ASCII by Jason Scott

Jason Scott's Weblog

“Use of our client’s trademark to identify enema equipment in erotic fiction is likely to cause confusion” —

Sometimes people wonder how a site like textfiles.com can even be up in the modern world. Sometimes I ask that myself. However, be assured that my life is occasionally interrupted with threats, legal and otherwise. The legal ones are always interesting because someone is being paid to threaten me.

Today, I was finally made aware of a threat waved against my person by a law firm representing C.R. Bard, Inc. of Murray Hill, NJ. Apparently the august firm of Oblon, Spivak, McClelland, Maire and Neustadt had attempted to contact me previously on this pressing matter but were unable to do so. But this time around, they were able to reach me and pass unto me the important news.

Among the other fine jewels and artifacts in the textfiles.com collection are a handful of erotic stories. Over 5,000, in fact. They were primarily the gift of one or two individuals who really liked collecting them. It was pretty simple to put them up. But along the way, they have caused me the occasional headache. One such headache was people who wrote erotic stories in their younger, more lusty years, and signed their real names to them only to later discover that stories they had posted to the internet were still online, with their real names signed to them. Naturally, they come to me, in tones ranging from amused to wild-eyed angry. I get around to the amused ones quicker.

Such it is that we apparently run into the unique situation of the C.R. Bard company and their fine line of products. I hope most people who read this site do not have to deal with such foolish legalistics, but there is an interesting doctrine called dilution of trademark. Let me explain.

In the idea of dilution of trademark, the use of someone’s brand to describe or advocate an illegal or immoral act represents damage to that brand’s reputation. In this case, C.R. Bard, Inc. (of Murray Hill, NJ), the makers of a fine line of medical catheter devices, are completely against the idea that their products could be used in any way to deliver enemas. That is, while they do advocate the use of their materials in standard acceptable ways, under no circumstances should their products foment a rectal invasion. It is wrong, and potentially dangerous to a potential customer in a potential situation where the potential customer has decided to give himself a potential enema using a handy potential device. In this case, we speak of the BARDEX trademark of C.R. Bard, Inc., which does not apparently include devices intended for enemas. Regardless of the fact that it appears many, many people refer to the idea of a “BARDEX Enema”, they are apparently entirely incorrect and unlawful in doing so… not to mention unsanitary.

While I have a lot of people cry “free speech” and “fair use”, in fact this does NOT fall under fair use, thanks to a law called the Lanham Act. Under a somewhat-liberal interpretation of this statute:

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which– (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or….

Getting sleepy. Anyway, it’s a bit of a jump to indicate that textfiles.com, which has no cost, no goods, and no advertising, is intentionally misleading people as to the use of C.R. Bard’s fine product line of BARDEX Catheters because the website contains a set of erotic stories pertaining to enemas. But, they have money and I do not.

The stories are gone, stored away for a rainy day somewhere else besides the Internet. I will not take their suggestion from their letter: “Accordingly, we request you revise the stories to refer to a balloon nozzle, enema bulb or some other generic phrase, without referring to our client’s trademark.” While I have been involved in some interesting side projects along the lifetime of textfiles.com, the careful re-editing of years-old enema stories to not involve the BARDEX trademark is certainly not in the top of my to-do-list.

On a side note, I am not the only site to have suffered the crushing mental blows of the C.R. Bard Company and their valiant lawyer, Roberta S. Bren (who I will refrain from calling the True and Rightful Defender of the Proper Enema). In fact, it turns out that should you decide to commit suicide after a period of worshipping Satan, you are not to refer to the idea of a Vodka Enema as one that requires a BARDEX device. Heed well, purveyors of (fatal) vodka enemas.

For people who are skimming, here is a copy of the threatening letter.


NOT the True and Rightful Defender of The Proper Enema


Categorised as: Uncategorized

Comments are disabled on this post


18 Comments

  1. “I get around to the amused ones quicker.”

    I may still look cynical, but I’m laughin’ like a madman on the inside.

    My lack of maturity can be measured in equal proportion to the intensity of my desire to write and post my own BARDEX story. Even though it would be horrible to associate the fine BARDEX name with the sort of tasteless, juvenile feces-slinging I woud be compelled to create. And in any event, noone would ever think to use BARDEX products in any unsafe, illegal or immoral fashion without unmutual people like myself purveying our filth to unsuspecting minds via the Intarweb. As I think of tons of mirrors springing up, I foresee many long nights of hard work ahead for the one who is in no way, shape or form the True and Rightful Defender of The Proper Enema as she seeks to hunt down and eliminate all improper use of the BARDEX brand.

    I’ve never had an enema in my life, but this leaves me feeling like I want one for my brain. But that’s life these days; when I’m not shaking with rage, I can manage to be pretty darn amused.

    [Given the unmutualness (and my board’s relative lack of significant) I don’t regret not being in the BBS documentary. But I do regret not meeting up with you while you were making it.]

  2. Shannon says:

    They threatened my site as well, about a year ago. Although I responded with the linked entry and did not comply, there was no follow up from their legal team.

  3. underlyingreality says:

    NOT the True and Rightful Defender of The Proper Enema.

    Nicely done. When will they ever learn?

  4. David says:

    It’s too bad that you had to remove the files. Of course, anyone who wanted to read about an enema illegally done with Bardex-brand medical equipment could google for “bardex satnite5.txt” and find the same stories.

  5. speedwell says:

    Oh, it’s not about YOU. They just have to strut and posture as if they’re protecting their precious trademark in case there should come a day when someone REALLY threatens it. Then they can show that they were vigilantly cracking down on infringers all along, by showing a stack of cease-and-desist letters to the judge.

  6. Compulsive says:

    The seem to be a bit anal about not being anal!

  7. Robert Nagle says:

    You should input this cease and desist letter here
    http://www.chillingeffects.org/input.cgi

  8. *whisper* Bardex Bardex Bardex

    Whatever you do on the Internet tonight, now and forever, don’t use the name of the enema equipment company Bardex. Why? Their lawyers will track you down like the trademark-thieving dog that you are. Even on an erotic story forum….

  9. Contributor of the content says:

    Your efforts to retain that collection of stories have been remarkable; had I realized that real names and so on were contained within, I might have waited. So it goes, though. My apologies for not having more to offer than the content itself; would that I could help more, somehow.

  10. Ryan says:

    how bout you just open the stories in BBEdit or somesuch text editor and do a find & replace…

    should be, for moral purposes, a purchased copy of the program ;)

  11. Dr Z says:

    I’ll never top myself while there are people in such dire need of trolling as you and the deletionists both.

  12. kRaft says:

    Threaten people and you end up with a iron-virus. The irony of people who never really knew who you were before you threatened them, now want to incessantly go after you for what you told them to stop doing. Not only them, but everyone they come in contact with. Spreading and spreading and spreading… I think I’m going to go make some BARDEX enema tees.

  13. “Accordingly, we request you revise the stories to refer to a balloon nozzle, enema bulb or some other generic phrase, without referring to our client’s trademark.”

    Ah, medical advice. In my country, such quackery would be illegal.

    Or perhaps it really is a qualified MD who wrote that sentence? In that case there is probably a review board waiting to take their license.

    Just in case you were feeling, say, vindictive?

    (Yes, I know that the stories are a fiction and such products should not be used for enemas. You know that. Everybody knows that except, apparently, Oblon, Spivak, McClelland, Maire and Neustadt, who seem to believe that there are people who would follow up on their advice.)

  14. Matty says:

    She’s pretty hot for a lawyer. I hate it when they lie though…

  15. Bacchus says:

    Wow. One of the early posts on ErosBlog (see my url) was to this lunacy. I’m amazed they are still at it.

    — Bacchus

  16. mythago says:

    You realize that this letter was from boilerplate that they issue for other trademark problems. You likely made the day of whatever junior attorney actually had to write the letter and refer to the stories in order to pull information out of it.

  17. Thank you for a decent laugh this utterly miserable late Sunday afternoon. And ditto to the person on livejournal who pointed out the posting in the first place