Last week, a South California blogger sent a snarky response to a trademark infringement cease and desist letter sent by Olive Garden's intellectual property enforcing spam-bot. Vincent “Vino” Malone, owner of allofgarden.com, runs a review website that often praises the chain’s notoriously mediocre Italian American cuisine.
Admittedly, Malone’s praises are often tongue in cheek. In a review titled Courage Under Fire, Malone wrote:
In this photo I really tried to capture the tensile strength of rigatoni. Note how the eyes are drawn to the central piece, which holds its shape despite the weight of another rigatoni atop it. Truly an engineering marvel. The top rigatoni, however, is sagging! Perhaps there is also a more metaphorical meaning here - that pain is relative. Not everyone responds to pressure the same way, and there are many kinds of strength.
In an email dated Wednesday June 19, 2017, Olive Garden’s automated trademark enforcement bot emailed Mr. Malone, presumably after the program flagged the domain name as potentially infringing. The email is reproduced in its entirety and can be found on Malone’s website:
date: Tue, Jul 18, 2017 at 10:01 AM
To Whom It May Concern:
As you are likely aware, Darden is a full-service restaurant company, and owns and operates over 1,500 restaurants through subsidiaries under the Olive Garden®, LongHorn Steakhouse®, The Capital Grille®, Yard House®, Seasons 52®, Bahama Breeze®, and Eddie V's Prime Seafood® brands and has a portfolio of over 650 trademarks in over 70 countries related to the same (collectively "Trademarks”.)
In connection with Darden Corporation’s proprietary rights over its famous trademark(s) we are notifying you of the following:
Darden Corporation has recently learned that the trademark Olive Garden appears as a metatag, keyword, visible or hidden text on the web site(s) located at the below listed URL(s) without having obtained prior written authorization from Darden Corporation. This practice infringes upon the exclusive intellectual property rights of Darden Corporation.
As a trademark owner, Darden Corporation is obligated to enforce its rights by taking action to ensure that others do not use its trademarks without permission. Unauthorized use of the trademark(s) could create a likelihood of confusion with Darden Corporation’s trademark as to the source, sponsorship, affiliation, or endorsement of your web site(s), online location(s), products or services.
In light of the above, we request that you respond to this e-mail within ten (10) days, informing us that you have removed all metatags, keywords, visible or hidden texts including trademark(s) presently appearing on the above-cited website(s) and any other website(s), or draw this issue to the attention of the appropriate person(s).
Thank you in advance for your anticipated cooperation in this matter.
After consulting with Reddit's legal sages on /r/legaladvice, Malone fired back with this email:
date: Wed, Jul 19, 2017 at 8:47 AM
Mr. Forcements—may I call you Branden? Since this [is] an asynchronous mode of communication, I'm going to assume you are magnanimously acquiescing, and I will refer to you as Branden forthwith—I received your email yesterday.
I am not aware of any law against reviewing food and describing it using the name of the company from which it was procured. Some might even call it Nominative Fair Use. I have helpfully included a link to Wikipedia™, The Free Encyclopedia™, for more information on this concept, in case you are new. Just click on the blue words to access the HyperLink™, and you will be transported there in great haste.
With that in mind, can you be more specific about what you would like me to do? If you want me to remove references to the Olive Garden from my blog, which, I remind you, solely consists of references to Olive Garden, I'm afraid I must decline.
If you are asking me to simply add TradeMark® Symbols™ I must also decline, as I do not know the alt keycode for writing them.
Perhaps you are asking me to take down my blog entirely. In doing so, Darden Corporation would commit its largest crime against humanity since they started charging extra for toppings. Seriously, $2.99 for two lousy meatballs? And you're saying I ripped you off?
Please respond within nine (9) days, in limerick form.
Wishing the whole Forcements family a pleasant day,
Vincent "Vino" Malone
Olive Garden Connoisseur
Age 29 and a Half
Properly raised issues of Nominative Fair Use aside, the spat is another example in a long line of internet disputes where a company’s efforts to enforce rights on the internet results in bad public relations for the company. While Olive Garden’s use of an automated system may have saved the company in the short term on legal fees, sending demand letters based on weak legal positions is an easy way to generate bad publicity for the company’s image.
When a company threatens to sue its customers to enforce its brand image, it has lost focus on providing its core market function. A firm’s legal voice must match its branding message, and the company must speak with one voice. Constructive engagement with customers is a better way to protect a firm’s trademarks from dilution than empty threats of spurious legal action. (Jack Daniels famously took this approach in 2012, and was applauded for its efforts).