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Trademark follies

2002-11-06 17:18:56+00 by Dan Lyke 15 comments

Debra got a cease and desist letter from the manufacturer of an anal retention catheter about using their trademark. She's removed all mention of the trademark. I am not a lawyer, but I would've apologized for any potential genericization, and made sure that each mention had a tm and was clearly marked as referring specifically to the product mentioned. No brand dilution there.

[ related topics: Intellectual Property Sexual Culture Law Copyright/Trademark ]

comments in ascending chronological order (reverse):

#Comment made: 2002-11-06 17:51:20+00 by: dexev [edit history]

IANALE, but that seems more bullying than legal. Reading Debra's description, she was using the trademark name to describe the product -- which is exactly what trademarks are for. Just like McDonald's can't sue when Burger King says "The Whopper beats the Big Mac", they shouldn't be able to sue just because they don't like the context their trademark name was used in.

Second Dan's motion.

#Comment made: 2002-11-06 19:50:28+00 by: petronius

I think many of these actions are along the lines of preventive maintenance by IP lawyers. Everytime Jay Leno uses Kitty Litter(tm) in a joke, he gets a letter from the manufacturers explaining that the generic term is cat litter, etc. The fear seems to be that if they do not defend their trademark instantly under all possible circumstances, somebody will get "squatter's rights' on the term and then anybody can use it. Of course, the context MIGHT have something to do with it. I tried the link and my company's embargo screen come on with a clang and the lights dimmed.

#Comment made: 2002-11-07 12:18:44+00 by: meuon

Last week we got similiar notice to not mention BellSouth in our website. OK, Our comments were not glowing, but they were not bad either.

#Comment made: 2002-11-07 17:57:18+00 by: other_todd

Petronius, there is definitely precedent for a trademark becoming a generic, so while the IP lawyers may be vultures, I can see what they're paranoid about. "Aspirin," "cellophane," and "zipper" were all brand names once upon a time. The rule seems to be use it or lose it. (If I were the makers of Kitty Litter, I'd be pretty nervous. I'm pretty well-informed on this stuff and I didn't realize it was actually a trademark until a couple of years ago.)

I try to acknowledge trademark. I figure if I do that, then the corporates have no complaint. Dan has been reading Mei Wah; he'll find a page in there where I mention Coca-Cola and then quickly throw in the trademark disclaimer. I make a joke of it, but it's not really: Coca-Cola has historically been very vigilant.

When I was doing an advertising commentary on a regular basis, I simply could not mention trademark status each and every time a trademark was invoked, so I devised the disclaimer which is still used in my current weblog, as a holdover:

"It is assumed that every brand name, slogan, corporate name, symbol, design element, et cetera mentioned in these pages is a protected and/or trademarked entity, the sole property of its owner(s), and acknowledgement of this status is implied."

It might just be because my pages are too below-radar for corporate types to come checking, but it's been years now, and that block has never been challenged.

#Comment made: 2002-11-07 19:12:20+00 by: Dan Lyke

Today's entry lead to sites which reveal that the product name in question was Bard Medical's Bardex® trademark apparently registered to C.R. Bard.

Of course I'm glad this distinction was made, because without specifying which one I might be tempted to think that Debra[Wiki] was referring to Bardex Hydraulic Load Handling and Positioning Systems, which do *not* look like something I'd want associated with catheter play...

Ya know, if we're all real nice about this we can give them a real Google search engine ranking for their apparently nice products. Remember, that's Bardex® for all of your catheter sex play needs.

#Comment made: 2002-11-08 17:50:09+00 by: Dan Lyke

Debra[Wiki] continues today with a link to ErosBlog, who says that "BARDEX is BEST for kinky enema butt sex!".

#Comment made: 2002-11-08 23:09:13+00 by: meuon

And... just WHAT do people find SEXY about an enema? Sure, Bardex is incredible for kinky enema butt/anal wierd sex but I'm missing what is pleasurable about this practice. I'm not sure I really want to know.. but off to Google to find out how an enema enhanced orgasm works. Sure enough: Sexuality.org has several FAQ's.. and although functional and correct, they don't explain why this is a 'sexual' thing. Sure. It's full Dom/Sub trust factors... but why would Bardex care.. from what I see it's a lot safer than some of the really weird stuff (Oxygen deprivation for example) and the extreme's of bondage, but it looks like some people find it pleasurable, and it's probably easier to do with a friend than by yourself.... maybe a bit more fun.. if playing with fecal matter is fun..

Lastly.. I hope Bardex contacts me about being the provider for Flutterby.. :)

#Comment made: 2002-11-08 23:23:36+00 by: Dan Lyke

Meuon, maybe I'm totally naive and the load handling and positioning systems are really what these sites are all about. Although safety-wise, I think I'd take breath control over any application I can imagine for gripper jacks in the bedroom, and while I appreciate that chains are safer than cables I prefer strips of velvet for my tie-down needs.

#Comment made: 2002-11-09 00:40:22+00 by: meuon [edit history]

velvet tie downs.. with velco adjustments.. with the right person(s).. sounds like a lot of fun.. until they grab the enema bag. Other restraints that might come in handy are these stylish nylon ratchets that are available in designer colors. But the best are the rope ratchets at the bottom of the page. Next time you have a fiesty one in the bed, you can quickly cinch her down so she does not slam the headboard on bumpy rides or when you take the curves with gusto. I keep several in my truck..

#Comment made: 2002-11-11 18:26:11+00 by: Dan Lyke

Debra rambles a bit more, saying:

No one has called me cowardly in my err-on-the-side-of-caution response to this situation, but hey. They're being nice -- and I appreciate it.

Nope. There are people who can afford to fight, and those who can't, and I think I'm sympathetic to both situations.

With that in mind, in the "yet another judgement for fair use of trademarks" department, Susanne Pitt won a New York court judgement over Mattel for her S&M Barbies (via Daze Reader)

#Comment made: 2002-11-11 21:37:36+00 by: Dan Lyke

Huh, phrasing on that last message a little weird: Just to clarify, I understand and sympathize with the stance Debra[Wiki] has taken.

#Comment made: 2002-11-12 02:26:24+00 by: debrahyde [edit history]


I've been meaning to do that SM Barbie story myself. Oh, the joys of satire --but even there, it can cost you.

And, honestly, I knew you were sympathetic to my decision. I hope you realize that it was a round-about-way for me to make two points at once on my end. One of thanks to you and others and one to acknowledge that, yes, my decision *could* be viewed as cowardly. So be it, if that's one's stance.

I'm not sure meuon really wants to know what's pleasing about enema play, but I will say this: You don't really come in contact with fecal matter any more than you would with a minor gastrointestinal bout. Nothing that a little handwashing can't tackle. ~~ Debra

#Comment made: 2002-11-12 12:24:50+00 by: meuon [edit history]

Debra, I've got an open mind and almost no inhibitions, and enough experience to understand why some people find it pleasurable in of itself, and as prep for anal play/sex. Still not my cup of tea.

As for being cowardly: NOT. It's a choice that I understand all too well and have the letters and bills from lawyers to prove it. Tom Kunesh (and Tradewars) taught me to fight the battles that you can win, and save your resources by avoiding the battles you can not. Although for some, the battle itself is the goal, and they enjoy it for it's own sake which is a fetish in of itself.

The sick thought is Bard Medical probably knows exactly what percentage of it's sales is for 'hobbiest' uses.. my guess: more than 1 percent, which is a significant dollar amount of sales to put at risk.

And although they do not have the inflatable retention cuff of the Bardex, some 'medical' enema products companies have retail websites and would probably enjoy being linked to and mentioned.

Maybe I spent too much time in hospitals (working) to find this stuff 'sexy'.

#Comment made: 2002-11-13 14:14:10+00 by: debrahyde

>>what percentage of it's sales is for 'hobbiest' uses.. my guess: more than 1 percent<<


You might be righ there with the numbers. I know I've wondered. However, I think you need to reach the 5% threshhold to be a marketing entity, if Soul Coughing's Casiotone Nation is any indication. (Damn, if Amazon didn't excerpt the wrong part of the song.)

I'm not sure enemas are sexy, per se, but if you like intense experiences, it can satisfy one's curiosity along those lines. I think men can enjoy it a little better than women, however, because they *don't* have internal reproductive organs that compete for abdominal space *and* they have a prostate gland, to which added pressure is a feel-good thing. I've long joked that the day they invent prostate implants, I want one.

Deb (who belongs to the 5% nation of nipple clamps)

#Comment made: 2003-06-02 21:35:21.97459+00 by: PLAYDOC

With respect to that which follows regarding the C.R. Bard company ---

PLAY DOCTOR (http://www.playdr.com) has received a similar letter (05/28,2003) from Mz. Bren referring to the use of "Bardex Retention Nozzle" at various places throughout the website. I am in the process of drafting a letter to her (cc the Bard company) suggesting that: 1) a woman with her strong credentials shoul dspend her time doing something much more productive; 2) that the $13.65 for Express Mail and $.60 for first-class mail was a redundant wste of her client's money; 3) there is no "innacurate and misleading" information about the product at the PLAY DOCTOR website; 4) the Bard product is not available for sale at the PLAY DOCTOR website.

I will tell her that NOTHING is going to change and it will be up to her to pursue this matterin court to demonstrate the specific and tangible damages that her client sustain(ed)s as a result of this information appearing at the PLAY DOCTOR website.

I will, however, apply the (R) symbol next to each and every BARDEX reference is they are concerned about protection of their trademark.

Let's drive her nuts with "protest" ---- Contact her:

Roberta S. Bren OBLON, SPIVAK, et al 1940 Duke Street Alexandria VA 22314 (703) 413-3000 FAX (703) 413-2220 e-mail: rbren@oblon.com

PLAY DOCTOR playdoc@yahoo.com


> * -- some controversy apparently turns on what a "bardex device" is. 
> C.R. Bard of Murray Hill, NJ USA complained with this initial usage
> and attempted to threaten its way out of association with Satanism
> (which it mistakenly calls 'Satan worship') and suicide, mentioning
> in passing that it does not manufacture anal plugs. for this reason
> I've created a web-page explaining their strongarm tactics which
> has the following content (fyi):
> http://www.satanservice.org/coe/suicide/guide/bardexdevice.html
> ---------------------------------------------------------------
> Bardex Devices and Vodka Enema Suicide
> http://www.satanservice.org/coe/suicide/guide/bardexdevice.html
> C.R. Bard, Inc., of Murray Hill, NJ USA is a manufacturer of
> medical equipment that was referred to in "A Practical Guide
> to Suicide" by an anonymous source as being possibly
> inadequate for suicide involving the introduction of toxic
> liquids into the rectum (specifically a vodka enema) and the
> prevention of backflow or leakage using their equipment.
> C.R. Bard, Inc., of Murray Hill, NJ USA didn't like the use
> of the phrase 'bardex device' and threatened to sue me
> because it didn't want to be associated with 'Satan worship'
> or with suicide. too bad. those weren't the issues. the
> issue was whether some kind of inflatable backflow
> prevention device (e.g. medical vaginal inflatable) might be
> used to retain toxic fluids inside the rectum in order to
> cause system failure and intentional death. the anonymous
> source said that she didn't think so. I wonder whether a
> Conveen Anal Plug by Coloplast might be better.
> the phrase 'bardex device' (for inflatable backflow
> prevention in section III.A.2.b) was left as is and serves
> as a keyword to obtain this message. it will remain as such
> while the editor sorts out information from C.R. Bard's
> lawyer, the original source of the quote (anonymous), and
> the editor's research as part of a determination of what
> would be the most helpful to someone seeking such a route to
> self-termination.
> though C.R. Bard, Inc., of Murray Hill, NJ USA is in no way
> associated with "A Practical Suicide Guide" and should not
> be construed as supportive of anyone using their products
> for acts which were not part of their designed intent (e.g.
> suicide) and outside the care and guidance of a physician,
> since the company took it upon itself to instruct its lawyer
> to try to dissuade me from MENTIONING 'bardex devices'
> (apparently inflatable backflow prevention for surgeries
> from a company well-known for its urological catheters) and
> since they thought that mention within a document on
> Satanism and suicide reflected upon them BADLY, I wanted to
> be sure to include some posterior notes from their lawyer,
> Roberta S. Bren of Oblon, Spivak, McClelland, Maier, and
> Neustadt, P.C. (rbren at oblon.com or write at 1755
> Jefferson Davis Highway, 4th Floor, Arlington, VA, 22202, or
> phone at 703/413-3000 or fax her at 713/413-2220,
> www.oblon.com) which explains the position of C.R. Bard.
> Roberta S. Bren said:
> 	Bard is a quality manufacturer of a variety of medical 
> 	products. It cannot stand idly by while its company 
> 	name and marks are used on a web site associated with 
> 	Satan worship and suicide. Furthermore, these goods are
> 	to be used under a physician's supervision and are not 
> 	intended to be used in the manner described on your 
> 	website. [9/30/2002 RSBren].
> I'm hoping C.R. Bard of Murray Hill, NJ USA will put all
> that pent up energy into being helpful and send me
> information on what medical devices might be used for the
> purposes of self-termination in the privacy of one's own
> home. I won't wait around for them to provide this, of
> course, as it might require the company to take too great a
> financial risk, alarming its investors by speaking of
> unpopular product use.
> and
> 	The mark BARDEX is not used on a rectal or enema 
> 	catheter nor is the product designed for use as such. 
> 	...the reference to use of a BARDEX catheter in 
> 	connection with inflatable backflow prevention is 
> 	inaccurate and misleading. In fact, the BARDEX product 
> 	is designed for use as a urological catheter.... 
> 	[10/11/2002 RSBren].
> this was far more helpful, though still not an answer as to
> whether a 'bardex device' might refer to something that *is*
> manufactured by C.R. Bard (e.g. an inflatable device
> designed for use in the vagina called the Contiform) that
> might serve the purpose of retaining toxic fluids (like
> vodka) in the rectum when attempting suicide. after all,
> whether a device is designed for a use says nothing about
> its efficiency in performing some OTHER task whose
> awkwardness or danger to the user's health is rendered moot
> as soon as we begin speaking of ending one's life using a
> successful method.