by Marion Nestle
Jul 12 2012

My latest letter from lawyers: VITAMINWATER®

I’ve been away for the last couple of weeks, and am just getting to accumulated mail.  I was surprised to find a letter dated June 18 from Angela Wilson, an attorney at Parks IP Law, a limited liability firm specializing in intellectual property rights.

In her letter, which you can read here in its entirety, Ms. Wilson writes:

We represent Energy Brands Inc., a wholly-owned subsidiary of the Coca-Cola company.  Recently, we noticed that Food Politics used the term “vitamin Water” in the article, “New York Plans to Ban Sale of Big Sizes of Sugary Drinks,” which appeared in the June 4, 2012 edition of your publication (see attached).

I’m confused.  The article attached to the letter is my post, “Weight of the Nation: the new “Hunger in America”?, a June 4 reprint of a column I wrote for the San Francisco Chronicle.  It does not refer to “vitamin Water.”

Foodpolitics.com contains an excellent search engine.  I searched my posts for “New York Plans to Ban….”   No post with that title exists.   I looked at posts about Mayor Bloomberg’s proposed ban on large sodas.  My post about the soda initiative contains plenty of references to Coca-Cola, but says nothing about “vitamin Water.”

A search for “vitamin water” turns up 17 posts, the most recent in 2011.  The most relevant is an account of a class-action suit filed against Coca-Cola by the Center for Science in the Public Interest arguing that “Vitamin Water makes sugary drinks that promote obesity but positions these products as healthful because they contain added vitamins and herbs.”

Never mind.  Let’s focus on the matter at hand.  Attorney Wilson’s letter continues:

It appears that the article may have been referring to our client’s VITAMINWATER® brand, but because Food Politics used the phrase “Vitamin Water,” that may not be clear to your readers.  Accordingly, we write to request that your writers [sic] refer to our client’s trademark properly in future stories. [I used sic because I’m the only writer on this site.]

Her letter suggests that I follow some simple guidelines when referring to her client’s trademark.  You might enjoy reading the entire list for yourself, but here’s a short summary:

  • DO distinguish our client’s VITAMINWATER® trademark as one word (without a space in the middle) and in all capitals or italics
  • DO add the registration symbol (“®”)
  • DO follow all references to our client’s trademark with the words “enhanced water”
  • DON’T use terms such as “vitaminwater,” “vitamin water,” or “vitamin waters”

Ms. Wilson’s letter concludes: “When you use our client’s name correctly, you help protect the integrity of their [sic] innovative enhanced water product.”

[Why sic?  I’m a professor and can’t help this sort of thing.  “Client” is singular; “their” is plural.  Nouns and pronouns should agree.]

I can only imagine the enormous fees that Parks IP Law and Angela Wilson must be getting from Coca-Cola to get me to refer more precisely to its trademarks.

I’ll try.  I promise.

  • http://www.weightymatters.ca Yoni Freedhoff

    LOL! Truly

  • http://weightmaven.org Beth@WeightMaven

    ““New York Plans to Ban Sale of Big Sizes of Sugary Drinks” appears to be a NY Times article* which does mention “zero-calorie Vitamin Waters” I’m guessing your June 4 post simply linked to the NY Times article given the link text (the link itself is currently broken).

    Still bizarre though!

    *http://www.nytimes.com/2012/05/31/nyregion/bloomberg-plans-a-ban-on-large-sugared-drinks.html?pagewanted=all

  • http://26dishes.com Alli

    I needed a laugh this morning, thanks!

  • Dragan

    Ok, so if you’re going to be a stickler about “their,” let’s get some things straight: There is a longer history of “their” being used as a singular and plural pronoun in written English than not and the second entry in dictionaries frequently includes third person singular use, to varying degree of acceptability:

    http://www.merriam-webster.com/dictionary/their
    http://www.macmillandictionary.com/dictionary/british/their

    I would like to the OED record, but currently cannot access it, but if you can do check the record where it provides examples for centuries of dispute on this topic. Hopefully (the AP says this one’s ok now too), everyone can stop getting up in arms about such a pointless argument. There is a need for “they” and “their” to be used this way, as demonstrated by continual use, and anyone who isn’t being pedantic can figure out exactly what they mean used in that context without a lot of effort.

  • Dragan

    Correction: I would link to the OED record…(not like)

  • Sarah Gould

    Off topic, but I wanted to support the use of “they/them/their” as gender-neutral, third-person, singular pronouns. It can sound a little off to grammar-enthusiasts, I know, but it has a long history in spoken and written English, and is understood immediately (more than can be said for alternatives like “zer”). I suppose you could go with “he/she,” but it’s cumbersome and ignores gender-queer folk.

  • tacoland

    Agreed. “Their” is a perfectly acceptable gender-neutral singular pronoun. Vitamin waters are not acceptable.

  • Emma

    I’m told that the use of “sic” is seen as unnecessarily snarky, but I fully support it anyway. Bonus points for mentioning noun-pronoun agreement! Also, why on earth would I need vitamins in my water when I can get them just fine in the old-fashioned way, which is eating?

  • http://www.bring-joy.com Janae @ Bring-Joy

    Ah, you’ve gotta love those nit-picky, pesky lawyers. (my husband is one).

  • Derek

    Couldn’t agree with you more, Emma! When it comes to getting the vitamins and minerals I need, I always say food comes first.

  • Brandon

    Didn’t you already post about this?

  • http://www.wakeupandeat.com Dawn Black

    Perhaps we all should just go with “supplement-enhanced water” a/k/a another way to sell us “stuff-in-a-bottle-that-we-don’t-need-and-is-probably-not-creating-any-positive-health-benefits?”

  • Michael Bulger

    I’d like to offer two ways that the sentence might be rewritten:

    – “When you use our clients’ name correctly, you help protect the integrity of their innovative enhanced water product.”

    In this case, “clients” might refer to the people who consist of Coca-Cola as a whole. Or “clients” could refer to a smaller group of individuals at Coca-Cola.

    – “When you use our client’s name correctly, you help protect the integrity of it’s innovative enhanced water product.”

    In this case, “their” has been changed to “it”. This change avoids the he/she issue that was mentioned by Sarah.

  • Ewan R

    “Why sic? I’m a professor and can’t help this sort of thing.”

    http://public.wsu.edu/~brians/errors/they.html

    Emeritus professor of English at Washington State university would disagree with you.

    It is refreshing to note that GMOs aren’t the only thing you’re spectacularly off the mark on.

  • http://www.imhungryforsomething.wordpress.com Always Hungry for Something

    Good grief.

  • http://fingersandtoes.wordpress.com Sarah

    It was lovely to meet you on your travels.

    I used to be a lawyer (and as I haven’t been struck off, technically I still am) and I would never send a letter containing poor grammar.

    To Michael, I’m afraid your suggestions are also wrong: “client” has to be singular as the client is the corporation rather than the people who work for it; and “it’s” should NOT have an apostrophe.

  • Lori

    IMvHO, this lawyer needs to learn patent law. For starters, even the International Trademark Association says “should” not “must” for a one-time use of ® symbol in media.

    See their “Guide for Proper Trademark Use for Media, etc.” at http://www.inta.org/Media/Documents/2012_TMUseMediaInternetPublishing.pdf

    I’m NOT a lawyer, but I was in publishing briefly but long enough to learn that. I hope a lawyer could speak up here and clear this up. I’m pretty sure that only the company of origin has to be careful of how they write the name of their product, not other people writing about their product. Can someone confirm?

  • Ellen

    Looks like Ms. Wilson is referring to the New York Times article that has the headline she mentioned: “New York Plans to Ban Sale of Big Sizes of Sugary Drinks” does indeed use the term “Vitamin Waters” in an ambiguous way that could be construed as damaging to the trademark. I don’t know much about IP law, but when she says it “appears” in your publication, maybe she means that your column links to that probelematic article? “That’s what New York Mayor Michael Bloomberg’s proposed ban on big sodas is trying to do” is followed by a link that’s now dead, but it would fit for that to be a link to the article Ms. Wilson was talking about.

    As for the sics, it seems forgivable that Ms. Wilson might not be familiar with the number of writers on Food Politics. Many of the other commenters have pointed out that “their” is now considered an elegant gender-neutral alternative to “his” or “her,” and I would expect a small law firm whose partners are exclusively women or minorities, like IP Parks Law, to be sensitive to things like gender-neutrality.

    But it’s hilarious to see the student of a professor who “can’t help is sort of thing” earnestly suggest “it’s” as an alternative. I’m sure Attorney Wilson appreciates your mansplaining, Michael.

  • Michael Bulger

    *its

  • Michael Bulger

    And Ellen, it was “can’t help *this* sort of thing” in Dr. Nestle’s post. ;)

  • Michael Bulger

    If anyone cares to deviate from the fun with grammar, I found this link which reports on the progress of the CSPI lawsuit.

    http://www.bslg.com/news/

    According to this site, the lawsuit is going to mediation. A federal judge has already denied Coca-Cola’s motion for dismissal. The site mentions some other details of Coca-Cola getting in trouble for how they market the sugary beverage.

  • Michael Bulger

    *”I found this link *that*…”

    Okay. This is my last post on the subject. I swear. :)

  • Ellen

    Yeah, I, misspelled problematic, too, and I was mostly just having some fun with you, and I’m glad you took it in that spirit.

  • mamaC

    *scratching head*
    I’m confused as to why it is your responsibility to ensure you are protecting their branding. Maybe they shouldn’t have chosen a name that uses a common phrase.

  • http://smallstepstohealth.com asithi

    I don’t understand why you have to properly use their trademark name either. Like mamaC said, it is a common phrase.

    I tried the drink once, but there is nothing special about it. But I know there is a market for it because I know people who do not like the taste of water. They like to add something to water to make it “taste better.” It’s probably cheaper to add a slice of lemon or orange to water than to purchase vitamin water.

  • Steve

    I don’t understand why this letter is being treated as something bad or even odd. Companies have a responsibility to keep their trademarks from being treated as generic terms. This includes efforts to keep others from using the trademark to refer to a whole class of goods. For example, Thermos used to be a trademark, but was declared to be a generic term in part because the holder did not make such efforts. Many companies take out ads in magazines explaining how to refer to their products to avoid such a fate.

    The letter itself is perfectly polite and not the least bit threatening, so I don’t know why scorn is being heaped on Ms. Wilson.

  • http://www.mehultravels.com/ Dipeshar Chetanna

    Both sides are right, as often happens. It’s a matter of how much, and in what way. In business, to create demand for a product is not the same thing as satisfying demand.
    Consumption leading to obesity is mostly a result of the cheap availability of unhealthy non-foods. Limiting that availability is a function of government in this case. Big Food will never start the process to fight this national shame, it has to be government. And it has to work.

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  • Charlotte

    Stuff and nonsense. You have no obligation to protect the so-called “integrity” of this, or any other product. And you are certainly not required to capitalize it. It is not an acronym, and therefore should not be capitalized. That’s just a cheap marketing trick to have the name of their product stand out in any block of text.
    You really should write a blog post about vitamin waters, all brands, and be sure to use capitals and italics Only should you choose to. Here’s an example: I call BULLSHIT on vitamin waters.