaVie to make that claim (especially if search engines don't use metatags), but that's the only way I see this case going. I don't think that the article implies that it's Lazy's intention.

@calchip: Part of copyright (or) trademark law (iirc) is that they have to protect their trademark or copyright. If they let enough things slide, a court could essentially rule against them in a case by way of not protecting their trademark.

They have to fight every battle to protect themselves even if it means bad publicity or the like.

I like the ballsy move of adding the "Monavie" tag to this...on wikipedia, that's called WP:POINTy.

trademark, yes.
copyright, no.

@billy: Lazy's "product" is his blog?!? He's not using their trademark to describe his blog and their is not hint of ownership or sponsorship. If this is their theory, its not infringement because there is no product in the stream of commerce.

@RobertBaron: If you are correct, (and I think you might be) one would assume that they've protected themselves against Newsweek, Wikipedia and others who use their trademark in the exact same way I do.

@CapitalC: That depends on a lot of factors. I would imagine that the company has a mark in the name as well as any special capitalization or logos.

But that's not the end of the story. If someone used a mark that would cause a likelihood of confusion (and there are many factors) it might be seen as infringement. For example, Koke used as a soft drink would infringe Coke used as a soft drink even though Coke probably doesn't have Koke TM'd. In the same way, "monavie" might cause a likelihood of confusion with "MonaVie" regardless of registration.

@LazyManAndMoney: They probably do. But it probably doesn't get the press like you've gotten. Newsweek, at least, also likely has a pretty powerful cadre of their own lawyers which nips these types of things in the bud pretty quick.