Grant deadline today, which means I didn’t have time to produce yet another scintillating epic for my not-so-super-secret other blog. I did, however, have time to take note of a highly annoying thing on Facebook that was brought to my attention last night and is worth a brief mention here, so that the blog doesn’t go without a post today.
The National Vaccine Information Center, founded and run by Barbara Loe Fisher, is about as antivaccine as they come. It’s also pretty blatant about spreading misinformation about vaccines hither, thither, and yon, disguised as “vaccine safety” public service announcements. Examples include pseudo-PSAs shown at AMC Theaters, inserted into the in-flight entertainment system of Delta Airlines, and blasted out at a Times Square JumboTron.
So what is Barbara Loe Fisher up to this time? Well, mosey on over to the NVIC Facebook page and find out:
Here’s a screen shot in case the NVIC deletes its post:
Yes, someone thought up the brilliant idea of making up labels to paste on Halloween candy advertising the NVIC website, which, as I’ve pointed out many times before, is chock full of antivaccine misinformation and fear mongering, and the NVIC is totally on board with encouraging its sycophants, toadies, and lackeys to paste this sticker on candy given to children. I recommend that pro-vaccine parents out there keep an eye out for such labels when trick or treating with their children. If you see parents giving out candy defaced with these labels, be sure to return them with extreme prejudice, making it very clear why you are refusing the candy.
@Orac - is also turns out that the United Way of the National Capital Region lists NVIC as one of their supported groups.....
This is so creepy--as though somehow vaccines are now being snuck into candy.
@Chris Hickie, they're saving that for their xmas campaign.
I'd seriously consider sending a petition to the United Way about that.
I hadn't read the bit about the stick-on labels yet and hustled to check the Reese's and KitKat's I had purchased for this Friday.
Fortunately, they just have the usual nutrition information.
I think someone should notify Hershey that their copyrighted material is being appropriated to promote an antivaccine message. I mean, they didn't slap these on generic candies. They put them on very well-known, well-liked, and well-established candies with very distinctive packaging, and the logos are very clearly visible in these pictures. I think if Hershey decided to sue NVIC, they'd have a strong case. (IANAL, naturally.) In fact, we should all send them that message so they realize how many people are seeing their brand used to sell this message.
I hadn’t read the bit about the stick-on labels yet and hustled to check the Reese’s and KitKat’s I had purchased for this Friday.
Fortunately, they just have the usual nutrition information.
It's not Hershey's that's putting the labels on. It's the NVIC suggesting to parents that they print up a bunch of these labels and then stick them to the candy wrappers before giving the candy out to trick or treaters. Hershey's has nothing to do with this. It was just Hershey's being pictured, its packaging in essence being defaced with an ad for NVIC.
It's like taking candy from a baby. (Yes, I know … but somebody had to go there.)
United Way has managed to sink even lower in my estimation than they already were. They've taken some flak lately for high overhead. And it's hard for me to see how, in the internet era, a meta-charity like United Way is justified, when a bit of Googling will let me find a more specific charity to which I can direct charitable giving. It made more sense in the 1980s, when groups like the Smallville Anti Domestic Violence Coalition couldn't afford the advertising to make themselves known to large groups of people. But today I don't need the risk that my contributions (net of overhead) will go to some organization whose goals I disagree with, like NVIC or some hyper-religious organization.
Eric Lund: "United Way has managed to sink even lower in my estimation than they already were. They’ve taken some flak lately for high overhead."
This is why in our paycheck donations no longer go to United Way. We use the directed giving system to give to things like the library foundation, a foster child organization, the local children's hospital and the Scottish Rite charity that provided free speech therapy for oldest child.
@ squirrelelite #4: there is a petition at change.org: https://www.change.org/p/united-way-stop-funding-the-anti-vaccination-g…
I'm confused - should I be putting these on my chicken-pox lollies or not?
Thanks, Chris Hickie!
I signed it just now.
And thanks, Orac. I realized that when I got further into the blog. But, looking at the picture made me curious enough to go check my candies.
There may be a case there (though I, too, am not a lawyer). By promoting this idea, NVIC is appropriating another company's product and image to promote their own. One might also think, if they receive these defaced candy items, that the candy company endorses NVIC.
Actually, I'm mildly surprised that they aren't sticking on labels which to warn parents about the deleterious influences of...
sugar, gluten, caseine, GMO ingredients and peanuts.
You know, the more I think about this--I think it's a good thing. This should let you clearly identify the kids your kids should not be playing with. No sleep-overs, no birthday parties, nothing.
I would say this is a feature, not a bug.
delete that TO
A downside of this latest NVIC disinformation campaign is that it's mostly kids who will see these labels, not parents.
The kids won't care, except some might get the idea that vaccines are a treat similar to candy and will look forward to them more, or at least mind them less. ;)
At any rate, NVIC could (and probably will) do worse - like encouraging antivax parents to dress their kids up as scary Hypodermic Needles or Toxins to emphasize how satanic vaccines are.
Or they could purchase several of these accessories and send Junior out as an Evil Dr. Offit:
I think others are getting at this as well, but just in case..
The owners of the KitKat brand in the states shouldn't accept that their product appears prominently in a context which is going to lead to kids being harmed.
In Europe at least, I'm pretty sure this would be actionable.
I'm pretty sure Hershey isn't going to find this too funny....
People should only put those stickers on the Hallowe'en-season "Coffin Crisp" bars, and maybe the "Scaries" and the "ScAero" bars*. A certain level of truth in advertising...
* Although I'd wager that at least the "Scaries" (brown & orange Smarties - the candy-coated chocolates, as opposed to the candies-in-a-roll we Canadians usually call "Rockets") would only be in Canada.
Mary M.: brilliant!
I suppose with the changing times, parents run any Halloween treats the kids collect through X-Ray machine and chemical tests before the kids get to eat it, but in my day the folks would never even have seen a label on the treats, and as kids we certainly wouldn't have cared.
Calli & Todd: If that image was in a magazine or TV ad there might be a copyright case, but I doubt it. For a photo posted on Facebook, it's an open and shut First Amendment OK. Don't waste your time writing to Hershey.
I'd say the best move is to pub this all over social media with Mary M.'s idea. "Look for the labels, so you know who avoid! Thanks NVIC for outing the loons in our neighborhood."
I suppose pro-immunization parents could organize and put Respectful Insolence stickers on M&Ms. The great Trick or Treat PR war. Just what kids need, and I'm surprised it took this long: every Halloween treat wrapped in advertising.
"Kids: sick of permissive parents who let you eat this stuff and ruin your life? We gave the answer" www.ISIS.org"
"Been bullied? Rejected? Turn it around! Ask mom and dad for a Bushmaster this Christmas! www.NRA.org"
"DADS: Stop Poisoning Your Kids!
Trick or Treat may seem like just good fun, but it teaches our children to look for handouts. Fight the satanist socialist nanny state. Support Right to Work laws for minors, and make junior go get a god damn job! www.GOPatriots.org"
Those labels, of course would be pasted on lumps of coal.
This is pretty bad, but even more disturbing is the "state vaccine policy guide" that NVIC has launched. I won't link to it and unintentionally promote it, but it's searchable to those who may be curious (and who haven't eaten lunch yet).
The fabrications in it about vaccines are about as vile as they are predictable, but its misinterpretation of Jacobson v. Massachusetts, the foundational Supreme Court ruling on public health law, is just unreal in its willful deceptiveness. These people have no conscience.
A pretty thorough takedown of B-Lowe and her ilk ran in New Hampshire on Sunday that I will link to:
It's encouraging to see that advertisers are walking away from their money; more should follow suit. It's great to see that people are picking up on the United Way thing as well. If the tax-deductible funding to these groups can be dried up, they will wither and die.
DB@16: Don't give them ideas; it's been a bad enough Halloween season already. Pumpkin riots, Ebola scares, and a bunch of Really Bad Taste costumes--and so far I am only talking about alleged adults. Not to mention that in the US, Election Day comes too close to Halloween.
OT: Has anybody else seen an upsurge in alt-med spam lately? Quite a bit of it has crossed my inbox this morning, without being flagged by my spam filter.
Oops. I put gag URLs in a post, and the blog engine auto-completed the addresses and turned them hyperlinks. If the post clears, and the host can't edit them back, please ignore.
Calli & Todd: If that image was in a magazine or TV ad there might be a copyright case, but I doubt it. For a photo posted on Facebook, it’s an open and shut First Amendment OK. Don’t waste your time writing to Hershey.
Given that Facebook posts, YouTube videos, and blogs have been taken down for far less overt violations of copyright, I wouldn't be so sure of that. DMCA allows copyright holders to be downright draconian in protection of their intellectual property. All Hershey has to do is send Facebook a takedown notice.
DMCA allows copyright holders to be downright draconian in protection of their intellectual property.
The trouble with using DMCA here is that the people distributing these stickers intend them to be used in meatspace, where a DMCA style takedown is obviously impossible. IANAL also, and there may be other statutes under which the brand holders can take action, but it's not obvious to me what Hershey can do if NVIC chooses to ignore a Cease and Desist letter.
My how things have changed - not for the better.
I remember my childhood with many children trick-or-treating and canvassing for the March of Dimes at the same time.
The fear of polio and determination to stamp it out was strong.
Today we have lunatics who wish for the opposite and want to reverse all that heroic effort.
If somebody encounters this while accompanying their child I hope they stand by the lunatic's door and hold the candy up to the child while explaining that this evil maniac wants all little children to become deathly ill and that is the reason they must return the suspect candy.
Let's see how neighbourhood social networking deals with the nutter's reputation.
parents run any Halloween treats the kids collect through X-Ray machine and chemical tests before the kids get to eat it
Ohh, sadmar. It's darker than that. Deeperer, even...
Slipping needles into sweeties of Avaxxers and then labeling the bait so that all the usual 'best practices' are bypassed. They should feel pwnd.
Also, I thought ya'lld just stick with the mosquitoes again this Year?? What's wrong with that? Ohh? Killed the heartworms, right. sickos.
IANAL also, and there may be other statutes under which the brand holders can take action, but it’s not obvious to me what Hershey can do if NVIC chooses to ignore a Cease and Desist letter.
The first question one needs to answer is whether ad hoc stickering of one's private property and then giving it away amounts to moving goods "in commerce."
Be careful how you URL on this site, sir/ma'am. You might regret it :(.
Anyway, although I detest what the antivaxers are doing with their Halloween candy this year, it *did* give me an idea for spreading the word about my Pokemon League should I ever revive it in the near-future.
The trouble with using DMCA here is that the people distributing these stickers intend them to be used in meatspace, where a DMCA style takedown is obviously impossible.
I'm not suggesting sending a DMCA takedown notice to NVIC to stop the stickers. I'm suggesting sending it to Facebook, where this is being promoted, to get the images pulled. You're right that it would be nigh impossible to prevent people putting whatever stickers they want on candies before passing them -- and heck, who'd want that to be possible through litigation anyway? It's the *promotion* online that would be more damaging to Hershey, because everybody can see that -- which is actually NVIC's intent, I'm sure.
Besides, stop the online promotion of this campaign, and far fewer people are gonna be pasting these stupid stickers on candy, because they won't hear about it.
That's what's weird about DMCA takedown notices. You don't actually send them to the offender. (Well, you *can*, as a courtesy, but you actually don't have to.) You send them to the service that hosts the content. It's part of the "safe harbor" provision that protects the host from prosecution or lawsuit because of stuff their members post on their service. The theory is that in exchange for not being held responsible for the content, they are expected to promptly remove any violating content once it's pointed out to them. Content hosts vary widely in how they respond to takedown notices, but many basically cave at the first sign of a notice. Some will call the copyright holder's bluff. (Yes, it is often just a bluff. I have heard of skeptical blogs getting attacked by meritless takedown notices. As a content originator you're supposed to be able to protest when your hosting service pulls your content, but it's really at the service's discretion. And many just don't want the legal hassle if it turns out you don't actually have a case with your protest.)
I’m not suggesting sending a DMCA takedown notice to NVIC to stop the stickers. I’m suggesting sending it to Facebook, where this is being promoted, to get the images pulled.
This is still an issue of trademark (not copyright), so it remains necessary to address how on earth this post rises to the level of dilution.
It’s part of the “safe harbor” provision that protects the host from prosecution or lawsuit because of stuff their members post on their service. The theory is that in exchange for not being held responsible for the content, they are expected to promptly remove any violating content once it’s pointed out to them.
The safe-harbor provision does not apply to trademark.
So? Like I said before, posts have been taken down for far less. If she had a Disney logo in there, you can bet it would already be down.
@sadasd, if it help, we wrote a respond to the NVIC policy guide. http://thevaccineadvocate.com/law-and-policy/
Rather than debate what Hershey could or could not do under any laws or regulations, I decided I'd just let Hershey know, and let their lawyers figure out what they can or cannot do. I figure that they earn the money, so let them figure it out.
I was pleased (but not really surprised) to see that a minion, Dr. Hickie, had beat me to the punch.
I see a raise in his future.
If she had a Disney logo in there, you can bet it would already be down.
A more proper comparison would be her own picture of a pile of defaced Disney T-shirts.
Slipping needles into sweeties of Avaxxers and then labeling the bait so that all the usual ‘best practices’ are bypassed. They should feel pwnd.
Also, I thought ya’lld just stick with the mosquitoes again this Year?? What’s wrong with that? Ohh? Killed the heartworms, right. sickos.
Perhaps you should wait until the LSD wears off, and THEN post.
Publishing a picture of an object that bears a trademark isn't a use of that trademark unless extra conditions make it so. If you draw your own image of Mickey Mouse and post it on FB, Disney might complain. If you post a photo of yourself holding a Mickey Mouse doll, they've got nothing.
NVIC isn't trying to sell anything, especially candy. The Kit Kat bars in the photo are obvious signifiers of 'halloween candy' employed in a comment about Halloween that is clearly protected speech. If that photo was 'not OK' you couldn't post a picture of yourself holding up a "Boycott NVIC" sign sitting on the hood of your car, wearing a cap with a team logo, with a Mickey D's sign in the background, etc. etc.
I know copyright fairly well, but not trademark, so I checked a chain of links from the one Narad posted, and there are multiple statutory provisions that would exempt that photo from trademark litigation.
As you seem to know, though, IP isn't usually about what's actually in the law and who would win at court. It's usually about who can use threats of litigation, however baseless, to bully a weaker party into submission.
IP is also (Disney paranoia aside) always about money. Hershey has no financial incentive to pay one of their lawyers even for the time to draft and send a nasty letter to FB. And even if FB received any kind of threat, pulling that photo would set a precedent so damaging to their revenue stream, they'd just laugh for 5 seconds and move on with business. If Hershey pressed the issue, FB would reply that their legal team outnumbers Hersheys' 10-1 so good luck with your lawsuit and in the meantime we'll be pulling all Hershey products out of every commissary and vending machine in Menlo Park. I.e. they'd spend five minutes laughing in Hersheys' face and then move on with real business.
Allow me to extend this a bit further. Not only do I think the DMCA is inapropos, I also don't selectively approve of abusing it based on my feelings toward the target. If Hershey should be able to use a picture of their Halloween candy with NVIC stickers on it as the basis for a takedown, why shouldn't Mattel be able to pull Superstar from Y——be?
I'm not a copyrights expert, and that's a pretty specialized area. I can ask a colleague if it's critical. But from my short reading, I just don't see how this could be a trademark violation. They own the candy, they're not presenting them as if the candy was their own product, they're not stealing Hershey's trademark, they're just using it as a vehicle to add their own info.
If they gave out a bag that included a hershey candy and a piece of paper with their info it would not be a violation of trademark. How is this different?
From what I've seen, trademark violation is usually the other way - incorporating someone else's symbol or product into your own.
They banned me from their site after I posted some science on that thread. Fisher is a vile woman. She called the gardasil vaccine the slut vaccine. Yeah. That's my eleven year year old daughter and her vaccinated friends: sluts.
But from my short reading, I just don’t see how this could be a trademark violation.
Neither do I, but "trade dress" seems closer than the idea that a defaced photo of one's products is a copyright violation. There's a powerpointy look here (I had to manually change .ashx to .pdf).
OT, but on a topic this blog has been a leader on:
It's a long essay by someone who lost a friend, somebody who died of breast cancer at the age of 33. The central topic involves the writer's resentment at always being told to have a positive attitude about cancer and the various fund raising organizations. I get that. But well down the page, we learn:
"Julia tried everything except conventional methods. No scalpel, no chemo, no hospital. A healing retreat in Germany. A healing center in London. A last minute jaunt to Australia. These pills. Those foods. Raw diet. Only sprouts. Kombucha.Kombucha cures AIDS, she tried to tell me. No milk. No drinking at meals. No alcohol. Everything in a glass bottle. She moved away from London for the sea, she moved back to London for work. London was so hard to escape. Her tumor got smaller then larger then smaller and I thought and I said: You are so brave. I still think that. . . . "
The author continues:
"Were conventional methods the answer? Julia dedicated herself to every alternative treatment she could find, every method she thought might have a chance, offer something she could believe in. "
It's a fairly long essay which goes into a lot of feeling and hurt, but is rather insensitive about the fact that the deceased could possibly have been cured, or at least had a much longer life, had she not adopted such an antiscientific approach to her own condition.
Some of the commenters make this point pretty well. Others tell stories of wives and mothers who did all the available conventional treatment, only to die of the disease.
I suppose there's always RICO.
@Dorit Reiss-I saw that earlier today, and it's excellent work.
Narad: Good one...
BLF is a vile human. Not clear whether she actually believes the swill she vomits out but she must be getting pretty desperate to keep pushing the slut vaccine bit. Cervical cancer = virgin? What a waste of Oxygen she is.
I don't think I've ever read a Halloween candy wrapper in my life. As a kid or as an adult. Nor would I be turning down free candy just because there was a sticker on it. You know how money spends the same? Chocolate tastes the same. If they want to put nonsense stickers on their wrappers, it's not my problem.
Antivax wingnuts might want to rethink their dedication to "research" at Google University, at least for today.
Google is saluting polio vaccine developer Jonas Salk. The graphic on the Google search page shows healthy children frolicking, with one holding up a sign saying "Thank you Dr. Salk".
One can only imagine the teeth-gnashing among the antivax crowd. "Don't parents realize how much healthier their kids would be if they acquired polio immunity the natural way, by getting the disease??!?!?"
I was just about to mention it myself. Gave me a big smile.
But what better time for them to truly act like the ghouls they are?
Dangerous Bacon, they don't seem too pleased!
Pop over to Modern Alternative Mama (sorry, Future Dystopian Mama to see her nasty, spiteful counter to the celebration of Salk. You might be in time to enjoy the battering she's getting in the comments, that is, before she gets busy with the ban hammer.
Modern Mainstream Mama made an image with some of the highlights.
On the subject of anti-vaccine wing nuts, see this satirical article.
Don't just read the article, read the comments too.
Charlotte and AC: Links?
TheSpudd was great. That could not possibly have been the real Suzanne Humphreys could it? If it is, her medical school should be ashamed.
Mike Ma. I contacted the guy who runs The Spudd. I have inside information. You'll have to trust me. It was really her. However, the person commenting as Toni Bark was a Poe.
That was priceless.
Thanks for the followup. I wanted to believe it was really Humphfries but my skeptical nature gave her the benefit of the doubt. Priceless cluelessness. Perfect .
Yep, that's MaM. The number of comments has dropped by about 100 since I last looked so they've been busy with the deleting (mine have gone and I'm banned).
What is that, the slower version of actually poisoning the candy? This has actually passed the "yelling fire in a crowded theatre" point. This may actually lay outside the bounds of free speech.
Over at the anti-vax home away from home (otherwise known as AoA) a commentator called Jon Marathon (which may have that RealName superscript if he were at Amazon, but I digress) is complaining about being called an ant-vaxxer by the 'liberal press'.
Autismmom has the perfect solution:
"Try reading "Natural news". You are less likely to get attacked or be accused of being an anti vaxxer or a tin foil hat wearer."
The trouble is that Autismmom is serious.
I'm not a lawyer, but I'd find the argument that that conduct is likely to cause confusion, mistake or deception about the association of Hershey's with NVIC in violation of 15 U.S.C. 1125(a)(1)(A) to be colorable.
I’d find the argument that that conduct is likely to cause confusion, mistake or deception about the association of Hershey’s with NVIC in violation of 15 U.S.C. 1125(a)(1)(A) to be colorable.
You have to get to the "in commerce" part, not to mention to interstate commerce if you want to invoke the Lanham Act.
^ (Not that the latter is a particularly high bar.)
Giving candy away is commerce. Facebook sends things interstately, among other reasons that the commerce among the states clause is satisfied.