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$4.00 Round Peace Sticker. "Bark Less Wag More"
5.5-inch diameter with removable "pie piece" sections. Weather & fade resistant.
Adhesive backing. Made in USA.
How the threat of
legal action led to the creation of this sticker
by Dan R. Frazier, Owner of CarryaBigSticker, Jan.
5, 2011 (Updated Nov. 6, 2011)
This sticker was created in January of 2011 to give peace advocates another clever way to get their message out. But that is only part of the almost unbelievable story behind this sticker. The more interesting part of the story has to do with how I created this sticker
partly in an effort to avoid legal action against my company.
You see, prior to January of 2011, we had been selling
rather plain blue bumper stickers and bumper magnets that said "Wag More,
Bark Less!" We had purchased the stickers from a company called
SpiritualStickers.com. See image below.
Actually, we had been trying to sell those
blue "Wag More, Bark Less!" bumper stickers, but they had not been selling very well.
(We eventually stopped selling this item due to poor sales.) In the preceding few months we had only sold about seven "Wag More, Bark Less!" stickers. Despite the poor sales of the sticker, we managed to attract the attention of an attorney named Stephen A. Spataro. Among other clients, Spataro represents a
pet food company called Cloud Star that had registered the phrase "Wag more bark less" as a "character
mark" with the U.S. Patent and Trademark Office. Spataro felt that the stickers we were selling infringed on his client's rightful use of the phrase "wag more bark less." So in September of 2010, Spataro began his effort to stop us from selling the "Wag More Bark Less!" stickers that we had been trying to sell.
Spataro started his attack by contacting eBay where we also sell stickers and magnets. He apparently told eBay that we were infringing on his client's trademark or character mark and eBay responded by removing our listings for the "Wag More Bark Less!" stickers and magnets. eBay told us in an automated e-mail, "Item(s) is a counterfeit product which infringes the trademark owner's rights." I did not agree with eBay's action against us.
However, there was little that I could do about it. After all, it was true that Spataro had registered a character mark for "Wag More Bark Less." I did not expect eBay to care that the character mark was, in my opinion, a flagrant abuse of the trademark system.
I wrote to Spataro and asked him to reconsider his position. I did not really expect him to reconsider
his position. But I was hoping that he would not respond to me, which
might give me some ability to negotiate with eBay and maybe get my listings
restored. But Spataro did respond, insisting that I should respect his
I was surprised to run into trouble with the blue "Wag
More Bark Less!" stickers that I had bought from SpiritualStickers.com. I thought it was a clever sticker and for all I knew it was an entirely original sticker invented by someone at SpiritualStickers.com. I had no idea that the sticker might have been inspired by a product that was being sold and distributed by a pet food company,
let alone that the phrase had been trademarked. I contacted Rick McGinnis, the owner of SpiritualStickers.com to let him know that his sticker was causing me a headache. Rick in turn contacted the attorney, Stephen A. Spataro, hoping to find out what the problem was. After McGinnis spoke to Spataro,
McGinnis decided to stop selling the blue"Wag More Bark Less!" bumper stickers that his company had been selling. He told me, "This isn't the fight for me." Apparently, McGinnis was not selling enough stickers to make a legal battle worthwhile. Spataro then e-mailed McGinnis a message confirming their conversation
and agreement. Spataro sent me a copy of the e-mail. I am including a copy of that message in the right sidebar.
Despite having lost the battle to sell "Wag More Bark Less!" stickers on eBay, and the quick capitulation of my supplier, I was inclined to continue to sell the
few remaining "Wag More Bark Less!" stickers that I had purchased from McGinnis.
(I had only purchased 48 stickers.) For one thing, I felt that Spataro and Cloud Star were abusing the trademark system. As a former journalist, I felt that Cloud Star was infringing on my free speech rights, as well as infringing on the free speech rights of my customers. I'll talk more about trademarks and free speech later. For now, it will suffice to say that I continued to try to sell the "Wag More Bark Less!" stickers
despite Spataro's trademark claims. However, I had very few sales.
On the first business day after Christmas 2010, I received an e-mail from Spataro in which he threatened legal action against my company if I did not stop selling "Wag More Bark Less!" bumper stickers by Jan. 7, 2011. The text of Spataro's letter is reproduced in the right sidebar.
Though I felt that I could win a legal battle that would allow me to continue selling a version of the "Wag More Bark Less!" stickers on free-speech grounds, I was not inclined to expend the time and money necessary to defend my rights, especially when the sticker in question
sells so poorly. So my only choice appeared to be to stop selling the stickers, and allow the bullies named Stephen A. Spataro and Cloud Star
There is nothing quite so galling and ironic as being harassed and bullied by people who claim to support the ideal of "Wag More Bark Less." On the Cloud Star Web site, it says, "Hey, don't you think that 'Wag More Bark Less' is something that we all should practice a little more? (and we don't just mean the dogs either!)." Yeah right! When I read that and then get a harassing letter from the same company's attorney, well it makes me want to gag.
Then it occurred to me that there might be a way to continue selling the "Wag More Bark Less" sentiment
without going to court. What if I switched it around and offered a sticker that said "Bark Less Wag More"? Cloud Star had not trademarked that phrase. And it basically conveyed the same message. I decided to combine the phrase with the peace symbol because to me the phrase has natural peace-related connotations. (Interestingly, the peace symbol has been shared freely and been in the public domain from the time of its creation in 1958.
Apparently, artists with a truly peace-loving attitude are not as litigious
as some of their for-profit brethren in the corporate world.)
So who is this company called "Cloud Star"? And why did it register the phrase "Wag More Bark Less" as a
character mark? Here is what I have been able to learn about the company. The company was founded in 1999 by Jennifer Melton and Brennan Johnson
of San Luis Obispo, Calif. The couple wanted to create healthier food options for their dog who was a picky eater. The company, based in Santa
Maria, Calif., now sells a variety of products for dogs like Buddy Biscuits, Tricky Trainers treats,
Holistic Baked Kibble dog food and Buddy Wash dog shampoo.
According to Manta.com, Cloud Star has estimated annual revenues in
excess of $20 million and probably more than 20 employees, making it many,
many times larger than my own relatively tiny company that operates out of
my modest home with the help of two part-time employees (not counting me or my wife). Suffice it to say
that we are a long way from having anything close to a million dollars
Somewhere along the way, Cloud Star decided to start selling
magnets and hats that bear the phrase "Wag More Bark Less." See image below.
Their sticker was significantly different from the sticker
we had been selling. It is about half as large, and for some strange reason
the phrase "bark less" is about one-quarter the size of the phrase "wag
more." Apparently, to the folks at Cloud Star, barking less is really not
that important. All of their stickers bear the words "Cloud Star" in very
small text. Our stickers, by contrast, had said in small text,
"SpiritualStickers.com." (The small text serves a purpose similar to that of
a trademark by differentiating the source of the product.) Cloud
Star also sells "wag more" jewelry that does not
include the phrase "bark less" at all.
In 2008, the Cloud Star founders registered a
"standard character mark" for the phrase "wag more bark less" with the U.S.
Patent and Trademark Office. Their filing specifically mentions their
intention to use the phrase on stickers. Other similar
filings by Johnson and Melton with the USPTO specify that the phrase will be
used on such things as mugs, caps, t-shirts, sweatshirts and pet toys.
A "standard character mark" as can be registered with the USPTO is a type of trademark
that involves only ordinary lettering - not special logos or designs. A trademark is intended to differentiate one brand of product from another. Often trademark's are symbols, like the apple that distinguishes Apple brand computers from other types of computers, or like the swoosh symbol that distinguishes Nike athletic shoes from other brands of shoes. Sometimes slogans that do not involve symbols can be trademarks. For instance, "Where's the beef" is a well known slogan that was trademarked by the Wendy's restaurant chain. Sometimes different companies can have very similar trademarks, especially if they are in different fields. An apple orchard can for instance use a distinctive drawing of an apple as its trademark without fear of being dragged into court by the Apple computer company. Despite similar trademarks, the apple orchard is unlikely to be confused with the computer maker.
Trademarking words and slogans on stickers is unusual, and, in my opinion,
often an abuse of the trademark process. The only other example I know of in which a bumper sticker has been trademarked is a variation of the"Coexist" sticker. I believe that too is a case of an abuse of the trademark process.
I have written about the "Coexist" controversy at length.
It is interesting to note that the phrase "Wag more bark less" does NOT appear prominently (if at all) on the packaging of Cloud Star's
various pet food products and shampoos, probably because that might imply a
benefit that the products may not actually impart to a dog. The phrase is also not featured all
that prominently on the Cloud Star Web site, though it does appear in the
title bar for each Web page.
It would be one thing if Cloud Star trademarked the phrase "Wag More Bark Less" and used the phrase in its advertising and packaging for its pet food products. I would then understand if it tried to prevent other pet food manufacturers from using the phrase in their advertising and on their packaging.
In that case the phrase would be serving a legitimate trademark purpose,
differentiating one brand of pet food from another.
But this is different. Nobody is buying stickers that say "Wag More Bark Less" because they
are thereby assured that they are getting a quality brand-name sticker from a reputable sticker company. The "Wag More Bark Less" stickers are not like the "Intel Inside" stickers that supposedly assure you that the chips in your computer are from a reputable company called Intel.
Nor are people buying "Wag More Bark Less" stickers because
they want everyone to know they support Cloud Star and its pet-related
To the extent that people are buying the "Wag More Bark Less"
stickers (and hats, t-shirts, etc.), they are
doing so because they agree with the message and want to spread that
message. But their ability to do so with full freedom and creativity is
impaired when they can only buy this sentiment on stickers of a certain
size, shape, and color from one company. In other words, their free speech
rights are being limited by an abuse of the trademark system.
will we see companies trademarking "I love you" or "Get well soon" so that you can't buy a greeting card unless you buy it from the company that trademarked the phrase, and too bad if you don't like the colors or styles of cards that are available from that one company?
If we allow the trademarking of short phrases for purposes other than
distinguishing one brand of product from another, we are stifling innovation
and competition, both of which are essential components of free-market
You may wonder how copyright laws play into this dispute. Copyright laws do protect written works like novels, plays, song
lyrics and essays. But generally copyrights do not protect short phrases like those used on book titles, song titles and bumper stickers. This is why you can have several movies called "A Christmas Carol" for instance. You can also have songs or books with identical or nearly identical titles. And of course you can buy bumper stickers expressing the same sentiment from different companies.
While copyright generally does not protect short phrases, it usually does protect the artistic embodiment of a phrase. That is, how exactly it is presented. For instance, copyright law prevents my company from selling an oval "Wag More Bark Less" sticker that looks almost identical to the sticker that is being sold by Cloud Star. The artistic embodiment of the Cloud Star sticker is protected by copyright law regardless of whether or not "Copyright" or a "C" in a circle appears on the sticker.
Stephen A. Spataro and the founders of CloudStar should be ashamed for failing to practice what they preach
and for abusing the trademark process. If you would like to contact them to let them know what you think of their scheming at the expense of peace, free speech,
innovation and competition, use the e-mail addresses below.
Attorney Stephen A. Spataro: firstname.lastname@example.org
Jennifer Melton or Brennan Johnson (Cloud Star founders): email@example.com
Jan. 27, 2011 Update:
Yesterday I received an e-mail from Attorney Stephen Spataro in which he asks that CarryaBigSticker stop selling magnetic bumper stickers that say "Wag More Bark Less." He also asks that we stop selling stickers that say "Bark Less Wag More." He and his client Cloud Star gives us until Feb. 16 to respond or face litigation. His full letter, along with my comments, appears in the right sidebar.
The demand that we stop selling magnets that say "Wag More Bark Less" is interesting because Cloud Star does not hold any kind of trademark for any kind of magnet, despite the fact that they do sell magnetic bumper stickers.
Previous letters from Stephen Spataro made no mention of
magnets. Trademarks are always product or industry specific. This is why an apple orchard can use an apple logo without fear of being sued by the Apple computer company. So the fact that Cloud Star does not hold a character mark or trademark for "Wag More Bark Less" that applies specifically to magnets could be important in court. Of course, my feeling is that even if the Cloud Star trademark mentioned magnets, I could still win in court on free-speech grounds.
The demand that we stop selling stickers that say "Bark Less Wag More" seems especially ludicrous given that the character mark held by Cloud Star is for the phrase "Wag More Bark Less." Apparently, if Cloud Star gets its way, nobody is allowed to sell anything that involves these four words. You apparently can't put "Bark More Wag Less" or "Wag Less Bark More" or "Wag Bark Less More" or "More Bark Less Wag" etc. on a sticker or anything else without running afoul of the folks at Cloud Star who apparently think they now own those four words.
I doubt that Cloud Star will actually bring litigation against me or my company. For one thing, if they were really going to bring litigation, they probably would have done so by now. For another thing, if they bring litigation against me, the negative publicity could be very bad for Cloud Star. Finally, I don't believe that Cloud Star has a legal leg to stand on, and they probably know it.
Nonetheless, having received several letters now from Attorney Stephen Spataro on behalf of Cloud Star
that threaten litigation, I can't entirely rule out the possibility that a lawsuit could be brewing. As I have said, I am not eager to engage in litigation, especially over stickers and magnets that have sold so poorly for me. I am really not in a good financial position to engage in litigation. I have large credit card debts that it will take me years to pay down even under the best of circumstances. Nonetheless, there is nothing I abhor more than a bully. I will not be bullied into submission, especially by a company that has staked much of its reputation on the idea of "Wag More Bark Less." I am also a firm believer in the First Amendment and the right of free speech. I am willing to make a personal financial sacrifice for the sake of setting a legal precedent in the furtherance of free speech rights. In the end, this is not about some stupid stickers and magnets that nobody wants to buy. This is about standing up to bullies and standing up for what is right.
I have set up a Legal Defense Fund. Donations may be made in $10 increments using the
button at the top of this page. The money donated will be used to defend our continued right to sell "Wag More Bark Less" and "Bark Less Wag More" products. If the money is not needed to cover legal costs, the money will be donated to a nonprofit organization that benefits dogs, like a no-kill animal shelter. Please consider making a donation to protect free speech.
March 14, 2011 Update:
I have removed the donation button and am no longer accepting donations to the legal defense fund. As is made clear in the letter I received from Stephen Spataro on March 10 (reproduced
at the bottom of the right sidebar), it now appears very unlikely that Cloudstar or Spataro will be bringing litigation against me or my company after all. The small amount of money that was donated to the legal defense fund will be donated to an organization that benefits dogs. In the event that litigation does materialize, I will write about that on this page.
Lord, help me to be the person my dog thinks I am Bumper
Sticker or Magnetic Bumper Sticker
I care not for a man's religion
whose dog and cat are not the better for it. -Abraham Lincoln
Bumper Sticker or Magnet
|See more from our
Below are letters to and from attorney Stephen A. Spataro regarding
the "Wag More Bark Less! Stickers. Comments by Dan R. Frazier, owner
of CarryaBigSticker are inserted in yellow.
E-mail from Dan Frazier, owner of CarryaBigSticker, to Stephen Spataro dated Sept. 29, 2010:
Subject: Steve, about your eBay claim against Wag More Bark Less Bumper Sticker.
eBay has contacted me about a claim you are making with regard to some "Wag More Bark Less" Bumper Stickers that I have been selling. I see that you represent a client who has a claim to a trademark involving the phrase "Wag More Bark Less." It seems to me that your client's attempt to have exclusive control over the phrase "Wag More Bark Less" on bumper stickers and the like is an infringement of my free speech rights and those of my customers. It detracts from the availability of an important sentiment in an era of ongoing international conflict. Furthermore, your exercise of this claim seems to be directly contrary to the sentiment expressed on this bumper sticker. As you probably know, I am in no way trying to capitalize on the supposed branding value of this phrase as neither I nor most of my clients are familiar with whatever products or company this phrase is supposedly associated with. I should also let you know that I have extensive first-hand experience with free-speech issues having won two important free-speech cases with assistance from the ACLU. I would appreciate it if you and your clients would reconsider your position with regard to these "Wag More Bark Less" products.
(The two cases involving the ACLU concerned
T-shirts that listed the names of U.S. troops killed in Iraq.)
E-mail to Rick McGinnis of SpiritualStickers.com from
Attorney Stephen Spataro sent Oct. 7, 2010 and CC'd to Dan Frazier.
Dan Frazier's comments are inserted in yellow:
Dear Mr. McGinnis,
I appreciated the opportunity to speak with you earlier today, October 7, 2010. As I mentioned, my client, Cloud Star Corporation has the right to exclusively license the family of WAG MORE BARK LESS trademarks. I also represent the owners of these trademarks, Brennan Johnson and Jennifer Melton, whose federal trademark registrations for the WAG MORE BARK LESS trademark include U.S. Trademark Registration Reg No. 3,394,655 for bumper and other stickers in International Class 16, Reg No. 3,660,374 for cups and mugs in International Class 21, Reg. No. 3,108,531 for animal and pet food products in International Class 31 and Reg. No. 3,250,278 for clothing in International Class 25. Cloud Star also uses the trademark under license, on and in connection with, the other products that I mentioned.
(The trademarked phrase does not appear prominently if at all on the
dog food and other pet products sold by Cloud Star so it is not
being used as a trademark should be used -- to differentiate these products from
similar products made and sold by other companies.)
Thank you listening to me briefly explain my clients' years of hard work and substantial investments in building the WAG MORE BARK Less brand and nurturing the goodwill represented by the mark. (How
does threatening legal action against others engender goodwill toward Cloud
This email confirms that you agreed to promptly and permanently discontinue applying the phrase Wag More Bark Less to bumper (adhesive) stickers, and to promptly and permanently discontinue manufacturing, distributing, selling, displaying, and marketing bumper (adhesive) stickers bearing the phrase Wag More Bark Less.
(The emphasis on adhesive stickers stems from the fact that the trademark
specifically covers stickers. The trademark does not cover magnets, which is why
we are able to continue to sell magnets that say "Wag More Bark Less".)
Again, thank you for your professionalism and cooperation.
I understand that you manufactured and supplied Dan R. Frazier with bumper stickers bearing the phrase Wag More Bark Less. I am copying Mr. Frazier on this email and thus respectfully ask that he consider my clients' years of hard work and investment and agree to discontinue his sales of bumper (adhesive) stickers bearing the phrase Wag More Bark Less. Mr. Frazier, thank you in advance for your anticipated cooperation. I look forward to hearing from you.
Stephen A Spataro
Spataro & Associates
951 Jays Way
Ringgold, Georgia 30736-8982
Telephone: (706) 935-5616
Mobile: (310) 866-7033
Facsimile: (706) 935-5787
Letter from Spataro & Associates to Dan Frazier dated Dec. 27, 2010.
Dan Frazier's comments are inserted in yellow.
Law Offices of Spataro & Associates
100 Wilshire Boulevard, Suite 200
Santa Monica, California 90401-1111
Telephone (310) 917-4557
Facsimile (310) 917-4520
(I notice that almost none of the address and phone information matches the information from Spataro's e-mail of Oct. 7 above. Meanwhile, adding to the confusion is the fact that this letter was mailed and postmarked from Chattanooga, Tenn.)
December 27, 2010
VIA ELECTRONIC MAIL BY SENDING A PORTABLE DOCUMENT FORMAT ("PDF") FILE TO THE FOLLOWING EMAIL ADDRESS: (dan
(at) lifeweaver (dot) com) and VIA FIRST CLASS MAIL
Dan R. Frazier
P.O. Box 22324
Flagstaff, Arizona 86002
Re: Cloud Star Corporation - Wag More Bark Less Trademarks
Dear Mr. Frazier:
Cloud Star Corporation has the right to exclusively license the family of Wag More Bark Less trademarks. We also represent the owners of these trademarks, whose federal trademark registrations for the WAG MORE BARK LESS trademark
include U.S. Trademark Registration Reg No. 3,394,655 for bumper and other stickers in International Class 16, Reg
No. 3,660,374 for cups and mugs in International Class 21, Reg. No.
3,108,531 for animal and pet food products in International Class 31
and Reg. No. 3,250,278 for clothing in International Class 25. A
copy of the federal trademark registration data is attached. Cloud
Star also uses the trademark under license, on, and in connection
with other products. (Most of this paragraph is identical to a
section of the letter to Rick McGinnis shown above. The registration
data referred to amounts to four pages of print-outs from the U.S.
Patent and Trademark Office. If you want to see these trademark
registrations, use this
It came to Cloud Star's attention that you and your companies, Lifeweaver LLC and Carry a Big Sticker (collectively "you") are displaying, advertising and selling a sticker bearing the phrase "Wag More Bark Less" (the "Product"). You are selling the Product from your web sites www.lifeweaver.com, www.carryabigsticker.com, and also on eBay. Cloud Star asked you to stop selling the infringing product. (Lifeweaver LLC is the parent company of CarryaBigSticker. However, we do not sell any products on the Web site www.Lifeweaver.com.)
You sent me an email on September 29, 2010 asking us to reconsider our position that you are infringing. After considering your email we concluded that your position is without merit and that you were indeed capitalizing on the WAG MORE BARK LESS family of trademarks. Your conduct flatly contradicts the self-serving conclusions made in your September 29 email. Furthermore, the Product that you are selling contains an intellectual property notice and claim of protection! Moreover, Trademark rights promote the aims of the first amendment by enabling producers of the spoken and written word to differentiate themselves. If multiple businesses use the same (or confusingly similar) names, the result is a cacophony rather than discussion or debate." TE-TA-MA Truth Foundation--Family of URI, Inc. v. World Church of Creator, 297 F.3d 662, 63 U.S.P.Q.2d 1760 (7th Cir. 2002) (The
legal precedent cited by Spataro concerns two churches that were
using nearly identical names. The precedent is irrelevant because neither my
company nor Cloud Star uses "Wag More Bark Less" as its company name
nor does either company use the phrase to brand its products or
differentiate the source or origin of its products. The source and
origin of our different stickers is printed in small text on our
respective stickers. In our case it is either
www.SpiritualStickers.com in the case of the blue bumper stickers we
formerly sold or www.CarryaBigSticker.com
in the case of the new yellow "Bark Less Wag More" stickers that we
have just started selling. In the case
of Cloud Star, the origin is shown to be Cloud Star.)
We learned that Rick McGinnis was also selling the Product. After informing Mr. McGinnis of our clients' rights in the WAG MORE BARK LESS family of trademarks and discussing the Product with him, he agreed to, and did, promptly and permanently discontinue distributing marketing, displaying and selling stickers bearing the phrase Wag More Bark Less. I copied you with my October 7, 2010 email to Mr. McGinnis and in that email I asked you to discontinue your sales of the Product. It appears that you ignored my request and that you are continuing to sell the Product.
We again request that you discontinue your display, marketing, advertising and sale of the Product.
Your use of the phrase Wag More Bark Less is identical to our clients registered trademark WAG MORE BARK LESS. You are using the phrases on the same product, stickers. You are aware that Cloud Star sells stickers bearing the WAG MORE BARK LESS trademark, under Trademark registration No. 3,394,655, for adhesive stickers. Your use of the term Wag More Bark Less on stickers is likely to cause confusion, mistake, or deception with the meaning of trademark and unfair competition laws.
Please confirm to us in writing no later than January 7, 2011 that you will immediately discontinue your display, marketing, advertising and sale of the Product. If we do not hear from you by 5:00 p.m. Pacific Time on January 7 we will assume that litigation is required to resolve this matter.
Very truly yours,
SPATARO & ASSOCIATES
STEPHEN A. SPATARO
E-mail from Dan Frazier to Stephen Spataro sent Jan. 7, 2011
RE: WAG MORE BARK LESS Trademarks
In response to your letter of Dec. 27, I am hereby confirming in writing that effective immediately neither I, nor my company, Lifeweaver LLC, nor its subsidiary CarryaBigSticker nor any of the Web venues over which I have control (such as our eBay store) will engage in the sale of stickers (adhesive) bearing the phrase "Wag More Bark Less."
Please note that this not an admission of wrongdoing. I continue to believe that the wrongdoing is on the part of you and your client Cloud Star. I believe your positions rests on a fundamental misunderstanding of trademark law, or, more likely, on an intentional abuse of the trademark system. Your position is unethical, almost certainly illegal, and completely indefensible on any grounds except pure greed. Though I am not eager to be drawn into litigation, I will not hesitate to share with others the shameful way that you have treated me (and presumably others) in this matter.
Please let me know if you or your client should reconsider your position.
E-mail from Stephen Spataro to Dan Frazier Received Jan. 26, 2011.
Dan Frazier's comments are inserted in yellow.
First, we are relying on your written confirmation and representation contained in the first paragraph of your January 7, 2011 email concerning the immediate stopping of all of your sales of adhesive stickers bearing the phrase “Wag More Bark Less.”
Second, we have reviewed your recently revised www.carryabigsticker web pages. Under your heading, “Related Products:” you sell, offer for sale, distribute, and advertise magnetic stickers bearing the phrase Wag More Bark Less. We agree with your characterization that your magnetic stickers are indeed products related to my clients’ bumper and other stickers registered under their U.S. Trademark Registration No.
3,394,655. The products are closely related. Your magnetic stickers bearing the phrase Wag More Bark Less are likely to be reasonably thought by the buying public to come from the same source, or thought to be affiliated with, connected with, or sponsored by, my clients, under Registration No. 3,394,655. This paragraph implies that my Web pages are advertising "Wag More Bark Less" magnets as "Related
Products" -- related to the "Wag More Bark Less" stickers and magnets sold by Cloud
Star. Of course, that is wrong. The "Related Products" phrase appears on almost every page of the CarryaBigSticker Web site and always refers to other products on our site that we feel are related somehow to the main product being sold on a given page. Of course, I would never argue that the "Wag More Bark Less" or "Bark Less Wag More" products we sell here are not in any way related to the "Wag More Bark Less" products sold by Cloud
Star. I know for a fact that the "Bark Less Wag More" sticker that we sell was inspired
partly by the "Wag More Bark Less" stickers sold by Cloud Star. I am less sure of the inspiration of the "Wag More Bark Less" magnets we sell as I had no involvement
in the creation of that product. Being inspired to create a similar product after seeing someone else's product is not necessarily a crime, especially if you are creating something new and better. That's called innovation. You could never build a better mousetrap if lawyers like Stephen Spataro ruled the world.
Be aware that Cloud Star sells and distributes WAG MORE BARK LESS brand magnetic stickers. I am aware of that. I am also aware that Cloud
Star does not hold a trademark for any type of "Wag More Bark Less" magnets. What next? Will Cloud
Star claim that only they can sell bumper magnets, regardless of what the bumper magnets say?
We respectfully ask you to discontinue your sale, offering for sale, distribution, and advertising of magnetic stickers bearing the phrase Wag More Bark Less, as more specifically requested in the last paragraph of this email. Neither Cloud Star nor its attorneys have any legal right to make such a request. The trademarks they refer to are not a valid basis to make such a request. And, even if they were, they do not have a trademark on magnetic products.
Third, your “Round Peace Sticker, Bark Less Wag More, with removable ‘pie piece’ sections” is merely a colorable imitation of my clients’
trademark, that is likely to cause confusion, mistake or deception among consumers. This product is not likely to cause confusion because: 1: It clearly says "www.CarryaBigSticker.com" on it (it does not say "Cloud Star"). 2: It is round (not oval). 3: It says "Bark Less Wag More" (not "Wag More Bark Less"). 4: It is shaped like a peace symbol. 5: It is twice as big as the Cloud Star stickers and magnets. 6: We never pretend on our Web site or anywhere else that this product is sold by Cloud Star. If the risk of confusion were real, we would be afraid of being confused with that harassing, greedy and litigious dog-food company called Cloud Star. You are using the phrase Bark Less Wag More on, and to sell, adhesive stickers. You transposed the elements that compose the marks WAG MORE BARK LESS and Bark Less Wag More. Your transposition does not change the overall commercial impression of the marks. The Bark Less Wag More mark is very similar in appearance, sound, connotation and commercial impression to my clients’ WAG MORE BARK LESS trademark.
Moreover, your claim of “creation” of the new sticker is disingenuous.
Tell it to the judge, buddy. There is nothing new under the sun. I doubt the folks at Cloud Star were the first to ever utter the phrase "Wag More Bark Less." They certainly did not invent the words or letters that form this phrase. In any case, they have no right to take these words or the phrases that can be formed from them off the market. Free speech trumps greed. You merely transposed the elements of my clients’ WAG MORE BARK LESS trademark and applied the transposition to a common design, in a transparent and unavailing attempt to avoid liability for trademark infringement, false designation of origin and unfair competition.
My clients’ registered WAG MORE BARK LESS trademark is inherently distinctive and my clients have priority of use over your use. My clients have extensively advertised and promoted their WAG MORE BARK LESS brand products. You are continuing to infringe their trademark rights and to palm off of their investment and good will. How much goodwill
is Cloud Star creating by threatening to sue me (and presumably others) for exercising our free-speech rights?
We respectfully ask you to discontinue your sale, offering for sale, distribution, and advertising of adhesive or other stickers bearing the phrase Bark Less Wag More, as more specifically requested in the last paragraph of this email.
Fourth, your ad hominem bombast in the second paragraph of your January
7 email and in your web pages concerning this matter is so sorely lacking in merit, it deserves no response. It absolutely deserves a response. The fact is that Cloud Star does not have a legal leg to stand on, and they probably know it. Hence, there is nothing they can say in response to my so-called "bombast."
The foregoing was not intended as an exhaustive statement of the law or facts. That's for darn sure! The Cloud Star case has no legal basis. That's why they don't bother to discuss the law as they try to make their case. We again notify you of your violation of my clients’ rights and again try to resolve and settle these issues. My clients reserve all of their rights and remedies.
We request that you confirm to us in writing no later than February 16,
2011 that you will immediately (1) stop and discontinue your sale, offering for sale, distribution, marketing, and advertising of magnetic, adhesive, and other stickers containing or using the Wag More Bark Less trademark or the phrase Bark Less Wag More, and (2) stop and discontinue using, to market, advertise, or identify your magnetic, adhesive, or other stickers containing or using the Wag More Bark Less trademark, the phrase Bark Less Wag More, or any phrase, term or designation that is confusingly similar to the Wag More Bark Less trademark or that is likely to cause confusion, or to cause mistake, or to deceive. If we do not hear from you by the close of business on February 16, we will assume that litigation is required to resolve these issues. I have no plans to respond
directly. I don't expect litigation at this point. If Cloud Star was going to sue, they probably would have done it by now. Instead I have merely been bombarded with repeated threats and baseless bluster. But if it comes to litigation, you can be sure that I will
post the details here. Check back often as I plan to post updates to this Web page as events warrant.
Very Truly Yours,
/Stephen A. Spataro/
Spataro & Associates
100 Wilshire Blvd., Suite 200
Santa Monica, California 90401-1111
Telephone: (310) 917-4557
Facsimile: (310) 917-4520
E-mail from Stephen
Spartaro to Dan Frazier received March 10, 2011
We received no response from you to our January 26, 2011 email. Based on your failure to respond, and on our further investigation, we assume that you neither directly nor indirectly claim any copyright, trademark, or other intellectual property or exclusive right in the phrase Wag More Bark Less or the phrase Bark Less Wag More, that you have not made any trademark use of either phrase, and that you will refrain from making any trademark use of either phrase. That seems like a lot of assumptions based on a failure to respond. I assume that the other investigation that "we" did involved visiting this Web page. "We" probably refers to Spataro himself. Spataro's assumptions are correct. I make no claim to copyright or trademark for the phrase "Wag More Bark Less" or "Bark Less Wag More". Such phrases simply can't be copyrighted. They are too short. And of course, as previously explained, I am not using these phrases as trademarks, and therefore I don't see any point in formally applying for a trademark of either phrase. I do however hold a copyright to my design that involves the phrase "Bark Less Wag More" and a peace symbol. That particular combination of lines, words and colors is mine under copyright law, even though I have not formally copyrighted that design. I have no plans to copyright that design. However, I discourage others from copying my design. It's mine. Also, I don't mind telling you that it is not very popular. If you want to steal a design, steal something that is more popular than this design.
Be on notice that if your use of either phrase leads to any public confusion, if you use either phrase as a trademark, if you attempt to claim any exclusive right in or to either phrase, or if you improperly expand your use of either phrase, my clients will consider it willful misconduct and will appropriately commence legal action against you. I'm shaking in my boots. Except I am not wearing boots. Actually, I am not shaking either. I'm losing count of how many times now Stephen Spataro has threatened me with legal action. As I've suspected all along, he has no case against me, and he knows it, and now he is finally admitting it. Basically, he is saying, OK, never mind all that other legal mumbo jumbo I told you before. I was just kidding about that. But if you do anything really bad in the future, then you're really going to get it -- and this time I'm serious gosh darnit!"
We will continue to rely on your prior written confirmation and representation to us that you immediately stopped all of your sales of adhesive stickers bearing the phrase Wag More Bark Less.
Very Truly Yours
Stephen A Spataro
Spataro & Associates