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Quantity: $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.

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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 client's trademark.

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 to win.

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 in annual revenue.

Somewhere along the way, Cloud Star decided to start selling stickers, 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 products.  

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.

What next, 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 capitalism.

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: steve@spataro.com

Jennifer Melton or Brennan Johnson (Cloud Star founders): mail@cloudstar.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.

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