Let’s See if I Can Provoke a Lawyer

NutriBullet

Nutri-Bullet

Nutri Bullet

Nutribullet

I’ve spelled it as many ways as I can think of that will still trigger the spider crawling the web for the hyperactive lawyers for the Nutribullet company.

I follow a blog called Lazy Man and Money. It is devoted to helping readers get value for their money without having to spend every waking moment in that pursuit. The blogger often reviews products that he has purchased with his own money. His reviews are completely unbiased, as a result, and based solely on his experience with the products, rather than being paid endorsements. I can highly recommend this blog if you’re interested in seeing how other people are making money work for them after they’ve worked so hard to get it.

Not all that long ago, Lazy Man posted a review of Nutribullet, a higher-end blender for making juices and smoothies. You’ve probably heard of it. He really liked the product and gave it a great review, and included links to sites where the item could be purchased. Nutribullet should have been thrilled and asked him if they could send him some recipes or accessories in gratitude.  In fact, for product review for a different product, the company did send a letter of thanks, and did offer to send him some product.

Nutribullet sent him a Cease and Desist letter.

It’s as though they don’t want anyone saying anything good about them, although the reality is almost certainly not that well-thought-out.

I understand that automation is the wave of the present and future. It seems to have escaped the lawyers here, though, that sometimes a human needs to oversee the automation. I believe that where something is so badly gone wrong as this, a computer crawled the web looking for likely incidents of trademark infringement and found the name mentioned at Lazy Man’s website. Rather than setting the spider to notify the trademark holder of what it found, it seems that the spider sent out these notices indiscriminately. Had some real human in the lawyer’s office actually read the blog posting, no such notice would have ever been sent.

Lazy Man is protected, furthermore, under Fair Use Doctrine. Captain Jack Sparrow said there are two rules: What a man CAN do, and what a man CAN’T do. Here it is in a nutshell.

What a man CAN do: You are allowed to use a trademarked name or copyrighted material for certain uses and under certain conditions. You are allowed to name the name in a product review, or for other informational purposes. You are allowed to use someone’s logo in your review or article on their product. You are allowed to play a clip of a song in a review or article.  You are allowed to talk it up or talk it down.

What a man CAN’T do: You are not allowed to use someone else’s material and call it your own. You are not allowed to take someone else’s material and sell it without their permission. Their permission may include license of some sort, may include compensation of some sort, may include attribution of some short, or may include none of those things. You are not allowed, without permission of the trademark or copyright holder, to use someone else’s material in advertising for your product.

In one of my other blogs, Grown Up Tech, I use photographs that are licensed under a Creative Commons license; there are different levels of Creative Commons license, but the one I use most is the Attribution license. The owner of the artwork requires only that you appropriately attribute the work to him. I also did a review of Microsoft’s products, Evernote’s products, and Amazon’s drone. I used artwork provided in their press packages. Those photos and logos were provided for exactly that use. The companies actually WANT you to use those photos, they are provided because they demonstrate exactly the image those companies want to portray.

Cornell University has produced a Fair Use Checklist for public use. It’s downloadable as a PDF, so keep a copy of it handy. Seriously, it would have been good for Nutribullet’s lawyers to have had a copy of this, don’t you think?

Do you know of any other cases of misapplication of this law? As technology becomes more ubiquitous, we’ll hear more and more. Tell me your stories on it in the comments.